Volume 74 — Massachusetts Reports

<p>Ihe St. of 1856, c. 284, entitled “ an act in addition to the several acts for the relief of insolvent debtors, and the more equal distribution of their effects,” and transferring to the courts of insolvency thereby established all the jurisdiction of commissioners “ under and by virtue of the acts to which this is in addition,” transfers the jurisdiction over insolvent corporations under the St. of 1851, c. 327, as well as that over insolvent debtors under the St. of 1838, c. 163, and the acts in addition thereto.</p> <p>By the St. of 1856, c. 284, § 1, judges of insolvency are to be appointed by the governor and conneil, like other judicial officers.</p> <p>The St. of 1856, c. 284, §§ 1, 2, 41, transferring ail the jurisdiction of commissioners of insolvency to “ courts of record, to be called courts of insolvency,” with judges to he appointed by the governor and council, and to hold during good behavior, does not violate the nineteenth article of amendments of the Constitution of Massachusetts, which directs that “ the legislature shall prescribe, by general law, for the election of commissioners of insolvency by the people of the several counties, for such. term, of office aa the legislature shall prescribe.”</p>

<p>The insertion of the words “ not liable for any repairs made in California,” in a policy of in suránce on a vessel, which contains the usual printed clause that “ the insured shall not have the right to abandon the vessel for the amount of damage merely, unless the amount which the insurers would be liable to pay, under an adjustment as of a partial loss, shall exceed half the amount insured,” does not prevent the assured from making an abandonment and claiming a constructive total loss, if the vessel is stranded in San Francisco, and cannot be thoroughly repaired there at a cost of less than three fourths of her value, if the expense of such temporary repairs there as will make her seaworthy to be navigated to New York, (the nearest port at which full repairs can be made,) with the expenses of such navigation and of full repairs at New York, would exceed three fourths of her value.</p> <p>Tn computing a constructive total loss, the cost to be estimated is what it will cost to completely and thoroughly repair the vessel, not merely what will make her seaworthy, capable of keeping the sea with cargo.</p> <p>An abandonment which states that the vessel has been stranded at San Francisco, and is so much injured as to render it necessary to place her on shore, and that she cannot be repaired there, is sufficient to authorize the assured to recover a constructive total loss upon the ground of the amount of damage and the cost of repairs at the nearest port at which repairs can be made.</p> <p>In computing a constructive total loss, the cost of taking a vessel from the place where she is stranded to the nearest port at which she can be completely repaired is to be taken into consideration.</p>

<p>A mortgagee of real estate, to whom a policy'of insurance thereon is made payable in case of loss, is not the assignee of the policy, and is affected by subsequent acts of the assured.</p> <p>A policy of insurance, made to the owner of a mill, upon “ his interest, being one half” thereof, provided that if the property should be sold or conveyed, in whole or in part, the policy should become void, but that the policy “ might continue for the benefit of such purchaser, if the company give their assent thereto, to be evidenced by a certificate of the fact, or by indorsement on this policy.” The assured afterwards obtained another policy from the same company on “ his interest, being three tenths ” of the same mill; and then sold the whole property, and assigned the second policy to the purchaser, by an indorsement thereon, which recited that he had “ sold the within insured property ” to him, and was assented to in writing by the company. Held, that this assent was not a sufficient certificate of the fact of sale, to continue the first policy in force; and that oral evidence that the sale of the whole property was disclosed to the company before their assent to the indorsement upon the second policy was inadmissible to support an action on the first policy.</p>

<p>Action of contract upon a stock policy, whereby the defendants, in consideration of one premium, insured the plaintiffs $5,700 on their stock of goods, and $300 on fixtures in the same shop, and on the face of which were printed the three clauses following : “ Provided further, that in case the assured shall have already any other insurance against loss by fire, on the property hereby insured, not notified to this company and mentioned in or indorsed upon this policy, then this insurance shall be void and of no effect. And if the said assured, or their assigns, shall hereafter make any other' insurance on the same property, and shall not, with all reasonable diligence, give notice thereof to this company, and have the same indorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cease, and be of no further effect. And if any subsequent insurance should be made upon the property hereby insured, which, with the sum or sums already insured, should, in the opinion of the said Howard Fire Insurance Company, amount to an over insurance, said company reserve to themselves the right of cancelling this policy, by paying to the insured the unexpired premium pro rata.”</p> <p>Answer, a policy for $4,000 subsequently obtained by the plaintiffs upon the same stock of goods, and not notified to the defendants, or indorsed upon the policy in suit, or acknowledged by them in writing. Upon the face of the second policy was written, “ other insurances permitted without notice until required ; ” and there were printed clauses precisely like the two first of the three above quoted from the policy in suit.</p> <p>Trial before Bigelow, J., who made a report thereof to the full court, so much of which as is material to the understanding of the points of law decided is stated in the opinion.</p>

<p>An application to a mutual fire insurance company for insurance on buildings contained the following question and answer: “ State whether or not incumbered, to whom, and to what amount: ” “ Mortgaged for $2,000 on the buildings, land, &e.—value $7,000; ” and concluded with an agreement of the applicant “ that the foregoing is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property to be insured, so far as the same are known to the applicant, and are material to the risk; and in case of insurance he holds himself bound by the act of incorporation and by-laws of the company.” The policy was also made subject to the provisions and conditions of the by-laws; and one of the by-laws provided that the policy should be void, unless the true title of the assured should be expressed in the application. The policy also expressed the intention of the company to rely on their lien on the interest of the insured in the buildings and the land under the same. At the time of the application, the land on which these buildings stood, and a larger piece of land, owned by the same person, but separated by a court laid out between them by the owner, were both subject to a mortgage for $2,000 to J. S., and to another mortgage for $800 to another party; and the value of the first piece of land and buildings was $7,000. The assured afterwards indorsed upon the policy an assignment reciting his “having mortgaged the property within mentioned to J. S.” and assigning the policy to him as collateral security; and the company assented in writing to this assignment. Held, that the failure to disclose the mortgage for $800, in the original application, avoided the policy in the hands of the assignee.</p>

<p>in an action brought by a wife, after the death of her husband, against a railroad corporation, for injuries occasioned to her by their locomotive engine, while travelling in the highway with her husband in a vehicle driven by her, his declarations, made in her absence, as to the cause and circumstances of the accident, and his previous knowledge of the disposition of the horse, and his statements showing that knowledge, are inadmissible in evidence for the defendants.</p> <p>In an action against a railroad corporation for injuries occasioned by their locomotive engine to a traveller in the highway at a place where the county commissioners had authorized the corporation, upon certain conditions, to cross upon a level, the record ot the county commissioners, stating that in their opinion no flagman at the crossing war necessary, is not competent evidence of due care on the part of the corporation.</p> <p>In an action against a railroad corporation for injuries sustained by collision with their loco motive engine at a railroad crossing, the plaintiff contended that the defendants had been guilty of negligence in omitting to have a flagman there to give notice of the approach of the train; the jury were instructed “ that it was the duty of the plaintiff to satisfy the jury that this was a necessary, reasonable and proper precaution, in the exercise of ordi nary care on their part, at the place, time and under the circumstances proved at the time of the accident; and that, although the defendants had complied with all the requirements of the statutes, this would not exempt them from liability, if they had omitted other precautions, which, in the exercise of due and ordinary care, they were bound to take, at the time, place and under the circumstances of the accident, the omission of which proper precautions was the efficient cause of the injury to the plaintiff.” Held, that the omission of the judge to distinguish between circumstances which could be reasonably anticipated, and those in their nature extraordinary, but which would make unusual precautions proper, if they could have been foreseen, entitled the defendants to a new trial.</p> <p>In an action against a railroad corporation for a personal injury, an averment in the declaration, that the plaintiff was struck by their locomotive engine while travelling in the highway, is not sustained by proof that, by means of the defendants’ negligence in the management of their train, the plaintiff’s horse was frightened, and ran or was driven out of the highway, five or six rods before reaching the railroad crossing, upon land owned by the defendants, and the plaintiff was there struck, while attempting to cross the railroad. And the declaration cannot be amended after verdict, so as to cure this variance. .</p> <p>The degree and measure of care due from a railroad corporation and from a traveller in the highway, at a railroad crossing, ave precisely the same; being those which men of ordinary sense, prudence and capacity would take under like circumstances in the conduct and management of their respective vehicles.</p> <p>In an action by a traveller in the highway against a railroad corporation, for injuries sustained by collision with their locomotive engine at a railroad crossing, the presiding judge instructed the jury, “ that the plaintiff was bound to use ordinary care in. the conduct and management of his vehicle in the highway, and in the approach to and passage of the crossing; and the defendants were bound to use reasonable care in the conduct and management of their engines and trains, the manner and extent of which would be such care in the management of their engines and trains as would be sufficient to enable a traveller upon the highway, who used ordinary care, there to pass over the crossing in safety.” Held, that these instructions were objectionable, as implying that proof of due care on the part of the plaintiff would of itself show that the defendants were in fault.</p> <p>In an action by a woman against a railroad corporation for personal injuries occasioned to her their locomotive engine, the death of the plaintiff’s husband by the same accident, or the fact that she has dependent children, is not admissible in evidence to increase the damages.</p> <p>In an action for damages against a railroad corporation by a woman who, by being struck by their locomotive engine, had lost one arm and the use of the other, and been otherwise much bruised and injured, so as greatly to impair her health and memory, and put her in constant pain, the plaintiff, at different trials, obtained three verdicts, of $15,000, $18,000 and $22,260, respectively, the two first of which were set aside for errors in the instructions of the presiding judge. The court refused to set aside tlia third verdict on the ground that the damages were excessive.</p>

<p>By a devise and bequest, in trust to pay the net income to a daughter of the testator for life, and, upon her decease, to select out of the property a sufficient amount to pay a certain sum to her surviving husband, and to appraise and divide the residue and convey it in equal shares to her children or their issue in fee, the trustees take an estate in fee; and upon the death of the daughter, and after payment of the sum to her husband, are bound to appraise, divide and convey the residue to her issue.</p> <p>Where property is devised and bequeathed in trust to pay the'income to a daughter of the testator for life, and, upon her decease, to convey to her children then living, in equal shares, and to the issue of deceased children, to hold to them, their heirs and assigns forever; or, in default of any such child or issue, to convey to the heirs at law of the testator, and in case of the death of any child of the daughter, without issue, after its mother, and before its father, the share of such child not to go to its father, but to the testator’s heirs at law; the gift of the share of a child of the daughter, in case of such, death of that child, is to those who shall be then the heirs at law of the testator; but such gift is void for remoteness, and therefore the issue of the daughter are entitled, upon her death, to a conveyance in fee.</p> <p>It seems, that in a will devising and bequeathing property in trust to convey it, upon the termination of a life estate, to certain persons or their issue in fee, and, in default of such persons or issue then living, to the testator’s heirs at law, a provision that this shall not prevent any of those persons, who shall have arrived at a certain age before the termination of the life estate, from disposing of their shares by will, is inconsistent with and defeats the gift over to the testator’s heirs at law.</p>

<p>Che word “ descendants,” in a will, cannot be construed to include any but lineal heirs, without clear indications, in the will, of the testator’s intent to extend its meaning.</p> <p>A testator devised and bequeathed all his property to trustees, and directed them to pay certain debts and legacies, to allow his wife and son the income of certain real estate for life, and to advance a certain sum and lend certain apparatus to W., who had been employed in the testator’s business, to be used in that business, he paying the testator’s son one quarter of the net profits, so long as the son should not be concerned in similar business, and if the son should break this condition, then this sum to fall into the residue of the estate; and further directed that the income of his property, after fulfilling the above provisions, “ and as the same shall fall in from time to time by the termination of life or otherwise, and also the principal of said residue,” should be disposed of as follows: One third of the income to his wife for life, one third to his son for life, and the remaining third to his daughter for life; at the death of the wife, “ one half of the third of said income to which she would be entitled, if living,” to the son, if surviving, and the other half to the daughter, if surviving; at the death of the daughter, “ the proportion of said property, of which she was entitled to the income, shall go to her descendants, in such manner as the same, if her property as a feme sole, would descend or be distributed according to law; ” and upon the death of the wife, if she should survive the daughter, one half of the third of the principal, of which she was entitled to the income, to go to the descendants of the daughter in like manner; and if, at the time when the descendants of the daughter, if any, would be entitled to any of the principal, there should be no such descendants, then it should go to the son’s descendants; and added similar provisions as to the son and his descendants; and provided that if, at the time of the termination of the trust for the payment over of the income of the whole or part of the property, there should be no descendants then surviving of the son or daughter, then such whole or part should go to certain charitable institutions. Held, that upon the death of W., the sum advanced and the apparatus lent to him were tobe added to the residue of the estate; and that, upon the death of the daughter, without issue, in the lifetime of her mother and brother, one third of the residuary fund should be paid to the children of the brother at that time, and their issue.</p>

<p>A. child, living in its father’s house, cannot maintain an action against a gas company for injury occasioned to it at night, by the gas escaping from their gas pipes in the street opposite the house, over which the child and its father have no control, without proving want of ordinary care on the part of the company in keeping the pipes in repair, and ordinary care on the part of itself and its father; and any want of ordinary care in the father will defeat the action in the same manner as it would in the child, if of full age. And if the father knew of the leak early enough in the previous day to have had it repaired before night, by giving immediate notice to the company; or if the father, finding the escape of gas in the house at night to be dangerous, did not use ordinary care in withdrawing the child from the effects, by removing it out of the house, or otherwise; th® action cannot be maintained, although the company’s negligence contributed to th injury.</p> <p>[n defence of an action against a gas company, for injuiy occasioned by their neglect in repairing a leak in their pipes, evidence of their system and course of business in regard to complaints of such leaks is admissible.</p>

<p>Where a mortgage of real property is assigned as collateral security for a debt other than the mortgage debt, and foreclosed by the assignee, by whom the land is afterwards sold, the debt to secure which the assignment is made is not paid by the foreclosure, but only by the actual sale and conversion into money; and where the debt so secured is that of another person, the right of action of the mortgagee against him as for money paid to his use is not barred by the statute of limitations until the expiration of six years after such sale and conversion.</p>

<p>The vote of a religious society, assembled at its annual meeting for the election of officers, that the officers shall be always chosen by ballot, does not invalidate an election of officers by hand vote at a subsequent annual meeting.</p> <p>The election, by hand vote, of officers of a religious society, in which each proprietor has a vote for every pew which he owns, cannot be objected to, upon the ground of the inherent difficulty of thus ascertaining the result, after the election has taken place and the result has been declared.</p> <p>The vote of a Protestant Episcopal Church to increase the number of vestrymen does not affect the rights and powers of the former vestrymen, until the additional members have been chosen.</p> <p>A warrant of the vestry of a Protestant Episcopal Church, calling a meeting of the proprietors to elect officers, may be signed by the chairman and clerk only.</p> <p>The vestry of a Protestant Episcopal Church have authority to call meetings of the proprietors.</p> <p>The vestry of a Protestant Episcopal Church may transact business in the absence of both wardens, if a majority of all their members is present; even if it has been voted at several annual meetings, “ that one warden and four vestrymen constitute a quorum for transacting business.”</p> <p>The reception of illegal votes at the election of officers of a religious society does nc, invalidate the election, if it does not affect the result.</p>

<p>Action of tort. Trial in the court of common pleas, before Bishop, J., to whose rulings the defendants alleged exceptions, the substance of which appears in the opinion.</p>

<p>A volume purporting to contain the laws of another state, with the words “ By authority” printed on the title page, sufficiently shows that it is printed by authority of the legislature of that state, to warrant its admission in evidence under the Rev. Sts. c. 94, § 59.</p> <p>In an action to recover the price of goods sold by a third person, alleged by the plaintiff to be his agent, letters and invoices of that person, and copies of letters sent to him by the defendants, (the originals of which the plaintiff has had notice to produce,) are admissible against the plaintiff to show with whom his agent contracted.</p>

Action of contract on an account annexed of $500 for board of Julia Anderson, the defendant’s intestate, and her mother, from the 15th of August 1850 to the 4th of July 1852; with a count on a special promise by the defendant to pay said bill to the plaintiff. The parties submitted the case to the decision of the court upon the following facts, and agreed that the court might draw such inferences therefrom as a jury might draw.

<p>A writ of entry to foreclose a mortgage made to secure a note to two jointly may be prosecuted, after the death of one of the two, by the survivor.</p>

<p>Action of contract by a seaman for his wages on board a British schooner, of which the defendant was master. Answer, that the plaintiff) at Yarmouth, in the province of Nova Scotia, signed shipping articles for a certain voyage, and left the vessel before the completion of the voyage. Replication, that the vessel was leaky and thereby rendered unseaworthy, and unable to complete her voyage with probable safety, and that the defendant, though requested by the mate and a majority of the crew, had neglected to make proper repairs upon the schooner.</p> <p>At the trial in the court of common pleas, the plaintiff offered evidence tending to prove his replication. But Mellen, C. J., ruled that it would not support his action. A verdict was taken for the defendant, and the plaintiff alleged exceptions. interest in the property to the plaintiff, who informed the defendant thereof, and demanded the property. But the defendant refused to deliver it, and had in fact sold the property, if he legally could, before this demand.</p>

<p>Action of tort for the conversion of boot leather. The parties submitted the case to the decision of the court upon the following facts:</p> <p>This property being owned by Thomas Emerson’s sons, boot and shoe manufacturers, and entrusted by them to John O’Sullivan to make up into boots, for hire and reward, was by O’Sullivan pledged and delivered to the defendant as security for money lent. After the defendant had so taken the property, and while he had it in his possession, the Emersons notified him of their ownership and claimed the property ; but he desired to keep it, in order to find out the person who had pledged it, who was then unknown to him. The Emersons afterwards sold their</p>

Replevin of two cases of cigars. The defendants claimed the cigars as bona fide purchasers for a valuable consideration from Tinkham, Adams & Company.

<p>Slander. “ And the plaintiff says, that the defendant publicly, falsely and maliciously accused the plaintiff of the crime of larceny, by words spoken of the plaintiff substantially as follows : 1 The said Abby is dishonest.’</p> <p>“ And the plaintiff further says, that the defendant publicly, falsely and maliciously accused the plaintiff of embezzlement, by words spoken of the plaintiff substantially as follows: ‘ She,’ (meaning the said Abby, who was then a clerk in his employment) ‘ is dishonest.’ ”</p> <p>Trial in the court of common pleas, before Hoar, J., who signed a bill of exceptions, in which the declaration was set out, and the residue of which was as follows :</p> <p>“ After the reading of the plaintiff’s writ and declaration, the defendant moved the court to rule that the plaintiff’s declaration contained no legal cause of action, and that the action could not be maintained. The court refused so to rule; but ruled that the only objection that could be taken to said declaration was upon demurrer, and that no such objection could be taken at this stage of the cause; and that if it appeared by the evidence that the defendant falsely and maliciously spoke the words as alleged, and under such circumstances and in such connection as to convey a charge of larceny, the action could be maintained. The jury returned a verdict for the plaintiff. To the foregoing ruling the defendant excepts.”</p>

<p>In an action to recover the price of spirituous liquors, which is defended upon the ground that they were sold to be resold by the defendant without license, the defendant cannot, even after proving that no licenses were granted at that time in that county by the county commissioners, and that the plaintiff (who lived in an adjacent city in another county) was frequently, about that time, in the defendant’s shop, and had dealings with other persons in the same city and business as the defendant, introduce evidence that it was then generally notorious in that city that no licenses were granted in the county, for the purpose of showing the plaintiff’s knowledge of that fact.</p>

<p>A guaranty that the owner of stock in a corporation shall receive dividends thereon of a specified amount for a certain number of years, he paying to the contractor all he receives above that amount, is valid.</p>

<p>Action of contract to recover for the passage of the defendant, his family and servants, from Boston to Canton.</p> <p>The declaration alleged that the defendant agreed to pay the plaintiffs, for such passage, the sum of $1,800; that this sum was payable in Canton; was demanded there, and not paid; and that the defendant owed the plaintiff that sum, with interest and China exchange, making $2,400.</p> <p>The defendant admitted the agreement to pay $1,800, but not in China; and offered to be defaulted for that sum.</p> <p>The. trial was before the chief justice, who reserved for the full court this case:</p> <p>It was admitted that the defendant, his family and servants, went out to China in the plaintiffs’ ship; and the plaintiffs introduced evidence tending to show that they made an oral agreement with the defendant for the passage for the sum of $1,800, the passage money to be paid by the defendant in China; and that it was there demanded.</p> <p>It was conceded that there are no regular tribunals in China, in which one foreigner can recover a debt against another.</p> <p>The plaintiffs offered evidence of the rate of exchange between China and the United States at the time of the agreement. But the judge was of opinion “ that, supposing it a contract made here for services, for a given sum, payable in China, and a failure to do so; in a suit brought here, the amount to be recovered is the stipulated sum and interest, computed according to law and usage here, without the addition of China exchange ; and therefore that the evidence was immaterial arid inadmissible.”</p> <p>The plaintiffs then offered evidence to show that they had given orders to invest the money in China, when paid by the defendant. But it was held inadmissible.</p> <p>The plaintiffs further offered evidence to prove that the silver dollar in China is of greater value than the American dollar of account. But the judge ruled, “ that, there being no evidence that the agreement in question was for the payment of silver dollars, or any other species of coin, but generally for a given number of dollars, this must, in law, be taken lo mean dollars of account of the United States, as regulated and fixed by law.”</p>

Action of contract for necessaries furnished to the defendant’s wife, including cash paid to a physician for attendance upon her, while she was boarding at the plaintiff’s house.

<p>Action of contract for money had and received. Writ dated January 15th 1855.</p> <p>At the trial in the court of common pleas before Mellen, C. J., the plaintiff introduced evidence tending to show that Belle McKavlin was his wife, but had, for a year and a half, lived separate from him. He then offered as a witness Charles Barry, clerk of a savings bank in Boston, with the books of the bank. Barry testified that the entries on the books were not made by him, and the defendant therefore objected to their admission ; but the court admitted them on the ground that the entries were made against the interest of the bank.</p> <p>It appeared from the books that Belle McKavlin deoosited $500 in the Savings Bank in August 1854; and that in December 1854 this sum was, on her order, transferred to the defendant, and had been demanded by the defendant of the bank. There was no evidence of any value given by the defendant to said Belle for the deposit until after this suit was brought.</p> <p>The defendant offered evidence tending to show that Belle McKavlin earned the money so deposited by her own labor, partly while living with her husband, and partly since their separation.</p> <p>The judge instructed the jury that if the plaintiff had proved that Belle was his wife, and that the money was deposited by ■ her and transferred to the defendant, and that the money so deposited was the property of the plaintiff, the verdict must be for the plaintiff; and that it made no difference whether it was earned by her labor or not, or while living with or separate from her husband. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>An assignment and delivery by a citizen of New York to a citizen of Massachusetts in New York of property there, to be sold by the assignee and applied pro rata to the payment of certain acceptances of the assignor held by citizens of Massachusetts and Rhode Island, are valid, and the assignee will hold the proceeds of the sale against a creditor attaching them in his hands in this state.</p>

<p>Action of tort for breaking and entering the plaintiff’s dwelling-house. At the trial in the superior court of Suffolk there was evidence of these facts:</p> <p>The plaintiff hired and occupied several rooms on each side of the hall or entry on the third floor of a building in Clifford Place in Boston, being all the rooms on that floor. The residue of the building was also leased by the owner in distinct portions to different families. The plaintiff and other tenants each had exclusive occupation and control of the part of the house occupied by him, except of the stairway and entry, which were for the common use of all the tenants of the house.</p> <p>The defendant was a constable of Boston, and with a writ in his bands as such against one Ramsdell, for the purpose of attaching his goods, went through the entry and up to the door of the plaintiff’s room in which the goods were, and, there finding the door fastened, informed the plaintiff that he was an officer, and showing his process, demanded of the plaintiff to open the door, which he refused to do. The defendant then violently, and against the plaintiff’s wish, broke open the door and attached the goods.</p>

Action of tort for the conversion of a hack. The answer denied the plaintiff’s title and the conversion.

<p>The introduction of the plaintiff’s book of original entries and ledger, with his suppletory oath, in support of an action for goods sold and delivered, does not authorize the defendant to prove that the plaintiff, some years ago, made dishonest charges in other books of original entry against other parties whose accounts appeared in the same ledger.</p> <p>A certificate of discharge, obtained upon second proceedings in insolvency, is no bar to an action upon a debt which might have been proved under the first proceedings, and was not proved under the second proceedings; unless it was discharged under the first proceedings, and renewed by a subsequent promise.</p>

Action of contract on a promissory note. Answer, a certificate of discharge in insolvency. Held: and the defendant took and subscribed the oath in due form. Upon this evidence, Abbott, J. ruled that the adjournment of the second meeting was not a legal adjournment, and that the certificate of discharge was therefore invalid. The jury, under this instruction, found a verdict for the plaintiff, and the defendant alleged exceptions.

<p>A steam engine erected in a building situated on State,Street in Boston, under a license from the board of aldermen, and with the safety plug required by law, is not a nuisance; and the landlord is not liable to third persons for any injury resulting to them from its maintenance or use by the tenant.</p>

<p>An agreement by tenants in common of land, to give “ a good and sufficient warranty deed ” thereof, is complied with by a deed in which each warrants his title to his own jhare only.</p>

<p>Bill in equity, under St. 1851, c. 206, against the Columbia Insurance Company and Henry Edwards.</p> <p>The bill alleged that said company were a foreign corporation, established by the laws of South Carolina, but during the period mentioned in the bill doing business in this commonwealth under the laws thereof; that during said period Edwards wTas their general agent for this state, appointed in pursuance of the statute in that behalf made ; that the company had issued policies to the plaintiff, under which losses had occurred, which had been duly notified to the company, and which they were bound and admitted their liability to pay, but had failed so to do; and that therefore the plaintiff, both before the filing of this bill and the commencement of the action hereinafter mentioned, was and is a creditor of the company to the amount of about $7,000; that the plaintiff had commenced an action at law against the company, to recover the amount due him under his policies, in this court for the County of Essex, and delivered the writ to an officer, with instructions to attach the property of the company, if any could be found; that said officei had made return, that after diligent search he could find no property of the company, which was by law attachable; and that the plaintiff had made diligent inquiries and search for any property of the company in this commonwealth, attachable by law, but could find none, and that there is none.</p> <p>The bill further averred that there is a large amount of valuable property, belonging to the company, now in this commonwealth, in the possession of Edwards, their general agent, but which cannot be come at to be attached, consisting of promissory notes given to the company in payment of premiums on policies of insurance issued by them in this commonwealth; that Edwards may pass said notes out of his possession or con ti’ol into that of other agents or officers of the company, not residing in this commonwealth, and beyond the jurisdiction of this court; and that the plaintiff, in justice and equity, and especially by virtue of the St. of 1851, c. 206, is entitled to have the property now in the hands of Edwards applied to the payment of the debts due him from the company under said policies, and that he is entitled to the aid of this court of equity in that behalf. And the plaintiff prayed that Edwards might be enjoined from passing said notes out of his possession without the order of this court; for a discovery ; for a delivery of the notes to the court; and that the amount due to the plaintiff might be determined, and so much thereof as may be necessary applied to the payment of his debts; and for other relief.</p> <p>The company, in their answer, substantially admitted the averments in the bill, and alleged that before the filing of the bill many suits at law had been commenced against them, and other separate and similar bills had since been commenced against them ; that they were embarrassed, and were and prob ably would be unable to pay their debts in full, and desired that all then- assets should be appropriated in just and equal proportions, if the same should not be adequate to pay all such liabilities ; that the amounts claimed in said suits are more than the amount of assets in said agent’s hands; that if the plaintiff’s prayer should be granted, he would obtain an unjust preference and priority in the distribution of their property over other creditors in and out of the Commonwealth ; that all‘ their property in said agent’s hands, if this court have any jurisdiction over the same in equity, should be appropriated to the payment in just and equal proportion of all their creditors in this commonwealth.</p> <p>The company denied that in justice or equity, or by St. 1851, e. 206, the plaintiff was entitled to have said property in the hands of said agent applied to the payment of his debt in preference to other creditors, and especially to such creditors in this commonwealth; and averred that by virtue of the St. of 1854, c. 453, if this court have any jurisdiction in equity, the said property should be applied equally to the payment either of all creditors in this commonwealth, or of all such as may come in and become parties to a suit in equity, in just and equal proportions, without preference or priority; that the plaintiff’s bill ought to have been brought as a creditor’s bill, and in behalf of himself and all creditors or such other creditors generally or in this commonwealth, as should come in and become parties to the same, and contribute to the expense thereof; that this bill was therefore defective and cannot be sustained; that the plaintiff has a plain, adequate and complete remedy at law ; that the court had no jurisdiction in equity, and the plaintiff had no right to have the property in the hands of Edwards applied to the payment of his debts. And the defendants pray for the same benefit of their objections as if taken by demurrer o-plea.</p> <p>Edwards filed a similar answer, in which he claimed a liei for a balance due to him from the company for services, and fo» such expenses as he might be put to by reason of this bill oi other litigation as to any rights in said property, and for his care and custody thereof.</p> <p>The case was set down for hearing on the bill and answers.</p>

<p>Action of contract for the use and occupation of the second story of a building in Hanover Street in Boston, for the quarter ending January 1st 1855.</p> <p>At the trial in the court of common pleas, at October term 1855, before Mellen, C. J., the plaintiff’s title as devisee of his father was admitted, and the plaintiff introduced evidence that the defendant occupied the rooms in question and paid the rent for the quarter ending October 1st 1854, and continued to occupy the rooms during the next quarter.</p> <p>The defendant offered evidence that the plaintiff’s father, on the 1st of January 1850 made a lease of the building to Nichols, Irish & Church for five years, which, through sundry mesne assignments, came to Shumway & Campbell; and that the defendant entered into possession of the second story in September 1854, and paid the rent of the whole premises on the 1st of October as Shumway’s agent, and occupied as tenant at will of Shumway.</p> <p>The lease contained a covenant that “ the lessees will not lease, underlet nor permit any other person or persons to occupy or improve the same, but with the approbation of the lessor, or those having his estate in the'premises, thereto in writing having been first obtained; ” and also the usual provision for a reentry in case of a breach of covenant. There was no evidence that the plaintiff or his father had ever had any knowledge of the assignments, or consented thereto; or had ever entered upon the premises or taken any steps to' determine the lease.</p> <p>The plaintiff objected to the admission in evidence of any of the assignments. But the court admitted them, and instructed the jury “ that if the lease was in force during the quarter in question, and the plaintiff or his ancestor had not assented to the assignments, he would have a claim on the original lessees for rent; if said assignments had been assented to, his remedy was against Shumway & Campbell; and that if they were satisfied that during the quarter in question the relation of landlord and tenant did not exist between the plaintiff and the defendant, but the defendant was tenant at will to Shumway, the plaintiff could not recover.”</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>A promissory note given by a resident of this state for a preminm on a policy of insurance made to him here by a foreign insurance company, who have not complied with the Bev. Sts. c. 37, and St. 1847, c. 273, $ 2, is void in the hands of the company; although he is a mere agent for a citizen of another state, who is the owner of the property insured, and the policy is expressed to be “ for whom it may concern.”</p> <p>An indorsee for value of a premium note given to a foreign insurance company, who have not complied with the laws of this state, cannot recover thereon, if he knew or had reasonable cause to know, when he took the note, that the company had not complied with such laws; and the fact that he was a director, treasurer and one of the executive com mittee of the company is sufficient evidence that he had reasonable cause of such knowledge.</p>

<p>A guaranty, delivered by the guarantor to the guarantee, of the payment of any sales to be made to a third person, binds the guarantor, without proof of a promise of the guarantee to make such sales, or of formal notice of the acceptance of it, or of notice to the guarantor of each sale as it is made.</p> <p>A notice of the amounts due under a guaranty, and of a demand upon the principal and his refusal to pay, made before suing on the guaranty, is sufficient, if it does not appear that the defendant had suffered any loss by the delay.</p>

<p>When a portion of goods, shipped by one entire contract of affreightment, is lost by fault of the earner, and the residue sold by him by the bill of lading at the port of delivery, without knowing such loss, the carrier, if sued by the consignee for money had and received from the proceeds of the sale, cannot deduct the freight; but may deduct a discount allowed by him to the purchaser on discovering the deficiency in the goods</p>

<p>In an action of tort against an officer for taking on attachment against a third person chattels mortgaged to the plaintiff, the declaration need not allege that the demand made by the plaintiff on the officer, as required by the Rev. Sts. c. 90, § 79, contained a just and true account of the mortgage debt.</p> <p>A demand, under the Rev. Sts. c. 90, § 79, on a? officer attaching chattels mortgaged, which describes a mortgage of a certain date, ma e to secure the sum of $300 with interest from said date, and gives notice that the plaintiff claims “ said sum of $307.90,” as due him on said mortgage, is sufficient.</p>

<p>Action of tort. Trial in the court of common pleas at April term 1855, before Mellen, C. J., to whose rulings the defendant alleged exceptions, the substance of which is stated in the opinion.</p>

Action op contract against the indorser of a promissory note payable at the Merchants’ Bank in Boston. Answer, want of demand on the maker, and of notice to the defendant as indorser.

<p>The rent of a boarding house kept by a single woman without a family is not a claim for necessaries against her, within the St. of 1848, c. 304, § 10, which provides that such claims shall not be barred by a discharge in insolvency.</p>

Trustee process. The city of Boston, on whom, as trustee of Southwick, the writ was served on the 29th of April 1854, answered that it had no goods, effects or credits of Southwick in its possession, unless it was chargeable as his trustee upon these facts: In an action of tort, brought by Southwick against the city in this court, a verdict was rendered in his favor on the 20th of April 1854, for $12,000 and costs; on which judgment was rendered on the 8th of May, and on the…

<p>In an action on a debt from which the debtor has received a certificate of discharge m insolvency, evidence of promises made before the commencement of the proceedings, to pay the debt notwithstanding, are inadmissible; and their admission is ground of exception, although accompanied by evidence of a subsequent promise, and “ only for the purpose of showing that the defendant would be likely to make the promise after he went into insolvency, and as showing that he considered it an honorary debt,” and although the jury are instructed that “ to entitle the plaintiff to recover, they must be satisfied that the defendant, after the commencement of the insolvency proceedings, unconditionally promised the plaintiff to pay his debt.”</p>

<p>Action of contract for money had and received. The case was submitted to the superior court of Suffolk on the following facts:</p> <p>On the 20th of January 1855, the defendant executed to u Mary Casey, wife of Cornelius Casey,” a deed for the conveyance of certain land in East Boston to her upon the payment by her of certain sums of money; and at the same time received from her the first instalment of such purchase money, (which was the money now suev for,) and gave her a receipt therefor. Said money was in fact taken by the wife from a savings bank in Boston, where it had been deposited by her in her own name. The plaintiff was at that time serving out a sentence in the house of correction, and was ignorant of the transaction between his wife and the defendant, and never received the bond, which was left for record by his wife in the Suffolk registry. The plaintiff’s wife, during the negotiations for the estate, and at the time of payment, always declared to the defendant that the money was her own. She has since declared that it was her husband’s, left in her hands by him. Neither the plaintiff nor his wife has had possession of the estate. The plaintiff, on the 7th of February 1855, gave notice to the defendant that he disaffirmed the transaction, and that the bond had never been delivered to him, but might be found and received by the defendant at the registry of deeds; and demanded of the defendant the money paid to him- by the plaintiff’s wife as aforesaid. The defendant refused to comply with this demand, and therefor this action was brought.</p> <p>The superior court gave judgment for the plaintiff, and the defendant appealed.</p>

<p>Action of contract to recover $238.25, “ which the defendant promised to pay the plaintiff, in consideration that he would enter into his employ in the making and repairing of piano fortes.” Answer, a denial of the promise; and the statute of frauds.</p> <p>At the trial in the superior court of Suffolk at January term 1856, before Huntington, J., the plaintiff introduced evidence that before the 8th of September 1853 the defendant had been in the habit of furnishing stock to one Hamblin to make pianofortes, and, when they were finished, advancing the money for the labor, and taking bills of sale of them; that on said 8th of September two pianofortes were finished, and in the depot fot sale, and the plaintiff threatened to attach them, or assert a lien for his work upon them, unless a note for $238.25, then due from Hamblin to him for labor, (with which note and labor the defendant was in no way connected,) was paid; and that it was then agreed between the plaintiff and the defendant, in the presence of Hamblin, that the plaintiff should finish up all the unfinished work for the defendant, and be paid the same prices which the defendant was then paying Hamblin; and the defendant agreed “ that if the plaintiff would go on and finish up the instruments, the defendant would pay him the amount of the note,” to which the plaintiff consented, and agreed to give up the note and abandon all claim on Hamblin, and afterwards did give up the note.</p> <p>The bill of exceptions, after reciting this evidence and some testimony introduced by the defendant, stated that “ there was other evidence in the case, which the defendant and the plaintiff respectively relied on to maintain the issues raised.”</p> <p>The defendant’s counsel, in his closing argument to the jury, contended “ that the evidence, as reported, even if the jury believed it to be true, was not sufficient to bind the defendant to pay the note; and that it proved no such consideration between the parties, as would take the case out of the statute of frauds.”</p> <p>The court declined so to rule; and instructed the jury “ that whether the case was within the statute of frauds, or not, depe nded upon whether the contract between the parties was a new and original one, or a mere promise to pay the existing debt of another, and collateral; that giving up some advantage oi submitting to some loss would be sufficient to create an original contract; that it was for them to determine, upon the evidence, what the agreement was between the parties; and that if the evidence satisfied them that the plaintiff, at the time of the alleged contract, agreed to give up his claim against Hamblin, and the defendant promised on his part to pay the amount to the plaintiff, and if it was also at the same time agreed that the due bill should be cancelled and given up to Hamblin, and if it was so cancelled and given up in pursuance of such agreement, it would constitute a good consideration, not within the statute of frauds.”</p> <p>The jury found a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of tort against a railroad corporation for the loss of a trunk entrusted to them as common carriers.</p> <p>At the trial in the superior court of Suffolk at January term 1856, before Abbott, J., it appeared that the defendants were the owners of a railroad in this commonwealth, and common carriers of passengers thereon; that the plaintiff, having purchased a ticket of them, was a passenger in their cars from Boston to Waltham, with her trunk; that upon her arrival at Waltham she asked the conductor of the train to take charge of her baggage, saying that she would, send for it as soon as she had secured a boarding-place ; to which the conductor assented, and directed the defendants’ baggage master to take charge of it, which he did; but a day or two after, it was stolen from their custody, and on the next day, when the plaintiff sent for it, could not be found, and had not been found since.</p> <p>The plaintiff then offered a schedule of the contents of the trunk, supported by her own oath, which was objected to by the defendants, but admitted by the court. The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

Action of tort against a deputy sheriff for the conversion of a carriage. Answer, a denial of the plaintiff’s property.

Action of contract by a loser of money at gaming, on th Rev. Sts. c. 50, § 12, which provide that any “person, losing money at gaming and paying it to the winner, may sue for and recover such money, in an action for money had and received to the use of the plaintiff, or he may bring a special action on the case therefor ; and if the person, so losing said money, shall not, within three months after such loss, without coercion or collusion, prosecute with effect for such…

Action of contract on a bond for the liberty of the prison limits. Answer, a discharge upon taking the poor debtors’ oath.

Action of contract on a bond for the liberty of the prison limits, executed by George Odiorne as principal, and the other defendant as surety, and conditioned, as required by the Rev. Sts. c. 97, § 63, that Odiorne (who had been, on the day of the date of the bond, committed to jail on an execution obtained at the plaintiff’s suit) 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…

Action of contract on a bond, which recited that Henry Sperry had contracted with the defendant, by indenture of even date therewith, to build for the defendant on the defendant’s land on Grove Street, in Boston, “ and adjoining a house now owned by John Fisk, two brick dwelling-houses; both of said houses to be of same depth back from the street with said Fisk’s house, and each to be of one half of the width of said Cutter’s lot of land aforesaid; and said Sperry is to…

<p>In an action by two partners for goods sold and. delivered, after the introduction of their book of original entries, kept by one partner, with his suppletory oath that he made the entries, and delivered the goods to his copartner to be delivered to the defendant, the other partner may testify that he did deliver the goods to the defendant.</p>

<p>Replevin of a promissory note for $1,408.05, dated May 3d 1854, signed by Brett Company, payable to their own order in six months, and indorsed by them and by the plaintiffs. Writ dated November 3d 1854. Answer, property in the defendants, and that the defendants took the note so indorsed, before it was due, in the regular course of their business, and for a valuable consideration. Trial in this court before Merrick, J., who made this report thereof:</p> <p>“ It appeared that the plaintiffs were furniture dealers in the city of Boston ; that they received from Brett & Company the note in question, in payment for certain parcels of furniture sold to them; that the plaintiffs, being thus the owners and having possession of the note, put the same, about the 1st of July 1854, into the hands of Weston, one of their clerks, to be deposited by him for them in the Exchange Bank in Boston, for collection ; that Weston, having received the note for that purpose, started to go to the Exchange Bank; but having business in his way there at the office of Willis & Company, who were then doing business as brokers in State Street, he first stopped at that place, and transacted certain business with them, and, while there, accidentally placed the <iote on their counter, and afterwards went away, leaving it there. He then went to the Exchange Bank, and from thence returned to the plaintiffs' place of business. He there first discovered, upon reflecting upon what he had done, that he had not deposited the note in the bank, and supposed that he had by mistake left it at the office of Willis & Company. Soon after this he started to go there to make inquiries about it, and on his way met Davis, one of the partners of the firm of Willis & Company, and was told by him that he had found the note on the counter and had taken care of it, and would deliver it to Weston whenever he should call for it. In a day or two afterwards Weston called at the office for the note; but Davis, being busy, could not then lay his hand upon it, and requested Weston to call for it on another day. The firm of Willis & Company failed soon after this, namely, on Saturday, the 8th of July. On the Monday following, Weston called again for the note, but did not obtain it. Davis testified that after he found the note, and after Weston called for it the first time, he (Davis) put the note in a wrapper, and wrote the plaintiffs’ name upon it.</p> <p>“ Very soon after the failure of Willis & Company, the plaintiffs learnt that in some way the note had been passed over to the Granite Bank. There was no evidence offered by either party, showing the precise time or purpose for which the note was passed to the Granite Bank, or by whom it was done. But it did appear, upon the examination of the books and papers of the bank, on or about the 25th of July 1854, by Alpheus Hardy, who succeeded Henry M. Holbrook as president of the bank, that Willis & Company were then indebted to the bank for what was called a demand loan, in the sum of twenty six thousand dollars, for which sum the bank held several memorandum checks of Willis & Company, and that the bank then also had, in a trunk in the bank, in which the collateral notes and securities for demand loans were usually kept, a package of notes, amongst which was the note in controversy, inclosed in a wrapper labelled or indorsed in a way to indicate that the notes were held as collateral security for the indebtedness of Willis & Company on their demand loan.</p> <p>“ Holbrook, the former president of the bank, being called as a witness for the defendants, testified that he was president of the bank from February 1852 to the time of the failure of Willis & Company on the 8th of July 1854; that during the whole of that time he had made demand loans for the bank to Willis</p> <p>& Company, taking, whenever he made such loans, the memorandum checks of Willis & Company, payable on demand, and indorsed promissory notes, passed by Willis & Company to the bank as collateral security for the same; that he was well acquainted with Willis & Company and with their manner of doing business; and that from such knowledge of Willis & Company and of their business, and also from what Willis frequently told him at the times when the demand loans were made, he always supposed that the said indorsed promissory notes, which Willis & Company thus passed over to the Granite Bank as collateral security, were not notes which they had discounted or purchased and paid for in full, but were notes on which Willis & Company had made partial advances, and which they held as collateral security for the loans so by them advanced on those notes severally ; and that he also supposed that under such circumstances Willis & Company had a right to transfer and assign those notes to the bank as collateral security for the indebtedness by them incurred on demand loans to them by the bank, and that the bank had a right to receive and hold such notes for that purpose.</p> <p>“ Holbrook had no recollection of the particular note now in question, nor of any transaction by virtue of which the bank acquired possession of it; but from the place where it was found on the files, he had no doubt but that it was received as collateral security for a loan when made.</p> <p>“ It was conceded that Willis & Company never made any advances upon this note, or in any way acquired any title to it; and that the plaintiffs never themselves, or by any agent of theirs, sold, assigned or transferred it, or any interest in it, to anybody.</p> <p>“ Upon the foregoing facts and circumstances, the court having intimated to the counsel that the court would instruct the jury, that if the bank took the said note from Willis & Company as collateral security for their indebtedness on the demand loan made to them ; and if the circumstances under which they took it were not in the usual course of business, but were of such a suspicious character as to cast a shade upon the transaetion, and necessarily to put them on inquiry as to the right of Willis & Company to the note, and their right to sell, dispose of and pledge it; the bank, having so received it, could not maintain their title to the note against the plaintiffs, who were the true and lawful owners of it; and further, that the facts testified of, as before recited, by Holbrook, were in themselves sufficient so to. put the bank upon its guard, and upon the inquiry aforesaid; it was thereupon agreed that a verdict should be taken for the plaintiffs, and the proposed instructions should be reserved for the consideration of the whole court; and that if, in the opinion of the whole court, the proposed instructions were correct, and such as were proper to have been given to the jury, then judgment should be rendered for the plaintiffs on the verdict; otherwise, it should be set aside, and a new trial ordered. A verdict was thereupon accordingly taken for the plaintiffs.”</p>

Replevin of three hundred and ninety seven barrels of floui.

Two, actions of contract upon the agreements of David Henshaw, contained in this paper: “ $23,000. Boston, January 24, 1850. Please deliver to Messrs. Corcoran and Riggs or order Bonds of the Chesapeake and Ohio Canal Company to the amount of twenty three thousand dollars, which I am now entitled to receive under my subscription of $100,000, on their paying you therefor sixty cents on the dollar. “ Very respectfully your obedient servant, “ David Henshaw. “ Messrs.

<p>The shipper named in a "bill of lading may sue the carrier for an injury to the goods although he has no property, general or special, therein.</p>

<p>ITpon a contract in writing, by which the subscribers “ agree to pay the sums set against their respective names, to such persons as shall be authorized to receive the same, for the establishment and support of a new ferry from East Boston to Boston, the location of which shall be determined by the committee recently appointed at a meeting of the citizens; provided sufficient is subscribed for the,purpose; the same to be represented by the certificates of stock to be created by the company hereafter to be organized,” a corporation, established after the date of the agreement, cannot maintain an action against one who subscribes it after such organization, for the amount of his subscription, at least until a sufficient sum has been subscribed to pay for all lands, structures and boats of the ferry, free of incumbrances.</p>

<p>A creditor of an insolvent debtor, who attaches his property after the commencement of proceedings in insolvency and before the assignment, has sufficient interest to maintain a bill in equitj' to set aside the proceedings. But if the attachment is not made until after the assignment, guare.</p> <p>The want of an authorized signature to the petition of a creditor under the insolvent laws is ground for setting aside the proceedings.</p> <p>It seems, that a commissioner of insolvency has power to allow a creditor’s petition to be amended so as to set forth more precisely and fully the. debt originally relied on.</p> <p>The facts stated in a creditor’s petition under the insolvent laws must be proved by legal and competent evidence; and it seems, that taking the testimony of a material witness without oath or affirmation, is ground for setting aside the proceedings.</p> <p>A decree of this court in equity, affirming the validity of proceedings in insolvency, upon a petition of the debtor to set them aside, is conclusive against any subsequent application by a creditor to set aside the proceedings on the same and other grounds; even if this creditor had no notice of the first petition to this court.</p>

<p>A statute conferring on police courts concurrent jurisdiction with the court of common pleas and the municipal court of Boston “ of all larcenies where money or other property stolen shall not be alleged to exceed the value of fifty dollars, in all which cases the punishment imposed may be such as the court of common pleas and the municipal court are authorized to inflict by existing laws,” includes aggravated as well as simple larcenies.</p> <p>A statute, which authorizes a single magistrate to try and pass sentence in a criminal case, but gives the defendant an unqualified and unfettered right of appeal, and a trial by jury in the appellate court, subject only to the requirement of giving bail for his appearance there, or, in default of such bail, being committed to jail, is not unconstitutional as impairing the right of trial by jury. Thomas, J. dissenting.</p> <p>A statute, which gives a single magistrate authority to try an offence punishable by imprisonment in the state prison, without presentment by a grand jury, violates the twelfth article of the Declaration of Rights. Merrick, J. dissenting.</p>

Action of contract, commenced in the justices’ court for the county of Suffolk, by a writ which contained a direction to attach goods to the value of' $200, and a declaration on an account annexed of $123 for goods sold, and an ad damnum of $100. The defendant pleaded to the jurisdiction of the court, that the claim sought to be recovered exceeded in amount the sum of $100.

<p>An indictment on St. 1853, c. 194, against two, for having in “ their possession,” on a certain day, certain tools and implements, designed and adapted for breaking open buildings, sufficiently charges a joint possession; and is supported by proof of the commission of the offence on any day before the finding of the indictment.</p> <p>An indictment on St. 1853, c. 294, which alleges an intent to use the implements for the purpose of breaking open houses and shops, in order to steal from the owner thereof money and goods, need not describe the buildings intended to be broken open, nor the property intended to be stolen, nor name.the owner of either.</p> <p>An indictment on St. 1853, e. 194, is supported by proof that some of the implements described in the indictment were in the possession of the defendant, and adapted and designed for the unlawful purpose specified.</p> <p>Ft is not necessary, to support an indictment on Sf. 1853, c. 194, that the tools or implements should have been originally made or intended for an unlawful use.</p> <p>On the trial of an indictment against two, on St 1853, c. 194, after proof of a common design or enterprise of the defendants, the declarations of one in relation to the joint enterprise are admissible in evidence against both.</p> <p>An indictment on Si. 1853, c. 194, is maintained.by proof of possession, either actual or constructive, with the guilty intent. But proof of possession of implements by one defendant, both intending to use them in a joint undertaking, is not sufficient.</p>

Three writs of error to reverse as many judgments of the court of common pleas in Middlesex on as many complaints against the plaintiff in error for unlawful sales of intoxicating liquors, in violation of St. 1855, c. 215, § 15.

<p>A complaint on the Rev. Sts. c. 50, § 1, for keeping open a shop on the Lord’s day for the purpose of doing business therein, is supported by evidence that the owner, his servant or agent, permitted the door to remain unlatched so as to admit persons for the purpose of doing business therein.</p>

Indictment for an assault upon John Woods, at Boston. At the trial in the municipal court, Abbott, J. allowed the county attorney to introduce evidence to prove an assault upon Woods in Chelsea, notwithstanding the defendant’s objection that this was a variance. The defendant, being convicted, alleged exceptions.

Indictment on the Rev. Sts. c. 125, § 14. The indictment averred that the defendant on the 5th of July 1856 at Boston, “ the said Patrick then and there being armed with a dangerous weapon, to wit, a gun, then and there loaded with powder and leaden shot, and then and there capped, in and upon one Charles Quinn an assault did make, with the felonious intent the said Quinn with said gun to kill and murder, by then and there feloniously, wilfully, and of the malice…

Action of tort for the conversion of an engine lathe. The answer denied both the plaintiff’s property and the conversion.

Petition by the executors of the last will of William E. Priest, for leave to sell, for the payment of legacies, a dwelling-house in Boston, devised by him to his only daughter, who had since died, unmarried and under the age of twenty one years. The following are the material parts of the will: “ After payment of all my just debts and funeral expenses, I hereby give and bequeath the property of which I may die possessed, as fc Hows: “ First.

Action of tort for the conversion of a horse to which the plaintiff claimed title under a sale from Patrick F. Clancey Trial in the superior court of Suffolk at January term 1856 before Nelson, C. J., who signed this bill of exceptions: “ At the trial, the plaintiff produced from the files of the court, and offered in evidence a deposition of Clancey ; and the defendants objected to said deposition, because it nowhere appeared that the said deposition had been inclosed,…

. Petition for a writ of habeas corpus presented on the 2d of March 1857, by one imprisoned in the house of correction, (of which the respondent was master,) under a mittimus issued by the court of common pleas in Middlesex on the 15th of November 1856, after the petitioner had been convicted in that court of being a common seller of intoxicating liquors, and sentenced to pay a fine of fifty dollars and costs of prosecution, and be imprisoned in the house of correction three…

Two actions of contract upon one agreement in writing, dated December 8th 1854, between Samuel Bacon of Binghampton, N. Y., and Levi B. Warner of Brooklyn, N. Y., for the sale by Bacon to Warner of land in Egremont, with a dwelling-house and barn thereon, and including a wood lot, for the price of $3500, for $2000 of which Bacon should receive a house and lot in Brooklyn, N. Y., and the residue in certain stock and a note for $500; the respective deeds to be made and…

<p>Action of tort for digging a watercourse in a highway in Egremont in front of the plaintiff’s premises in 1854, so as to incommode him in passing to and from his dwelling-house and barn. The defendant justified the alleged trespass on the ground that he was acting by the direction of the surveyors of highways of the town for the year 1854, in repairing said highway, and did no more than the public convenience and necessity required, and that all his acts in the premises were approved by said surveyors. Trial in. the court of common pleas, at October term 1856, before Briggs, J., who signed this bill of exceptions:</p> <p>“ The plaintiff introduced evidence of the alleged trespass,» and of the damage to the plaintiff, and rested his case.</p> <p>“ The defendant, at the suggestion of the court, then introduced his evidence, confining it to proof of the authority given him and the appointment of the said surveyors. It appeared from the records of the town that for the year 1854 three selectmen were chosen, and were subsequently elected surveyors of highways at large for the same year. And the defendant’s evidence tended to show that the three surveyors all authorized and approved the acts of the defendant.</p> <p>“ Upon the introduction of the defendant’s evidence on these points, the court proposed to instruct the jury that, if they believed that the defendant, in repairing this road and making the ditch, acted under the direction of the selectmen, acting as surveyors of highways, the plaintiff could not maintain this action.</p> <p>“ The plaintiff then proposed to offer evidence to prove that, in making the ditch in question, all the parties connected with it, especially the defendant, acted wantonly and for the purpose of injuring the plaintiff, and that the acts done were not'*' necessary to be done to repair the road as required by law. The defendant objected to this evidence. His objection was overruled, and, for the purposes of this trial, the evidence admitted.</p> <p>“ The defendant then introduced the three selectmen who acted as surveyors, whose testimony tended to prove that the repairs done upon the road, and which were complained of by the plaintiff, were done under their authority and direction, and that the same were approved by them, and that what was done was necessary and proper for the repairing of the road.</p> <p>“ One of the defendant’s witnesses, who was also one of the surveyors, on cross-examination by the plaintiff, denied that he had ever stated to other persons, upon other occasions, since the work was done, that he had not directed the work to be done in the manner it was done. The plaintiff afterwards offered to prove, by another witness, that said surveyor had at other times said and stated that he had not directed said work to be done as it was done. The defendant objected to this evidence; but his objection was overruled, and the evidence was admitted.</p> <p>“ The defendant offered to prove the nature of repairs on other parts of the road, for the purpose of showing that no more was done in front of the plaintiff’s premises than was done elsewhere; it having been testified by one of said surveyors that he instructed the defendant to plough and scrape in front of the plaintiff’s premises, as he did in other parts of the road. The plaintiff objected to this evidence, and the court excluded it.</p> <p>“ In the course of the trial, the plaintiff offered evidence of the condition of the highway as to repairs at another place on the road, where repairs were also made by the defendant to some extent, at or about the time of the alleged trespass, for the purpose of showing that no ditches were there made by the side of the road. The defendant objected, but the court admitted the evidence.</p> <p>“ Upon the whole evidence, the court ga\e the following instructions to the jury: If the jury are satisfied that the selectmen of Egremont, acting as surveyors of highways, in good faith employed and directed the defendant to repair the road adjoining the plaintiff’s land, and the defendant, in pursuance of that employment and direction, did the work and made the repairs on that part of the highway, as directed by the surveyors, and they approved of what he had done, the plaintiff, though he may have been injured and aggrieved by what the defendant so did, under the direction of the surveyors, cannot maintain this action ; but his only remedy is under the statutes of the Commonwealth. But if, in making the ditch complained of by the plaintiff, all the parties connected with it, especially the defendant, acted wantonly, for the purpose of injuring the plaintiff, and the acts done were not necessary to be done to repair the road as required by law, the defendant is responsible to the plaintiff in this action for damages.' If the defendant, in making the repairs on the road against the plaintiff’s land, designedly exceeded his authority, for the purpose of wantonly injuring the plaintiff, he is liable in this action for any damages done by that excess. If the surveyors acted in good faith in giving directions to the defendant, and he followed and complied with those directions, and the plaintiff was injured by the work, though, in doing the work, the defendant might have been actuated by ill will towards the plaintiff, he would not be liable for damages in this action. To these rulings and instructions the defendant excepts.”</p>

Action of tort, commenced on the 4th of January 1854, for breaking and entering the plaintiff’s close in Great Barrington, and cutting and taking away wood and timber. Answer, soil and freehold in the defendant.

Trespass for breaking and entering the plaintiff’s close. Answer, a verdict and judgment recovered by the defendants upon an issue of nul disseisin, on a writ of entry brought by the plaintiff to recover the same land; since which the plaintiff had acquired no new title. The plaintiff demurred to the answer.

Bill in equity to enforce the following trust in the will, dated September 13th 1844, and proved December 6th 1852, of Sanford Fitch, of Alford, who died on the 30th of November 1852. u I give and bequeath unto the Universalist Religious Denomination in the county of Berkshire the sum of one thousand dollars, as a permanent fund, the use to be applied for the support of that denomination.

Action of tort for the injury occasioned to the plaintiff’ farm by the accumulation of snow thereon in consequence of the erection and maintenance of a fence by the defendants.

Writ of error sued out by Samuel F. Horton and Warren Delano, Jr. to reverse a judgment of the court of common pleas, in favor of Alden Wilde against them jointly, upon an award of referees under a submission entered into before a justice of the peace, under the Rev. Sts. c. 114. The error assigned was, that Delano did not sign or acknowledge the submission, nor appear before the referees, and that the referees therefore had no jurisdiction.

Writ of entry to recover land in Otis. The parties submitted the following case to the decision of the court. The tenant claims title under a levy of execution on a judgment recovered by him against the demandant.

<p>Action of contract on a warranty of soundness of a horse exchanged by the defendant with the plaintiff for another horse. Trial in the court of common pleas at October term 1856, before Briggs, J., who signed this bill of exceptions :</p> <p>“ The unsoundness alleged was, that the horse was a cribber, and that he was so affected by that complaint or disease that he was rendered much less valuable. The plaintiff offered evidence to prove the warranty in that respect, and as to the character of the horse in other respects ; and he also offered evidence tending to show that said horse was a cribber before and after the exchange, and that his health and flesh were injuriously affected, by cribbing. The defendant offered no evidence on this point. The plaintiff also offered evidence tending to prove that said horse was vicious in double harness.</p> <p>“ In opening the defence, the defendant’s counsel contended that the cribbs, or the habit of cribbing, was not an unsoundness in a horse, but a habir, and was proceeding to read to the jury, from Dr. Dodd’s Veterinary Surgeon, a description of the habit of cribbing in horses, as a better mode of showing what cribbing was, but not, he said, as evidence in the case. The plaintiff’s counsel objected to his thus reading, and the court sustained the objection and refused to let him proceed in reading.</p> <p>“ The defendant’s counsel also asked the court to instruct the jury, as a matter of law, that cribbing was not an unsoundness in a horse, for which an action could be maintained in an alleged breach of warranty of soundness. The court declined so to instruct the jury.</p> <p>“ But the court did instruct the jury, that whether the horse in this case was a cribber or not, and, if he was a cribber, whether his health and condition were so affected by it as to render him less able to perform labor and service and of less value, were facts for the jury ; and if they were satisfied from the evidence that the horse was injuriously affected in his health and flesh, so as to be less able to perform service and rendered of less value, he would be entitled to recover, as damages for that defect, the amount that he was so affected; that the burden of proof was on the plaintiff to show that the horse had the cribbs, and that he was rendered less valuable by them. To which rulings and instructions the plaintiff excepts.”</p>

Writ of entry by the wife of Darling Wilbur to recover a house and farm in Adams, less than $800 in value, for ten years owned and occupied by him and his wife and family of children as a homestead.

Action of contract by the assignee of six shares in the defendants’ capital stock, to recover interest thereon under the following agreement made between the defendants and the original subscribers: “ We, the subscribers associated in this enterprise, do hereby severally agree with said corporation to take the number of shares placed against our names respectively, upon the following terms and conditions, viz : until the proposed railroad is put in operation, interest shall…

<p>By the Bav. Sts. c. 101, $§ 15, 24, an application for the assessment of rents and profits upon a writ of entry cannot be made after verdict for the demandant on the title, unless an order is passed by the court, before such verdict is recorded, postponing the assessment.</p>

Action of tort for slander in charging the plain dff with adultery. Trial in the court of common pleas at October term 1856, before Briggs, J. Alonzo Stafford, a witness called by the plaintiff, testified to the slanderous words alleged ; and, in connection with the alleged slander, testified that the defendant stated that the plaintiff, in various particulars, maltreated his wife and had difficulty with her.

<p>No appeal lies from the determination of the court of common pleas under the Rev. Sts. c. 107, § 5, of the amount for which conditional'judgment shall be entered on a writ of entry to foreclose a mortgage, unless the record shows that a question of law was involved.</p>

<p>Action of tort for breaking and entering the plaintiff’s close in Lanesborough, and digging up the soil, on the 16th of July 1855. The defendant admitted the entry and digging, and claimed the right to do so to repair an aqueduct laid down across the plaintiff’s land.</p> <p>At the trial in the court of common pleas at October term 1856 before Bishop, J., the defendant called Oren J. Farnum, under whom the plaintiff claimed title, who testified “ that about thirty .eight years ago the defendant laid down this aqueduct, which conveyed water from a spring on the land of his father, John Farnum, across the locus, to the house and barn of the defendant ; that said aqueduct was first of logs, and, some years after, lead pipes were laid down in their place; that from the time the aqueduct was laid down to the time of the alleged trespass the defendant had enjoyed said aqueduct, and from time to time, as occasion required, entered upon the plaintiff’s land and made repairs; that he had never heard any objection by the owners or occupants of the land.”</p> <p>There was evidence tending to show that the plaintiff had forbidden the defendant’s entry upon the premises for the purpose of repairing the aqueduct; and had ordered him and his servants off, when there, making repairs. The plaintiff requested the judge to instruct the jury “ that, as respects the pacific and uninterrupted character of the enjoyment or user, by the civil law, any enjoyment or user was deemed forcible to which opposition was offered, either by word or deed, by the owner of the servient tenement.” The judge refused to give such instruction, and instructed the jury “ that words, however strongly denying the rights claimed by the defendant, or forbidding their exercise, únaccompanied by any act or deed, were not an interruption of the defendant’s user and enjoyment; ” and “ that if they found, from all the evidence in the case, that the defendant had used said aqueduct, conveying water as now, either in logs or in lead pipes, across the plaintiff’s land, and had used the same continually and uninterruptedly for more than twenty years before the trespass complained of; that this was known to the owners of the land, and the defendant had entered and made repairs from time tó time, with their knowledge, and there was no further evidence, either of permission or of dissent, during the whole time, on the part of the owners of the land, the jury might presume that said user was adverse, and under a claim of right thereto.” The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>A bond, the execution of which is admitted, reciting the principal obligor’s appointment as collector of taxes, is sufficient evidence of his being such collector in an action on the bond against him and his sureties, to recover money received by him for taxes and not accounted for; notwithstanding oral evidence that the office was put up at a town meeting for sale by auction, and was bid off by another person in his absence for him. For the purpose of proving that seals were duly appended to a bond, the plaintiff was permitted to ask the draftsman whether seals of the same kind were used in his office at the time of drafting this bond; and he testified that he had seen and used such seals there, but could not say whether any were there at that time. Held, that an exception to the admission of the question could not be sustained.</p>

<p>Writ of entry, dated April 20th 1854, to foreclose a mortgage, made to secure the payment of a promissory note, dated August 26th 1847, for $432 and interest. Plea, nul disseisin, and payment. The case was referred to an auditor, who made the following report thereof:</p> <p>The plaintiff introduced the note, which bore no indorsement upon it, and the execution of which was admitted.</p> <p>Tbe defendant then introduced an offer in writing, dated Au« gust 26th 1847, made by him to Samuel Gates, as the plaintiffs’ agent, and by him accepted, to sell him all the wood and timber standing on certain land in West Stockbridge, “ estimated at four hundred cords, more or less,” and to deliver the whole of it on the plaintiffs’ furnace bank in Richmond, within one year; “ the wood to be cut and ranked up on the said bank as common cord wood four feet in length and measured there; ” charging a certain sum “ for each solid cord so delivered; on the receipt of each hundred cords, measurement is to be determined or verified, and payment to be made by indorsement of the amount on” the mortgage note, “or to cancel in part” the mortgage; with a stipulation that, if the defendant should fail to deliver the wood within the specified time, the plaintiffs should have the right to enter upon the premises and take the wood, and deduct the expenses from the price stipulated.</p> <p>Gates testified that some time before the defendant’s land was sold by his assignee in insolvency — but whether before or after the defendant went into insolvency, he could not say — the defendant requested him to credit the wood drawn by him on book account instead of on the mortgage; and it was so credited. The defendant filed his petition for the benefit of the insolvent land on the 2d of August 1851, and duly obtained a certificate of discharge.</p> <p>The defendant proved by the plaintiffs’ books credits of more than three hundred cords of wood in April 1849, at prices corresponding to those stipulated, and amounting in all to §757.95; and the auditor, upon all the evidence introduced, was of opinion that the plaintiff rightfully appropriated the credits to the defendant on account of the wood, in payment of the plaintiffs’ book account; and found the amount due to the plaintiffs to be §654.94.</p> <p>A trial was had in the court of common pleas at February term 1857, before Aiken, J., who signed this bill of exceptions :</p> <p>“ The plaintiff offered evidence tending to prove the execution of the mortgage and of the note mentioned in the condition thereof; and the report of the auditor.</p> <p>“ The defendant then offered to show that, at the time the action was brought, he was not in possession of the premises and had no interest therein; but the judge ruled that, under the pleadings, the evidence was not admissible.</p> <p>“ The defendant then moved for leave to file an amended plea disclaiming all right, title and interest in the premises; but the judge overruled the motion.</p> <p>“ The defendant then read in evidence the writing referred to in the auditor’s report, and contended that, as soon as the defendant delivered wood mentioned in said writing, upon the plaintiffs’ furnace bank, sufficient to pay said note, it was a payment thereof and discharged the mortgage.</p> <p>“ The defendant called Cyrus H. Woodruff as a witness, and asked him the times of delivery of the wood, for the purpose of showing that the agreement referred to by Gates was after insolvent proceedings had been instituted. The plaintiff objected, and the objection was sustained.</p> <p>“ The jury were instructed that, by the agreement, the delivery of each load of wood would not operate as a payment as the same was delivered, without some further act; that if there was a performance of the acts specified in said writing, so that nothing remained to be done but to indorse the wood on the note, such performance, although no indorsement actually was made, would operate as payment of the note, and the plaintiff could not recover; but that the parties had the power and the right, at any time before the wood so operated as payment, to change their agreement and apply it in payment of the account; and that if they did make a different arrangement, and agreed that-said wood should be applied on the plaintiffs’ account against the defendant, and it was applied accordingly, a verdict should be rendered for the plaintiffs.</p> <p>“ The jury returned a verdict for the plaintiffs ; and to the foregoing rulings the defendant excepts.” with the names of the two witnesses. And they then testified that 11 their names thereto appended were in their handwriting, and must have been written by them, but they had no recollection of having signed the paper.” The tenant then offered the paper in evidence; and it was admitted, against the demand-ants’ objection.</p>

<p>Writ of entry by the heirs at law of Mary Alexander,, wife of David Alexander, to recover land in New Marlborough. Plea, nul disseisin.</p> <p>At the trial before Bigelow, J., it appeared that the land once belonged to Mary Alexander in her right. The tenant put in evidence two joint mortgages from David and Mary Alexander to Daniel Williams; and offered evidence which tended to show that said Williams on the 9th of October 1834 entered upon the premises and took open and peaceable possession thereof, in presence of two witnesses, for condition broken and for the purpose of foreclosure, and continued in actual possession thereof until the 4th of October 1838. The two witnesses in whose presence the entry for foreclosure was alleged to have been made, testified “ that, after the entry was made, and on the same day, they went with Daniel Williams and David Alexander, to the office of an attorney, where certain writings were made and executed by the parties; that they did not remember what said writings were, nor that they witnessed them.” They were then shown a paper, dated October 9th 1834, certifying that Daniel Williams had that day entered upon the mortgaged premises, and that David and Mary Alexander had delivered peaceable possession thereof to him, for condition broken, and for the purpose of foreclosing this mortgage, and signed and sealed by David Alexander; to which was added, “ Possession delivered and received on the day and year aforesaid in presence of us,”</p> <p>It further appeared that on the 4th of October 1838 Daniel Williams released and conveyed the demanded premises to David Alexander alone ; and he, on the 1st of December 1852, by a deed containing full covenants of warranty, conveyed the same to one of the demandants, who on the 12th of April 1853, by a deed containing full covenants of warranty, conveyed the same, his wife releasing her dower therein, to the tenant.</p> <p>Upon this evidence the tenant contended that, if the mortgage was foreclosed by an entry on the 9th of October 1834, and a subsequent possession of upwards of three years, the whole title became vested in Daniel Williams, who, by his deed of October 1838, conveyed it to David Alexander, from whom, by mesne conveyance, it had become vested in the tenant.</p> <p>The demandants called a witness to prove that, on the 1st of October 1838, when Williams conveyed to David Alexander, the latter paid to Williams the full amount of the debt .for which the land had been originally mortgaged, and that this was the consideration of the release then made by Williams to him. The demandants contended, on this evidence, that the right of the wife, Mary Alexander, was revived by this payment, and that the release to David Alexander did not convey the whole estate to him. But the judge ruled otherwise.</p> <p>The question whether there was an entry and possession of the premises by the mortgagee, Daniel Williams, on the 9th of October 1834, duly made and continued for three years, according to the law as it then existed, was submitted to the jury with instructions to which no exception was taken; and they were directed, if they found such entry and possession, to return a verdict for the tenant. The jury found for the tenant, and the case was reserved for the consideration of the full court.</p>

Action of contract to recover expenses incurred for the support, as paupers, of the wife and three children of Henry Goodhue, who was admitted to have had his settlement in Dracut. Writ dated April 8th 1856.

Two indictments, found and tried at July term 1857 of the court of common pleas, held by Sanger, J. The first was on the St. of 1855, c. 405, § 1, for a nuisance by keeping a shop in Lee, used as a house of ill fame, resorted to for prostitution and lewdness and for illegal gaming, and used for the illegal sale and illegal keeping of intoxicating liquors, from the 1st of July 1856 to the finding of the indictment.

Indictment for larceny, in a building, of twelve bank bills, particularly described, amounting in all to forty dollars in amount and in value. At the trial in the court of common pleas, before Sanger, J., the defendant’s counsel argued that a witness who had testified to the larceny of the bills, and to the identity of the bills stolen with those soon after found in the defendant’s possession, might well be, and was, mistaken in his testimony.

Complaint to the police court of Adams for an unlawful sale of intoxicating liquor, in violation of St. 1855, c. 215, § 15.

<p>Complaint to a justice of the peace for an unlawful sale of intoxicating liquor in Williamstown, in violation of St. 1855, c. 215, § 15. The justice issued a warrant, returnable before the police court of Williamstown.; and the defendant, being convicted in that court, appealed to the court of common pleas, and at July term 1857 moved that the proceedings be quashed, because they were commenced before a justice of the peace, notwithstanding the provision of St. 1855, c. 83, § 2, that original and exclusive jurisdiction of such offences should belong to the police court. Sanger, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>Indictment for larceny of goods under five dollars in value. Plea, that a complaint against the defendant for the same larceny of the same goods had been made to a justice of the peace having final jurisdiction thereof; that a warrant was issued thereon, on which the defendant was arrested, and arraigned before the justice, and afterwards “ appeared before said justice, and was put upon his trial on said complaint and the issue thereon ; and divers witnesses were sworn and examined; and said trial was fully, and in due form of law, then and there had and concluded, and the said Harris fully tried on said complaint, and was found and adjudged by the said justice to be guilty, and was then and there duly convicted of the offence charged against him in said complaint, and was thereupon sen-fenced and ordered by said justice to recognize to the Commonwealth in the sum of one hundred dollars, with sufficient sureties in the like sum for his personal appearance before the then next term of the court of common pleas,” &c.; and “ that he then and there objected to the said sentence and order of said justice, and moved and demanded the said justice that he should sentence him the said Harris on said conviction according to law but the said justice refused so to do; and the said Harris, failing so to recognize as aforesaid, was, by order of the said justice, committed to the jail of said county, and performed the sentence or order of the said justice; ” and that all these proceedings were regular, and had not since been reversed. The defendant annexed to his plea a copy of the record, which (except the complaint and warrant) is printed in the margin*</p> <p>To this plea the district attorney demurred, and his demurrer was sustained by the court of common pleas. The defendant appealed to this court.</p>

Complaint on St. 1855, c. 215, § 24, averring that the defendant, on the 28th of July 1856, at Northampton, “ did keep intoxicating liquors, with intent to sell the same in said commonwealth,” he not being authorized under St. 1855, c. 215, or by any legal authority whatever, “ against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.” At the trial in the court of common pleas in Hampshire, before Bishop, J., a witness…

<p>A sale of intoxicating liquor on credit is a sale within the meaning of St. 1865, c. 21a, § 15.</p> <p>The papers transmitted by a justice of the peace to the court of common pleas in a criminal case were a complaint, a record of the proceedings before the justice, signed by him, a warrant and officer’s return, and a memorandum of a recognizance, signed by the justice. The warrant and the officer’s return were each certified by the justice to be a true copy. Held, that, for want of an attestation of the conviction, the record was not sufficiently certified.</p>

<p>Complaint to the police court of Chicopee, on Rev. Sts. c. 130, § 18, alleging “ that George H. Miller of said Chicopee, on the third day of August in the year of our Lord one thousand eight hundred and fifty six, at said Chicopee, with force and arms was guilty of the crime of drunkenness, by the voluntary use of intoxicating liquor. Also that the said George H. Miller, on the second day of said August, at said Chicopee, before said police court, was duly and legally convicted of the crime of drunkenness, committed at said Chicopee on the first day of said August, which judgment is in full force and not reversed, against the peace of said Commonwealth, and the form of the statutes in such cases made and provided.”</p> <p>A trial was had in the court of common pleas in Hampden at December term 1856, before Morris, J., who signed this bill of exceptions:</p> <p>“ The only witness for the' government testified to several acts, sayings and doings and appearances of the defendant, indicating his intoxication at the time charged ; but he testified that the defendant was, when he saw him first, in the tenement of one Bryant, which tenement was in the same house where the defendant lived; that he was quietly smoking, and that the person who accompanied him to this place, and who was an officer, arrested the defendant and took him to the street and from thence to the lock up. The defendant asked the court to instruct the jury that, as he was not drunk in any public place, and gave no publicity to his drunkenness, it was no offence. The court refused so to instruct the jury, but instructed them that if he was drunk at said Bryant’s he was liable.</p> <p>“ The government offered a record of the police court of Chicopee to sustain the second allegation of the complaint. The defendant objected, because it was a record that the defendant was adjudged guilty of the crime of drunkenness by the voluntary use of intoxicating liquor; whereas the complaint did not formally, substantially and fully aver any such adjudication, or the offence of which the adjudication was had. Th court admitted the evidence.</p> <p>“ The government offered, in support of the complaint, an attested copy of the record of the police court of Chicopee, which set forth that the defendant pleaded guilty to the allegations of this complaint before said police court. The defendant objected that the same was not competent as proof in the case. But the court admitted this record also as evidence against the defendant.</p> <p>“ To all which the defendant excepts; ” and also moved in arrest of judgment, because “ no offence is set out in the first count, fully, plainly and formally described to him, inasmuch as it simply states the legal results of acts, instead of alleging the acts done;” and because “the second count does not allege that the defendant was convicted of the crime, of drunkenness by the voluntary use of intoxicating liquor.”</p>

Indictment for keeping a disorderly house. At the trial in the court of common pleas in Hampden, the district attorney called a witness, who testified that he let the house to the defendant; and, in order to show the disorderly conduct of those who resorted to the house, asked the witness, whether there had been any injury done to the house during the time for which it had been occupied by the defendant, (and which was covered by the indictment,) and whether his attention…

Complaint to the police court of Springfield on the St. of 1855, c. 429, § 1, alleging that the defendant, at Springfield, on the 14th of July 1855, “ with force and arms, was the keeper for the time being of a certain bowling alley there situate, and being the keeper of said alley so as aforesaid, did there and then suffer and permit certain persons to said complainant unknown, to play at and in the said bowling alley after the hour of six o’clock in the afternoon of said…

<p>Rape. The indictment alleged that the defendants, on the 26th of April 1857, at Chicopee, “ with force and arms in and upon Agnes O’Connor, a female of the age of ten years and more, in the peace of said commonwealth then and there being, violently and feloniously did make an assault, and her the said Agnes then and there violently and against her will feloniously did ravish and carnally know, against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>The defendants, after a conviction in the court of common pleas, moved in arrest of judgment, “ because it is not alleged in the indictment, that said Agnes O’Connor was ravished, &c. by force, as required by law; ” and “ because it is not alleged but that said Agnes O’Connor was the wife of one of the defendants, or which defendant, if any.” The motion was overruled, and the defendants alleged exceptions.</p>

<p>Upon the trial of an indictment for larceny, the defendant’s taking of the property was proved; and the jury were instructed that he was not guilty if they were satisfied that he took the property under an honest belief that he had a legal right to take it in the way and under the circumstances that he did take it, although in fact he might have had no such legal right. Held, that this gave him no ground of exception.</p> <p>The testimony of a single witness, that he received certain bank bills in a neighboring state, and that they were bills of banks there, is sufficient evidence to be submitted to a jury of those bills being of value and current in this commonwealth.</p> <p>A defendant may be convicted, under Rev. Sts. c. 126, § If, of stealing bank bills, without proof of their form or tenor.</p> <p>Taking money with intent to appropriate it to the payment of a debt due to the taker from the party from whom it is taken is sufficient evidence of a conversion to the taker’s own use, to constitute larceny.</p> <p>Evidence that one charged with larceny was reputed at the time to be a person of property is inadmissible in his defence.</p> <p>Upon an indictment for stealing bank bills and a gold coin, the jury returned this verdict: “ Guilty, but not of taking the gold piece.” Beld. that the court might, against the objection of the defendant, record this verdict as a verdict of not guilty as to so much of the indictment as related to the stealing of the gold coin, and guilty as to the residue; although the jury, pursuant to agreement of the parties, had separated after finding their verdict.</p> <p>An indictment for stealing bank bills, which states the amount and value of the whole, need not describe their number or denomination.</p>

<p>A district attorney’s signature to an indictment need not show for what district he is attorney.</p> <p>Peafowls are subjects of larceny.</p> <p>An indictment for stealing any animal, which does not state whether it is alive or dead, is not supported by evidence that it was dead when stolen; even if it is an animal which has the same appellation whether dead or alive.</p> <p>Thus an indictment for stealing “ one peahen ” and “ one turkey ” in this commonwealth, is not supported by evidence of taking them alive in another state, and bringing them dead into this state.</p>

Indictment for burning a barn in Wilbraham. Trial and conviction in the court of common pleas in Hampden at December term 1856, before Morris, J., who signed this bill of exceptions: “ The office of district attorney being vacant, Henry Vose, Esq. was,- at the commencement of the term, appointed district attorney pro tempore.

Action of tort for an injury received by the plaintiff from a defect in a highway in Northampton. See 4 Gray, 65.

<p>Since the St. of 1856, c. 188, a party to a suit, in which the issue is in which of two towns his domicil was at a particular time, may testify to the intent with which he removed from one town to the other shortly before, and returned soon after, that time.</p> <p>Evidence that the selectmen of a town decided that a person taxed there was an inhabitant, and put his name upon the voting list, is not admissible for the purpose of showing that his domicil was in that town, without showing that they did it at his request.</p>

<p>Petition for a certiorari to the county commissioners of Hampshire, in the matter of a tax assessed by the town of Ware upon the petitioners, a corporation established in that town. The case is stated in the opinion.</p>

<p>Bill in equity by the four legatees first named in the will of Abby W. Carpenter, and by the guardians of two of them who had become insane, for the application to their support of the principal of their legacies, the income thereof: being insufficient for the purpose.</p> <p>Said will, which was duly proved, contained the following provisions: “ 1st. I give and bequeath to my sister Sally Whitman of Goshen one thousand dollars.” 2d, 3d and 4th. Bequests, in precisely similar words, of two hundred dollars each to her brothers, Samuel Whitman, Ezekiel Cheever and David Whitman. After these four bequests was this clause :</p> <p>“ I hereby appoint Franklin Narramore of Goshen as trustee to take and keep the above legacies, the income of which he shall appropriate to their comfort as long as they live. After their decease, what remains I bequeath to the above trustee.” Then followed bequests, in terms exactly like the above, but without the last clause, of one thousand dollars to another sister, five hundred dollars to a niece, to another sister a feather bed and ten dollars, and specific legacies and bequests of money to many other persons and charitable societies. After which was this article: “ 19th. I give and bequeath to my sister Sally Whitman all my clothing, linen, silver spoons and jewelry, not previously disposed of”; and a residuary bequest to the Home Missionary Society.</p> <p>Franklin Narramore died before accepting the above trust and the defendant Kirkland was appointed trustee in his stead. The other defendants were administrators with the will annexed of Mrs. Carpenter. The defendants admitted that'the plaintiffs were entitled to the income of their legacies, (subject only to any deduction which the court should deem reasonable for executing the trust,) and that such income was insufficient for their support; but denied their right to any part of the principal of such legacies, and alleged that such principals, after their respective deaths, must be paid to the representatives of Franklin Narramore.</p>

<p>Writ of entry to recover land in Pelham. At the trial in Hampshire, before Metcalf, J., the demandants claimed title under a levy of an execution against Asahel Aldrich, on a judgment for $202 recovered against him for costs, in September 1855, in an action which was brought by him against them in December 1852, and tried three times, once in October 1853, again in February 1854, and again in October 1854.</p> <p>There was evidence that seven days before the second trial of that case, Asahel, “ in consideration of love and affection and of one dollar paid,” conveyed all his real and personal estate to his two sons, the present tenants, upon condition that they should pay and indemnify him against all debts and demands which he was then liable to pay, and should support him and his wife for life.</p> <p>The demandants contended that this conveyance was void as against them, 1st. “ Because it was upon no adequate consideration ; and no consideration in fact having been paid at the time, it was, as against them, a mere voluntary conveyance.” 2d. “ Because it was made with the fraudulent intent to defeat the prospective payment for costs which they might recover.”</p> <p>This last issue was submitted to the jury. There was evidence that the value of the property at the time of the conveyance was from $1500 to $2500; and Asahel testified that h« then owed debts to the amount of about $600; that he sup posed they had been paid, as he had heard nothing from them since; and that he had no intention of defrauding anybody by the conveyance. Upon this issue the jury found for the tenants; and the presiding judge reported the case for the decision of the full court.</p>

<p>A watch upon a debtor’s person is not liable to attachment, and an officer who, upon its being handed to him by the debtor, merely to be looked at, while still annexed to a silk guard which passes around the debtor’s neck, severs the guard and attaches the watch, is a trespasser.</p>

<p>Action of tort for breaking and entering the plaintiff’s close in Northampton, and taking and carrying away intoxicating liquors and the vessels containing them.</p> <p>Answer, a release under seal, dated August 7th 1854, which recited the seizure and destruction of said liquors by order of a justice of the peace, pursuant to St. 1852, c. 322, § 14, and that doubts had arisen as to the constitutionality of that statute; and proceeded thus: “ Now therefore, for the quieting of all claims and demands for any damages or injuries by me sustained, by virtue of any entry on my premises or other acts in the seizure of said liquors belonging to me or in my possession, or their destruction as aforesaid, in consideration of one dollar to me paid by ” the said magistrate, the complainants on whose complaint he acted, and the officers, of whom this defendant was one, who executed his orders, “ the receipt whereof I do hereby acknowledge, I do hereby fully release and discharge them, and each of them, of and from all damages, injuries, costs, suits, charges and claims for, on account of, or by reason of any of the said seizures of liquors, or entry into my premises for the seizure or search for liquors therein, or for any other act or acts done by them, oi either of them in the premises, in such entries, seizures, or the destruction of said liquors as aforesaid; intending hereby fully to release and acquit and discharge the said party, and each of them, of and from all claims and demands, suits, charges, injuries and costs, in any manner connected with, or relating to, said entries into premises occupied by me, or the seizure or de struction of any liquors belonging to me or in my possession, from the beginning of the world to this date.”</p> <p>At the trial in the court of common pleas in Hampshire, at June term 1857, before Morris, J., the defendant produced and offered in evidence the release, and called Samuel Wells, an attesting witness, to prove its execution.</p> <p>His testimony tended to show “ that while Timothy was confined in the' house of correction in Northampton, under a conviction for selling liquors contrary to law, he sent for the witness to come and see him ; that the witness went and found Timothy apparently much out of health, and desirous on that account of obtaining a pardon; that he told Timothy that if he would promise to abstain from selling liquors, and would release all claim > for damages upon those concerned in the seizure, people would be willing ‘to interest themselves’ for him; that at Timothy’s request the witness prepared the release in question, and Timothy signed it in his presence, and requested him to take it and give it to Rev. John P. Hubbard, to be kept until Timothy got his pardon, and then given to the defendant; that shortly after-wards, and in consequence of Timothy’s having signed said release, the witness prepared on Timothy’s behalf an application to the governor and council for a pardon, intended also for signature by any who might be willing to sign it.”</p> <p>There was also evidence tending to show that the defendant carried the application for a pardon to Hubbard, and Hubbard and others interested themselves to obtain the pardon, and the application was laid before the governor and council; that it was the expectation of Timothy and those who interested themselves in his behalf, that the pardon would be obtained in a few days, but that it did not, in fact, arrive for about two months, and only three weeks before the expiration of his sentence ; and that about a week before it came, Timothy said to Wells and to Hubbard, that the pardon had been delayed so long, that he hould not stand by the release; and, after his discharge f>-om imprisonment, requested Hubbard not to give the release tc the defendant, but to give it to him.</p> <p>Hubbard testified that he, having previously spoken with Timothy in prison on the subject, received the release from Wells with a note stating that if a pardon should be received the release was to be delivered to the defendant, if not, to Timothy; but “ nothing was said about time as conditional ”; that he received no instructions except from Timothy and Wells ; that he kept the release until a week before the trial, and then, upon receiving, while absent, a notice that it would be needed on this trial, sent instructions that it should be given to the defendant to be handed to the court; and that he knew no reason why it should not be delivered to the defendant. There was other conflicting evidence as to the instructions given by Hubbard for the delivery of the paper.</p> <p>There was no evidence that any communication ever passed between the defendant or the other releasees and Timothy on the subject of the release before its execution ; but the defendant relied on the above evidence as tending to show that said Wells and others not named in the .release were acting for the benefit of the defendant, and that the defendant immediately after the preparation of the release was rendering services in furtherance of Timothy’s pardon.</p> <p>The plaintiff requested the court to instruct the jury as follows : “ 1st. That inasmuch as there was no consideration for the release, and no agreement between the defendant, or any of the parties affected, and Timothy, for such a release, it was inoperative, and the defendant acquired no right to it until it should be actually delivered. 2d. That, to constitute such a delivery, it must be made for the purpose of giving it effect as Timothy’s deed. 3d. That sending to have it put into the defendant’s hands, under all the circumstances and in the manner disclosed by the evidence, was not such a delivery as entitled the defendant to avail himself of it for his defence.”</p> <p>The court gave the second instruction requested ; but instead of the first and third, instructed them as follows : “ If the release was executed by the plaintiff spontaneously, without any consideration therefor, merely as an act of favor to the releasees, he might revoke it at any time before delivery; and if he put. it into the hands of Hubbard merely for safe keeping until a pardon should be received, and then to be delivered to the defendant, and before it had been in fact delivered the plaintiff forbade its delivery, then it would be legally inoperative, although in the hands of the defendant. If, on the other hand, the execution of this paper and its delivery into the hands of Hubbard were in pursuance of an arrangement between the plaintiff and the other parties acting in behalf of the defendant and others, under which the plaintiff was to receive benefits as well as confer them, under which they were to do something for him, in return for which he was to release the defendant and other's, and the defendant and those who acted with him performed their part, then the plaintiff could not revoke or rescind the release, but when the pardon should be received, the defendant would be entitled to have the release delivered to him, and any notice given by the plaintiff to Hubbard not to deliver it to the defendant, or any demand to have it redelivered to himself, would not prevent its taking effect as a release when subsequently delivered to the defendant.”</p> <p>The court further instructed the jury “ that it was for them to determine upon the evidence whether an effectual delivery of the instrument had been made; that if they should find that the release had been executed and put into Hubbard’s hands under a mutual arrangement as before stated, and the time had arrived, or the contingency had happened, upon which the defendant was entitled to have the release delivered to him, and in point of fact it had been given to him by Hubbard, or with his consent, it would be competent for them to infer that it was delivered in pursuance of said arrangement, unless the evidence repelled such inference; and if so delivered, the defendant might properly avail himself of it in his defence.”</p> <p>The defendant thereupon requested the court to instruct the jury : “ 1st. That the evidence would not justify the jury in finding any agreement on the part of the defendant or the others named as releasees, unless it be an agreement for the procurement of a pardon. 2d. That such an agreement would be against the policy of the law and void. 3d. That without such a legal agreement, the deposit with Hubbard would not give any right or interest in the instrument to the defendant, and Timothy could revoke the authority to deliver at any time before the delivery was actually made, or at least before the contingency happened.”</p> <p>The court declined to instruct the jury according to the first of these propositions, but left it to the jury to determine upon the evidence what were the terms of the agreement referred to; and upon the second and third propositions instructed the jury, ,£ that if the agreement was an absolute one, that the persons named in the release, or those acting in their behalf, should procure a pardon, or should procure signatures to an application for a pardon, it would be contrary to the policy of the law and void, and from it the defendant could derive no right or interest in the release; but if the agreement was, as contended by the defendants, merely an undertaking to render such services as were necessary and proper to be done in order to have the plaintiff’s application for a pardon fairly brought before the governor and council, it would be valid, and the performance of such services, as the consideration of the release, would not make its execution and delivery void, or authorize the plaintiff to revoke it; that of the description of services or acts which might properly be done would be the preparing of an application for a pardon, or any other papers having reference to that object, the circulating of such a paper for the free and voluntary signature of persons disposed to sign it, care and attention necessary for securing the transmission of the proper papers to the governor and council, making such provisions as are usual and proper to have the case fairly presented to them. Acts and services of this kind, which the plaintiff, being in prison, could not personally perform, might well be done for him by others; and an agreement to perform them, or any of them, would be a valid agreement, there being no absolute undertaking to procure a pardon, nor to procure signatures to a petition for a pardon; and that such an agreement, made and performed by the defendant, or those acting in his behalf, would give him such an interest in the release executed by the plaintiff, and deposited in the hands of Hubbard in pursuance of it, for the benefit of the parties concerned, that the plaintiff had no right to revoke it, and his attempt to do so had no effect upon the. subsequent delivery.”</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

Action of contract by a railroad corporation on the Rev. Sts. c. 39, § 53, to recover a deficiency of assessments, after selling the defendant’s shares for payment of the same. A demurrer filed by the defendant was overruled, and the case remitted to the court of common pleas. 4 Gray, 61. The defendant then answered, denying the validity of the assessment, and the regularity of the plaintiffs’ proceedings, in various particulars which he pointed out.

<p>An inhabitant of this commonwealth died, leaving a widow and infant son, real and personal property in Massachusetts, and personal property in Wisconsin. Administration was taken out in each state, and the administrator in Wisconsin duly collected the property there, and, after the death of the widow, and on the supposition that no part of it would be needed in the settlement of the estate of either parent, invested it in Wisconsin, in the name of the son, and transferred it, pursuant to a judicial decree in Wisconsin, to the son’s guardian in this commonwealth. The estates of both parents proving insolvent, it was held, that the administrator in this commonwealth might maintain a bill in equity here, (making the administrator of the widow’s estate a party,) against the guardian of the son to compel the application of the property so received by him to the payment of the debts of the father, and of the distributive share of the widow.</p>

Action of contract upon a promissory note for $1900, made by the defendant on the 19th of January 1847, payable in two years to George Dwight or order, and by him indorsed in blank.

<p>A search warrant for intoxicating liquors under St. 1855, c. 215, § 25, is not invalidated by so misnaming one street in the description of the place where the liquors are kept as to make the application of the whole description impossible, if in other respects the place is described truly, and so as to identify it with the place described in the complaint.</p> <p>A search warrant under St. 1855, c. 215, § 25, sufficiently describes the liquors intended to be seized as 44 a certain quantity of gin, being about and not exceeding one hundred gallons.”</p> <p>Che provision of St. 1855, c. 215, § 26, that a search warrant for intoxicating liquors 11 shall be supported by the oath of the complainant,” is complied with by the complainant’s making oath to the complaint upon which the warrant is issued.</p> <p>A search warrant for intoxicating liquors under St. 1855, c. 215, § 25, need not direct the complainant to be summoned to appear as a witness at the hearing of the complaint.</p>

<p>Bill in equity against the administrator and heirs at law of Jesse Miller, for the specific performance of his agreement under seal, dated August 25th 1852, to convey to the plaintiff, within a reasonable time, certain land in Granville, “ reserving to himself the use and possession of the same during his natural life, to be her sole and absolute estate, free from all incumbrances whatsoever.” The only consideration expressed in the agreement was her past service for him.</p> <p>The bill alleged that the agreement was made in consideration of such past services, and in consideration that she would marry him; that they were afterwards married on the same day; that he subsequently made a deed of the land to her, which was void by reason of the coverture ;■ and a will devising it to her which was void for want of proper attestation; and died seised of the land; and that a conveyance had since been demanded and refused.</p> <p>The defendants, admitting the other allegations of the bill, denied that the agreement was made in consideration of marriage, or for any other consideration than that expressed therein, and therefore contended that a deed made in accordance with the agreement could not, for want of a proper consideration, operate as a covenant to stand seised, and would consequently be void, as conveying a freehold in futuro. They also alleged that the agreement was discharged by the subsequent marriage of the parties; and that the court had no jurisdiction in equity.</p> <p>The plaintiff offered in evidence the deposition of Orrin S. Case, the attorney who drew the agreement, which, if admissible, proved that the intended marriage was a part of the consideration. The parties submitted the above case to the decision of the full court. the execution, and delivery of the deed, and partly after; and added, “ The plaintiff claims as an incidental matter of law, upon the above evidence, that ” all that was done before the delivery of the deed “ is entirely inoperative and void, whatever might have been its legal effect if made after.”</p>

<p>Action of contract for money received by the defendant to the plaintiff’s use. The case was referred to an auditor, who reported that the defendant made a deed of land to the plaintiff upon condition that the plaintiff should pay to the defendant and his wife certain sums monthly for life, and that “ this deed is not to take effect until the said Leathe shall have executed a bond to said Bullard with satisfactory sureties in the penal sum of three hundred dollars, to be in force for the term of five years only, conditioned for the faithful performance of all and singular the conditions of this conveyance.”</p> <p>It further appeared to the auditor that such bond was never executed, but that nevertheless the plaintiff entered into possession, and paid the monthly instalments for more than two years, and then ceased to pay them; was ousted by the defendant for this breach of condition; and brought this action to recover back the money paid by him, on the ground that, the precedent condition for giving bond never having been performed, the deed to him was void.</p> <p>The auditor reported that two questions arose before him: the first, of law, whether parol evidence was admissible to prove a waiver of the condition, and this he referred to the court; the second, of fact, if such evidence was admissible, whether the waiver was proved; and he was of opinion that it was, and stated the evidence in detail, partly of circumstances occurring before</p> <p>A trial was had in the court of common pleas in Hampden, at March term 1857, before Morris, J., who signed this bill of exceptions : “ The case was submitted to the jury on the auditor’s report, and other evidence introduced by the plaintiff to the same purport as that introduced before the auditor, with instructions that it was competent for the defendant to prove a waiver of the condition ” above quoted, “ by parol evidence of the acts and declarations of the parties ; and that, under this view of the question of law referred to the court by the auditor, the auditor’s report, unless controlled by the evidence introduced at the trial, was prima facie evidence for the defendant. Under these instructions the jury rendered a verdict for the defendant. To which instructions the plaintiff excepts.”</p>

Action of tort against a ferryman on the Connecticut River, for the loss of the plaintiff’s horse and wagon by the negligence of the defendant’s servants while crossing the ferry. At the trial in the court of common pleas in Hampden, before Bishop, J., the plaintiff introduced evidence tending to show that there was a chain at the forward end of the boat, which, if it had been fastened up, would have prevented the horse from going overboard.

Action of tort for converting to the defendant’s use a hog belonging to the plaintiff. At the trial in the court of common pleas in Hampden at March term 1857, before Morris, J., the plaintiff proved that the hog was sold and delivered to him by Ellen Sullivan; but, by arrangement between the parties, was permitted to remain a few. days on- her premises, whence the defendant took and killed it, and carried it away.

<p>Bill in equity for the specific performance of articles of agreement expressed to be made between Joseph C. Pynchon, Daniel Pynchon, and William Pynchon, of Springfield, John P. Pynchon, of Cleveland, Ohio, and Thomas W. Bliss and Emily B. Bliss his wife, of Charleston (S. C.), of the first part, and the plaintiff of the second part; and by which “ the said parties of the first part,” for the consideration of $1650 to be paid to them on or before a day named, covenant that, upon such payment by the party of the second part, “ they will make, execute and deliver to him a good and sufficient deed of warranty, free of all incumbrances,” of certain real estate in Springfield ; and it is provided that either party who shall fail to perform their agreements shall forfeit and pay to the other the sum of $350 as liquidated damages. This agreement was signed and sealed by all the persons named in it, except Bliss and wife. The four Pynchons were the defendants in this suit.</p> <p>The bill alleged that the defendants, being seised as tenants in common with Bliss and wife in her right, of the land described, and being desirous of selling and the plaintiff of purchasing the same, the plaintiff executed the agreement, and the defendants also executed it, and one of them, claiming to act as agent of Bliss and wife, and having the care and management of the land, delivered the agreement to the plaintiff as the agreement of the defendants, and at the same time verbally agreed that Bliss and wife would also execute it as soon as they should come into this state, which would be prior to the time fixed for the conveyance.</p> <p>The bill then alleged that the plaintiff, on or before the day named, tendered to the defendants the sum of $1650 and interest, and demanded from them a deed, according to the terms of the agreement, and also demanded from them a deed of their interest in the premises ; but the defendants refused to execute either, upon payment of the full amount, and wholly refused to execute any deed whatever of the land; and that the plaintiff had always been, and now was, ready to pay said sum to the defendants whenever they would execute a deed conveying to him said premises. The defendants demurred generally.</p>

Action of contract for use and occupation. Trial in the court of common pleas in Hampden, at March term 1857. The plaintiff proved the use and occupation of his land by the defendant. The defendant testified that the use and occupation were under a contract made on the Lord’s day; and therefore contended that the plaintiff could not recover.

Bill in equity. The case was set down for hearing on the bill and answer, and was as follows : The plaintiff made an agreement in writing with James H. Gray, to assign to Gray a mortgage of land in New Jersey, with the debt thereby secured, and also a judgment against Henry W. Adams, and to assign to Gray, or to any person whom he should designate, in trust for him, a mortgage of land in Springfield, made by him to the plaintiff; in consideration of Gray’s covenant, “ from…

Action of tort for breaking and entering the plaintiff’s close. Answer, title in the defendant. At the trial in the court of common pleas in Hampden, at March term 1857, it appeared that the parties owned contiguous lots, the boundary between which was in dispute.

<p>After a general appearance and answer filed in behalf of two defendants, and one trial had without objection to any defect of service or jurisdiction, a defendant who has personally attended at a second trial cannot object that the court, in fact and by the record, has not acquired jurisdiction of his person.</p> <p>{l bond to give to the obligee “ within twenty months from this date a good operative deed to five hundred and twenty five acres of land in T., from any land owned by W. at the time of his decease, except such land as may be sold at this date,” it seems, contains an implied covenant that that amount of W.’s land remains unsold, and is broken if there is no such land at the date of the bond. And if the obligor owns such land at the date of the bond, it is the obligee’s right and duty to select that number of acres in such reasonable time before the expiration of the twenty months as will enable the obligor within that time to prepare a deed of the land selected; but the obligee is not limited to a single tract, provided he does not divide more than one tract; nor required to make his selection in such time as to enable the obligor to repurchase lands sold since the date of the bond, or to free the lands from incumbrances, and upon a failure to convey any land at all, the measure of damages is the value of such land as th« obligee might have selected.</p> <p>The admission of a party to the record is competent evidence against him, although it relates to the contents of a writing.</p>

Action of contract on a policy of insurance issued in 1853, for six years, on the plaintiff’s “ brick dwelling-house and wood-house situated in Chicopee,” under the conditions and limitations expressed in the by-laws annexed thereto, one of which provided that “ if the assured shall alter or enlarge a building or appropriate it to other purposes than those mentioned in the policy, so as to increase the risk, the same shall become ipso facto void.” In the application “ to…

<p>Debts purchased with knowledge of the debtor’s insolvency, and reason to believe he is about to go or be driven into insolvency, and notice to the debtor of the purchase, carmot be set off in an action by the assignee in insolvency upon a debt due from the purchaser to the debtor.</p>

<p>The holder of a bond issued by a railroad corporation, payable 4i to-and subsequently confirmed by the legislature, may sue thereon in his own name.</p> <p>A railroad corporation issued bonds payable u to-and purporting on their face to be secured by a mortgage of the same date to trustees of all the property of the corporation; and such a mortgage was in fact executed. The legislature afterwards ratified and confirmed “ the proceedings ” of that date, “ whereby said corporation conveyed their said railroad property in mortgage to ” certain persons, u trustees for the bondholders in said mortgage mentioned, to secure the holders of said bonds the payment of the same.” Held, that these bonds were thereby confirmed, and might be sued upon in the name of any holder.</p>

<p>An indenture between the grantee of «a right to redeem land from a mortgage, the mortgagee, who has entered for foreclosure, and a third person claiming title to the land, by which the mortgagee releases to the other parties his right of foreclosure, and agrees to collect the rents and divide them among all the parties in proportion to their claims against the original mortgagor, and in which provision is made for a future sale of the estate and a like division of the proceeds, implies a release of the equity of redemption.-</p>

<p>Writ of entry to recover possession of a portion of a building in Chicopee, “ constructed as a church edifice with its appurtenances.” Plea, nul disseisin. The parties submitted the following case to the decision of the court:</p> <p>The building in question was erected in 1836, by the Cabot-ville Mechanics’ Association, which was a voluntary association, formed for this purpose, having a written constitution and bylaws, and records of stock and of notes, and whose stock was issued to the subscribers, (most of whom were members of the tenants’ society,) in proportion to their subscriptions. The upper part of the building was fitted up as a church, and has since been occupied by the tenants, paying no rent, and applying the rents of pews for preaching. The rent of the shops in the lower part of the building has been received by the treasurer of the Mechanics’ Association, and paid over to their stockholders.</p> <p>On the 17th of January 1837, the building and land wer conveyed by John Chase to John Chase and four others, “ trustees of said association, in trust for the stockholders of the Cabotville Mechanics’ Association, their heirs and assigns,” habendum “ to the said stockholders, their heirs and assigns.”</p> <p>The four demandants, either as original subscribers or by purchase, own all the shares in that association. One of them is John Chase, one of the original trustees; and Austin Chapin, another of the demandants, is the grantee by several conveyances of the title of each of them of the other four trustees.</p>

<p>A sale of intoxicating liquors in another state, by one citizen of this commonwealth to another, with knowledge or reasonable cause to believe that they were to be resold by the purchaser in this commonwealth against law, and with a view to such resale, will not support an action for the price in this commonwealth.</p>

<p>Action of contract on two promissory notes payable on demand, signed by Rodolphus White and Philos Stratton, partners, as makers, and “ Newell" Snow, surety.”</p> <p>The plaintiff originally declared against all the defendants as makers of the notes, which were expressed to be “ for value received,” and copies of which were annexed. Snow answered that he signed them as surety only, long after they were made and delivered, and without consideration ; and the other defendants relied on such signing by Snow as a material alteration.</p> <p>The plaintiff then, by leave of court, filed four additional counts, the first and third of which alleged that White and Stratton made one of the notes, (a copy of which was annexed,) and that Snow “ subsequently, for a valuable consideration, and with the assent and by the request of the said White and Stratton, signed the same, thereby promising and becoming liable to pay the amount thereof according to the terms thereof; ” and the second and fourth of which, after alleging the making of the notes by White and Stratton, averred that, “ a long time after, to wit, six months after said note was due, Snow, for a valuable consideration, to wit, in consideration that the plaintiff would and did agree to give time on said note to said White and Stratton, the original promisors, and not at once take steps to collect the same, and also in consideration that said White and Stratton would and did put funds and securities into the hands of said Snow, to indemnify him for signing said note, and for other valuable considerations, signed said note; and said White and Stratton consented thereto, and requested said Snow so to do; and the plaintiff fulfilled his said agreement, and did give time on said note, and did not at once take steps to collect the same, but forbore to sue said note, or take any steps for the recovery thereof for a long space of time, to wit, for one year; and the said Snow by his said signing became liable and promised to pay to the plaintiff the amount of said note, according to the terms thereof.”</p> <p>White and Stratton made no defence; but Snow answered, denying that there was any consideration for the notes ; that he signed them at the request of White and Stratton ;■ that the plaintiff agreed to give time to White and Stratton ; or that they ever put any funds or securities into his hands for his indemnity.</p> <p>At the trial in the court of common pleas in Franklin, before Briggs, J., it was proved that White and Stratton were the original makers of the notes in suit, and that Snow signed the notes as surety some months after their execution by the makers and delivery to the plaintiff. The only consideration for the signing of the notes by Snow, of which any evidence was offered, or on which the plaintiff claimed to recover, was of the plaintiff’s agreement to give time to White and Stratton, as alleged in the second and fourth additional counts.</p> <p>The defendant requested the court to instruct the jury, that the plaintiff was bound to prove the whole consideration, as alleged in the second and fourth additional counts ; that he must prove that Snow signed the notes with the consent and at the request of White and Stratton; that Snow’s signing the notes as surety long after they were made, if done without the knowledge, request and assent of White and Stratton at the time, was such a material alteration of the notes as rendered them void, even as against Snow; that the mere fact that the plaintiff did give White and Stratton time on the notes had no tendency to prove the agreement to give time.</p> <p>But the court refused; and instructed the jury, that the plaintiff, to entitle him to recover, must prove the allegation of an agreement to give time to White and Stratton, and his actual forbearance; that Snow must have signed with the consent of White and Stratton, or one of them ; and that the consent of one, after the dissolution of their partnership, would be sufficient ; “ and, for the purpose of the trial, the court instructed the jury, that although more than one consideration was alleged for Snow’s signing, it would be sufficient for the plaintiff to prove but one of the considerations alleged.” The jury returned a verdict for the plaintiff, and Snow alleged exceptions.</p> <p>This case was argued at the last term.</p>

<p>At the trial of a case in the court of common pleas, the defendant objected to the plaintiff’s right to recover upon the facts proved, and a nonsuit was entered; the parties agreeing, as was stated in the bill of exceptions, “ that the various legal questions arising in the case should be submitted to the supreme court as upon a statement of facts.” Held, that upon the hearing of the case in this court, no objection could be taken to the sufficiency of the answer.</p> <p>Under an act of incorporation providing that the number of shares shall not exceed a certain limit, and shall be determined from time to time by the directors, no assessment can be laid until the number, of shares is so determined.</p> <p>A subscription paper for shares in a railroad corporation, which provides that assessments may be laid “ when three thousand shares shall have been subscribed,” does not authorize the laying of an assessment until the stipulated amount has been unconditionally subscribed, payable in cash.</p> <p>Thus this provision does not include a subscription, by a contractor for building a railroad, of a certain number of shares, “being a portion of” a sum which, by his contract, was to be paid to him in stock at par, or, in case of any stock being issued by the corporation below par, then at the rate of the lowest issue.</p> <p>Bo of a subscription to the stock of a railroad company, (who are authorized by their charter to connect at the State line with any railroad that may be constructed from a place in another state, or to take a lease of any such contiguous railroad,) upon condition that no assessment shall be made until that part of the railroad between the end of the line in another state and a certain place in this commonwealth shall be put undei contract.</p>

Action of contract to recover one fourth of money received oy the defendant under a policy of insurance on a mill and machinery in Whately, of which the plaintiff, the defendant and Danforth Works were tenants in common, the plaintiff’s share being one fourth, At the trial in this court at September term 1857, in Franklin, before Metcalf, J., it appeared that the premises were leased by the defendant and Works to Harding and Buffum, who stipulated on their part to insure the…

<p>Action of contract upon a bond in the sum of $3000, dated October 1st 1855, and executed by Reuben Fleming as. principal, and the other defendants as sureties, with this condition :</p> <p>“ Whereas the said Reuben Fleming has been chosen collector of taxes for said town of Wendell the current year, and has accepted said office, and been duly sworn to the discharge of his respective duty, now, if the said Reuben Fleming shall, as collector, as aforesaid, faithfully collect, account for and pay over to Otis Chittenden, town treasurer, all the taxes which he shall be legally required to collect by the assessors of Wendell aforesaid, and in accordance with the vote of said town, and fully and finally settle with the treasurer aforesaid on or before the last Tuesday preceding the first . Monday of March next, then this obligation to be void, otherwise to be in full force and virtue.”</p> <p>Trial in Franklin at April term 1857, before Metcalf \ J., who submitted the question of damages only to the jury, and took a verdict for the plaintiffs, subject to the opinion of the full court upon the following case :</p> <p>The town records were introduced, and showed the following proceedings: At the town meeting in March 1855, three thousand dollars were raised by vote of the town, and Reuben Fleming was chosen and sworn as a constable. At an adjourned meeting in April, “ Voted, to have the taxes collected same as last year.” The vote of 1854, thus referred to, was, “ Voted, that all persons paying in to the treasurer on or before the 1st of October shall have six per cent, discount; after the 1st of October to pass into the hands of the constable for collection.” At the meeting in November 1855, “ Voted, that the remainder of the taxes be put up to the lowest bidder. Reuben Fleming bid them off at one per cent., and to give bonds satisfactory to the assessors.” At the meeting in March 1856, “ Voted, that the selectmen be directed to enforce the collection of the deficit money, if it is not paid within three days, or the bondsmen do not come forward and satisfy for the same.” There was no other record as to the choice or oath of a collector of taxes for that year.</p> <p>The assessors made out a list of the taxes assessed, amounting in all to $3041.34, and delivered it, with a warrant addressed “ to Otis Chittenden, Treasurer and Collector of the Town of Wendell,” to said Chittenden. He received taxes until the 1st of October, amounting to $1873.21. Immediately after the November town meeting, the assessors put the same list into Fleming’s hands without any new warrant. He proceeded to collect taxes to the amount o.f $817.32, of which he paid over $279.33, and never accounted for the balance.</p> <p>There was evidence that, after the bond was signed, one of the assessors, who was present at the signing, took it, and that it was delivered the same day to the town treasurer, in whose possession it afterwards remained.</p> <p>No other evidence, was offered by the plaintiffs. No evidence was offered by the defendants.</p>

Action of tort for breaking and entering the plaintiff’s close and cutting and carrying away grass there growing.

Bill in equity by the widow of Jesse Root, to set aside releases of her interest in her husband’s lands, on the ground that she was induced to execute them by the gross fraud and imposition of Abel Bancroft, his executor, and his residuary legatees.

<p>Action of tort, under St. 1853, c. 371, praying for damages and for other relief in equity, by the owner and occupant of a water privilege on Mill Brook in Charlemont, “extending,” as he alleged, “from the grist mill dam, so called, to and above the upper dam, so called, with all the water power created by and rightfully to be used with both said dams,” subject to a right of the defendants to construct and maintain a dam between these two, and not within one hundred feet of the upper dam, nor so high as to affect the water power created by the upper dam, or to obstruct the natural flow of the water above a certain permanent rock lying westerly of the centre of the brook, and constituting a part of the foundation of the upper dam ; which limits, the plaintiff alleged, the defendants had exceeded in a dam maintained by them for ten years; and thereby injured the plaintiff’s mills.</p> <p>The defendants answered, setting up a right to do all that they had done, and denying all the plaintiff’s allegations ; and at the hearing before Metcalf, J., in Franklin at September term 1857, before the case was sent to the jury, “objected to being sent to the jury on issues of fact, and moved that the case be dismissed, because it appeared upon the face of the declaration and answers that there was a dispute as to the title in a water privilege ; and also because it appeared that the defendants liad been in possession at least ten years, and relief was not sought to prevent irreparable damage; and also because the plaintiff had adequate remedies at law, if he had sustained any damage,” But the court refused to dismiss the complaint, and ordered the parties to go to the jury upon these issues: “ The jury shall find whether the plaintiff has a water privilege, as alleged in his complaint, and also whether said privilege has been obstructed by the defendants, or either of them, as alleged in the complaint, and what damage, if any, the plaintiff has sustained from such obstruction.” x</p> <p>The evidence of title was as follows :</p> <p>In 1788, Sylvanus Rice, being the sole owner of the water privilege, conveyed to Jonathan Hawks about ninety acres of -and, “ together with a grist mill and saw mill, and the privilege" of the stream upon which they stand, eighty rods below the south line of Hawks’s forty acre lot, so called, through which it runs, with liberty to use and improve said stream for mills of all sorts within the eighty rods, with liberty to pass and repass by such ways and means as are convenient, with convenient yard room for the use of mills of all sorts.”</p> <p>In 1793, Jonathan Hawks conveyed to Artemas Rice, 2d, “ one half of a saw mill and half the privilege of the stream on which it is set,” “ together with liberty to use and improve said stream for mills of all sorts as far up as the tail of the grist or corn mill standing on said stream, and as far down said stream as the distance of eighty rods below the south line of Jonathan Hawks’s farm,” See., with liberty to pass and repass, and “ with convenient yard room for the use of the mill.” The interest of Rice came by mesne conveyances to David Crittenden in 1846.</p> <p>In 1804 Jonathan Hawks conveyed to Silas Beckwith the grist mill, with all the grantor’s right to the mill stream, subject to Rice’s right to take water from the upper dam for the use of his saw mill, when it would not injure the grist mill; Beckwith “ to have sufficient room for mill yards, dams and ponds, and the command of the upper pond only the reserve made for Rice.” Beckwith’s interest came by mesne conveyances to Simeon Crittenden, who on the 16th of March 1816 conveyed to David Crittenden the grist mill, “ with the full use of the stream of water,” subject to Rice’s privilege as above.</p> <p>In 1826 David Crittenden, being thus possessed of the grist mill, and having otherwise acquired title to the one half of the saw mill which had not been conveyed to Rice, conveyed to Silas Hawks and others the grist mill and land attached thereto, and all water privileges which were conveyed to him by Simeon Crittenden, and also one undivided half of the saw mill which he owned in company with Artemas Rice, and all the privileges conveyed to him therewith.</p> <p>By two deeds dated July 21st 1834 said Silas Hawks and others conveyed to William Patch and Eugene Field “ a certain water privilege, commencing at a certain permanent rock westerly of the centre of said brook, on which the upper dam belonging to the grist mill now stands, and thence running on said brook to the dam which is occupied for supplying water for the grist mill, with the privilege of erecting buildings on the adjacent land for any purpose, except a grist mill and saw mill, for the occupancy and use of any other machinery carried by water power; reserving the right of taking the water from said upper dam to ourselves; also reserving to ourselves the land on said brook one hundred feet below said permanent rock, and also the right of raising the grist mill dam one foot higher than it now is.” This privilege is now by mesne conveyances vested in the defendants.</p> <p>In 1841 said Silas Hawks and others conveyed to David Snow “ a grist mill erected by David Crittenden, with all the land attached thereto, and the right of the road leading thereto, and all the water privileges which the said David Crittenden owned on said stream, conveyed to him by Simeon Crittenden March 16th 1816, excepting the water privilege sold to Eugene Field; and also the first privilege in the saw mill of drawing water sufficient to carry a carding machine; ” and also the saw mill and all privileges conveyed therewith to David Crittenden. Snow’s interest became vested by mesne conveyances in David Crittenden in 1848.</p> <p>In 1852 David Crittenden conveyed to David B. Crittenden “ one half of my grist mill and saw mill, and lands thereto belonging”; and in 1853 he conveyed to the plaintiff “one undivided half of the grist mill and one undivided half of the saw mill, together with one undivided half of the water privileges, lands and appurtenances thereto belonging.” And David B. Crittenden’s half of the grist mill was since conveyed to the plaintiff.</p> <p>In 1854 the plaintiff and David B. Crittenden conveyed to Bishop the saw mill, “ with all the privilege of the stream on which said mill stands, together with liberty to use and improve said stream for mills of all sorts except grist mills, which we reserve for our own use and benefit on the grist mill privilege above.”</p> <p>In 1804, Quartus Rice conveyed to Joseph White the land on the west side of the brook, and bounding “ on the brook,” from a point above the upper dam to a point below the saw mill. In 1817 Jonathan Hawks conveyed to Urbane Hitchcock a farm, which included land on the eastern bank of the stream, from the line of the upper dam to a place below where the defendants’ dam now is; with no reservation in the deed. This land, by mesne conveyances, came to the defendants in 1849.</p> <p>A part of the western portion of the dam built by the defendants was less than one hundred feet from the upper dam, and the dam so erected by fhe defendants raised the water at, about or above the permanent rock referred to in the deeds of Hawks and others to Patch and Field, to the height of ten feet above the ordinary level of the water as it stood when said deed was given. The power of using the upper dam for any purpose, excepting as a reservoir, was impaired or destroyed in value by the setting back of the water as aforesaid; and the plaintiff contended that its value even for that purpose was destroyed.</p> <p>There was no evidence of any occupation for fifty years by the owners of the gristmill, on either side of the stream, between the grist mill and the upper dam, except by passing along the bank to repair and regulate the flow of water from the upper dam, and by building and using a carding mill above the grist mill; but it appeared that both banks of the stream had been occupied for agricultural purposes, by Jonathan Hawks and his assigns and Joseph White and his assigns, except so far as occupied for manufacturing purposes. It did not appear that any use of the water privilege had ever been made by the owners of the adjacent lands, unless claiming under deeds of the mill privileges; or that the privilege created by the upper dam had ever been used except as a reservoir to the grist mill.</p> <p>There was parol evidence that the reservation in the deed of Hawks and others to Patch and Field was expressly stated at the time of the execution of the deed in Patch’s hearing, and was known to Field when he took the deed, to be intended to save to the grantors a privilege just below the upper dam.</p> <p>It appeared that the defendants’ dam materially impaired the value of this privilege thus intended to be reserved; and there was conflicting evidence upon the question, whether the defendants’ dam obstructed the working of the grist mill.</p> <p>Upon this evidence the defendants contended, 1st. That the plaintiff had not chosen an appropriate remedy; 2d. That the limitations in the deeds to Patch and Field, under which they claimed, did not legally restrain them from constructing a dam within one hundred feet of the upper dam of the plaintiff, nor from raising the water at, about and over the permanent rock described in said deed; 3d. That the reservation of the land on the brook, one hundred feet below the permanent rock, was inoperative and void; 4th. That, since acquiring title in the privilege from Hawks and others, they had acquired a good title to the eastern bank of the brook, including the one hundred feet reserved, and as far up as the upper dam, and had thus acquired a right to maintain their dam at its present height.</p> <p>On the whole evidence the court ruled, that the plaintiff had proved his title to such a privilege as he claimed against the defendants; and that the jury, if satisfied that the plaintiff" had been injured by any acts of the defendants, should return their verdict for such damages as he had sustained. The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>