Volume 75 — Massachusetts Reports

<p>Complaint averring that the - defendant, on the 13th of March 1856, “ at Blackstone in the county of Worcester did convey from place to place within said commonwealth intoxicating liquor,” in violation of St. 1855, c. 215, § 20, which provides for the punishment of “ every person who shall bring into this state, or who shall convey from place to place within the same any spirituous or intoxicating liquor, with intent to sell the same,” in violation of this act. The defendant, after conviction in the court of common pleas, moved in arrest of judgment, because the complaint did not set out with sufficient certainty the places within the Commonwealth from which and to which the liquor was conveyed. Mellen, C. J. overruled the motion, and the defendant alleged exceptions.</p>

’ Complaint to the police court of Milford, under St. 1855, c. 215, § 24, averring that the defendant, on the 4th of August 1856, at Milford, “ did keep intoxicating liquor with intent to sell the same in this commonwealth, he the said Charles Gil-land not being authorized to sell the same in said commonwealth for any purpose under the provisions of” St. 1855, c. 215, “ or by any legal authority whatever; against the peace of the Commonwealth, and contrary to the form of the…

Indictment for receiving and concealing leather and other stock for the construction of shoes, which belonged to Gay & Co., knowing them to have been embezzled by William Bowen.

<p>Stealing goods in another of the United States, formerly a colony of Great Britain, and bringing them into this commonwealth, may be punished as larceny here. Thomas, J. dissenting.</p>

<p>Under the homestead act of 1855, c. 238, which provides that “ no property by virtue of this act shall be exempted from levy for any debt contracted previous to the passage of this act,” a debtor who becomes insolvent, owing debts contracted before the passage of the act to an amount exceeding the amount exempted for a homestead, must surrender his homestead to his assignee in insolvency.</p>

Lane and Allen McLaughlin, the report of whom or a major part of whom being made as soon as might be, judgment thereon to be final, and execution issue accordingly. Afterwards the rule of reference was returned with an agreement and award indorsed thereon.

<p>A mortgage, to secure advances to enable the mortgagor to erect a building, of “ all his right, title and interest which he now has in the foundation or stone work of said building, and which he may have in and unto said building during its erection and completion and after it is completed," passes the land on which the building stands.</p>

Action of contract upon a policy of insurance for one year from the 17th of August 1854 on the machinery in the plaintiff’s silk factory. Trial before Bigelow, J., who made the following report thereof: The building and machinery were destroyed by fire on the 22d of August 1854, and this action was commenced on the 24th of April 1855.

Action of contract on a policy of insurance, dated February 10th 1855, upon a school-house against loss by fire, “ according to the true intent and meaning of” the rules annexed to the policy, and the application for insurance, which was made part of the contract.

<p>In an action for a malicious prosecution against the plaintiff for assaulting the defendant with a knife, the defendant cannot introduce evidence that before the alleged assault the defendant had been informed that the plaintiff had carried dangerous weapons and had been prosecuted therefor; or that the defendant before the affray in which the assault was pretended to have been committed saw the plaintiff lurking about his barn.</p>

Action of contract by the treasurer of the State lunatic hospital at Worcester to recover for the support of Walter Rowe, a lunatic. Writ dated December 15th 1855. The parties stated the following case: Rowe was committed to the hospital from the city of Roxbury, by the judge of probate, on the 1st of November 1848 ; and from that time until 1854, upon the supposition that he had no settlement within the Commonwealth, his support was charged to and paid for by the State.

Petition under St. 1852, c. 55, for the dissolution of the Tufts Manufacturing Company, a corporation established at Dudley by St. 1826, c. 108.

Action of tort for breaking and entering the plaintiff’s close.

<p>Under the Rev. Sts. c. 7, § 27, one sixth of a state tax must be assessed on polls, although, if added to the town and county tax, it brings the poll tax on each individual above one dollar and a half. And if the tax is not so assessed, the whole assessment is void.</p>

<p>Land was devised for life, and then directed to be sold and the net proceeds equally divided among the testator’s children and their heirs: During the continuance of the life estate one of the children became insolvent, and his property was assigned under 8t. 1838, c. 163. Held, that his own share passed to his assignees; as well as his right in the share of another child deceased since, the testator, if such other child died before the assignment, but not otherwise.</p>

<p>A. writ against a mortgagor in possession, and against the mortgagee as his trustee, under St. 1844, c. 148, § 2, must be served by copy on the principal defendant, like other trustee processes.</p>

<p>Whether “ the damages demanded exceed twenty dollars,” and thus entitle either party to demand a trial by jury before a justice of the peace under St. 1852, c. 314, is to be determined by the ad damnum in the writ.</p> <p>A. motion to dismiss an action in the court of common pleas, for the refusal of the justice of the peace before whom it has been commenced to order a jury, cannot be entertained after the first term, even if a similar motion has been made before the justice.</p>

<p>If, after the filing of a creditor’s petition for insolvency proceedings on the ground of a fraudulent preference, it is fraudulently agreed between the petitioning creditor and the debtor, in order to carry out such preference and to enable the debtor to obtain his discharge, that the debt of the petitioning creditor shall be paid and the petition dismissed, other creditors are entitled to come in and prosecute the petition.</p>

<p>Appeal from the disallowance by the court of insolvency of a claim offered for proof against the estate of Windsor Morse, an insolvent debtor. The appellant and the assignee stated the following case:</p> <p>The claim was upon a promissory note made by Morse, payable to White or order, and indorsed by White for the accommodation of Morse to the appellant. White held a mortgage on real estate of Morse, to secure him against liability on his indorsement, and this was known to the appellant, who offered this claim for proof at White’s request. The assignees objected that the claim could not be allowed until'the mortgage had been delivered up to them, or applied to the payment of this claim.</p>

<p>The acknowledgment by a husband, after issue bom, of a deed made by him jointly with his wife, of land held by her to her separate use under Si. 1845, e. 208, is sufficient to authorize it to be recorded.</p>

<p>A writ of certiorari will uot be issued to correct the proceedings of county commissioners, who, after having adjudged that a road should be constructed, and having laid it out overa portion of the route proposed, have rescinded their adjudication on the ground that public necessity does not require the construction of the road over the remainder of the route.</p> <p>It seems, that an adjudication of county commissioners that public convenience required a road to be laid out may be rescinded by them at any time before the location of the road.</p> <p>On a petition to county commissioners to rescind an adjudication that public necessity requires the construction of a road, no special notice need be given to the original petitioners for the road, if the road has been partially laid out; but the service of copies of the petition to rescind on the town clerks of the towns in which the said road is situated, and by posting copies of said petition in two public places of each of said towns is sufficient.</p>

<p>Action of contract for work and labor. Writ dated April 30th 1855. The plaintiff’s bill of particulars contained two items for sawing lumber from January 1st to March 1st 1849, three items for sawing lumber from April 1st to May 10th 1849, and one item for five years’ interest on the amount of the five pre-' vious items.</p> <p>At the trial in the court of common pleas the defendant relied on the statute of limitations to bar a recovery of any of the items bearing date of more than six years before the date of the writ. The plaintiff produced evidence tending to show that all the lumber was sawed under one entire contract.</p> <p>Aiken, J. instructed the jury that all such portions of the plaintiff’s account as appeared to have been done more than six years before the commencement of the action would be barred by the statute, unless the contract was entire and the parties understood that no part was to be paid for till the whole was done; and that if the contract was entire, and the work was not done till the 10th of May 1849, the plaintiff might recover for the whole, notwithstanding the form of the bill of particulars before the date of the writ. The jury found for the plaintiff, and the defendant alleged exceptions.</p>

<p>A wagon, with patent couplings attached, used by the owner in carrying on his business of selling patent couplings, is not exempt from attachment under Rev. Sts. c. 97, § 22, and St. 1855, c. 264.</p>

Bill in equity for a reconveyance of land, and release of dower of the defendant’s wife therein. The case is stated in the opinion.

Action of contract against husband and wife on their promissory note, dated April 9th 1856, by an indorsee before maturity of the note and without knowledge of the coverture. The defendants were married after the passage of St. 1845, c. 208, and before the passage of St. 1855, c. 364. The wife signed the note with the consent of her husband. The consideration of the note was a chattel sold to the husband. The parties submitted the above case to the judgment of the court.

Action of contract by the administrator of Katharine Thompson for money had and received. At the trial in the court of common pleas the following facts were proved: In 1802 the said Katharine married Elisha Thompson.

Action of tort for forcibly breaking and entering the plaintiff’s house and searching it. At the trial in the court of common pleas before Perkins, J. at March term 1857, the defendants introduced testimony to show that their entry upon the premises and acts done therein were at the request of the plaintiff’s wife, acting under his authority in his absence. To rebut this evidence the plaintiff offered his wife as a witness; but the court rejected her testimony.

Action of tort for breaking and entering the plaintiff’s close in Sutton, described in the declaration, and removing a stone wall and stakes of the. plaintiff. The declaration contained no averment of time.

<p>An oral promise, for a valuable consideration, to indemnifyanother from his liability as Bail for a third person, is not within the statute of frauds.</p>

Action of contract for fees received by the defendant while assistant marshal and constable of the city of Worcester. The case was submitted to the decision of the court upon these facts: The mayor and aldermen of Worcester, by the city charter, have “ full and exclusive power to appoint constables, and a city marshal and assistants, with the powers and duties of constables, and all other police officers.” Si. 1848, c. 32, § 8.

<p>Appeal from the decree of a judge of probate, allowing to the appellee, the widow of Moses G. Maynard, the whole of his personal estate, upon these facts: In 1855 Moses G. Maynard died, leaving kindred, but no issue, and having disposed of his estate by will; and leaving personal property, which, after the payment of debts, amounted to less than five thousand dollars. The appellee duly waived the provision made for her in the will.</p>

Appeal by the administrator of the estate of Daniel Saunders, an insane person, from a decree of the judge of probate allowing his guardian’s account, including this item : “ For loss sustained by accountant by fire caused by want of care on part of said Daniel Saunders over and above amount received by insurance.” At the hearing in this court, the appellee, in support of the item, offered evidence that “ Saunders, by want of ordinary care, set fire to the dwelling-house of…

Action of contract upon this agreement in writing, signed by the defendants: “ An agreement this day made between D. Woodward & Co. of Worcester, and Rufus M. Huntley of Fitchburg.

<p>Petition presented by the Trustees of the Pleasant Street Baptist Meeting-house on the 11th of October 1853 for a man-damns to the mayor and aldermen of Worcester. Hearing before Bigelow, J., who reported this case to the full court:</p> <p>On the 9th of December 1850 the petitioners presented a petition to the respondents for the assessment of damages sustained in altering the grade of Pleasant Street, by raising and filling up the same about twro feet in front of their premises. On the 21st of January 1851 the respondents accepted a report of their, committee on highways, to which the case had been referred, which stated that “ the committee would not recommend that damages be appraised and allowed the said trustees, but that the committee on highways be directed to lower the street in front of said meeting-house so that said house shall stand relatively to the street as it did before the alteration was made that is now complained of; providing any action in the case is necessary.” On the 13th of October 1851 the petitioners in writing requested the respondents to act on their petition, and the respondents voted to meet at the meeting-house on a certain day and hour to view the premises; but they did not meet on the premises at the time appointed, and there was no record of any further action by them in the matter. On the 23d of August 1852 the respondents ordered “ that the height, width and grade of the sidewalks in Pleasant Street be established as they are now indicated by the existing curbstones, so far as those curbstones have been set by the authority of the city.” The petitioners had no notice of this order, and objected to the curbstones being placed where they were set.</p>

<p>Action of contract on a promissory note made by the defendant to the order of and indorsed by “ H. Stoddard & Wood.”</p> <p>At the Mai in this court the defendant offered to prove that he and the plaintiff, at the time of the making of this note, were copartners under the firm of H. Stoddard & Wood; that this note and others of like tenor were made as evidence of sums of money drawn by the defendant from time to time out of the partnership funds; that the partnership was dissolved, and the defendant thereupon executed a written assignment, for a nominal consideration, by which he transferred to the plaintiff all his right, title and interest in “ all and singular the stock of goods and merchandise, debts, bonds, specialties, notes, accounts and other estate and effects, rights and credits of the said concern of H. Stoddard & Wood,” and appointed the plaintiff his attorney in his name or in the name of the partnership, to ask, demand, sue for, recover and receive all sums of money, property and effects, debts, dues, accounts and other demands whatsoever, which were or should be due, payable or belonging to the partnership ; and that the note in. suit was indorsed when overdue, and after the dissolution of the partnership.</p>

<p>Appeal from a decree of a commissioner of insolvency, allowing against the estate of Wall & Balcom, insolvent debtors, a promissory note for $1600, made by them to the plaintiff.</p> <p>At the hearing in this court the plaintiff testified that when the firm of Wall & Balcom was first established he guarantied the payment of certain purchases of goods by them, and before the price fell due gave his notes in payment therefor to the amount of $1600, which he had since paid, and the giving of which was the consideration of the note offered for proof; and that one of the parties .to whom he gave these notes was Snelling, Leland & Co., to whom, on the same day, he also gave the following written agreement:</p> <p>“ Whereas I, James H. Wall, have heretofore given written guaranties to certain creditors of Wall & Balcom, and h.ave cancelled said guaranties by substituting my notes therefor, said notes amounting in all to the sum of two thousand dollars: and whereas Snelling, Leland & Company as creditors of said Wall & Balcom hold one of said notes to the amount of one thousand dollars : and whereas, for the better security of said creditors, it is my intention, in case of my paying said notes, not to enforce them afterwards against said Wall & Balcom, until said creditors shall first have been paid: Now know ye, that in consideration of one dollar to me in hand paid, and for other valuable considerations, I do promise and agree to with said Snelling, Leland & Company, that after I have paid any and all of said notes given to said creditors as aforesaid, I will neither directly nor indirectly enforce them nor the amount thereof against said Wall & Balcom, until after said creditors shall severally have been fully paid, in aforesaid sums now due, and hereafter to become due, and in and for all debts hereafter contracted by Wall & Balcom in their business. The said amount of two thousand dollars, as to all said creditors, is to remain as part of the business capital of said Wall & Balcom. This agreement is to be good for the term of three years from this date and no longer. Dated this thirtieth day of June A. D. 1855. James H. Wall.”</p>

<p>An officer seizing intoxicating liquors by a warrant issued under St. 1855, c. 215, § 25, Is liable as a trespasser, upon the subsequent abatement of the proceedings because the notice to the keeper was not returned to the proper court, although no order is passed for the return of the liquors, and notwithstanding § 38.</p>

<p>Replevin of two wagons, attached by the defendant as a deputy sheriff on mesne process against Hiram E. Brastow. Trial in the court of common pleas before Perkins, J., who signed a bill of exceptions, in substance as follows :</p> <p>The plaintiff testified that he sold the wagon to Brastow for cash, and contended that by reason of the nonpayment of the price according to agreement the property had not passed. The instructions of the court on this point were not excepted to.</p> <p>The plaintiff also, as evidence that Brastow bought these wagons with the intent and purpose not to pay for them, offered to show that, about the time of this sale, Brastow was insolvent, and purchased large amounts of personal property of third persons, and got them into his hands by fraud, and then secreted them in various places. To the introduction of this evidence the defendant objected; but the court admitted it.</p> <p>It appeared that the service of the writ under which the defendant held the wagons was never completed, and the writ never returned to court. And the plaintiff, against the defendant’s objection, was permitted to prove that before the return day, and by direction of the attaching creditor, the attachment was abandoned and all further proceedings on that writ stayed.</p> <p>The court instructed the jury that if the wagons were attached by the defendant without knowledge of any fraud, under a proper writ against Brastow, which he had since returned, and held by him as a deputy sheriff at the time of the replevin, this action could not be maintained, though Brastow had obtained the delivery of the wagons to himself by fraud, and though the sale might be therefore void as between the plaintiff and Bras-tow ; but that the defendant could not make that defence undei a process, the service on which had never been completed, and which had been abandoned before the return term, and not returned to court.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Bill in equity filed on the 26th of February 1855 to redeem land in Worcester from a mortgage. Hearing before Bigelow, J., who reported to the full court this case: On the 10th of February 1852 the defendant, who was first mortgagee, entered upon the land for breach of condition, and for the purpose of foreclosure; and a certificate by two witnesses of his entry was filed and recorded, as required by Rev. Sts c. 107, § 2.

<p>Action of tort, praying for relief in equity, by the owner of a machine shop on Mill Brook in Sutton, with a privilege of drawing water “sufficient to carry a water wheel well constructed, with twelve feet head and fall, for two common blacksmith bellows, and, should the head and fall be less than twelve feet, sufficient to carry one bellows twelve hours in twenty four hours, in either case in the day time, as near as may be; ” and of another privilege below, known as the “ Hooker privilege; ” to compel the owner of a saw mill still lower down, and of the reservoirs and dams above, by which the whole head of water was raised, to keep in repair the dam at the outlet of the lower reservoir above the plaintiff’s machine shop; to restrain him from hoisting the gates of the dam, against the plaintiff’s rights ; to ascertain whether the defendant’s right to draw water for his saw mill was not servient to the plaintiff’s rights; and to determine the manner in which the plaintiff might draw water for the purpose of satisfying his rights, and “ prescribe the quantity of water, which the plaintiff may so draw, by some definite, intelligible and convenient admeasurement; ” to fix the time during which the defendant might draw the water from the reservoir for the purpose of enabling him to dig clay or manure from the meadow covered thereby; and for other relief. Upon this bill a temporary injunction was issued.</p> <p>The defendant, in his answer, objected to the jurisdiction of the court in equity over the matters alleged, and set forth his own claims. The case was submitted to the court upon the bill and answer and a statement of facts, so much of which as is material is given in the opinion.</p>

<p>Under an indictment for breaking and entering the shop of a person named, it is no variance, under Rev. Sts. c. 133, § 11, if it appears that the shop is occupied by that person and another, each of whom pays rent to the owner thereof, and by mutual agreement occupies a distinct part of the shop, although it is not shown that the defendant broke and entered the part occupied by the person named.</p>

<p>Confessions made by one so intoxicated as not to understand them are no evidence of guilt.</p> <p>Whether a party making confessions was so much under the influence of intoxicating liquor as not to understand what he was confessing is a question for the jury.</p> <p>On the trial of an indictment for breaking and entering a shop and stealing therein, the only evidence against the defendant was his confession, made while under the influence of intoxicating liquor, that he and another person broke into the shop and stole the goods described, and that the defendant sold part of the goods to a third person. Held, that the defendant might introduce evidence to disprove all the facts which he was said to have confessed.</p> <p>If the question whether a defendant, when making confessions of guilt, was so intoxicated as not to understand them, is submitted to the court as preliminary to the admission of a witness to the confessions, and is decided by the court upon the testimony of that witness only, rejecting evidence of other witnesses that shortly before and after the conversation at which the confession was made the defendant was intoxicated, it is ground of exception.</p>

Complaint for larceny, signed by the complainant in the blank space below the description of the goods stolen, and above the charge of larceny; and certified by the clerk of the police court of Lowell to have been received and sworn to before that court. The defendant, after conviction in the court of common pleas, moved in arrest of judgment, because the complaint was not “ subscribed by the complainant,” as required by the Rev. Sts. c. 135, § 2.

<p>An indictment for larceny of property alleged to be of a value less than one hundred dollars is supported by evidence that the property was of any value.</p> <p>The punishment which may be imposed by the court of common pleas, under Rev. Sts. c. 126, § 17, for larceny of property not exceeding one hundred dollars in value, is not affected by the value of the property, notwithstanding the concurrent jurisdiction given by § 18 to justices of the peace- where the value is not alleged to exceed fifteen dollars.</p> <p>On the trial of an indictment for larceny of a horse the jury are warranted in finding that he is of some value upon evidence that he was a dark sorrel horse, weighing about nine hundred pounds, had a long tail, and was driven a long distance.</p>

<p>An indictment for perjury by testifying upon the trial of a complaint for an assault upon this defendant, that the person complained of did not assault him on a day named, whereas in fact, as this indictment alleged, he did so assault him on that day, is not supported by evidence that this defendant testified as alleged, and that he was so assaulted either on the day named or the day before.</p>

<p>On the trial of an indictment for obtaining a signature to a deed by false pretences, previous conversations of the defendant with a third person as to procuring such a signature are admissible in evidence against him.</p> <p>The admission of other proof of the execution of a deed is no ground of exception by a party who subsequently calls and examines the subscribing witness.</p>

Indictment, averring that the defendant on the 15th of November 1852 at Lowell “ had in his custody and possession a certain promissory note signed by the said Stephen Castles and payable to John Walsh or order, and then and there purporting to have been indorsed by the said John Walsh on the back thereof, which said promissory note is of the tenor following, that is to say, “ ‘ Lowell, Nov. 15th 1852. $2000.

Indictment on Rev. Sts. c. 126, § 32, alleging that the defendant on the 4th of October 1856 at Lowell, “ devising and intending by unlawful ways and means to obtain and get into his hands and possession the goods, merchandise, chattels, effects and personal property of the honest and good citizens of this commonwealth, and with intent then and there to cheat and defraud, did then and there unlawfully, knowingly and designedly, falsely pretend and represent to one Abel…

The second count of this indictment alleged that the defendants, on the 1st of March 1856, owning a stock of goods in Lowell as partners, and having insurance thereon against fire by certain insurance companies named in the indictment, amounting in all to the sum of $10,000, “ did then and there corruptly, wickedly and unlawfully confederate, agree, combine and conspire together, to insure and cause to be insured on said stock ” certain other sums, amounting to $10,000 more,…

<p>A complaint on St. 1855, c. 429, which alleges that on Saturday the 2d of August the defendant did keep a billiard room, and “ did then and there ” suffer certain persons to play at billiards in said room a after the hour of six of the clock in the afterrioon of” said Saturday, sufficiently defines the time. "</p>

<p>Complaint on St. 1855, c. 215, § 15, for selling intoxicating liquor “to a person whose name is to your complainant unknown.”</p> <p>At the trial in the court of common pleas before Aiken, J., the complainant testified “ that another person told him that the defendant had been selling liquor, and that evidence could be adduced to prove it; and thereupon the complainant made said complaint.” The complainant also testified “that, when he signed said complaint, he neither knew, nor had he been informed of the person, or the name of the person, to whom the supposed sale had been made; neither did he know, or have any idea, of. the name of the person to whom such supposed sale had been made ; nor did he have in his mind any particular transaction'; nor did he know what evidence there was to support said complaint.” Another witness testified that he had purchased intoxicating liquor of the defendant.</p> <p>The defendant requested the court to rule, “ that when the complainant signed the coinplaint, it was necessary that he should either know the person, or the name of the person, to whom the supposed sale had been made, or should have in his mind or be capable of identifying such person.”</p> <p>The court declined so to role; but did instruct the jury “that if the complainant knew, or had reasonable and probable cause to know by information from others, that the sale had been made by the defendant, but did not know the name of the per-' ■son to whom such sale was made, the jury would be warranted ■in finding the allegation of a sale to a person whose name was unknown, proved; and, provided they were satisfied that a sale had been made, would return a verdict of guilty.” The defendant was convicted, and alleged exceptions.</p>

<p>An indictment, which avers that the defendant at a certain place on a certain day, and at said place from said day to the day of finding the indictment, “was then and there a common seller of intoxicating liquors,” charges but one offence.</p>

Indictment on St. 1855, c. 215, § 17, for being a common seller of intoxicating liquors at Marlborough on the 1st of June 1856, and from that day to the 1st of October 1856.

<p>On the trial of a criminal case, the jury, some of whom had at the same term tried other similar cases, during the trial of which, law books had been read to the jury by permission of the court, were instructed that they might bring to their aid in deciding on the evidence any knowledge they had acquired from any source equalty open to them all, but not any particular knowledge as to the law or the facts communicated to a part of them only; and that they were to decide this case on the evidence introduced into it, and not on any evidence of the law or facts introduced into other cases in which some of them did not sit; and that the jury were bound to consider the instructions of the court on the law of the case as evidence of the law, and that they must decide the case according *o the evidence. Held, that the defendant had no ground of exception.</p>

Indictment for being a common seller of intoxicating liquors. Trial in the court of common pleas before Aiken, J., who signed the following bill of exceptions : “ At the trial the government offered evidence tending to show sales of some kind of beer by the defendant and by others in his employment, which it was claimed by the government was strong beer, but this was denied by the defendant.

<p>An indictment on St. 1855, c. 215, § 15, for an unlawful sale of “ intoxicating liquor" need not more particularly describe the kind of liquor sold. .</p> <p>On the trial of an indictment on St. 1855, c. 215, for unlawfully selling intoxicating liquors, the burden of proving any license, appointment or right to sell, is upon the defendant, by virtue of St. 1844, c. 102.</p>

Indictment for larceny of six gallons of brandy at Townsend in this county.

<p>Action of contract for breach of promise of marriage. The answer denied all the allegations in the declaration. Trial in this court at October term 1856 before Merrick, J., who allowed this bill of exceptions :</p> <p>“ The plaintiff’s counsel, in opening the case, stated that in the spring of 1852 intimacies commenced between the plaintiff and the defendant, which continued to February 1853, when, in consequence of improper proposals made by the defendant to the plaintiff, the plaintiff rejected the further addresses of the defendant, and all intimacy was broken off between them ; but that renewed attentions occurred, and renewed mutual promises, upon which the plaintiff relied to maintain this action, were afterwards made by them between the 1st and 15th of Oc tober 1853.</p> <p>. “ The plaintiff was introduced as a witness, and allowed by the court to detail what occurred during the intimacy existing between the parties previously to the alleged rejection of the defendant by the plaintiff; and the fact that it was broken off and what she said to him at the time; and that she returned his niniature, which he had previously given her.</p> <p>“ The plaintiff called Timothy Bicker, who was allowed by the court, in answer to questions proposed to him by the" plaintiff’s counsel, to state that one Sunday evening in the spring of 1853, after the intimacy was broken off, he called upon the plaintiff when the defendant was not present, and invited her to take a walk with him, which invitation she declined; that some time in the week following, in a conversation between the witness and the defendant, the defendant, referring to this invitation, asked the witness what he tried to get Lucy to walk with him for, and told the witness that Lucy (the plaintiff) had bluffed him (the witness) off, and that he could not get the girl away as long as he (the defendant) had a claim on her.</p> <p>16 The plaintiff testified that, in the latter part of the winter or spring of 1854, (after the defendant first promised to marry her,) and also after all attentions to her on his part had ceased, she went to board with the mother of Susan Hemenway (whom the defendant afterwards married) where the defendant also boarded, and that she there remained until after the defendant’s marriage, which took place on the 17th of October 1855. The plaintiff also testified that she never knew or heard of any attentions or intimacies between the defendant and his wife, prior to their marriage.</p> <p>“ To contradict this, the defendant offered to show, that after the alleged intimacies were broken off between the plaintiff and the defendant, and subsequently to the time of the alleged breach of the alleged promise of marriage, the defendant was publicly attentive to his present wife with the plaintiff’s knowledge ; which testimony was, upon the plaintiff’s objection, rejected as immaterial.</p> <p>' “ On the cross-examination of the defendant, questions were asked him as to intimacies, walks and visits supposed to have taken place between the parties, some of which were, and some of which were not, introduced by the plaintiff in putting in her case ; and all of which intimacies, as well as the existence of any engagement at any time, the defendant denied. After the</p> <p>defendant had closed his defence, the plaintiff was introduced, and allowed by the court, for the purpose of contradicting the defendant upon the matters drawn out in cross-examination, to testify to certain transactions between the parties, which tended to prove the issue denied in the answer to the declaration.</p> <p>“ The defendant offered his wife as a witness, to facts material to the issue, and which occurred before her marriage. Bu the court refused to admit her to testify.</p> <p>“ To all which rulings, (the verdict being for the plaintiff,) the defendant excepts.”</p>

<p>Permitting a defendant, after the commencement of the plaintiff’s closing argument, to introduce evidence to explain entries then first pointed out by the plaintiff in books previously put into the case by the defendant, is no ground of exception.</p> <p>In an action by the assignee of an insolvent debtor under Sts. 1838, c. 163, and 1841, e. 124, to recover the value of goods conveyed away by the debtor, the plaintiff has no ground of exception to instructions that he must prove that the debtor, at the time of making the sale, was in fact insolvent, and in fact intended to prefer the defendant as a preexisting creditor; and that if he made the sale in good faith, and with the intent solely to procure means for the prosecution of his business, and with no intent to prefer a preexisting creditor, the sale would not be invalidated by the fact that part of the consideration of the sale was a credit on a previous debt from him to the purchaser.</p>

<p>Omission to disclose to insurers repeated incendiary attempts to destroy the property in- ■ sured will not avoid the insurance.</p> <p>In an action on a policy of insurance, in which the defence relied upon is a subsequent insurance contrary to the terms of the first policy, the burden of proving that the two policies covered the same property is upon the defendants.</p> <p>A policy of insurance upon “ carpenter’s shop and carpenter’s tools ” provided that the issuing of any other policy covering any portion of the property insured, and not disclosed to these insurers, should avoid this policy. Meld, that evidence of the issuing of '.mother policy to the same person upon “ four chests of carpenter’s tools in wood shop,”' described as situated in the same street as in the first policy, and that there were in the tihop two chests of tools belonging to the assured, and two or perhaps three belonging to heir journeymen, did not show that any part of the property was covered by both policies.</p>

Action of contract to recover a loss by fire under a policy of insurance upon three wooden houses, “under the conditions and limitations expressed in the by-laws ” annexed to the policy, the sixteenth of which provided “ that the company shall have the right to make good the damage by rebuilding, replacing or repairs; and the insured shall contribute one fourth of the expense of rebuilding or repairing.” At the trial in this court, the defendants admitted a partial loss ;…

Bill in equity by the mayor of Lowell, being an inhabitant thereof, to restrain the Proprietors of the Locks and Canals on Merrimack River, (incorporated by St. 1792, c. 13,) from inclosing with a wall the Lower Free Landing Place, so called, by the side of their canal in Lowell, which had been laid out by them in 1835 on their own land, according to the' provision of St. 1835, c. 132, § 2, requiring them to “ construct and maintain two free landing places, the one above and…

Writ of entry to recover land in Cambridge, being lots 3, 4, 5 and 6 on a plan of Joseph Porter, made in September 1847, and recorded in the registry of deeds in 1850, the material part of which is copied in the margin.* Each of the lots was seventy six feet wide, and bounded by Avon Street on the north, and by land of Charles Mclntire on the south. The tenant pleaded the general issue as to lots 4 and 5, and disclaimed' all right in lots 3 and 6.

<p>Action op contract on the Rev. Sts. c. 39, § 53, to recover an unpaid balance of assessments of $80 a share on shares in the plaintiffs’ capital stock, for which the defendant was alleged to have subscribed by signing an agreement, headed “ Marlborough Branch Railroad Company — Articles of Subscription to Capital Stock,” which, after reciting the incorporation of the plaintiffs by St. 1852, c. 162, (fixing their capital stock at eight hundred shares of not more than $100 each,) and the selection of a location, proceeded thus: “ And whereas it is deemed important that the meeting be called by the corporation to organize such corporation, and that the book of subscription be opened immediately, so that the work may proceed without delay. Now therefore we the undersigned do hereby severally agree to take the number of shares in the capital stock of such corporation set against our respective signatures, and promise to pay the assessments that shall be levied thereon, not exceeding one hundred dollars per share, upon the following conditions,” one of which Was, “ that not more than one dollar per share shall be assessed upon the capital stock until eight hundred dollars shall be subscribed.”</p> <p>The answer put in issue all the allegations in the declaration and particularly alleged that certain subscriptions, purporting by the agreement relied on to have been made, were not genuine.</p> <p>At the trial in the court of common pleas before Sanger, J., the plaintiffs put in evidence a book containing the original agreement of subscription, and offered evidence tending to show that this book was at the meeting for the organization of the corporation, and was the only subscription list there, and was then treated, acted upon and accepted as the subscription book of the corporation, and had ever since been so treated and kept in the possession of the treasurer of the company; that, at the time of the laying of the first assessment, the directors examined this subscription list to see if it was full, and found there were eight hundred shares subscribed for, and thereupon laid the first assessment.</p> <p>There was no evidence to show that said list was ever canvassed by the directors as a board and declared full, or that it was before the board at the time of laying the assessments, or that there was any vote of the directors declaring it full, or any vote apportioning and allotting the stock according to this or any other subscription list. And this paper had never been treated or acted upon by the corporation or its officers as subsisting after the organization of the corporation.</p> <p>It appeared that the defendant subscribed to this book for three shares of the stock before the acceptance of the charter or any organization of the plaintiffs as a corporation.</p> <p>There was no proof that the defendant or any considerable part of the other subscribers attended or took part in the organization, or in any subsequent action of the corporation, or ever recognized this subscription list in any way as a book of the corporation.</p> <p>The plaintiffs asked the court to role that this book of subscriptions, thus treated, acted upon and kept, furnished prima facie evidence that at the time of the laying of the first assessment eight hundred shares had been subscribed for bona fide. But the court refused so to rule; arid ruled that the plaintiffs must in the first instance, as part of their case, prove by other evidence that the signatures to the book were genuine, which the defendant had specified in the answer. The plaintiffs became nonsuit, and alleged exceptions.</p>

<p>Action of tort for breaking and entering the plaintiff’s close in Melrose. The parties submitted to the court the question whether the action could be maintained upon the following statement of facts:</p> <p>James Pratt in his lifetime was seised in fee of the premises on which it is alleged that the trespass was committed, and of other land around and adjoining the same; and in 1846, while so seised, caused to be made a plan of said premises, laying out the same into streets and house lots; and on the 8th of May 1846 sold the lots so laid out by public auction on the premises, using and distributing at the sale a certain plan, a copy of which was also recorded in the Middlesex registry of deeds ; and also representing at the time and place of sale that the streets were to be and remain open as represented upon said plan ; and made deeds to the purchasers of said lots, in which reference was made to the plan so recorded.</p> <p>Upon the plan were delineated twenty three lots, and the streets by which they were bounded. One of these streets, called Youle Street, was forty feet wide on the plan, except towards its eastern termination, where its side lines gradually diverged so that its width where it entered Vinton Street was seventy feet. Upon the plan was a memorandum that of certain streets other than Youle and Vinton Streets “ the lines may vary slightly from the plan.” So much of the plan as is necessary to the understanding of this case is copied in the margin.* The dotted lines indicate the subsequent alterations of the streets by the selectmen and the county commissioners as mentioned below.</p> <p> </p> <p>One of these deeds was to Lucius Beebe, of five “ lots numbered twelve, thirteen,” and three others, “ on a plan of lands belonging to said James Pratt, sold by public auction on the 8th inst., a copy of which plan is deposited in the registry of deeds for said county of Middlesex for the purpose of reference,” and “bounded, and described as follows, to wit: beginning at a point on a forty feet street laid down on said plan, and called Youle Street, by the corner of lot numbered fourteen,” thence running northwardly, westwardly and southwardly by other lots and streets on said plan, and finally by lot number 11 “ to said Youle Street, thence turning and running easterly again by said Youle Street to the point of beginning, together with all the rights, easements, privileges and appurtenances to the same belonging.” The defendants derived their title from Beebe, and at the time of the alleged trespass were seised in fee of lots 12 and 13, and owned and occupied dwelling houses thereon.</p> <p>The selectmen of the town of Melrose afterwards viewed and laid out Youle Street as a town way of the uniform width of forty feet, and the same was duly accepted by the town. And the county commissioners altered Vinton Street north of Youle Street by narrowing it on the west side, leaving it forty feet wide; but Vinton Street was never built according to such alterations.</p> <p>In 1855 the plaintiff acquired the title of James Pratt in the lot numbered 16, bounded on the east on • “ Vinton Street, on the line recently established by the county commissioners, until it intersects Youle Street; thence running by the north side of Youle Street to land numbered lot 15 on a plan of lots heretofore recorded; thence running northerly,” &c.</p> <p>The land upon which the alleged trespass was committed is outside of the town way as laid out by said town, and within the limits of Youle Street as laid out and represented on said plan; and, from the time of being laid out as a part of Youle Street by Pratt as represented on said plan, remained open, and was travelled over, without objection, by the defendants and others going in or out of said town way, until 1856, when the</p> <p>plaintiff erected .a fence on the northerly side of said town way, and within the limits of Youle Street as laid out and represented on said plan, extending to Vinton Street; and the defendants requested him to remove so much of said fence as was within their limits, which he refused to do ; and the defendants then removed that portion of the fence, and placed it upon the plaintiff’s adjoining land, and entered upon, and ploughed up, and made into a street or way for travel, a portion of the land lying between the northerly line of said Youle Street as laid out and represented on said plan and the northerly line of said town way, without injury to the adjoining land of the plaintiff.</p>

<p>Evidence of a submission by the assured and an agent of the insurers of the amount of a loss by fire to arbitration is not sufficient evidence of a waiver of a condition in a policy of insurance requiring a particular account of the loss, to charge the insurers in foreign attachment as trustees of the assured, if they state in their answers that they have never waived the conditions of the policy.</p>

<p>The word 11 estate,” in a will made before the Rev. Sts. c. 62, § 4, although accompanied by words of locality, passed a fee, unless controlled by other parts of the will.</p> <p>A fee passed by the following devise, made before the Rev. Sts., although words of inheritance were annexed to other devises in the same will— “ To A. I give and devise all my lands and tenements in W., with the privileges and appurtenances to the same belonging, containing four hundred acres, be the same more or less. This estate was formerly the property of G., and I now devise it as a token of my respect for the devisee, and in consideration of his services in directing the education of my two grandsons.”</p>

<p>Complaint on Rev. Sts. c. 116, entered at September term 1850 of the court of common pleas, and alleging that the respondent had maintained and kept up a dam across Hale’s Brook in Lowell since the 23d of February 1850, and thereby flowed and injured the lands of the complainants.</p> <p>The respondent answers “ that he will claim a trial before a jury of this honorable court, at the bar of said court, and for specification of his defence at such trial says, 1st. He will plead the general issue, and rely upon any and all matters in defence which he is legally entitled to avail himself of under that plea. 2d. He further says, that he has a right to keep up his dam at the height it had been during the time complained of, and to raise and flow back the water thereby, without paying compensation or damages therefor.”</p> <p>Before the trial the deaths of four of the complainants were suggested, but there was no appearance of any of their representatives. The respondent pleaded the general issue, concluding to the country; and the complainant joined the issue.</p> <p>At the trial at September term 1857 before Morris, J., the respondent objected to proceeding upon the then state of the complaint and pleadings; particularly as one of the deceased complainants was tenant in common with one of the survivors and another of the deceased complainants was tenant in common with two others of the survivors, and damages were claimed for the whole land thus held in common. But the judge allowed the complainants to proceed without amendment.</p> <p>After the complaint was read, the respondent called upon the complainants to prove their title to the land alleged to be flowed. The complainants contended that this was not a civil action; that no general issue could be pleaded in it, but the respondent must plead his defence specially in bar. But the judge ruled that, under the pleadings in the case, the complainants need not prove title to the lands flowed.</p> <p>It appeared that the dam of the respondent was built across Hale’s Brook, and that a dam had existed upon the same spot before the beginning of this century; and that in 1823 Moses Hale, a former owner of the dam and mill privilege, built a dam upon the site of the old dam which raised the water at that point higher than it had been before that time. There was conflicting evidence upon the question whether the dam had been altered since 1823 so as to raise the water higher, except temporarily from 1836 to 1840.</p> <p>The complainants were permitted, against the respondent’s objections, to prove that Hale, before 1827, pointed out a stone in the pond to one of his workmen as a water mark of his right to flow the meadows, saying that said stone was the mark for him to keep his water at; and directed him, when the water rose above the stone, to hoist the saw-mill gate and work the water down to the stone.</p> <p>The complainants were also permitted, against objection, to introduce testimony that the former proprietors paid money during the years 1836, 1837 and 1838, as damages for flowing and for the purchase of other land bounded on this brook, which the witness stated, on cross-examination, was to avoid law suits and own the land.</p> <p>The complainants offered a deed from the heirs of Butter-field, dated December 20th 1837, granting to the former proprietors of the dam the privilege of flowing their lands to a certain height named in the deed, and proved the deed by a witness. The respondent offered to prove by the same witness that the flowing mentioned in the deed was caused by raising the dam in 1823, and that annual damages had been paid therefor to the ancestor of said heirs from 1823 to the time of his death, prior to 1830. But the judge rejected this testimony.</p> <p>It appeared that a causeway across the meadows of the brook connected with a bridge over the stream had been raised since the commencement of this suit; and the respondent offered to show that it now operated as a dam, upon the stream, by tests and observations made since the service of the complaint. But the court rejected the evidence.</p> <p>A witness called by the respondent having testified on cross-examination that in 1832 the owners of the meadows chose a committee to procure a survey of the brook and the taking of levels upon it; the respondent offered in evidence the report of said committee, showing the action of the meadow owners, (among whom were several of these complainants,) and that they, by a subscription among themselves, cleared out the brook. But the judge ruled the report inadmissible. The certificate of said levels was afterwards put in by the complainants without objection.</p> <p>Oliver M. Whipple, the respondent’s grantor and warrantor, had taken upon himself the entire defence of this suit. The complainants, in order to prove that the proprietors of the dam complained of kept the water back by raising their dam, and so deprived him of the usual and natural run of the stream, offered testimony that Whipple in 1837 or 1838 owned the privilege next below this dam, and had leased it to the witness, and told him that the owners of the dam complained of had no right to raise the water above a certain rock in the pond, because they had raised their dam. The respondent objected to the evidence of the declaration of Whipple, because it did not appear that at. the time of making the declaration he had any connection with or interest in this dam or privilege. But the judge admitted the testimony.</p> <p>Upon all the testimony in the case the complainants contended that the dam had been raised since 1832; and the respondents contended that it had not been raised since 1823, and that they were entitled to maintain it at the height at which it then stood and at which it stood at the date of the complaint.</p> <p>The jury returned a verdict for the complainants under the following instructions: “ If the respondent had shown that his dam, as it stood on the date of the complaint, had existed at the same height for any twenty consecutive years previously to that time, their verdict should be upon the pleadings for the respondent; but if it had not been maintained for any such period at the height at which it stood on that day, no prescriptive right had been gained, and they should find a verdict for the complainants.”</p> <p>The respondent made no objection to these instructions at the time, and did not request any different instructions upon this 'point; but at the hearing in this court upon exceptions to the rulings and instructions at the trial, contended that the jury should have been instructed that the respondent had a right to maintain his dam as it existed in 1823, the time of its being rebuilt, and in 1830, twenty years before the date of the complaint ; and that as the bill of exceptions showed that he had taken this ground at the trial, it was the duty of the judge to have instructed them upon this point.</p>

<p>It seems, that a laying out of a highway, in terms, as an alteration of a former way, discontinues the old way between the ends of the new one. But in the absence of any record of the laying out of either way, evidence of the construction and subsequent repair of the new way by public authority does not necessarily presuppose the discontinuance of the old one.</p>

<p>Action of tort against the assessors of North Bridgewater and a deputy sheriff of Plymouth County, for an arrest and imprisonment of the plaintiff. Trial before Merrick, J., who signed this bill of exceptions :</p> <p>The plaintiff was taxed in that town as a nonresident owner of real estate; and the assessors gave their warrant to the collector of taxes; and he issued his warrant to the deputy sheriff, who, after due demand and nonpayment, and diligent search for goods and chattels of the plaintiff, and for goods upon the premises assessed, arrested the plaintiff and imprisoned him in the county jail.</p> <p>There was no evidence of any failure of the collector to find sufficient goods upon which the tax might be levied, except the return of the deputy sheriff, which set forth a demand and refusal, and that the officer, “ having made diligent search for goods and chattels of the said Snow, and for goods upon the nremises assessed, whereon to levy this warrant for the discharge of his said tax or any part thereof,” arrested his body, and committed him to jail.</p> <p>The plaintiff requested the judge to instruct the jury “ that for a tax assessed upon real estate the body of the plaintiff could not lawfully be taken, and that the only remedy of the collector in default of payment was to sell the property under the statute ; and “ that the said return did not show a justification, because it did not show that the officer did not find sufficient goods upon which said tax might be levied.” But the judge refused to give these instructions, and ruled the exact contrary of each of these propositions. A verdict was rendered for the defendants, and the plaintiff alleged exceptions.</p>

Writ of dower. Trial before Merrick, J., who took a verdict for the demandant, subject to the opinion of the whole court upon the question whether a sufficient demand had been made.

<p>A recorded assignment of “ so much of a mortgage and property therein described as will amount to ” a certain sum, less than the mortgage debt, passes no legal title against a subsequent purchaser from the mortgagee without actual notice of the assignment.</p>

Action of contract to recover the price of a quantity of hay sold by public auction by the plaintiff as administrator of the estate of Nathaniel B. Coburn to the defendant.

<p>Action of contract, commenced on the 14th of October 1856, against Stoddard, Scott (who was defaulted) and Whit-head, on the following promissory note:</p> <p>“ $100. Lowell, June 2d 1856.</p> <p>“ Four months after for value received I promise to pay E. W. Scott or his order the sum of one hundred dollars with interest.</p> <p>“ William Stoddard.”</p> <p>On the back of the note was written “ waiving demand and notice. E. W. Scott.” And under that, “ Waiving demand and notice. Darius Whithead.”</p> <p>At the trial in the court of common pleas, the plaintiff introduced evidence of the genuineness of the signatures, and for the purpose of proving that Whithead was not an indorser, but an iriginal promisor, called Scott as a witness, who testified “ that ne wrote the note; that it was for a debt which Stoddard owed him; that he told Stoddard he would not take it unless he would get another name to be responsible to him on it; that after Stoddard signed said note, and before he delivered it to Scott, he took it to Whithead, and Whithead put his name on the back of it, writing over his name the words ‘ waiving demand and notice; ’ that Stoddard afterwards delivered it in that condition to Scott, in payment of the debt which he owed him ; that Scott afterwards put his own name on the back of the note above Whithead’s signature, writing above his own name ‘ waiving demand and notice; ’ that he then negotiated the note for value to Pearson; Scott and Pearson (as Scott testified on cross-examination) having made a previous arrangement that if Scott would get such a note, Pearson would take it and let him have the money on it.”</p> <p>The defendants objected to the introduction of this testimony to contradict or vary the terms of the note. But Mellen, C. J. admitted it for the purposes for which it was offered; and ruled that the testimony of Scott, if true, made Whithead an original promisor and not an indorser; and also ruled that the note was due and payable, by its terms, in the absence of any testimony on that point, at the time of. the instituting of the suit. Scott was defaulted. The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

Action of contract against the maker of a promissory note for $689.50, dated February 21st 1848, and payable to the plaintiff. Answer, no interest in the plaintiff; and payment. Held: and if there had been no other payments than those proved, he was entitled to recover. The jury returned a verdict for the plaintiff, and the-defendant alleged exceptions.

<p>Action of contract on a promissory note. Answer, failure of consideration.</p> <p>At the trial in the court of common pleas, it appeared that the note had been given as part of the consideration of a deed from the plaintiff to the defendant, of land “ with the buildings thereon,” with full covenants of warranty.</p> <p>The defendant then offered to show that he bargained with the plaintiff for the buildings and the land under them, as shown on a certain plan, and had taken the deed on the representation that they were included within the boundaries in the deed ; but that afterwards he found that the buildings were set partly upon the land of a third person, who evicted him and compelled him to remove the buildings at an expense greater than the amount sued for.</p>

Action of tort for breaking and entering the plaintiff’s close.

Action of tort, commenced before a justice of the peace. The declaration alleged that “the defendant forcibly entered the plaintiff’s close,” (described,) “ and took and carried away two cedar posts erected and set up for the purposes of designating the boundaries of said close, and converted them to his own use.” The defendant by an oral plea denied the plaintiff’s right to maintain the action.

<p>Bill in equity, inserted in a writ, dated February 5th 1856, and served on the defendant on the 8th of said February, and duly entered on the return day, for the redemption of land in Cambridge from a mortgage, under which the mortgagee had entered for foreclosure on the 8th of February 1853, and continued in possession till the assignment of his interest to the defendant, who had continued in possession • ever since.</p> <p>The defendant contended that the suit was brought too late, because no copy of the writ and of the description of the land had been deposited in the clerk’s office within three days after the service, as required by St. 1853, c. 316. The plaintiff admitted that no such copy had been filed; but insisted that that statute had been repealed by Sts. 1855, c. 194, and 1856, c. 38, which declare that this court “ shall have jurisdiction in equity in all cases of fraud, and of conveyances or transfers of real estate in the nature of mortgages,” and “ of accident or mistake,” “ where the party asking relief has not a plain, adequate and complete remedy at common law, with the powers belonging to said court in suits in equity; ” but neither of which contains any provisions as to service, or as to what shall be deemed the commencement of a suit.</p> <p>The defendant admitted that within three years after the entry to foreclose, the plaintiff had requested him to render an account of the amount due under the mortgage, and that he had not complied with the request. The plaintiff contended that this neglect of the defendant to render an account had unfairly prevented him from redeeming, and that the time allowed him for redemption ought to be extended.</p>

<p>A judgment rendered twenty years ago, and recently made up by permission of the court, may be allowed to be set off in an action commenced many years after that judgment and before the completion of the record.</p>

<p>A. judgment on a debt for necessaries is barred by a certificate of discharge under subsequent proceedings in insolvency, although the original debt would not be barred.</p>

<p>The lessee of part of a house, with a right u to have the improvement of all the homestead land,” cannot grant a license to a stranger to pass for his own purposes over the land, against the will of the lessor.</p>

<p>Replevin does not lie for property attached on a writ served upon the plaintiff, although he is misdescribed therein and has pleaded in abatement thereof; and cannot be supported by evidence that he did not make the contract therein declared on.</p>

<p>An heir and residuary devisee, who has given bond as such devisee to pay the debts of his testator, is estopped to set up a subsequent title as heir of the testator’s wife, against a warranty deed made by the testator of her land, although ail right of action upon the avenants in that deed is barred by the statute of limitations,</p>

Action of tort against the sheriff of Middlesex for the conversion of a wagon and harness, attached by one of his deputies upon a writ against Bailey Marble. Writ dated February 9th 1854.

<p>A mortgagee of chattels cannot maintain an action against an officer for attaching them as the property of the mortgagor, without first making the demand required by Kav. Sts. c. 90, 78, 79, and St. 1844, c. 148, although his mortgage provides that upon the property being attached he may take immediate possession.</p>

<p>One railroad corporation leased its railroad to another, who agreed to equip it with engines, cars and other furniture, and to give as favorable accommodation to its business as if they owned it, and to run regular trains, and also extra trains when required, for which last they should be allowed “ the actual cost of running the same; ” and it was agreed that the lessees should collect the revenues of the road leased, and, before paying them to the lessors, take out a certain sum semiannually for running the trains over said road, and a certain proportion of the balance, for the use of their own road by such trains. Held, that the “ actual cost ” of the extra trains included only money actually paid out, and not a proportion of the expense of the lessees’ road, or of the wear and tear of their track.</p> <p>Held, also, that the lessees were bound to transport without extra charge wood and coal intended for and used upon that part of a brick yard at the junction of the two roads, which bordered on the road leased, and which were drawn over the lessees’ road, and over a side track built by agreement between the two corporations and in part within the location of that road/</p> <p>Held, further, that a subsequent agreement for an additional allowance to the lessees for certain freight for a specified time, having been (as was found by an auditor) “ continued by .mutual consent” until a later date, did not entitle the lessees to any compensation after that date, beyond that stated in the original agreement. s</p>

<p>A common carrier who has received goods from a wharfinger, with whom they have been deposited by their owner without authority to forward them, has no lien on them for freight against the owner.</p>

Bill in equity, filed in July 1855, against the administrators and heirs of Thomas W. Herrick, for the specific performance of an indenture by which Joseph S. Blois (who had since assigned all his rights to the plaintiff) covenanted and agreed with Herrick to build before the 1st day of July 1851, on Herrick’s land, a dwelling-house, and furnish all labor and materials therefor; and, upon the completion of the house and the tender of a deed from Herrick of the house and lot…

<p>Bill in equity to redeem land in Groton from two mortgages. The bill alleged that Lafayette Blood, being the owner of the land subject to the mortgages, (one of which was. created by himself and one by a previous owner, and both of which had been assigned to the defendant, who had entered to foreclose,) conveyed the same in fraud of his creditors to one who took part in the fraud, and whose right and knowledge the defendant had ; and that after said fraudulent conveyance Blood’s interest in the land was attached by his creditors, who subsequently recovered judgment, and duly sold Blood’s interest on execution by auction to Nathan R. Thayer, who subsequently conveyed to the’plaintiff.</p> <p>The defendant demurred, on the ground that the plaintiff had no title in the premises, and no right to redeem, or to equitable relief.</p>

Action of contract for’work done and materials furnished in building a house. The case, as shown by an auditor’s report, upon which, as upon an agreed statement, it was submitted tc the decision of the court, was as follows: The plaintiff agreed in writing with the defendant to build him a house, to be completed by the 1st of July 1851.

Action of contract to recover a legacy given to the plaintiff, when sole, by her father’s will, in these terms: “ I give to my daughter Sarah W. Bryant one hundred and fifty dollars, seventy five dollars to be paid to her by my son Ebenezer Bryant when he arrives to the age of twenty two years, and seventy five dollars more at the decease of my said wife.” The defendant was named in the will as principal devisee and residuary legatee, subject to a life estate in the…

Action of contract on a promissory note. The declaration avers, “ that the defendants made a promissory note payable to the plaintiffs or order, a copy whereof is hereunto annexed ; and the defendants owe the plaintiffs the amount of said note and interest thereon.” A copy of the note was annexed.

Action of contract on this agreement: u This is to certify that, having this day sold to Harvey L. Kimball a house on Canal Street, I on my part am to buy and put up a marble chimney piece, worth sixteen dollars, in the front room, make the floors tight and front doorway, to lath and plaster the cellar, and secure a supply of well water, to pay the interest on mortgage, and on eight hundred and ninety dollars paid for the house, and vacate the house the first of April next.

<p>Action of tort for injuries received by the plaintiff on the 11th of January 1856 from a defect in a highway.</p> <p>At the trial in the court of common pleas before Mellen, C. J., the plaintiff called a physician, who testified “ that he saw the plaintiff for the first time on the 2d day of June 1856, and that the plaintiff showed him his leg and wished him to examine it; that the plaintiff complained of extreme pain in the leg; and said he had been struck by a horse, some number of months before, four or five months before, on that leg.” To this narration the defendants objected ; but the court admitted the testimony. The verdict was for the plaintiff, and the defendants alleged exceptions.</p>

Action of- tort to recover for damages occasioned by the defendant’s team running into the plaintiff’s carriage.

<p>Action of tort for taking and carrying away a grave stone from the grave of Harriet M. Hayward, daughter of the plaintiff and wife of the defendant.</p> <p>At the trial in the court of common pleas, it appeared that «aid Harriet died on the 13th of June 1852, aged twenty five years and two months; that the defendant caused her to be buried at his own expense, and with the consent of the proper authorities, in the public burial ground in Charlestown; that just before June 1855 the plaintiff, without the defendant’s knowledge or consent, procured and caused to be put up at the grave a grave stone with'this inscription : “ In memory of Harriet M. Hayward, daughter of David and Almira Durell, born April 11th 1828, died June 13th 1853; ” that she obtained no license for so doing; but that parties interested usually put up such stones as they desired in memory of their deceased friends, without any license or interference of the public authorities; that the defendant, as soon as he discovered this stone, caused another to be made and erected at the grave, and the stone put there by the plaintiff to be carried away, without any notice to or consent of the plaintiff, (which was the tort complained of,) and preserved it, and after this action was brought tendered it to the plaintiff, who refused to receive it.</p>

Action of contract on a negotiable promissory note, made by the defendants on the 9th of April 1855, and indorsed to the plaintiff. Crane was defaulted. Tasker, the other defendant, pleaded a certificate of discharge obtained by him under proceedings in insolvency commenced in 1856 in this commonwealth, in which he was described as of Lowell.

<p>Bastardy process. At the trial in the court of common pleas at December term 1855 before Sanger, J., the complainant, not having brought herself within the provisions of the Rev. Sts. c. 49, was not admitted as a witness; but was permitted, against the objection of the respondent, to introduce evidence that five or six years before the making of the original complaint, (which was filed during her pregnancy,) she had had a child by the respondent, and that he had acknowledged it as his 'own; and also evidence that some members of the family of the respondent’s father had treated that child as the respondent’s. The respondent, being found guilty, alleged exceptions.</p> <p>The case was continued by the court of common pleas for the allowance of exceptions until December term 1856, when the exceptions were allowed and signed, and they were entered in this court at April term 1857.</p>

Slander. “ And the plaintiff says that on the twelfth day of July 1855 he was the owner of a certain building, to wit, an oakum mill at Lowell, and that said building was insured against loss and damage by fire, and was consumed; and that afterwards the defendant publicly, falsely and maliciously accused the plaintiff of wilfully and maliciously burning the said building with intent to injure the insurers, by words spoken of the plaintiff substantially as follows : ‘…

<p>Writ of entry to recover land in Littleton. Plea, nul disseisin. Trial before Merrick, J., who reserved for the decision of the full court the following case:</p> <p>The demandant offered in evidence a warranty deed of the premises from Ezekiel Wright to Justus L. Whitcomb, dated August 28th 1844, and a mortgage back of the same date, which through mesne assignments was assigned to the demand-ant on the 25th of April 1849 ; and all these deeds and assignments were duly acknowledged and recorded. The demandant also offered in evidence a certificate of an entry upon the premises on the 20th of October 1849, in order to foreclose the mortgage, and duly attested and recorded; also a quitclaim deed of the premises to him from Justus L. Whitcomb, dated February 14th 1849, and duly acknowledged and recorded.</p> <p>In behalf of the tenant was offered in evidence an execution issued on a judgment against Justus L. Whitcomb on the 18th of February 1854, and afterwards duly levied upon the premises, and returned and recorded.</p> <p>There was also evidence that before this action was brought the tenant had been placed under guardianship as a spendthrift by order of the probate court. It appeared by the officer’s return on the writ that both the tenant and his guardian were summoned to appear and answer. And two attorneys of this court entered a general appearance for the tenant.</p>

<p>In an action on a recognizance to prosecute an appeal it must be alleged and prove! that the recognizance was returned into the court appealed to.</p>

<p>Action of contract upon a bond, which recited the conviction of the defendant in the court of common pleas for this county, “ of having sold a certain quantity of spirituous and intoxicating liquors to one James S. Bamford, contrary to the provisions of an act concerning the manufacture and sale of spirituous or intoxicating liquors, passed May 22d a. d. 1852 ; ” and conditioned that the defendant should “ not within one year from the date of the aforesaid conviction violate any law of the Commonwealth concerning the manufacture or sale of spirituous or intoxicating liquors.”</p> <p>The defendant demurred to the declaration, upon various grounds, one of which is stated in the opinion.</p>

<p>A precept from the governor of a state, appointing an agent to receive a fugitive from justice, which recites that he has made a requisition, agreeably to the Constitution and laws of the United States, upon the governor of the state into which the fugitive was alleged to have escaped, is prima fade evidence, for the protection of the agent, of the truth of the recitals.</p> <p>A warrant issued by the governor of this commonwealth, authorizing the agent of another state to “ take and receive into custody ” a fugitive from justice, authorizes him to arrest such fugitive; and is not repugnant to the Constitution and laws of this state or of the United States.</p> <p>The provisions of the Rev. Sts. c. 142, § 7, authorizing the governor alone to issue his warrant for the apprehension of a fugitive from justice, are not repugnant to the U. S. St. of 1793, directing the demand and surrender of such fugitives to be made by M the executive authority’1 of a state.</p> <p>Upon a requisition from the governor of another state for the surrender of a fugitive from justice, the governor of this commonwealth issued a warrant for his arrest to an agent of that state, and a similar warrant to a sheriff and his deputies. Held, that an arrest by a deputy sheriff under the second warrant, and a discharge of the alleged fugitive on bail on a writ of habeas corpus, did not prevent an arrest by the agent of the other state under the first warrant.</p>

Action of tort for breaking the plaintiff’s close and taking fish therein. The parties submitted to the judgment of the court this case: In 1822 Josiah Scudder conveyed to the plaintiff a tract of land in Barnstable bounded “ westerly by Phinney’s Mill Pond.” This mill pond was about thirty rods long and from one to six rods wide, and, long before this conveyance, had been made by building a dam across a natural stream.

Action of contract to recover' for services as constable, witness and otherwise in a suit brought by Phipps against the town of Chatham.

Action of contract upon a bond executed on the 4th of June 1855, with this condition : “ Whereas on or about the first day of January last past the said Elisha Brown entered into a certain agreement in writing, by the terms of which said Brown agrees to build a schooner duly described in said writing, and have the same completed on or about the first day of August next; and in and by said agreement said Levi Crowell was and is to make certain payments towards said schooner…

Writ of entry, dated April 16th 1856, to recover an undivided half of a piece of cedar swamp in Barnstable. Plea, nul disseisin. At the trial, the demandant proved by record a division of the entire swamp, called the Round Swamp, in 1792, part to the heirs of Jacob Lovell in common, and the residue to certain other persons, and the vesting of the title of some of Jacob Lovell’s heirs in the demandant, and of Lovell’s other heirs and said other persons in the tenant.

<p>When a fine is imposed in the court of common pleas on appeal from a conviction before a justice of the peace for selling intoxicating liquors, the attorney’s fee, allowed by St. 1855, c. 215, § 17, is to be paid to the attorney who appeared for the Commonwealth before the justice, and not to the district attorney.</p> <p>It seems, that in such a prosecution commenced in the court of common pleas, the attorney’s fee upon conviction is to be paid by the district attorney into the treasury of the Commonwealth.</p>

<p>The requirement of the Rev. Sts. c. 135, § 2, that a warrant issued for the arrest of an accused person shall recite the substance of the accusation, is complied with by making the warrant on the same paper with the complaint, and definitely referring to it.</p> <p>It seems, that an objection to the form of a warrant issued upon a complaint before a justice of the peace, though taken before the justice, is waived by not renewing it at the first opportunity in the court of common pleas on appeal.</p>

Complaint on St. 1855, c. 215, § 15, for an unlawful sale of intoxicating liquors on the 1st of September 1856 to Emory Morse.

<p>An indictment for being a common seller of “intoxicating liquors, and mixed liquors, part of which is intoxicating,” is supported by proof of three sales of intoxicating and none •of mixed liquors.</p>

<p>On the trial of an indictment for being a common seller of intoxicating liquors and for single unlawful sales, the district attorney was allowed, against the defendant’s objection, to ask a witness who had testified to a single sale to himself, whether he had not previously said that the defendant had made three sales to him. Held, that subsequently abandoning the count for being a common seller took away all right of exception.</p> <p>On the trial of an indictment for unlawfully selling intoxicating liquor, evidence that there were implements and materials for selling liquor in the defendant’s shop is competent.</p>

<p>An indictment for keeping a nuisance in violation of St. 1855, c. 405, § 1, on a day named, “and on divers other days and times between that"day and the day of the finding and presentment of this indictment,” states the time with sufficient certainty.</p>

<p>Indictment on St. 1855, c. 405, alleging that the defendant at Taunton, “ on the first day of March in the year of our Lord eighteen hundred and fifty six, and on divers other days and times between that day and the day of finding this indictment,” kept and maintained a certain building, then and there used for the illegal sale and illegal keeping of intoxicating liquors.</p> <p>At the trial in the court of common pleas before Briggs, J., the defendant objected to the admission of evidence of any acts that did not occur on the 1st of March 1856. But the court admitted evidence of illegal sale and keeping between said 1st of March and the day of finding the indictment. The only evidence tending to show that the defendant kept or maintained the building as alleged was the following:</p> <p>“ No acts of sale of liquor by the defendant were shown, but it appeared that he was frequently in the shop described, generally sitting down, doing nothing. It did not appear that he was ever behind the counter in said shop; but all the acts of sale or delivery of liquor were shown to have been made by some other person; and it was shown that all acts of sale of any article in the shop, except as hereinafter mentioned, were made by other persons than the defendant. Many instances were shown of farmers selling vegetables and other articles in said shop; but in every instance said sales were made to a man by the name of Thomas Hoye.</p> <p>“ It was shown that in one instance the defendant delivered and took pay for half a peck of oats, which stood outside the counter, in the shop. What the defendant did with the money received by him for the oats did not appear. It appeared that in the building described there were two shops or rooms, with an entry between them. The front shop contained groceries, but no liquor. The back shop contained liquor, and it was in this place that all the acts of illegal sale or keeping of liquor were shown. There was an entrance from outside the building into the back shop, by passing through the entry. There was evidence that the same persons, who sold liquor in the back shop, sold groceries in the front shop.</p> <p>“ The defendant was never shown to have been in the back shop but once, and on that occasion a constable with a warrant for the arrest of Michael Hoye went into the front shop and told the defendant (who was there) that he had a warrant against Michael Hoye for selling liquor, and then went into the back shop, and the defendant followed him, and asked the name of the witness, stated in the warrant, and told Michael to go with the constable, and then accompanied them to the office of the justice who issued the warrant. On coming into the presence of the justice, the justice said to the defendant, 1 Well, Mi-. Hoye, we have got one of your boys; ’ to which the defendant replied, that there were ‘ half a dozen more of them.’</p> <p>“ At another time it appeared that the constable went to said shop with a copias for a person by the name of Pratt, and asked the defendant if Pratt was there, and asked for liberty to go into the back room ; the defendant said he was not there, and told the constable he might go into the back room to look for him if he wished.”</p> <p>.The defendant asked the court to instruct the jury that this evidence was not sufficient to warrant their finding that he kept and maintained said building as alleged. But the court declined so to instruct the jury, and instructed them that the question was for them, and that there was evidence from which they might find that the defendant did keep and maintain said building. The defendant was convicted and alleged exceptions.</p>

Indictment on St. 1855, c. 405. The indictment averred that the defendant kept and maintained “ a certain building,” used for the illegal sale and illegal keeping of intoxicating liquors, whereby, and by force of the statute in such case made and provided, “ the said building ” was a common nuisance.

<p>Upon the trial of an indictment on St. 1855, c. 405, § 1, for keeping a building used for the illegal sale and keeping of intoxicating liquors, the only evidence was that the occupant of the house and servants of the defendant sold liquor there. The’court refused to rule that this evidence was insufficient; and merely instructed the jury that it was a question of fact for them to decide. Held) that the defendant’s exceptions must be sustained.</p>

<p>Oil the trial of an indictment, the Commonwealth relied on the testimony of an accomplice; and the judge instructed the jury that they might convict on the testimony of an accomplice alone, but that it was unsafe to rely upon it without confirmation on some point material to the issue, and connecting the defendant with the offence charged; and submitted the question of corroboration to them upon all the evidence in the case. Eeld1 that the defendant had no ground of exception.</p> <p>A conviction of an offence cannot be proved by an unofficial copy of the clerk’s docket, supported by the copyist’s oath.</p> <p>An indictment on the Rev. Sts. c. 126, § 39, which charges the defendant, in the words of the statute, with wilfully and maliciously administering a certain poison to the horse of another person, is sufficient, without further averment of any criminal intent, or of any injury to the horse.</p>

<p>An indictment on Rev. Sts. c. 126, § 39, which avers that the defendant did wilfully and maliciously kill a horse of another person, is sufficient, without more particularly setting forth the means or mode of killing.</p>

<p>Knowledge of the occupation and improvement of land is not such “ actual notice ” of an unrecorded deed of the land to the occupant, as will give effect to the deed against others than the grantor, under the Eev. Sts. c. 59, § 28.</p> <p>On a writ of entry to recover three lots of land, the tenant pleaded the general issue with a specification of title in himself to the first lot; the demandant proved the conveyance of the three lots to himself, and showed a title in his grantor to the first and second lots, but none to the third. iTri^-that the demandant was entitled to recover the third lot, the tenant showing no title thereto.</p>

Action of contract, in which the plaintiff sought to charge the defendant as one of the partners in a company that had undertaken to run the Sagamore Mill at Portsmouth, N. H., or as having held himself out as a copartner therein.

<p>Service of a writ by attaching real estate, and leaving a summons at the last and usual place of abode, of a defendant who is out of the Commonwealth, and not a resident thereof, is not sufficient to warrant a judgment against him, without further notice according to the Rev. Sts. c. 92, § 3.</p> <p>Cn the reversal by writ of error of a judgment of the court of common pleas for omission to give further notice according to the Rev. Sts. c. 92, § 3, this court has no power, under c. 82, § 20, to order such notice, but must enter a general reversal.</p>

<p>It seems that a demurrer to a bill which alleges that a cestui que trust sold land, and directed the trustee to convey, admits tfuat there was an agreement in writing for the sale and conveyance of the land.</p> <p>A trustee, having a naked legal title in land, cannot be restrained in equity from asserting his title or conveying it away, or compelled to convey it to one to whom the cestui que trust has transferred his title, without proof of a written agreement, or joining the cestui que trust as a party to the bill.</p>

Appeal by Henry M. Richards, summoned as trustee, and Jesse F. Richards, claimant, from the judgment of the court of common pleas, charging the trustee.

Action of contract upon a receipt by which the defendants acknowledged that they had “ received of Charles D. Burt, deputy sheriff, for safe keeping,” certain goods attached by him by virtue of a writ in favor of James E. Cooley against Perkins, Smith & Co., and agreed “safely to keep and redeliver all of said property above mentioned to said Charles D. Burt, on demand, in like good order and condition that the same now is, free from all expense to said Burt, or pay the said…

Action of tort, brought by Lyman Snell and Clarissa his wife for an injury sustained by her from a defect in a highway. At the trial in the court of common pleas, early in June 1857, before Bishop, J., the wife was admitted, against the objection; of the defendants, to testify as fully as if she had not been the wife of the other plaintiff; and was the only witness upon the amount of injury. The verdict was for the plaintiffs, and the defendants alleged exceptions.

<p>Action of contract on an agreement under seal made at New Bedford on the 1st of March 1849, by which the plaintiffs covenanted and agreed that the defendant should “ be permitted to and have the right to go in Schooner Emeline, on the contemplated expedition to California, as substitute for the party of the first part, and representative of one share of said schooner and outfits, with all the right of a substitute, as set forth in the constitution and by-laws of the New Bedford and California Mining Association,” (the material parts of which are copied in the margin,*) and “ that, in consideration of the services to be rendered by said Allen, according to the terms hereafter set forth, the said Allen shall be entitled to receive, and shall receive, two thirds of all property and sums to which one share represented by said Allen shall become entitled under said constitution and by-laws, until the association and company is dissolved; and the said Allen assents to the above terms, and hereby covenants and agrees with said party of the first part, that he will, as such substitute, go in said vessel when ready for sea, and during the term of said association, and during the time to which it may be extended, will devote himself faithfully to the trust, and use his best skill and ability to the service of said association, and in all respects comply with the regulations of the association, constitution and by-laws of said company, and hold himself subject to their penalties.”</p> <p>At the trial in the court of common pleas before Sanger, J., there was evidence that the plaintiffs were joint owners of one share in the association, from its beginning to its dissolution; that the shareholders paid $312 per share for the purchase of the Emeline and outfits, taking bills of sale of fractional parts of the vessel; that the vessel sailed on the 18th of March, and arrived at San Francisco on the 16th of September, and the greater portion of the members of the company arrived at the mines about the 5th of October 1849, carrying with them some of the provisions from the vessel; that about four weeks after-</p> <p>wards the association was dissolved, because all the members and substitutes in California thought best for the association to break up ; that the defendant did all that the contract required him to do, and the association was broken up without his fault or procurement, although he was in favor of its being broken up ; and that after the dissolution of the company the defendant busied himself no farther about the affairs of the company or of the plaintiffs.</p> <p>It also appeared that the gross amount of gains of the company (other than those resulting from sales of ship and outfits) was less than $1000; that the expenses of the association to the time of its dissolution were about $4000, of which $2000 wer paid for a house lot in Sacramento ; that before the dissolution the Emeline and the remaining outfits were sold at an advance over their cost by a vote of the association, and under the direction of the directors and other officers of the association, and a division made, under such direction, and with the general assent of all the members and substitutes then in California, as follows : There were two accounts kept. One, called “ Company Account,” was credited with so much of the accounts of sales of ship and outfits as equalled the cost price of the same, and was charged with all the expenses of the association, and the balance was divided among the shareholders. The other account, called “ Stock Account,” consisted of the earnings of the association, and of the excess of sales over cost prices of ship and outfits, and was charged with no company expenses, and in the balance each substitute received half of his principal’s proportion, and the other half was remitted to the shareholder. The amount thus paid to the defendant was the sum now sued for.</p> <p>A witness, who was a director of the company in California, testified that he had knowledge of the expenses and management of the financial affairs of the concern ; and was permitted to testify so far as his knowledge went. In order to refresh his memory as to the items of expense, the plaintiffs proposed to show him a book purporting to be the “ Expense Account ” of the association, for the purpose of afterwards asking him to</p> <p>testify from his own recollection as to items of expense. But the book was not in the handwriting of the witness, nor was any entry in it made by him, nor did he know who made the entries, nor did it appear whence the book came. And the judge did not allow the book to be so used by the witness.</p> <p>The plaintiffs requested the court to give the following instructions to the jury:</p> <p>“ 1st. That if the jury found the expenses of the company to exceed the gains, (other than from sales of ship and outfits,) then no such profits, property or sums came to the concern as the substitutes were entitled to a share in, even on full performance of the contract and continuation with the company for eighteen months; and especially so in case the company dissolved before the expiration of eighteen months.</p> <p>“ 2d. That if the company broke up before the term of eighteen months, the ship and outfits, and their proceeds, belonged to the shareholders, and the substitutes were entitled to no share in them.</p> <p>“ 3d. That this substitute, upon the contract, would be entitled to no part of the money due to the share represented by him unless the company lasted eighteen months.</p> <p>“ 4th. That, upon the contract, neither the company nor any of its officers had any authority, previously to the expiration of said eighteen months, to adjust and pay any of the proceeds of the vessel and outfits to this substitute, in such a way as to bind these defendants.</p> <p>“ 5th. That even if the excess of sales over cost of ship and outfits could be considered profits, property or sums in which the substitutes had any interest in any event, yet that the expense of the association should have been charged to that fund, so as to leave the net amount, instead of the gross amount, as the fund in which the substitutes had rights.”</p> <p>The court declined to give the jury any of these instructions; but did instruct them that “ it was competent for the association, under the constitution and by-laws, by a vote of two thirds of the members and substitutes present and voting, to decide what should be divided as profits, and to which account the expenses should be charged; and that if by such a vote the expenses were charged to the company account, they were rightly so charged and if by such a vote the gross excess of sales over cost of sh^ and outfits was divided as profits, giving the substitutes an interest therein, it would be a correct division; that the expenses were rightly charged to the company account; that the gross excess of sales over cost of ship and outfits was rightly divided, giving the substitutes an interest therein ; that under the contract with the plaintiffs, the defendant was entitled to two thirds of the profits, made up as aforesaid, accruing to the plaintiffs’ share, which the defendant, as their substitute, represented, and this, though the association was dissolved before the expiration of the eighteen months ; that if the amount shown to have been received by the defendant was less than such two thirds, the plaintiffs could recover nothing; if it was greater than such two thirds, the plaintiffs could recover such excess.” The jury re turned a verdict for the defendant, and the plaintiffs alleged exceptions.</p>

Action of contract on a negotiable promissory note, made at Taunton, on the 17th of October 1854, payable to Orringe IX Day or order, and by him indorsed to the plaintiff, a merchant in New York. The consideration of the note was intoxicating liquors sold by Day to the defendant in this commonwealth contrary to St. 1852, c. 322. But the note was indorsed to the plaintiff before it was due, for a valuable consideration, and without notice of the original unlawful contract.

Action of contract. The plaintiff was originally described in the writ as “ H. Sistermans.” The declaration was that “ the defendant made three several promissory notes payable to his own order, which the defendant indorsed in blank, a copy of which notes with the indorsements thereon is hereto annexed; and the defendant owes the plaintiff the amount of said notes and interest thereon.” Annexed were copies of three notes corresponding with the description.

<p>Parol evidence is inadmissible, even between the original parties to a promissory note, to show that a person not the payee, whose name was signed on the back of the note, signed it as guarantor only, or upon a condition which has not been performed.</p>

<p>A petition, presented to the board of aldermen of a city for the location of a new road, was referred to the usual committee, who reported in its favor with an order requesting the superintendent of streets to lay out the road agreeably to the petition, by putting down metes and bounds, and to report to the board, which he did. The mayor and aldermen went upon the ground, in compliance with an order instructing the city clerk to so notify the owners of the land over which the road was supposed to run; examined the metes and bounds; found that they were correct, and that no one was present to object to the laying out, except claimants of damages; and recommended the adoption of an order accepting the road as a highway, which order was referred to a joint committee of the city council, and on their report passed, locating the way by metes and bounds, but in one portion “ allowing for necessary curves between the monuments placed by the superintendent of streets.” The road was constructed accordingly, with some alterations made by agreement with abutters. More than a year afterwards the board of aldermen, without any new petition being filed, ordered the superintendent of streets to make an additional return in conformity with those alterations, and he made a return following the line of the road as constructed, and the board of aldermen passed an order accepting that road .as a highway. Held, that a petition for damages by an owner of land not affected by the alterations should have been presented within a year from the original laying out.</p> <p>A city, that has taken land and actually constructed a highway over it, cannot object that no notice was given of the purpose to locate; nor that the names of the owners of the land were not stated in the laying out.</p>

<p>Petition for a writ of certiorari to quash the proceedings of the respondents, assessing damages to Elias Sampson, Jr., against the petitioners, for land taken for a street in New Bedford ; and for an injunction to restrain the respondents from issuing a warrant of distress for such damages. The case was thus :</p> <p>The street was laid out on the 28th of May 1856, and on the 16th of June accepted by the city as a public highway, and damages assessed to Sampson and other owners of lands over which it was laid. On the 25th of August the board of aider-men passed an order that the city clerk be directed to notify the owners of buildings on the street to remove them before the 1st of March 1857. Sampson appealed from the award of damages to the county commissioners, and at their regular meeting in September 1856 applied for a jury, and afterwards obtained a verdict for fifteen thousand dollars, which was returned to and accepted by the court of common pleas at December term 1856. On the 9th of December, before the return of the verdict, the board of aldermen revoked their order of August 25th for the removal of buildings, and directed the city clerk to notify its revocation to all persons upon whom it had been served; and on the 13th of January 1857 passed an order revoking their order of the 16th of June accepting this street as a public highway, and directed the city clerk to notify the abutters on the street thereof. Both of these orders were notified to Sampson. The orders are fully set forth in the opinion of the court. On the 24th of March 1857 the respondents issued a warrant of distress against the City of New Bedford for the amount of the verdict and costs. The land was never actually entered upon or taken possession of for the purpose of constructing the street. Upon the filing of the petition a temporary injunction was granted.</p>

Action of toet for breaking and entering the plaintiff’s close In Seekonk, known as the Lindsey Lot, and carrying away hay. Answer, title in the defendants.

<p>roceediugs in insolvency will not be set aside, as originally defective, on a bill filed by the debtor more than six years after their commencement, and after he has without objection appeared at several meetings of his creditors and submitted himself to examination.</p> <p>A.n insolvent debtor cannot maintain a bill in equity against his assignee for misconduct, without first applying to the court of insolvency for relief.</p>

Action of contract to recover back a tax assessed by the defendants upon the plaintiff’s poll and personal estate for the year 1855.

Action of tort, commenced before a justice of the peace. The declaration alleged that “ the defendant by his cattle forcibly entered the plaintiff’s close in Raynham,” (described,) and “ by said cattle trod down and depastured the grass there standing and growing.” The record of the justice,' after stating the cause of action and the defendant’s appearance, proceeded as follows: “ And now the defendant comes and defends and pleads (orally) and says that he is not guilty.

Writ of entry to. recover a life estate in the premises described in the writ. Trial before Thomas, J., who signed the following bill of exceptions: “ The demandant produced a lease of the premises made to her by the tenant for and during the term of her natural life; and proved its execution.

The case was submitted to this court upon the following facts: On the last day of the six months from the assignment, the appellant procured and filed with the register of insolvency the consent in writing to his discharge of a majority in number and value of the creditors who had proved their claims.

<p>V promise to pay “ J. S. or his wife A. S.” an annuity “ during their natural lives,” is a promise to pay during their joint lives and the life of the survivor.</p>

<p>Bastardy process. The justice before whom the complaint was instituted and the complainant’s examination taken, and who issued the warrant for the respondent’s arrest and took his recognizance for his appearance at the court of common pleas, entered the papers in that court and appeared there as the complainant’s only attorney. On this ground that court on motion of the respondent dismissed the complaint, and the complainant appealed.</p>

<p>Writ of entry to foreclose a mortgage of real estate. At the trial in the court of common pleas before Briggs, J., the plaintiffs claimed to hold the mortgage by an assignment which purported in the body thereof to be from the Bristol County Savings Bank, and concluded thus•.</p> <p>“ In witness whereof the said Bristol County Savings Bank, by George Atwood, their treasurer, duly authorized for this purpose, have hereunto set their name and seal this twenty ninth day of November 1856.</p> <p>“ Geo. B. Atwood, Tr. )</p> <p>“ Bristol County Savings Bank. ) && "</p> <p>“ Then George B. Atwood acknowledged the foregoing instrument to be the free act and deed of the said Bristol County Savings Bank arid of himself.</p> <p>“ George M. Woodward, Justice of the Peace.” To prove the authority of the treasurer to execute this assignment, the plaintiffs relied upon the by-laws of the corporation, which provided that it should be managed by a board of trustees, who- should “ have control in all matters of the institution not specially provided for,” and “ have power to elect a treasurer and such other officers as the interests of the institution might require ; ” and upon votes of the trustees and of the corporation, “ that the treasurer be authorized to sign all deeds and instruments for the legal conveyance of real estate, under the direction of the committee of investment.”</p> <p>The treasurer testified that the committee of investment held meetings every Monday, but kept no records of their doings. He also testified, against the defendants’ objection, that he was authorized by that committee to execute this assignment.</p> <p>Upon this evidence the defendants objected to the admission of the assignment of the mortgage,</p> <p>“1st. Because it did not appear that the treasurer had the requisite legal authority from the corporation to execute said assignment.</p> <p>“ 2d. Because said assignment was not so executed as to be the act and deed of the corporation.”</p> <p>But the judge overruled the objections, and permitted the deed to be offered in evidence. A verdict was taken for the plaintiffs, and the defendants alleged exceptions.</p>

Action of contract for work and labor. At the trial in the court of common pleas, the plaintiff offered in evidence, a deposition taken in New Hampshire under a commission, to the admissibility of which the defendant made two objections. 1st. The only statement in the caption of the swearing of the witness was, that on the day appointed for takingthe deposition he appeared before the magistrate, “ and made solemn oath that the within deposition, by him subscribed, contains…

Writ of review of an action of tort brought by Richard Everett in the name of Taber against Riley as a deputy sheriff for official misfeasance.

Action of contract upon a receipt signed by the defendant, which recited that the plaintiff had delivered to him certain chattels, attached by the plaintiff as deputy sheriff on mesne process in favor of Elizabeth Newhall against Thaddeus Phelps; and concluded thus: “ In consideration thereof, I promise safely to keep the aforesaid property until the said William H. Colwell or his order shall call for it, then to deliver it to him or his order at such a time and place as he…

<p>It is no defence to an action by the payee on a negotiable promissory note, that the plaintiff had pledged it to a third person as collateral security for a debt of which he had since tendered payment, which the pledgee refused to receive or to give up the note.</p>

<p>If, after the execution of an indenture of apprenticeship at common law in this commonwealth by the father and the master of the apprentice, with covenants that the apprentice shall serve the master faithfully for a term of years, and shall board with his father at a certain rate as long as the latter shall be disposed to board him, the master removes with the apprentice to another state with his and his father's consent, the father, if he subsequently takes his son away before the expiration of the term, is liable for breach of his covenants. Aliter, it seems, if the apprentice had been taken to the other state without the father’s consent.</p>

<p>Action of tort by lessees of the Proprietors of Common and Undivided Lands in Hull against an inhabitant of Hull, claiming under a license from the town, for taking seaweed from the easterly portion of Nantasket or Long Beach, to put upon his lands in Hull. The parties submitted the case to the judgment of the court upon a statement of facts, so much of which as is material to "the understanding of the decision was as follows:</p> <p>For some years previous to 1810 the rights of taking seaweed from the beaches, and of feeding cattle on the lands, had been in dispute between said proprietors and the town. In May 1810 said proprietors presented a petition to the legislature, representing that, in consequence of the town’s never having particularly located a highway across these commons, the inhabitants had claimed and exercised a right of turning their cattle and sheep into the streets, whereby they had free communications with the commons ; and praying for an act of incorporation “ to enable the proprietors of these common rights to secure, manage, and dispose of the same, so as to secure their rights and best promote their interests.”</p> <p>On the 17th of November 1810 the town passed this vote: “ "Voted, not to oppose the petition of said proprietors, if the proprietors agree to let the town have the beaches; also all the feeding lands in the township from Stony Beach to the point that is enclosed by gates and water fences ; also said town doth agree to give up to said proprietors all the feed that grows on the road leading through said commons. In consequence, said proprietors are to give up said beaches to the town, that is to say, said proprietors do give up to the town all said beaches rent for, be it more or less; then voted and agreed that the town pay for all the gates and water fences.”</p> <p>On the 22d of June 1811 the legislature passed an act incorporating said proprietors, St. 1811, c. 56, the first section of which defined the boundaries of their lands, including the whole of Long Beach, and excluding that part of the town which extended from Stony Beach to the gates and water fences; and the third section declared that “ the said proprietors shall have liberty to erect the following gates and water fences ” at specified places at each end of the beach, “ and the said town of Hull shall be at the expense of the aforesaid gates and water fences ; reserving to any person the privilege of passing and repassing through said gates, as occasion may require; and the proprietors may have liberty to impose a penalty, not exceeding one dollar, for the neglect of any such person in not shutting said gates; and also reserving to the town of Hull the privilege of the shores, and of feeding all lands, not comprehended within the aforementioned bounds.” The last comma was not in the act as passed to be engrossed ; and the words “ all lands ” with the subsequent comma are interlined in the act as engrossed.</p> <p>From the passage of this act until 1837, the town, with the knowledge of said proprietors, and without any interference, disposed of the seaweed on the beaches, and granted to their citizens the privilege of taking as much seaweed from the beaches as they desired to put upon lands occupied by them within the town. Said proprietors organized under the act of 1811 on the 5th of March 1812, and have since had exclusive possession of the lands described in the first section, except in so far as their possession of Long Beach is deemed to be controlled by the facts herein stated. For a long series of years, beginning as early as 1837, as shown by the votes of the town and of the proprietors, the right to manage the beaches has been in controversy between them. In 1838 the proprietors resumed the control of Long Beach, and voted that the gates and water fences be left down, and afterwards passed similar votes; but, notwithstanding their votes prohibiting it, and the town’s knowledge thereof, citizens of Hull, not proprietors, have continued to a greater or less extent to take seaweed from that beach.</p> <p>The town paid for the erection of the gates and water fences mentioned in the act of incorporation. But the increase of travel at Hull has been such, that since 1838 it has been impossible to keep up the gates and water fences, and they have not been kept up during that time.</p>

<p>Action of tort by a traveller upon a highway which the defendants were bound to keep in repair, for damages occasioned by being thrown from his carriage against a telegraph post.</p> <p>At the trial before jDewey, J., the evidence was that this post stood within the limits of the highway, between the sidewalk and the travelled part of the way, which was in good repair, and “ built about one foot crowning,” with a small gutter between it and the telegraph post, and that the distance between this post and a similar one on the opposite side of the travelled part of the way was twenty six feet.</p> <p>It was admitted by the plaintiff that this post was one of a line erected upon and along said highway, by the' Cape Cod Telegraph Company, incorporated for the purpose of. electric telegraphing; and that said line of posts and the post complained of were erected in places prescribed by the selectmen of the town, as provided by St. 1849, c. 93, § 3.</p> <p>The defendants requested the judge to instruct the jury that “ under these circumstances the town of Yarmouth was not liable to the plaintiff for damages sustained by him by coming in contact with the telegraph post complained of, although the same may have been an obstruction, rendering the highway unsafe for the purposes of ordinary travel.”</p> <p>But the judge refused so to instruct the jury; and instructed them that “ if they were satisfied that the telegraph post complained of was an obstruction, rendering the highway dangerous and unsafe for the purposes of ordinary travel, it would be such a defect in the highway as would render the town liable to any one injured thereby.”</p> <p>The jury returned a verdict for the plaintiff, and the judge reported the case to the full court.</p>

<p>The use of a mill privilege purchased from the owner of a lower privilege on the sam, stream is not regulated by the use made of it before such purchase, but by what is reasonable and proper, conformably to the wants and usages of the community.</p> <p>In a civil case the jury were instructed that the burden of proof was upon the plaintiff, and was sustained “ if upon the whole proof there was a preponderance of evidence, that is to say a balance of the probabilities of the case, in his favor.” Held¡ that the explanation was indefinite, and tended to mislead the jury.</p>

<p>A contract to “ do, perform and expend labor in the erection, alteration and repair ” of a house, at a certain rate by the day, is too indefinite to support a lien under St. 1852, c. 307, $ 1, for the labor of the contractor and his workmen; and, if thus stated in the petition, cannot be shown to have been more specific.</p>

<p>Action of contract by guardians on a sale by auction oi land of their ward pursuant to a license of the judge of probate. Answer, the statute of frauds.</p> <p>At the trial in the court of common pleas it appeared that one of the plaintiffs was the auctioneer at said sale, and on the same day made a memorandum thereof in writing, and signed it with his own name as “ guardian and auctioneer; ” but the defendants refused to accept a deed or pay the price. The defendants objected that "a seller and plaintiff was not authorized to sign a memorandum as agent of the purchasers. But Sanger, J. overruled the objection. The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

Bastardy process. The record of the justice of the peace, to whom the complaint was originally made, after stating the complaint and warrant, the defendant’s arraignment and plea of not guilty, stated that “ after due and full examination it is considered by ” the justice “ that he is guilty of the offence charged here against him,” and he was ordered to give bond for his appearance at August term 1857 of the court of common pleas.

<p>In an action on an agreement to build an octagonal cellar wall at a certain price by the foot, evidence of the usage of measuring the angles of such walls, and of the proper mode of measuring the angles of rectangular walls, is admissible.</p> <p>On money due for labor, interest may be recovered after a demand of payment made at the expiration of a reasonable time.</p>

Action of contract on a promissory note made by Edward C. Howe, the defendant’s intestate, to Cyrus G. Gurney, and indorsed by him to the plaintiff. Answer, payment to Cyrus G Gurney.

Action op contract for the keeping of a horse. At the trial in the court of common pleas before Sanger, J., it appeared that the horse was brought to the plaintiff’s stable in his absence, The plaintiff called Turner as a witness, who testified that he had several conversations with the defendant in regard to the horse, and that the last conversation, which led to the horse’s being sent to the plaintiff’s stable, was at the defendant’s house in South Braintree, and was, in…

<p>Aii action of trespass, in which the defendant justifies under a claim of right, exercised without unnecessary force, cannot be transmitted to this court upon exceptions to 9 pro forma ruling of the court of common pleas that u not considering the question of damages, the plaintiff could not maintain his action,” without disposing of the question whether unnecessary force was used.</p>

<p>In an action against a corporation on a debt, the defence was payment; and it appeared that the president of the corporation took the bill receipted from the creditor to get the money from their treasurer, and gave the bill to the treasurer, who made a correction in it, and handed it with the money back to the president, who lost them. The defendants contended that their president acted as the creditor’s agent; and asked that the jury be instructed “ that the circumstance that the treasurer, after correcting and paying the bill, lent the receipt, to be returned after showing the same, did not prevent the antecedent acts from constituting a legal payment.” But the judge, without thus instructing the jury, instructed them as to the respective duties of a president and treasurer of a cor porafcion, and that it was for the jury to say, not upon any particular portion of the prooí, but upon all the evidence, for whom the president was acting. Held, that the defendants had no ground of exception.</p>

<p>A testator devised to his daughter H. one third part of a certain farm, “ but if my executor shall think best to sell said farm, then I give to her one third part of the proceeds of the sale of said farm; ” to his daughter S. one third part of the same farm, “ or if said farm is sold, then one third part of the proceeds of the sale of said farm; ” and after a devise to his daughter A. in the same words as to S., added, “ And I hereby authorize my executor to sell and pass deeds to convey said farm in such manner as he may think best for all concerned; and divide the proceeds as above directed; but if he should think best not to sell the same, then they may take the farm.” After the making of his will, the testator in his lifetime sold the farm. Held, that S. was entitled to one third of the proceeds of such sale.</p>

<p>Action of contract to recover half the fees paid by the plaintiffs to the commissioners appointed by the governor to establish the boundary line between South Scituate and Hanover, under the resolve of 1856, c. 79, which provided “ that the said towns of South Scituate and Hanover shall be required to defray the expenses of said commission, each of said towns paying one half of said expenses.” The plaintiffs had paid the whole fees, without being requested by the defendants so to do.</p>

Action of tort for breaking and entering the plaintiff’s close in North Bridgewater, and with horses and carriages passing over the same. Answer, a right of way over said land from the main street to lands of the defendant.

<p>Land devised in trust to pay the income, during the life of the testator’s sons, to them and the heirs of those who should die first, and, on the survivor’s decease, to convey the land to their heirs, may under authority of the legislature be sold, upon giving security to invest the proceeds upon the same trust.</p>

<p>Action of contract on an account annexed for services rendered and money paid by the plaintiff as an attorney at law, between December 1851 and April 1852. Answer, that the services were rendered and the money paid by the plaintiff and William End, partners under the name of Bishop & End. The case was referred to an auditor, who, without passing upon the question of partnership, reported in favor of the plaintiff, subject to the opinion of the court upon the following evidence :</p> <p>“ The pleadings and other papers filed'in court in two cases, named in orie item of the account annexed, were produced, by which it appears that in one case the writ was in Bishop’s handwriting, the attorney’s certificate and directions to the officer were signed by Bishop, the writ was indorsed by Bishop & End, and was entered in the names of Bishop & End, and that an agreement for neither party to be entered in said action was signed by Jonathan P. Bishop alone, as attorney; that the answer in the other case was signed by Jonathan P. Bishop and William End, as attorneys for the defendant, and certified by Jonathan P. Bishop and William End, the certificate being in the handwriting of End; that an agreement for the reference of said action was signed by Jonathan P. Bishop and Bishop & End; and it appeared by the account of the clerk of the court against Bishop, that there were charges therein against Bishop & End, which charges were paid by Bishop, in the settlement of his account.</p> <p>“ There was evidence introduced of a declaration made by the plaintiff, in 1851 or 1852, that End was a partner of the plaintiff, though the language of said declaration was not given. There was also evidence that End was an alien.”</p> <p>At the trial in the court of common pleas, the plaintiff offered the auditor’s report in evidence. The defendant objected, on the ground that it showed that End was the plaintiff’s partner and should have been joined as a plaintiff, and so there was a variance. But Sanger, J. overruled the objection, and admitted the evidence, and, upon being requested by both parties to express an opinion upon it, ruled that there did not appear to be a partnership between the plaintiff and End, and that the plaintiff was entitled to recover. The defendant alleged exceptions.</p>

Action of contract to recover back the amount of a tax assessed by the defendants upon the plaintiff’s stock in trade in Boston, (where the plaintiff hired and occupied a shop, and had his usual place of business, and paid taxes on his stock,) for the purpose of building a new school-house in the eighth school district in Weymouth, in which the plaintiff resided. The plaintiff had no personal property in Weymouth, and paid the tax under protest.

<p>Action on the Rev. Sts: c. 104, to recover a house and land in Randolph, commenced on the 7th of May 1856 before a justice of the peace, and removed at the defendant’s request, and because the title to the freehold was brought in question, into the court of common pleas, and submitted to that court at September term 1857, and, on appeal, to this court, upon the following statement of facts:</p> <p>On the 10th of January 1854 Simeon White conveyed this land, “ with the buildings thereon,” by warranty deed to Theophilus W. Whiting, who on the 19th of February 1856 conveyed the same to the plaintiff, who immediately notified the plaintiff of the sale and to quit. White, at the time of the conveyance to Whiting, reserved to himself by paroi the right to remove from the land within six months next ensuing this house, then occupied by the defendant as his tenant at will, who remained in possession until December 1856, when he quitted it, having paid rent to White until December 1855, since which he has not paid any rent, and has said that he would not pay any. The premises, except the house, have been in the plaintiff’s possession ever since the conveyance to him. After the defendant left the house, the plaintiff took possession of it, and sold it to another person, who, pursuant to the conditions of sale, removed it from the land.</p>

<p>In replevin of goods, to which the defendant pleads title as assignee in insolvency of one now deceased, the plaintiff is not a competent witness, under St. 1857, c. 305, to prove that the goods were fraudulently obtained from him by the deceased.</p>

<p>Action of tort for breaking and entering the plaintiff’s close in Dedham, and cutting down trees and digging up and carrying away the soil.</p> <p>At the trial in th.e court of common pleas at December term 1855, before Byington, J., it appeared that the locus in quo was a strip, two or three rods wide, of land conveyed to the plaintiff on the 16th of July 1844, and had been used time out of mind as part of a road or passage way leading from the old Providence road, now called Walpole Street, northwesterly to the plaintiff’s dwelling-house, and to wood lots and pasture of other persons using the way.</p> <p>The defendant justified the acts complained of under a claim of ownership in the fee of the way, westerly of the centre thereof, under a deed from the plaintiff to him dated July 16tn 1844, of “ a certain tract of land situated in the South Parish of said Dedham, containing five acres, more or less, bounded easterly on the road or leading way from my dwelling-house to the old post road, so called; southerly, on said old post road,” &c. The court ruled that this deed conveyed to the defendant the fee in the land to the centre of said road or leading way, subject to the right of way of the plaintiff and others, as aforesaid ; and ordered a verdict to be rendered for the defendant.</p> <p>The plaintiff offered to prove 11 that, about the time said deed was given by him to the defendant, the defendant caused a wall to be built from Walpole Street, northwesterly, along and upon the westerly line of said road or passage way, several feet from the travelled path, and extending the greater part of the distance; that the defendant’s land was bounded on said road or passage way, leaving a road or passage way fenced on both sides, some two rods in width; that at the northeasterly corner of the premises described in said deed, there was, at the time it was given, a stake and stones several feet westerly of the travelled path of said road or passage way, and in a line with said wall built by the defendant; that soon after said deed was given, the defendant tipped up a row of stones most of the way between the end of said wall and said stake and stones, and in a line therewith, designing them as the foundation of a wall; that said wall and row of stones and stake and stones now remain, and have been repeatedly recognized by the defendant, by his acts and declarations, as the line of his land next to said leading way ; that said road or leading way is and always has been chiefly used by the plaintiff as a passage way to his house and farm, though several other persons have a right of way over it to their wood and pasture lands, lying back from said Walpole Street.” The court ruled that this evidence was not admissible for the purpose of controlling or varying the construction of the deed.</p> <p>It was admitted that the acts of trespass complained of were done westerly of the centre of said way, between the travelled part of said way and said wall, row of stones, and stake and stones.</p> <p>A verdict was returned for the defendant, and the plaintiff alleged exceptions.</p>

<p>Action of tort for breaking and entering the plaintiff’s close in Quincy, and breaking down the plaintiff’s fence. The parties submitted the question whether the action could be maintained to the decision of the court upon the following facts:</p> <p>On the 24th of April 1855 William P. Apthorp offered foi sale by public auction house lots on the Apthorp estate in Quincy. The auctioneer exhibited a plan at the sale, (the material part of which is printed in the margin,*) and distributed copies thereof among the persons who attended. Lot 7 was bid off by the defendant; lot 1 by the plaintiff; and lots 2, 3 and 8 by other persons. Deeds were soon afterwards made by Apthorp to the purchasers, and recorded, describing each lot by its number on this plan, (declared therein to be “ recorded with the deed of lot numbered one on said plan,”) and as bounded a on a passage called Hancock Avenue on said plan.” That avenue was staked out at the time of the auction.</p> <p>After this sale, and before these- deeds were made, Apthorp sold and conveyed lots 4, 5 and 6, together with all that part of Hancock Avenue lying west of a straight line drawn from the southeast corner of lot 6 to the northeast corner of lot 4, to the plaintiff, who afterwards erected a fence across the avenue at the dotted line on the plan. The defendant, some days after requesting the plaintiff to remove the fence, removed it himself, without injuring the materials, and left them by the side of the avenue.</p> <p> </p>

Action of contract, praying relief in equity. Writ dated January 28th 1856.

Information of intrusion, filed by the attorney general on the 4th of April 1855, under the Rev. Sts. c. 108, to recover a parcel of… Held: that under the circumstances the amendments were admissible, and that under the information, as amended, it was competent for the Com monwealth to give any evidence of title which it might possess. “ The counsel for the Commonwealth contended that the title to the demanded premises, on the first settlement of the country, was vested…

<p>The Proprietors of the Common and Undivided Lands in Ipswich, who sue by John Patch the third, gentleman, Isaac Smith, gentleman, and Isaac Dodge, gentleman, a committee † by said proprietors legally chosen and appointed for that purpose, appellants, vs. Israel Herrick, labourer, and John Herrick, labourer, both of Glocester in said county, both minors under the age of twenty one years, appellees, from the judgment of an inferior court of common pleas held at Ipswich in and for the county of Essex on the last day of March A. D. 177. when and where the appellants in their said capacity were plaintiffs and the appellees were defendants. In a plea of trespass for that the said Israel and John Herrick on the 27th day of July A. D. 1770, with force and arms broke and entered on the soil and freehold of the said proprietors in Ipswich aforesaid, being the southeast part of [a place called Bull Island in *] Chebacco River there, and inclosed and butted on all parts by the water in said river, except on the northwest by the other part of said island owned by Thomas and Nathaniel Lufkin,† and then and there with force as aforesaid trod down, trampled upon, dug, tore up and consumed the soil and thatch banks of said proprietors there, and thereout dug, took and converted to their own use one hundred bushells of clams of the said proprietors, there being and growing, of the value of six pounds, and other enormities they the said Israel and John then and there perpetrated and did against the peace; all which is to the damage of said proprietors (as they by said committee say) the sum of ten pounds. [“ And the said Israel Herrick ” “ and the said John Herrick” respectively “ (by John Lowell his guardian for this purpose appointed) comes and defends when, &c. and says he is not guilty in manner and form as the plaintiffs declare and thereof puts, &c. J. Lowell. And the plaintiff likewise. Sami. Porter.” *j At which said inferior court judgment was rendered that the said Israel Herrick and John Herrick recover against the said proprietors costs, †" This appeal was brought forward at said superior court, of judicature, court of assize and general goal delivery, held at Ipswich in and for the county of Essex on the third Tuesday of June A. D. 1771, and by consent of parties said appeal was continued to the last term of said superior court, ‡: when and where the parties appeared, and the case after a full hearing was committed to a jury sworn according to law to try the same, who returned their verdict therein upon oath, that is to say, they find specially, yizt.: That the southeast part of Bull Island, mentioned and bounded as in the writ, is salt water flatts lying on an arm of the sea, about two miles up Chebacco River,* and is part of the common and undivided lands in said Ipswich, and is the freehold of the plaintiffs’, proprietors of those lands,† and annually for the space of twenty seven years last past hath been possessed and improved by said proprietors; ‡ that the defendants entered upon said southeast part of said island and dug fifty bushels of clams;* and if upon the whole matter the plaintiffs by law can maintain this action, then the jury find the defendants guilty and assess damages for the plaintiffs at four shillings and costs ; otherwise, they find the defendants not guilty. And from thence said appeal was continued unto this court for advisement. And now after a full hearing of the parties by their attorneys on said verdict, and mature advisement thereon, it’s considered by the court that the said John Patch, Isaac Smith and Isaac Dodge in their said capacity recover against said Israel and John Herrick four shillings lawfull money of this province damage, and costs taxed at ¿£16: 9: 8¿-.”</p>