Volume 76 — Massachusetts Reports

Indictment on St. 1855, c. 215, '§§ 15, 17, for selling intoxicating liquors “ without having any license, appointment or authority therefor.” At the trial in the court of common pleas before Perkins, J. there was evidence that the defendant sold intoxicating liquors as alleged, but no evidence whether he did or did not own those liquors at the time of the passage of the statute upon which he was indicted.

<p>Indictment on St. 1855, c. 215, § 17, for being a common seller of intoxicating liquors. Trial in the court of common pleas before Bishop, J., who allowed this bill of exceptions:</p> <p>“ The defendant’s counsel requested the court to instruct the jury that they (the jury) are not in their decision upon, the law necessarily to be governed by the opinion of the judge presiding at the trial; and further that this law under which this indictment is found, if it provides for a trial contrary to the course and usage of the common law, is unconstitutional and no verdict is to be found under it.</p> <p>“But the court declined so to instruct the jury; and instructed them on the first point,'that in their deliberations they were to be governed by the law as stated to them by the court, and that it was their province to apply the law so stated to the facts proved on the trial, and to decide upon the whole case whether the offence charged was or was not proved beyond a reasonable doubt.</p> <p>“ Upon the second point the court declined to give any instructions to the jury upon the ground that the instructions prayed for were upon a hypothetical case, and not upon any point legitimately raised during the trial; and ruled that all the proceedings at the trial of this case were in accordance with the course and usage of the common law.</p> <p>“ To which several rulings the defendant, being found guilty excepted.”</p>

<p>Upon the trial of an indictment for unlawful sales of intoxicating liquors, two witnesses testified that they drank such liquors together at the defendant’s shop and other places; one of them testified that his object was to inform against the sellers; but oath testified that the other did not know of this object, and he testified that his only object was to gratify his appetite. He was asked on cross-examination whether on leaving one of these places the other witness did not whistle for him, and answered in the negative. Held% that this answer was immaterial, and could not be contradicted.</p>

Indictment on St. 1855, c. 405, for keeping and maintaining at Salem, during a certain time, “ a certain building, to wit, a shop then and there resorted to for illegal gaming, and then and there used by the said Buxton for the illegal sale and keeping of intoxicating liquors; said building so used as aforesaid being then and there a common nuisance, to the great injury and common nuisance of all the peaceable citizens of said commonwealth there residing and inhabiting,…

<p>Upon an indictment for a felonious assault by shooting with a pistol with intent to murder, the jury returned a verdict of “ guilty of the assault and battery as charged, but without the felonious intent.” Held, that this verdict might be amended by the court dating the same sitting by striking out the words “ and battery; ” and, thus amended, was sufficient.</p> <p>Under the Rev. Sts. c. 137, § 11, a person indicted for an assault with intent to murder may be convicted and sentenced for an assault without felonious intent.</p> <p>The eleventh section of the Rev. Sts. c. 137, providing that any person indicted for a felon), and acquitted of part of the offence charged, and convicted of the residue, may be adjudged guilty of the offence, if any, substantially charged in the residue of the indictment, is not unconstitutional as conflicting with the twelfth article of the Declaration of Rights.</p>

Bill in equity, filed before the passage of St. 1854, c. 74, by the executor and devisees named in the will of Gamaliel Hodges, alleging their seisin of an undivided part of a wharf lot, with rights of wharfage and dockage, and Pingree’s seisin of the remaining part; Pingree’s use of the wharf for the purpose of laying at it vessels of his own and under his charge, and landing merchandise thereon, and depositing thereon materials and rigging for his vessels ; his receipt of…

Action of tort, under Si. 1853, c. 371, praying for relief in equity, brought by the assignee of an insolvent debtor to set aside a conveyance obtained from said debtor by false representations and in fraud of his creditors. Writ dated and served April 17th 1855. The defendant on the 7th of November 1855 filed a general demurrer.

<p>Writs of entry to recover parts of a farm in Topsfield, of which Daniel Bixby died seised in 1825. The first demandant was an heir at law of said Daniel; and the second, an heir at law of Ruth Bixby, his widow and residuary legatee. By his will, made in 1811, he devised the farm in question to his said widow for life, and, after her, to his nephew Daniel Towne for life, and then as follows:</p> <p>“ I give and devise to the selectmen of the town of Topsfield aforesaid, and their successors in office forever, all my farm, situate in Topsfield aforesaid and in Boxford in said county, after payment of the debts, charges and legacies hereinbefore mentioned, and after the terms of my said wife and nephew therein, as hereinbefore expressed, shall have fully expired and run out; to have and to hold the same to the said selectmen and their successors, on the special trust and confidence here following, that is to say: that the said selectmen and their successors shall from time to time lease out the said farm for a term not more than seven years, nor less than three years, extraordinaries excepted ; and shall yearly and every year appropriate and pay all the rents, incomes and profits of the said farm for the support of a gospel minister or ministers in said town of Topsfield, of the Congregational denomination ; the said selectmen to be always accountable to said town -of Topsfield, and to render to said town annually, and as much oftener as said town may require, a true and faithful account of all their proceedings relative to said farm; the said farm to be called and known by the name of the Donation Farm for the support of the gospel; subject however to the directions and restrictions hereinafter mentioned.”</p> <p>“ My will is, and I hereby further order and direct, that, after the said selectmen shall come into possession of my said farm, as hereinbefore provided, they shall be allowed to cut not exceeding six cords of wood in any one year; and it shall be the duty of those who may be in the nearest degree of kindred to me to see that the said selectmen at all times cause the buildings and fences on said farm to be kept in good repair, and that said farm be well managed for the purpose for which it is given. And if any strip and waste be made of said farm, of any part thereof, while under the care of said selectmen; or if any part of the rents, incomes and profits of said farm shall at any time be appropriated for any other purpose than that for which it is hereby given and intended; or if said selectmen shall refuse or neglect to render to said town of Topsfield a true and faithful account of their proceedings in the premises as hereinbefore required; then the two oldest persons in the nearest degree of kindred to me, living within the present limits of the said county of Essex, shall give notice to said selectmen; and after six months, if they still see cause, shall proceed to settle the matter in manner following: The said two of my kindred shall appoint one disinterested judicious freeholder, -and the said selectmen shall appoint a second; and they two shall decide, or, in case of disagreement, they shall together appoint a third to join them ; and the decision of the two persons so appointed, or of the three persons so appointed, or a majority of them, as to the damage sustained by such strip and waste, or bad management, shall be final; and the said selectmen shall pay to said two of my kindred such sum as the referees shall decide, within six months after such decision ; or, on failure of such payment within that time, the said two of my said kindred shall forthwith take possession of my said farm ; and the said farm shall descend thenceforward to them, the said two of my kindred in the nearest degree and living within the limits aforesaid, in equal shares; to have and to hold the same to them and their heirs and assigns forever; and the term of said selectmen and of said town in said farm shall thenceforward and forever cease and expire. And if the said selectmen shall, for thirty days after due notice of the- appointment of the first person by said two of my kindred as herein provided, refuse or neglect to appoint the second, as herein provided, the said two of my kindred may make known such refusal or neglect to the judge of probate for the time being for said county of Essex; and three disinterested judicious freeholders, appointed by said judge, shall in the same manner decide, and their decision shall be equally and in the same manner binding, as if the referees had been appointed in manner before provided.”</p> <p>Ruth Bixby entered on the premises after the testator’s death, and occupied them until her own death in 1834; then Daniel Towne, the testator’s nephew, entered and occupied till his decease in 1845, after which the selectmen of Topsfield entered, and in 1846 were appointed by the judge of probate trustees of the estate under the will, and leased it for seven years.</p> <p>In 1800 and' previously the inhabitants of the town of Tops-field acted as a parish, raising money for the support of a minister of the gospel, and instructors in piety, religion and morality, and (excepting those who legally separated themselves and joined other parishes or religious societies) continued to exercise all the functions of such a corporation until the 29th of March 1824, when the parties remaining connected with such parish were duly organized under St. 1823, c. 117, which enacted that “ -all the inhabitants of the town of Topsfield, with all the lands in said town, (except such inhabitants and such lands as do belong to some other parish or religious society, or are exempt by law from parish charges in said town of Topsfield;) be and they hereby are incorporated into a parish, by the name of the Congregational Parish in Topsfield, subject to all the duties and vested with all- the rights and privileges to which parishes are by law entitled; ” “ and the said congregational parish shall be deemed and taken to be successors to the said town of Topsfield, as far as related to parochial proceedings, rights and privileges, and subject to all contracts of a parochial nature which may have been made by said town.”</p> <p>The new corporation retained the former minister, without any new installation, continued him in the oc< upation of the parsonage lands, and retained and used the church plate. The ecclesiastical affairs of the parish, both before and since this incorporation, have always been conducted according to the Congregational system of church government, and Orthodox or Calvinistic tenets have always been professed by the member's. The testator was always a deacon in the old parish, and, so long as physically able, attended public worship at their meeting house. None of the ministers of the town living at the time of his death were living when these actions were commenced. The net income of the farm since Daniel Towue’s death has been appropriated to the support of the minister of the Congregational Parish.</p> <p>In 1847 that parish duly accepted the St. of 1847, c. 231, which provided for an election by them of trustees, “ members of said parish, who, with their successors, shall thereafter be constituted a body corporate, by the name of the Trustees of the Bixby .Donation Farm, for the support of a gospel minister or minis ters in the town of Topsfield, of the Congregational denomination ; ” and “ have the power to take and hold, and shall take and hold, all that farm and estate devised to the selectmen of the town of Topsfield by Daniel Bixby, subject to all the restrictions and trusts mentioned in said will; shall apply the incomes and profits thereof according to the directions in said will; and shall hold and administer said estate in all respects according to the terms, provisions and directions of said will, except that said trustees shall not be accountable to the said town, and shall not be required to make any reports of their doings to said town ; but shall be accountable to said parish, and make all such reports to said parish annually or oftener, as by the terms of said will were required to be made to said town ; ” and “ in all other particulars said trustees shall take the place of said selectmen, and shall perform and discharge all the duties and be subject tc all the liabilities of the said selectmen, as provided for in and by said will.”</p> <p>Trustees were duly elected under this statute by the parish, and appointed by the judge of probate, and accepted the trust and entered upon the premises, and in 1853 demised them for a term of three years, by a lease which provided that the lessee might cut not exceeding nine cords of pine wood from the farm yearly; and the lessee did cut nine cords of hard and soft wood yearly.</p> <p>At November term 1855 of this court said trustees, upon their petition pursuant to a vote of the parish, were authorized to sell and convey the estate, and to invest the proceeds subject to the same trusts and uses as the original trust; and in May 1856 sold the estate and conveyed it by warranty deed to the tenant in these actions.</p> <p>If on the foregoing facts the demandant in either action was entitled to recover, the tenant was to be defaulted. If the demandant in neither action was entitled to recover, judgment was to be for the tenant, unless it was competent for the demandants to show that from 1812 to 1830 there was another Congregational society in Topsfield beside the old town society; that from 1833 to 1836 there was another similar Congregational society; that the farm had not been managed according to the rules of good husbandry; that after the death of Daniel Towne the selectmen had allowed the farm to be held by a tenant at will for no fixed rent; and that the annual reports of the trustees had been made to the parish, and not to the town; in which event the case was to stand for trial.</p>

Action of tort. The declaration alleged that there e/cr had been a passage for water over the land of the defendants, which the plaintiff had á right to have open, and that the defendants within one year of the date of the writ had obstructed said passage way so as to turn the water upon the plaintiff’s land, by reason whereof the plaintiff’s well was destroyed.

Scire facias, sued out on the 21st of December 1855, to revive a judgment obtained by the plaintiff, and Joseph Foster, since deceased, against the defendant, and to obtain an alias execution thereon.

<p>Writ of entry, dated October 20th 1855, to recover a lot of land in Georgetown. The case was submitted to the decision of the court on the following statement of facts:</p> <p>Miriam Jewett died seised of the demanded premises in July 1826, and devised them to her son Samuel Jewett for life, “ and. after his decease, to be equally divided among his children or their legal representatives.” Samuel Jewett died in June 1849, leaving the demandant, and one other surviving child, who died without issue in August 1850, aged nineteen years, and whose portion the demandant inherited.</p> <p>The executor of Miriam Jewett’s will, upon petition to the judge of probate, on the 7th of November 1826 obtained a license in due form to sell the premises within one year, to pay debts and legacies; and, after giving bond and notice as required by law, sold the same by auction in December 1826 to a bona fide purchaser, who actually paid the price; and in June 1828 executed and delivered a -deed in due form to said purchaser, who was the tenant’s grantor. The executor never rendered any account of his administration to the probate court, nor do the records of that court show any proceedings relative to said estate subsequently to November 1826. The tenant, offers to show, if admissible, that all the legatees and creditors of the testatrix now living, mentioned in the schedule filed by said executor in the probate court, have been paid their respective claims. The tenant and his grantor have been in peaceable and uninterrupted possession of the demanded premises from the time of the sale to the date of the writ.</p>

Action of contract for services claimed to have been rendered by the plaintiff to the defendant while the latter was administrator of the estate of Dr. Spaulding, more than six years before the date of the plaintiff’s writ.

<p>A notice, signed by a mortgagee of personal property, and delivered to a deputy sheriff who has attached the property on a writ against the mortgagor, is sufficient under Bev. Sts. c. 90, § 79, if it notifies him to deliver up the property, and describes the mortgage and the notes secured thereby, although it does not contain an express demand of payment.</p> <p>A demand of payment under Bev. Sts. c. 90, § 79, by a mortgagee of personal property on an attaching officer, may state the full amount of the debt, without deducting what the mortgagor might deduct on the ground of a usurious consideration.</p>

<p>A building committee of the selectmen of a town which had not been divided into territorial school districts selected a lot of land for a school-house, and, on the refusal of H., the owner, to sell it, applied to the selectmen to call a meeting of the town. At such a meeting, called “ to see if the town will authorize the selectmen to select at their discretion a school-house lot,” it was voted, “ that the selectmen be and they are hereby authorized to select at their discretion a school-house lot and lay out the same, from the land of H. heretofore selected by the town.” Seldi that this was not a sufficient designation of laud by the "town to authorize the selectmen to select out of it a school-house lot, under St. 1848, c. 237.</p> <p>It seems, that a notice that the selectmen, in accordance with a vote of the town, will on a certain day lay out and assess damages for the taking of a lot of land, but not stating that it is for a school-house, is insufficient.</p> <p>A town which, against the owner’s will, illegally takes a lot of land for a school-house lot, and erects* a school-hous£ thereon, cannot be allowed anything for improvements, under the Eev. Sts. c. 101, §§ 19, 20.</p>

<p>Writ of entry to recover land in Danvers. Plea, nul disseisin. At the trial before the chief justice, both parties claimed title under a warranty deed made on the 5th of May 1841, by Henry F. Newhall, in consideration of $115, to “ Hiram Gowing, of said Danvers, cordwainer.”</p> <p>The demandant contended that this deed conveyed the premises to Hiram Gowing, then a minor about thirteen years of age, who died in 1852, leaving his father, Hiram G. Gowing, his heir, who afterwards conveyed to the demandant.</p> <p>The tenant claimed title under levies of executions against Hiram G. Gowing upon the estate in 1842 and 1843; and called Newhall as a witness, who, on inspection of the deed, testified that he executed it, that he now knew Hiram G. Gowing, but did not then know that he had any G. in his name; and he was about proceeding to testify, that the negotiation was with the father, who paid him the consideration, and that he supposed he was giving the deed to him; when the competency of this evidence and all paroi evidence was objected to, as tending to show that, when there was a grantee named, Hiram Gowing, capable of taking the estate by conveyance, another grantee not bearing .that name was intended, and in consequence of being so intended to take, the estate under that deed vested in him.</p> <p>The demandant, objecting to all paroi evidence of intention to control the operation of the deed, stated that if the tenant was allowed to go into such evidence, he should oppose it by evidence tending to show that the father was in fact acting for the son, and that the intent was to make a purchase for him, and that it was made with funds given to the son by some relative.</p> <p>The case was reserved for the whole court upon this agreement : “ If the court are of opinion that it is not competent to go into the proposed evidence to show that, although the deed was executed as it was, and there was a person of that name, capable of taking by the deed, and no other person bearing the same name appearing, still it was intended for the father, bearing the same name with the addition of a middle initial letter, and under the circumstances would vest the estate in him, so that it could be levied upon on an execution against him, and taken to satisfy his debts, then judgment to be entered for the demandant. But if the court are of opinion that such evidence is admissible, and if the facts to be established by such proof would show that the deed vested the estate in the father, then the case to be submitted to a jury, to find upon the evidence, offered on both sides, whether such was the intent of the parties to the deed of Newhall to Go wing.”</p>

<p>In replevin of property claimed under a mortgage, the deposition of the subscribing witness to the contents of the mortgage, and to his having seen the property described therein, is admissible to identify the property, although neither the mortgage nor any copy thereof is annexed to the depositions.</p>

Action of tort for forcibly entering and cutting trees growing on the island mentioned in a deed made in 1751 by Charles Tuttle, Jr. (under whom the defendant claimed), to Nicholas Woodbury (whose title the plaintiff had) with this habendum : “ To have and to hold the said granted and bargained premises with all the appurtenances and privileges to the same belonging excepting all the wood and trees on a certain island in above-said meadow I reserve to the said Nicholas…

Action of contract by the receiver of the Bowditch Mutual Fire Insurance Company upon a promissory note for $600, dated June 11th 1855, signed by the defendants, payable to Francis O. Irish, and by him indorsed to the plaintiff. At the trial in this court at May term 1856 before Merrick, J., the plaintiff produced the note declared on, and rested his case.

<p>In an action on the covenant against incumbrances, the burden of proof is on the plaintiff to show that any incumbrance was lawful.</p>

Petition, inserted in a writ and filed in the court of common pleas on the 20th of May 1856, to enforce a lien upon two vessels under St. 1855, c. 231, for timber sold and delivered by the petitioners to the respondents on the 14th of April 1856.

<p>Jurisdiction in proceedings in insolvency, pending before a commissioner when the St. oi 1856, c. 284, took effect, vested upon his subsequent death in the judge of insolvency. and not in the judge of probate.</p>

<p>Action of tort for forcibly entering the plaintiff’s close in Marblehead, digging up the soil and carrying away the pavement. Answer, that the acts complained of were done lawfully, under the authority of Joseph G. Wooldredge, upon land between the dwelling-houses of the plaintiff and Wooldredge, over which both had a common right of way.</p> <p>At the trial in the court of common pleas, before Perkins, J., both parties claimed title, through several mesne conveyances, ■ under John Nutt’s will, made in 1775, when he owned both estates. The deed under which plaintiff claimed, and several of the preceding conveyances since the devise of Nutt, bounded the plaintiff westerly on the estate of Wooldredge; and the deed of Wooldredge, and several of the preceding conveyances since Nutt’s devise, bounded his estate easterly on the passage way between the premises and the plaintiff’s estate. The plaintiff contended that this passage way included the whole open space between the two houses. The defendant contended that it was a much narrower way, of about three or four feet, by the side of the plaintiff’s house.</p> <p>As evidence of the width of the passage way, the defendant was permitted, against the plaintiff’s objection, to put in deeds of Wooldredge’s estate from Daniel Felton and wife to Daniel Felton Jr., and from Daniel Felton Jr. to Nutt, and an intermediate deed from Felton and wife to Nutt of the plaintiff’s estate, the measurements in which would give a passage way of the width contended for by the plaintiff.</p> <p>There was evidence, introduced without objection, tending to show that the tenants in the house of Wooldredge had constantly made use of the whole of this space between the two houses for a long period of time, and also that the tenants in the plaintiff’s house not only had not used, but some of them had disclaimed any right to use the said open space or yard.</p> <p>The court directed the® jury “that the plaintiff would hold, as he claimed, by the description in the deeds of conveyance from John Nutt through several intermediate conveyances to himself; but as the plaintiff’s estate was bounded westerly on the estate of Wooldredge, and Wooldredge’s estate was bounded easterly on a passage way between his premises and the estate of plaintiff, and as no width or other description of said passage way or the uses to which it was to be put was given, the jury would judge from all the evidence before them whether the passage way was only so much as claimed by the defendant, or a larger width, or the whole distance between the houses, as claimed by the plaintiff; that the mere fact that there was an open space of eight feet between the houses did not necessarily show that the passage way referred to in the deeds was eight feet wide; the jury would look to the whole evidence, and say whether the passage way referred to was the whole space between the houses, or a less width, or the width claimed by the defendant; that if the jury were satisfied from the evidence that there was a passage way actually laid out there by Daniel Felton, marked and distinguishable on the ground, of the width claimed by the defendant, and that remained an open and well known passage way, used as such, and was the passage way referred to in the deeds from Nutt to Wooldredge, then the plaintiff’s estate would extend no farther than to the westerly side of said passage, and Wooldredge’s estate would go only to the westerly side of said passage way; the whole estate having been vested in Nutt by the deeds from Felton, that would clear the estate from all tenancies in common and all rights of way and passages as such; and those deeds were evidence only on the extent and limits of said passage way, if the jury were satisfied that one was laid out and established and remained open and known as such in fact upon the premises, while the whole estate was in the hands of Nutt, and occupied by his tenants and after his conveyances to his grantees.”</p> <p>The court stated “ that if, as the defendant claimed, Wool-dredge and the ■ plaintiff were tenants and owners in common of the whole land between the two houses, this action for trespass thereon could not be sustained against Wooldredge, nor against the defendant acting by his authority; but as the case stood this point did not arise, as it was evident there was no tenancy in common ; that at all events there was a passage way somewhere between the houses, upon which it was admitted that the said Wooldredge had a right of way and no more ; and that the plaintiff was the owner in fee of the land over which that way passed, whatever might be its width.”</p> <p>The plaintiff’s evidence tended to show that the defendant entered upon said passage way, and dug up the soil thereof, and took and carried away the paving stones therefrom and converted the same to his own use. The defendant’s evidence tended to show that he took nothing from the passage way, but left it in as good or better condition than he found it.</p> <p>The plaintiff requested the court to instruct the jury “ that if the defendant entered upon said passage way and dug up the soil, and took and carried away the quantity of paving stones, as alleged, as matter of law such acts would not be a legal use of such passage way.” But the court ruled “ that the defendant, standing as it was agreed in the place of Wooldredge, and having thus a right to use the way over said passage, might on behalf of Wooldredge make every fair and reasonable use of it as such way; he might use the surface for passing and repassing, and he might enter upon it for the purpose of preparing, repairing and keeping the way in order for such use as Wool dredge was entitled to; and for that purpose and to that extent he might disturb the soil or surface, dig up the paving and repave the way to the extent necessary and suitable for repairing and keeping the same in order; that the jury would ascertain what if any of the acts complained of the defendant had done if the acts done by the defendant had not exceeded Wooldredge’s right to the use of this as a way for the purpose of passing and repassing and keeping it in order as above, defendant would not be liable; but if he had exceeded such use, he would be liable for the damage done.”</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions, which were argued at the last term.</p>

<p>A grant of “ liberty to pass and repass over my land where it is necessary," confers a right of way to and from those lands only which the grantee owns at the date of the deed; and the burden of proof is on him and those claiming under him, if sued as trespassers, to show what those lands were.</p> <p>The date of a deed is prima facie evidence of the time of its execution.</p>

Action of tort for breaking and entering a close in Lynn, consisting of a beach between high and low water mark and within one hundred rods of the upland.

<p>Admissions, made by a wife without her husband’s knowledge, are not competent evidence of a way by prescription over land owned by them in her right.</p> <p>Admissions of a son, residing with his parents and managing their estate, are not competent evidence against them of a right of way over it, without proof of the extent of his agency.</p> <p>The silence of a tenant for life, when remarks are made in his presence in disparagement of his title, is no evidence against his remainderman.</p> <p>A deed, under which a party to a suit claims title, being admitted by him on cross-examination to be in his possession, may be ordered to be produced and put in evidence, without calling the attesting witness.</p>

<p>A deed of “a certain parcel of land, situated in A., being my homestead, containing two hundred acres, being the same estate now occupied by me,” does not pass four lots in the occupation of tenants at will, although included in two hundred acres in A., owned by the grantor; and cannot be contradicted by extrinsic evidence of an intent of the parties to include those lots.</p>

<p>Actions of tort for breaking and entering the closes of the plaintiffs in Nahant and removing a wall.</p> <p>The actions were tried together in the court of common pleas, when it appeared by the plaintiffs’ evidence that they occupied two adjoining lots of land, with dwelling-houses thereon, westerly of the road leading over Bass Neck, upon both of which lots was an old wall, a short distance from the road and nearly parallel to it; and that in May 1855 the plaintiffs moved this wall out upon the line of the road, and in October 1855 the defendant moved the wall back to its original position.</p> <p>The plaintiffs claimed that the land between the old wall and the road, upon which the alleged trespasses were committed, was part of the lot laid out to Moses Hudson in the division of common lands at Nahant by commissioners in 1706, the deeds of which they held.</p> <p>The defendant claimed that this land was part of the lot laid out to Robert Potter, by the same division, next eastwardly of the lot laid out to Moses Hudson, and that the old wall was the boundary between the lots of Hudson and. Potter.</p> <p>The defendant also claimed an interest in the Robert Potter lot, as tenant in common, and a right to remove the wall from the Robert Potter lot, where it was placed by the plaintiffs, back to the boundary between the Hudson and Potter lots.</p> <p>The Potter lot was in the common pasture, and had never been inclosed; and all the lands at Nahant, not inclosed, have always been used as a common pasture by the owners of the lots laid out in 1706 ; each owner having a right in the general pasture in proportion to the land he held uninclosed. Before May 1855 the common pasture extended over the land between the old wall and the road, which is a town way running through the common pasture.</p> <p>The plaintiffs showed no interest in the Potter lot, and there was no evidence of any division or partition of that lot.</p> <p>The defendant put in evidence a deed of quitclaim, dated March 14th 1839, from John Stone and others to Samuel Tufts, of “ a certain undivided fifth part of a lot of land, said lot in the whole containing about two and a half acres, our part of the same being about one half of an acre, undivided ; said lot is situate on Nahant, being a part of the third lot in the fourth range; ” also a deed, dated March 26th 1847, from Tufts to the defendant of “ sixty four rods; being part of the third lot in same range, laid out to Robert Potter.”</p> <p>The Potter lot contained nearly two acres, and it was admitted by the defendant upon examination of the title, that the interest of Tufts in that lot was but thirty one and three fifths rods, and that the land between the old wall and the road contained more than that.</p> <p>The plaintiffs objected that by the deed of .Tufts to the de fendant the defendant took an interest in severalty in the Potter lot, and not in common, and had no right to enter upon any part of the Potter lot, except upon what hé held in severalty ; and as there was no evidence of his holding in severalty any part of the land between the road and the old wall, that he had no right to remove the wall, even if the plaintiffs bad no title. And Mellen, C. J. ruled, that under the deed of Tufts the defendant could not justify entering and removing the wall; and ordered verdicts for the plaintiffs, which were returned, and the defendant alleged exceptions.</p>

Action of contract upon a promissory note, made by the defendant, a widow, on the 5th of September 1854, to the plaintiff, for the amount of his bill for attendance as a physician at the last illness of William Nichols, the defendant’s husband, who died July 17th 1853. At the time of receiving this note the plaintiff gave the defendant a receipted bill acknowledging payment from the estate of his demand, by this note.

<p>Action of contract to recover back money assessed on the plaintiff for the building of a school-house and paid by him under protest. The case was submitted to the judgment of the court upon these facts:</p> <p>At a meeting on the 7th of April 1856, the town of Danvers voted to alter the lines of several of the school districts, and among them of District No. 5, which lost seven scholars by the alteration. At a meeting on the 23d of June 1856, the town voted to divide District No. 5 into two districts, one to be called No. 5 and the other No. 8, which last contained no part of what had been added to District No. 5 by the vote of April 7th. The inhabitants of District No. 5 afterwards voted to build a new school-house, and, in order to raise money for that purpose, assessed the tax in question on the inhabitants of so much of the district as had not been set off as District No. 8.</p>

Action of tort against a deputy sheriff and his assistant, for taking and carrying away personal property. The defendants denied that it was the property of the plaintiff, and justified under a writ of attachment against Maria A. Cram.

<p>Action of tort for the conversion of lumber. Answer, that the defendant took it on mesne process against John Adams in January 1856; and that any previous sale of it by Adams to the plaintiff was void, because fraudulent, and because the lumber had not been previously surveyed as required by law.</p> <p>At the trial in the court of common pleas before Mellen, C. J., the plaintiff testified that he bought the lumber from Adams at Frankfort, Maine, in October 1855, and took two bills of sale of it,-and paid for it by his promissory notes; that the lumber was then lying on certain wharves in Beverly in this county, in the custody of John H. Cross, an agent of Adams, and to whom Adams promised to write ; that nothing more was to be done between himself and Adams in relation to the sale; that the lumber was bought by the marks of the survey made in Maine, and was not surveyed in Massachusetts before its attachment by the defendant; and that in the fall of 1855 he saw it in Beverly. The plaintiff offered no further evidence of delivery, but rested his case.</p> <p>The defendant asked the presiding judge to rule, “ that the plaintiff could not maintain his action, because,</p> <p>“ 1st. It did not appear by the evidence introduced by the plaintiff that there was any such delivery as would perfect the sale from Adams to the plaintiff.</p> <p>“ 2d. It appeared from the evidence that the sale, if any there was, was in violation of the provisions of the Rev. Sts. c. 28, § 154, and was therefore void.”</p> <p>The presiding judge refused so to rule ; but ruled, and subsequently instructed the jury, “ that if nothing more remained to be done between the parties, and if the plaintiff prior to the attachment had been to Beverly, to the place where the lumber was, and had exercised acts of ownership over it by virtue of his purchase, and treated it as his property, that would constitute a delivery of it;” and “that if the contract was executed and the possession of the property had passed to the plaintiff, and he was holding under that purchase when it was attached by the defendant, it was not a matter that would avoid the contract that there had been no survey of the lumber in this state before such attachment, or before the delivery of the lumber to the plaintiff.” The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Action of contract for the price of meat delivered to Michael Comody on the credit of the defendant.

Writ of review, granted by the court of common pleas, of a judgment described in the declaration as rendered by that court in favor of the defendant in review against the plaintiff in review in an action of tort. Trial in the court of common pleas before Perkins, J., to whose rulings, stated below, the defendant in review alleged exceptions.

<p>Under a by-law of a loan and fund association, providing that “ in case any member by reason of sickness or removal, or through misfortune, is unable to continue the payment of his subscription, he may give notice to the secretary of an intention to withdraw from the association; and in case the directors are satisfied as to the grounds of withdrawal, his whole amount of subscription shall be returned except the entrance fee; ” and that “ any person wishing to withdraw for the above reasons or otherwise,” and who shall have been a member for a certain time, “ and be clear of the books,” shall be entitled to a certain interest on that amount; any person having been a member for that time, and “ clear of the books,” may withdraw without leave of the directors.</p> <p>The St. of 1854, c. 454, § 8, conferring on this court jurisdiction in equity of all disputes between loan and fund associations and their members does not affect the right of any member to sue the association at law.</p>

Petition for a writ of certiorari to quash the proceedings of the county commissioners, refusing to abate a tax assessed by the city of Salem. The case was submitted to the decision of the court upon the following facts : The petitioner resides in Salem, and is a member of the firm of Curtis & Peabody, merchants, whose place of business is in Boston ; Francis Curtis, the other partner, residing in Roxbury.

<p>Action of contract for money paid to the defendant’s use. At the trial in the court of common pleas, before Mellen, C. J., it appeared that in 1853 the defendant began to build a house for the plaintiff, but before it was finished a disagreement arose between them, and in January 1854 the defendant sued the plaintiff; and that in March the parties, by submission before a justice of the peace, referred “ all matters and demands between them ” to three arbitrators, who in May awarded to the defendant a specific sum, for which at June term he obtained judgment and execution, upon which on the 6th of July 1854 a return was made of payment in full, except one hundred dollars.</p> <p>The plaintiff was allowed, against the defendant’s objection, to offer evidence of the following facts: Hiram S. Brown, a laborer who .had been employed by the defendant in building the house, filed a petition to enforce his lien in January 1854, which was entered at the ensuing March term of the court of common pleas, and an order of notice was thereon issued and published, returnable at June term, when a default was entered, and the cause continued until March term 1855, when the court passed an order for the sale of the property to satisfy the amount of Brown’s bill and costs, which the plaintiff paid. After the execution for the amount of the award had been issued, the plaintiff’s agent called upon the attorney of the defendant and of Brown, and told him that Hale ought not to pay the whole amount of the execution as long as Brown’s petition was pending, inasmuch as the arbitrators had included Brown’s labor in their award. The attorney replied that it was not so included and declared his intention to require payment of both sums, but consented that a hundred dollars should remain unsatisfied upon the execution until it should be decided who should pay Brown. The jury were afterwards instructed that this evidence should not be considered as showing any contract on the part of Huse, but that it was only competent on the question whether the arbitrators did in fact include Brown’s claim in their award. On the 21st of April 1855 an alias execution was sued out by the defendant for the balance due, and was afterwards returned satisfied in full by a seizure and sale of the plaintiff’s property.</p> <p>The judge, against the defendant’s objection, allowed two of the arbitrators to testify, “ that in making their award they did not take the matter of Brown’s lien into consideration, but allowed for all the work done on the house by the defendant or any of his workmen; and that they arrived at their result by deducting from the contract price such sum as in their judgment it would cost to finish the house, disregarding the defendant’s bill for days’ works.”</p> <p>The defendant objected “ that the action could not be maintained, on the ground that this was an attempt to impeach collaterally the award of the referees; that no action lies to recover money paid on a judgment of court still unreversed; that the judgment upon Brown’s petition could not affect this defendant, being res inter alios; that as Hale paid the money on Brown’s decree of sale before he satisfied the defendant’s execution, he did not pay it to the defendant’s use ; that the plaintiff’s proper remedy, if he has any, was to review or reverse the judgment upon the award ; and that he had not called all the referees, but had undertaken to show the judgment of all by the testimony of but two.” But the court refused so to rule, and stated that the jury would be instructed that the plaintiff could recover, if he satisfied them that the referees included Brown’s claim in the award.</p> <p>The defendant then requested the court to rule, “that the defendant was entitled to a demand before the action could be maintained; and that the plaintiff could not recover without proof- of notice to the defendant that payment had been made” of Brown’s bill.” But this request was overruled.</p> <p>The defendant then testified, “ that when he met the referees the- plaintiff spoke of Brown’s lien; that the defendant made his claim in writing, and that Brown’s claim, or the amount of labor performed by Brown, was not included ; that he expressly told the referees so, and stated to them that he did not make any claim for that, and requested them to omit it; and that when this suit was commenced he did not know that the referees had not complied with his request.”</p> <p>The defendant thereupon, renewing his former requests fo instructions, also requested the court to instruct the jury, “ that if they were affirmatively satisfied that the defendant had had no notice, as above, before action brought, the plaintiff could not recover; ” and “ that if the jury were satisfied that Huse expressly withdrew the amount of Brown’s labor from the c.onsideration of the referees, then it was not within the submission, and the action could not be maintained.” But the court refused ; and instructed the jury “ that even if they were satisfied that Huse gave the referees notice that he did not claim that, and they nevertheless passed upon it, and included it in the award, the defendant would be liable in this action; and that the plaintiff was entitled to recover, if at all, the amount paid by him upon Brown’s petition, including the costs.”</p> <p>The jury returned a verdict accordingly, and the defendant alleged exceptions.</p>

<p>1 railroad corporation incorporated by law in this state is not exempted from liability for the loss of goods delivered to it to be carried over part of its road to the state line, by having previously leased that part of its road to a corporation established by law m an adjoining state, whose road connects with it at the state line.</p>

<p>Appeal from a decree of the judge of probate, dismissing a petition of the administrators of the estate of Lott Poole, deceased intestate, for a distribution of his estate among his other children, omitting the appellee as having had his whole share advanced to him. The facts appear in the opinion.</p>

<p>insurers on the freight of a ship for a voyage are not liable for a total loss, where ther -has been.no total loss of the ship,, and the goods could have arrived in specie at the po*t of destination; although the ship has been obliged by a peril insured against to put back to her port of departure, and the goods, after being damaged by that peril to the extent of more than half their value, or to the extent of goods yielding more than half the freight, have been sold there according to the interests of all parties except the insurers on freight.</p> <p>If a ship is obliged by perils of the sea to put back to her port of departure, and her cargo is there sold by the master for the interest of all parties except the insurers on freight, the shipowner is not entitled to freight; and, if he defends, on a claim of freight, a suit brought against him by the owner of the cargo for the proceeds of such sale, cannot re* cover from the underwriters on freight any part of the expenses of such defence.</p> <p>Insurers on freight are liable for the freight of goods jettisoned, without waiting for the adjustment of the general average; although the policy provides that any loss “ shall he paid within sixty days after proof and adjustment thereof.”</p> <p>Under a policy which exempts the insurers from liability for any partial loss on certain goods perishable in their nature, unless it amount to seven per cent, and happen by stranding; and for partial loss on other goods or on the vessel or freight, unless it amount to five per cent.; the insurers are liable for a partial loss exceeding five per cent on the freight of a cargo consisting of such perishable articles and of other goods, although not occasioned by stranding.</p>

<p>A policy of insurance on a ship against “ total loss only/’ even if a time policy, covers a constructive total loss.</p> <p>It is a sufficient abandonment of a ship injured by perils of the sea, and therefore surveyed and condemned on the west coast of the United States, in time of peace, to state in a notice to the underwriters that the assured “having received information of the condemnation of” the ship “at Humboldt, California, hereby abandons all in said vessel insured by” their policy “and claims as for a total loss.”</p> <p>A policy of insurance from an insurance company established in another state, signed by their president and secretary there, but not to be valid until countersigned by their agent here, and issued by such agent here, is to be interpreted by the law of Massachusetts; and one third new for old is therefore to be deducted in estimating a constructive total loss under it.</p> <p>Under a policy of insurance upon a steamer, which exempts the insurers from liability for breaking of the machinery unless occasioned by stranding, the insurers, if the vessel is injured first by perils of the sea and afterwards by stranding, are liable only for so much of the injury as the assured prove to have been occasioned by the stranding.</p> <p>In computing a constructive total loss on a vessel stranded on the west coast of the United States, an assessor allowed two months’ interest on the funds raised for repairs. Held, that this assessment could not be increased by the court without evidence to overcome the assessor’s report.</p>

<p>Action of contract on an open policy of insurance for $25,000 at a nominal premium “ on property on board any vessel or vessels to, at and from ports or places, per indorsements.” Among the indorsements was this: “February 21, 1854. $4850. Bate If. Premium $84.87. Ship Charles Humberston, from Liverpool to Boston.”</p> <p>The policy was in the common Boston form, against perils of the sea and other perils: “ Provided that the insurers shall not be liable for any partial loss on hemp and flax, unless the loss amount to twenty per cent, on the whole aggregate value of such articles; nor for any partial loss on sugar, flaxseed, bread, tobacco, and rice, unless the loss amount to seven per cent, on the whole aggregate value of such articles; nor for any partial loss on salt, grain, fish, fruit, hides, skins, or other goods that are esteemed perishable in their own nature, unless it amount to seven per cent, on the whole aggregate value of such articles, and happen by stranding; nor for any partial loss on other goods or on the vessel or freight, unless it amount to five per cent.; exclusive, in each case, of all charges and expenses incurred for the purpose of ascertaining and proving the loss; but the owners of such goods shall recover on a general average. It is further agreed, that the insurers shall not be liable for damage or injury to goods by dampness, change of flavor or being spotted, discolored or mouldy, unless the same be caused by actual contact of sea water with the articles so damaged; and that the company shall not be answerable for loss or damage, by wet or exposure to the elements, of goods insured as on deck. In</p> <p>case of damage, by perils of the sea, to dry goods, cutlery, or other hardware, the loss shall be ascertained by a separation and sale of the portion only of the contents of the packages so damaged, and not otherwise; and the same practice shall obtain as to all other merchandise, as far as practicable.” At the end of the last paragraph of the policy, next before the formal conclusion, were printed these words: “ Partial loss on sheet iron, iron wire, brazier’s rods, iron hoops and tin plates, is excepted.”</p> <p>Bigelow, X, before whom the trial was commenced, reserved the case for the decision of the full court, upon a report of which the material parts were as follows :</p> <p>The shipment in question consisted of five hundred boxes of tin plates, invoiced and valued together at one sum. The Charles Humberston, with the tin plates on board, sailed from Liverpool for Boston on the 1st of March 1854, and was wrecked in Dun-drum Bay, on the north coast of Ireland, one hundred and fifty miles from Liverpool. The bottom of the vessel was stove in, so that she filled with water, and the tide Sowed freely in and out of her, and she finally went to pieces. The salt water got into all the boxes, and damaged all the plates more or less ; some of them were wholly destroyed; and the others, after having been exposed for some weeks to the action of the salt water, were taken out of the ship, carried back to Liverpool, there surveyed, and, “ in consequence of their damaged and perishing state,” recommended by the surveyors to be immediately sold, and were sold by public auction for whom it might concern. It was for the interest of all concerned that they should be sold at Liverpool. The accounts of sale showed that the proceeds of the sales, deducting the expenses of raising the tin and sending it to Liverpool, were less than half the value of the shipment, but more than half without such deduction.</p> <p>The plaintiffs introduced several depositions tending to show that the effect of the salt water was to utterly spoil the plates for use as bright tin ware, though they might have been japanned. And there was conflicting evidence upon the question whether, if the tin had been reshipped from Liverpool to Boston, the expenses of the reshipment would have exceeded the sum for which it would have been sold upon arrival in Boston.</p> <p>The plaintiffs made a seasonable abandonment, and claimed a right to recover as for a total loss.</p> <p>This case was argued before the first decision in the next preceding case of Heebner v. Eagle Ins. Co. ante, 133.</p>

<p>Two partners, in an application for insurance on a building, which was required to contain a full, fair and substantially a true representation of all the facts and circumstances respecting the property, so far as they are within the knowledge of the assured and are material to the risk,” stated that they owned the land on which it stood. In fact, one of them, to whom the policy was made payable, owned it, and the other was charged on their books with half its cost. The partnership was afterwards dissolved, and all that owner’s interest in its assets transferred to his copartner, to whom the insurers, with notice of the facts, agreed that the policy should “ stand good.” Held, that the insurers were liable for a loss by a subsequent fire.</p> <p>A description in an application for insurance of a building as used “for the manufacture of lead pipe,” or “of lead pipe only,” includes the manufacture of wooden reels on which to coil the lead pipe, if essential to the reasonable and proper carrying on of the business of manufacturing lead pipe.</p>

Action of contract upon a policy of insurance for $10,000 against fire, “ on stock, steam engine and boiler, fixtures, furniture and safe, contained in the new granite store, No. 93 Broad Street, Boston, Massachusetts,” subject to certain conditions of insurance annexed, by which “druggists and apothecaries” are enumerated among the “ trades and occupations, goods, wares and merchandise denominated extrahazardous; ” and “ applications for insurance must specify the…

<p>,3ill in equity to enforce the trust created by the following clause in the will of John Wallace, late of Clerkenwell in the county of Middlesex and Kingdom of England: “One fifth of all I possess to be sent to the care of John Wallace, son of Janes Wallace, 65 Eliot Street, Boston, to be put to interest for the sole use of my sister Helen as long as she may live, and at her death to be divided between her children living and the children of James Wallace, then living, of 65 Eliot Street, Bo& ton, North America, share and share alike.” This will, as appeared by the bill, was duly admitted to probate in the prerogative court of Canterbury, but never allowed in this state, nor any copy of it filed here, pursuant to the Rev. Sts. c. 62.</p> <p>The defendant demurred to the bill, as setting forth no case within the jurisdiction of this court. And this demurrer was argued and decided at. March term 1857.</p>

<p>It seems, that under the Rev. Sts. cc. 90, 92, no judgment can be rendered at the first term upon the default of a defendant who was out of the State at the time of the service rf the summons, whether he has ever been an inhabitant of the State or not.</p> <p>Under St. 1839, a. 158, judgment cannot be rendered against a foreign corporation, without such notice as is provided by the Rev. Sts. c. 92.</p> <p>Service of process upon a foreign insurance company who have appointed an attorney in this commonwealth to accept service of process against them, as required by St. 1851, it. 331, must be made upon him.</p> <p>A trustee in foreign attachment may object on scire facias that judgment was rendered in the original action at the first term against the principal defendant, who was not in the State at the time of service, without giving the farther notice required by statute in such cases.</p>

<p>An attachment by trustee process against a foreign corporation is defeated by a certifica*, of discharge of the trustee in insolvency.</p>

<p>Th» treasurer of a railroad corporation is an “ officer, agent, clerk or servant of an incorporated company,” within the Rev. Sts. c. 126, § 29, relating to embezzlements by such persons.</p> <p>A treasurer of a railroad corporation, who had embezzled their funds, called upon a friend of his, who was a surety upon his official bond and stockholder in the corporation, for advice; and he urged him to go to the directors, and make a clean breast of it, and told him that it would be for his interest to make a full confession; but said nothing, in terms, of a prosecution; told him that the disgrace was in doing wrong, not in suffering punishment for it, and he had better stay and meet the punishment; and (as be testified) “ advised him as a friend, a son.” The next day they went together to see one of the directors, who, on this stockholder suggesting that he had influence with the other directors and could prevent a prosecution, stopped him, saying that he could and would make no promises, did not know what his own power or duty was, but would do all he rightfully and properly could to prevent his arrest and prosecution, and that he must confide wholly in him and his discretion. Held, that confessions made after these conversations were admissible in evidence against him.</p> <p>If money of a railroad corporation is received by their treasurer, and by him deposited to his credit as such treasurer, and afterwards drawn out by him either in bills or coin, such bills or coin are the property of the corporation, and, while in the hands of the treasurer, subjects of embezzlement by him; and if he afterwards, while still treasurer of the corporation, fraudulently converts such money to his own use, without their consent or knowledge, and without claim of right, it is embezzlement; although the guilty intent does not exist at the moment of drawing the money out of the bank, but is formed after-wards; and although at the time of the fraudulent conversion he intends to restore the amount, and has property sufficient to secure its restoration.</p> <p>Upon the trial of an indictment for embezzlement, other previous acts of a similar character, enumerated with the one charged in the indictment in a paper drawn up by the defendant as a statement of all sums taken by him, are admissible in evidence to show the intent with which the act charged was committed.</p> <p>It is not necessary, in order to constitute embezzlement, that there should be a demand of the money alleged to have been embezzled, or a denial of its receipt, or any false account given of it, or false statement or entry concerning it, or refusal to account for it.</p>

<p>The St. of 1855, c. 283, excepting from the operation of the St. of 1852, c. 294, § 1, (which limited the time of bringing actions against executors and administrators to two yearn from the filing of their official bond,) any right which had accrued or existed against any deceased person or his executor or administrator prior to its passage, does not revive a right of action barred by the St. of 1852 before the passage of the St. of 1855.</p>

Action of contract to recover damages for the nonpayment of the following order: “ September 24th 1850. Messrs. Benedict & Warren, Salem, Mass. Gentlemen : Please give Mr. D. A. Neale, President of the Eastern Railroad Company, stock in the Salem Gas Light Company at par to the amount of seven thousand dollars, and place the same to my account.

<p>Action of contract by the administrator of Claudius Dord against the master and partowner of the Ship Medallion, for money had and received to the plaintiff’s use, under a charter party executed on the 26th of October 1852, whereby the defendant lets the Medallion to Dord for a voyage from New York to Charleston, S. C., and thence to Liverpool, and “ doth engage that the vessel in and during the said voyage shall be kept tight, stanch, well fitted, tackled and provided with every requisite, and with men and provisions necessary for such a voyage; ” and Dord “ doth engage to provide and furnish the said vessel with a full cargo of lawful merchandise (or sufficient for ballast) during the voyage aforesaid, with a full and complete cargo of cotton; ” and to pay to the defendant or his agent, “ for the charter or freight of said vessel during the voyage aforesaid, three eighths of one penny sterling per pound for cotton bales, with five per cent, primage, payable on delivery of the cargo in Liverpool; ” and it is agreed “ that what money the master may require for ship’s disbursements in Charleston will be-advanced, taking his bill on the freight, subject to the usual charges on the same; ” “ that this charter shall commence when the vessel is ready to receive cargo at her place of loading, and notice thereof is,given to said Dord or his agent”; and “that the ship will go consigned to charterer’s friends, Messrs. Stewart, Harper & Co. of Charleston, and to their agents at Liverpool, free of commissions and brokerage on freight at Charleston ; also to be free of wharfage and dock dues.” Trial before Bigelow, J., who made the following report thereof:</p> <p>“ It appeared that the defendant proceeded with the ship to Charleston, where Stewart, Harper & Co. caused her to be laden with a full cargo of cotton, for which the defendant signed bills of lading at four eighths of a penny per pound; that the plaintiff’s friends, Stewart, Harper & Co., at Charleston, agreeably to the charter party, designated Coliman & Stolterfoht, of Liverpool, as the persons to whom the ship should be consigned ; and wrote and forwarded to them a letter, (a copy of which is in the margin,*) and wrote another letter (also copied in the margin f) to Hopley & Co. of Charleston, (who were shippers of a large part of the cargo, and correspondents ol Coliman & Stolterfoht,) which was transmitted to Coliman & Stolterfoht by Hopley & Co., with a requesT that they would conform to it and advise them of the settlement.</p> <p>“ The defendant introduced the deposition of Heman Stolterfoht, of the firm of - Coliman & Stolterfoht, who testified that the instructions which said firm received as to the disposition of the freight of the Medallion were contained in said letters, and that they had no other instructions whatever; and the defendant drew a bill on them for <£364 8s. Id., directed to be charged ‘ to account of freight of ship Medallion,’ which he requested them by letter to honor and to insure the amount for account of the owners, and which was accepted by them, but never paid, and was afterwards taken up by the defendant.</p> <p>“ The defendant introduced evidence tending to prove that by the custom of Liverpool the consignees of a ship are to collect the freight. The witness who so testified, in answer to a question by the plaintiff, said he did not mean to say that there is a custom to prevent a master from collecting his freight from the consignee of the cargo before he delivers his cargo, or as it passes over his vessel’s side, even if he is consigned to a mercantile house there, if bills of lading have been signed as referred to.</p> <p>“ On the ship’s arriving at Liverpool, she was placed in the hands of Coliman & Stolterfoht, who paid the disbursements of the ship, and delivered her cargo, except nine hundred and ninety four bales, which were not claimed by the consignees thereof; and received a portion of the freight therefor, at the rate mentioned in the bill of lading, and then became bankrupt. The defendant thereupon interfered to prevent the uncollected portion of the freight from going into their hands, and collected it himself, including the freight on the nine hundred and ninety four bales; and this action was brought to recover from him one quarter of what he so received, as belonging to the plaintiff.</p> <p>“ The defendant drew up an account, wherein he charged the plaintiff with full freight as per charter party, three eighths of a penny per pound on the whole cargo, viz: that delivered by Coliman & Stolterfoht and by himself, deducting the disbursements paid by Coliman & Stolterfoht; and claimed to retain out of the money received by him as aforesaid enough to make up his entire freight by charter party.</p> <p>“ It was in contest between the parties whether Coliman & Stolterfoht had been constituted agents both of the owners and of the charterers to receive the whole freight of the cargo, as per bills of lading, and to hold three quarters thereof to the credit of the said owners, and one quarter thereof to the credit of the charterers; the plaintiff contending that they were agents of both; and the defendant contending that they were not his agents to collect his freight as per charter party. The case was submitted to a jury on this question, who found for the defendant.</p> <p>“ The plaintiff further contended that, at all events, the defendant, by drawing the said bill of exchange on Coleman & Stolterfoht, which they accepted, and sending the letter annexed, had given to them the right to collect freight as his agents to that amount, and therefore that he was entitled to recover of the defendant a larger amount than the sum for which the defendant offered to be defaulted. But the judge reserved this question for the consideration of the whole court. If the whole court should be of opinion that the ground contended for by the plaintiff should be sustained, then judgment would be rendered for such sum in addition to the verdict as the court should direct, with costs for the plaintiff; and otherwise, judgment on the verdict for the amount only for which the defendant had offered to be defaulted, without costs, and costs for the defendant after the offer to be defaulted.”</p>

<p>Whether articles of separation, between husband and wife actually living apart, in which the husband covenants with a trustee to provide for the future separate maintenance of the wife, are valid in this commonwealth, qu&re.</p> <p>Whether a covenant, in articles of separation, that the husband will pay an annuity to the wife during her life, is discharged by her obtaining a divorce and marrying another man, quare.</p> <p>By articles of separation a husband covenanted, in -consideration of his wife’s withdrawing a libel for divorce, to pay her a sum yearly during her life. The wife afterwards, by another similar libel, obtained a decree for divorce from the bond of matrimony, and for alimony, which by agreement was fixed at the sum payable under the articles; and the wife, after receiving two instalments of such alimony, married another man, whereupon the alimony was reduced by the court to a nominal sum. Held, that the covenant, if ever valid, was discharged.</p>

Action of contract to recover damages for Varney’s failure to build certain additions to a house according to the terms of a written contract between the parties.

Action of tort upon the Rev. Sts. c. 38, § 29, against the directors of a manufacturing corporation. Writ dated January 15th 1856.

<p>If notice of an intention to take the poor debtor’s oath is served upon the creditor less than a mile from the place of examination, the time allowed him for travel, under St. 1845 c. 444, § 4, need only be a proportionate fraction of an hour.</p> <p>A poor debtor who has, pursuant to St. 1855, c. 444, entered into a recognizance to deliver himself up within ninety days for examination, giving notice to his creditor and making no default, and to abide the final order of the magistrate, and who does attend before the magistrate, is not bound to surrender himself to the officer until the magistrate has certified a refusal to admit him to the poor debtors’ oath.</p>

<p>Habeas corpus. The petitioner was arrested under a warrant issued against him by the governor of Massachusetts on the requisition of the governor of Iowa. After the issuing of this writ, the governor revoked his warrant, and the prisonei demanded his discharge. The respondent contended that the governor had no power to revoke such a warrant once issued. But Bigelow, J. ruled otherwise, and discharged the prisoner. The respondent alleged exceptions.</p>

Action of tort by grocers against a deputy sheriff for attaching their stock in trade on mesne process against them. At the trial in the superior court of Suffolk at March term 1856 the plaintiffs claimed that the property was exempt from attachment under St. 1855, c. 264.

<p>Proving a claim against a corporation in insolvency under St. 1851, c. 327, and receiving a dividend thereon, will not bar a suit against the corporation for the rest of the debt.</p>

<p>Action of contract, by the assignee in insolvency of John M. Way, upon a bond for the liberty of the prison limits, made to said Way by Richard Martin as principal and Jeremiah Martin as surety on the 27th of March 1855, after the arrest of Richard on an execution issued on the 12 h, on a judgment recovered against him -by Way on the 7th of March.</p> <p>At the trial in the superior court of Suffolk at May term 1856, before' Nash, J., the defendants contended that Richard Martin had been duly discharged by taking the poor debtors’ oath.</p> <p>The plaintiff introduced an assignment to him from a commissioner of insolvency, dated March 8th 1855, of all the estate which Way had, or was interested in or entitled to, on the 10th of February 1855, being the date of the first publication of the notice of Way’s insolvency, and before which the debt had accrued and been put in suit on which Richard Martin was committed.</p> <p>The defendants contended that, as the bond declared on was given long after said assignment, the plaintiff had no interest therein, and could not maintain the action ; and moved for a nonsuit. But the judge overruled the motion, and ruled that the plaintiff, as assignee, was entitled to sue on the bond in his own name.</p> <p>A justice of the police court of Boston, who administered the poor debtors’ oath to Richard Martin, being called as a witness for the defendants, testified “ that he kept no record; but that it appeared from certain minutes on a loose piece of paper (copied into a poor debtors’ book) that said Martin applied to him to administer the poor debtors’ oath; that the parties appeared on the 27th of April 1855 at twelve o’clock, and the case was continued to May 4th at nine o’clock in the morning ; and then there was an entry on said piece of paper, ‘ Con. May 7, 12 elk,’ at which time the oath was duly administered and a certificate granted ; that he had no independent recollection about the case, and could testify nothing except from this writing; that after reading said memorandum he had no independent nor any recollection; that he had no doubt the adjournment was duly and properly made; but that he had so many cases of the kind, he had to rely solely on such minutes; and that this minute was not made by him.” And each of the other police judges testified that this minute was not in his own handwriting.</p> <p>The judge instructed the jury “that these minutes of the magistrate were not evidence; that he might refer to them to refresh his memory; but that as the magistrate, after examining them, had no recollection of the case, they could not be received as evidence, as they were not a record.”</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>Action of contract on a bond, given pursuant to Rev. Sts. c. 49, § 1, and conditioned that John Donahue should appear at the next court of common pleas and answer to the complaint of Eliza Power, of being the father of her bastard child, and should abide the order of said court thereon.</p> <p>At the trial in the superior court of Suffolk at May term 1856, it appeared that the complaint «was tried and Donahue found guilty in the court of common pleas on the 2d of March 1855, and the final order of court passed on the same day; that the court adjourned on the 13th, and on the 25th of March a warrant was issued on the complainant’s motion, upon which Donahue was arrested and committed on the 28th, and, at the expiration of one hundred and twenty days, discharged on taking the poor debtors’ oath.</p> <p>The. defendants offered evidence that during the trial of the complaint and at the passing of the final order Donahue was present in court. The plaintiff objected, upon the ground, that this evidence, if relevant for any purpose, was so only to show a surrender in court, which could not be proved except by record. But Nash, J., admitted the evidence; and instructed the jury, “ that if the respondent was openly in court during the trial, and at the time of and until after final judgment, when the final order was passed; and his presence was known to the complainant and her attorney; and the respondent was then and there ready to be taken into custody, if such motion bad been made by the complainant; the condition of the bond was saved, and the verdict should be for the defendants.” The jury returned a verdict accordingly, and the plaintiff alleged exceptions.</p>

<p>Slander. The declaration averred : 1st. “ That the defendant publicly, falsely and maliciously accused the plaintiff of the crime of fornication, by words spoken of the plaintiff substantially as follows; viz: ‘That you’ (meaning the plaintiff) ‘are a whore and a common prostitute, and you ’ (meaning the plaintiff) ‘associate with prostitutes.’ ” 2d. “ That the defend-</p> <p>ant publicly, falsely and maliciously accused the plaintiff of the crime of fornication, by words spoken of the plaintiff substantially as follows: ‘ She’ (meaning the plaintiff) ‘is a whore, a damned whore, and a common prostitute.’ ”</p> <p>At the trial in the superior court of Suffolk at March term 1856, Nelson, C. J., instructed the jury, “that the plaintiff, to obtain a verdict on the first count, need noj prove the identical words set forth and specified therein, if other words were proved to have been said by the defendant and concerning the plaintiff, amounting to a general charge of unchastity, which would be enough to support that count.” The jury returned a general verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>The presentment of a promissory note at the place of its date is sufficient, in the absence of proof that the holder at its maturity knew that the maker resided elsewhere.</p>

<p>Appeals from decrees of a master in chancery, under proceedings in insolvency commenced on the 24th of November 1847, in the matter of the estate of Horace Gray and Nathaniel Francis, partners and insolvent debtors, whose assignees the appellees were, disallowing claims offered for proof against Gray’s separate estate.</p> <p>The cases of Tremlett and the Somerset Potters Works were submitted to the judgment of the court upon agreed statements of facts.</p> <p>The case of Parsons was tried before Merrick, J., a verdict taken by consent for the appellees, and the case reserved for the whole court, with an agreement that if upon the evidence, and upon drawing just inferences, the jury under legal instructions could properly have returned a verdict for the appellants,</p> <p>there should be a new trial; otherwise, judgment upon the verdict.</p> <p>So much of the facts of each case as is necessary to the understanding of the questions of law decided, is stated in the opinion. The cases of Parsons and the Somerset Iron Works were argued at March term 1856, and Tremlett’s at this term.</p>

<p>Materials charged and shipped by a partnership in their usual course of business, to works of one partner, on the day of the failure of all the partners, are to be treated as the property of that partner, and not of the partnership, in marshalling their assets in insolvency under St. 1838, c. 163, § 21.</p>

<p>Petition in equity, under St. 1838, c. 163, § 18, in behalf of all the creditors of Horace Gray and Nathaniel Francis, late copartners in business under the firm of Horace Gray & Co., insolvent debtors, to reverse an order by which the respondent, as a master in chancery, allowed out of Gray’s separate estate the whole amount of the claims proved against'that estate, with interest to the time of the order. It appeared, by the accounts of the assignees, that there was a balance of assets from Gray’s separate estate, more than sufficient to pay all the claims allowed against it, including interest from the day of the first publication of notice to the time of the order ; and that the assets of the partnership estate were insufficient to pay the debts allowed against it, without interest. Upon these facts the parties submitted the case to the decision of the court.</p>

<p>To a bill in equity for an account of sales of a book alleged to have been published by the defendant on the joint account of the plaintiff and himself, an answer which denies that any such hook was published during the time alleged, and asserts that the book published by the defendant was a different one, need not render an account of sales.</p> <p>A bill in equity by the executrix of her deceased husband alleged that the plaintiff was inexperienced and unskilled in the care and management and in the value of property, and that the defendant undertook the general management of her affairs, volunteering his advice to her in all matters of business, and that the plaintiff had full confidence in the defendant and relied upon him to advise and aid her in her transactions, and did not buy or sell or lease property without the aid of his judgment. Held, that the answer sufficiently met this allegation by stating that the defendant could only refer to the plaintiff’s declaration that her husband was in the habit of communicating to her his business transactions; that, although his property was large, it was such that its value and income, if not fully known, could be exactly ascertained by her upon the slightest inquiry; and that the plaintiff never expressed to the defendant any doubt of her capacity to take charge of all her property and protect all her interests, nor had he any doubt thereof; and which then stated in detail the facts of their intercourse, denying that the defendant ever acted for the plaintiff as an agent or in a confidential capacity. Held further, that if the answer alleged that the plaintiff asked of third persons questions relative to her property, it need not state of what persons or concerning what property such questions were asked.</p> <p>An allegation in a bill in equity, that the plaintiff repeatedly asked the defendant for his bill, is met by an admission in the answer that the plaintiff asked the defendant what she should pay him.</p> <p>A bill in equity to compel the surrender of a lease alleged that the defendant, before anything was said on the subject by the plaintiff, applied to the plaintiff and solicited of her an extension of the building occupied by him, and a renewal of the lease, and then particularly set forth interviews between them, and that the defendant importuned her to renew the lease, and by these repeated applications and protracted importunities the plaintiff was persuaded to renew the lease on the terms desired. Held, that these allegations were sufficiently met in the answer by averring that the plaintiff herself, without any inquiry or allusion to the subject on the defendant’s part, inquired if the defendant would so extend the building and take the lease; and by admitting the several interviews set forth in the bill, but averring that they were always conducted pleasantly, and that the defendant always allowed the plaintiff time for consideration; and by wholly denying that any of the pretended grievances, deceptions, fraudulent doings, importunities, persuasions and entreaties alleged in the bill were committed or practised by the defendant, and averring these charges were untrue. But that an allegation in the hill that the plaintiff asked the defendant if he thought the rent agreed upon was a fair one, and that he answered affirmatively, was material and should be directly met in the answer.</p>

<p>Action of tort for injuries sustained by scalding from the collapse ocf a flue in a steam boiler owned and used by the defendant in his manufactory, while the plaintiff was in his employment. The causes of the accident, as alleged in the declaration, were that the defendant negligently managed his engine, and “ did not provide a competent and suitable engineer and boiler and engine and pump and gouge and appendages and machinery and precautions for safety used therewith, but carelessly and knowingly provided such as were not competent and suitable and sufficiently safe, and knowingly and carelessly continued the same in use, and improperly used them while out of order and unsafe, either solely or in connection with his servant.”</p> <p>Trial in the superior court of Suffolk at January term 1857, before Huntington, J., who after a verdict for the plaintiff allowed the following bill of exceptions :</p> <p>“ Among the particulars which were alleged by the plaintiff against the sufficiency of the boiler, and to sustain which evidence was offered, was, that it was unprovided with a certain fusible safety plug, referred to in the St. of 1852, c. 247, and that the defendant used the boiler, knowing it to be so unprovided.</p> <p>“ The defendant, upon this point, offered evidence to show that it was not customary among persons having in use such boilers as the defendant’s, and in such establishments as his, to use in connection with them such fusible plugs; and he prayed the court to instruct the jury, that if the defendant’s boiler was supplied with all such appurtenances and appliances for safety as such establishments were ordinarily supplied with, he was not liable in respect to his boiler, though in fact he did not have it supplied with the said fusible safety plug in the said statute mentioned. But the court rejected the evidence of a custom violating the requirements of the statute; and instructed the jury, that if the plaintiff had satisfied them that the defendant knowingly used his boiler without said plug, placed as the law directs, and that the want of it caused the accident, or essentially contributed to it, and that the injury would not have arisen had it been supplied, this might be used as evidence of negligence, and the plaintiff might have a verdict on this ground; and that it might be considered as part of the implied contract between the plaintiff and the defendant that the latter would comply with the law regulating the use of the boiler, so as to give the former a remedy if he sustained injury from the noncompliance with its enactments; but that if he used the boiler without this knowledge, he could not be charged with negligence on this ground, for he had not violated'the law.</p> <p>“ Evidence was also introduced on the part of the defendant, tending to show that the accident would not have happened if the engineer had used ordinary care in the management of the boiler and its appurtenances; and to show that the defendant had in all respects used due care. And the defendant prayed the court to instruct the jury, that if they were satisfied' that without negligence on the part of the engineer the accident would not have happened, the defendant was not liable.</p> <p>“ The court instructed the jury thus: The plaintiff must show that he himself was in the exercise of due or ordinary care at the time of the accident. This care must be adapted to the nature of the employment and to the hazards attending the business.</p> <p>“ If the plaintiff and engineer were in the same general employment or business, under one employer, it then becomes important to ascertain the legal relation of the parties. We have in the outset the general principle. A person entering into the service of another, in consideration of his compensation, takes upon himself the ordinary risk of the employment in which he engages ; and this risk includes the negligent acts of his fellow workmen in the course of the employment. But a fellow workman’s being negligent and unskilful on a particular occasion would not give a right of action. The implied contract between a master and servant is, that the master or principal will use such care as a prudent and careful man in the same business, a business similar in its risks, character and extent, would use, both in the selection and employment of an engineer, and in the selection and use of engine, boiler, flues, pumps, pipes, cocks, gouges, valves and all appurtenances belonging thereto. If the defendant employed an unfit and improper person, or used an unfit engine, boiler, flues, gouges, valves and apparatus, or either of them, and such employment or use arose from want of ordinary care in the employer, and by reason of this want of care the injury was incurred, then the defendant would be responsible.</p> <p>“ The meaning of the language ‘ ordinary care ’ was then defined, as distinguished from extraordinary care on the one hand, and negligence on the other. The care must be adapted to the nature of the business and employment. The jury will ascertain from the evidence in the case what at that time were the qualifications of an engineer in such an establishment as the defendant’s was, and with such engine and apparatus. His qualifications are to be measured by the class of engine and the business done. The care used by the master in the selection of servants and machinery, engine and apparatus, is to be measured .by the same standard. This standard would be higher in proportion as life or limb was endangered ; and higher where a large amount of property was involved, than a small amount. In other words, the care and prudence must be graduated by the character and risks and exposure of the business.</p> <p>“ It is contended that the defendant was negligent in the selection of an incompetent engineer, and negligent in continuing him in his employment. There are two inquiries here : 1st. Was the engineer competent or incompetent ? 2d. If he was not, had the master reason to know it? If he had reason, and if he knowingly, or having good reason to know, and without due care and prudence, employed or continued in his employment such incompetent person, and the accident happened or injury arose by reason of such incompetency, and the plaintiff has satisfied you of this, the burden being on him, he is entitled to recover. If he was not negligent in this respect, or had not reason to know of this incompetency, and the injury did not arise from this incompetency, he is not liable on this ground, If it was the careless act of an incompetent engineer, negligently and knowingly employed by the defendant, he would be liable; if it was the careless act of a competent engineer, he would not be liable, so far as this point is concerned.</p> <p>“ It is said the defendant was negligent in suffering his engine, pump, steam gouge, fusible plug, belts and apparatus and appurtenances for safety to get out of order and unsuitable and unsafe. If you are satisfied that he was negligent in this particular, and if the injury arose from this negligence, this would render the defendant responsible. If he was not so negligent, or if the injury did not arise from such cause, the defendant is not responsible.</p> <p>“ It is contended that the defendant was negligent in overloading his engine and boiler and apparatus; in subjecting them to steam power beyond their capacity and line of safety; in fastening down the safety valve and loading the lever with unsafe weights. If the defendant, either by himself or by directions to his servants, carelessly, unskilfully and improperly did any of those acts, and the injury was caused by such negligence or want of skill, he would be liable. If he did not go beyond the line of prudence, skill and care, he would not be liable.</p> <p>“ The jury returned a verdict for the plaintiff, and to the foregoing rulings and instructions the defendant excepts.”</p>

Habeas corpus of one who had been brought before the police court of the City of Boston on a complaint for an assault and battery upon George Walsh, and committed to await his trial in the municipal court, and who had been refused bail on the ground that Walsh’s injuries were so serious as to endanger his life.

Bill in equity, alleging that by indenture between Jane B. Glover, William H. Montague and John B. Glover, the said Jane, in anticipation of her marriage with said William, conveyed to said John certain real estate, in trust, among other things, that he “ shall and may bargain, sell and convey, assign and dispose of all and singular the above granted premises, from time to time, whenever they the said William H. and Jane shall by joint writing under their hands and seals so…

<p>Action of contract to recover rent. The declaration alleged that the defendant as lessee made an indenture with Louis N. Tower as lessor, and thereupon entered upon the premises, and had ever since occupied the same ; that Tower assigned the indenture to the plaintiff in writing; and that the defendant now owed the plaintiff the sum of $87.50, “ pursuant to said indenture, for the use and occupation of the tenement therein for the six months severally preceding” the 1st of January 1856, “ together with interest on the monthly rents so in arrears; said Ruby well knowing of such assignment.” Copies of said indenture and assignment were annexed to the declaration.</p> <p>At the trial in the superior court of Suffolk the following facts were proved : In November 1854 the plaintiff, being seised in fee of the premises, demised them, together with two adjoining tenements, for ten years to Tower, who entered, and in December 1854 underlet the premises by said indenture to the defendant for the monthly rent of $14.58. The defendant entered, and continued in possession till February 1856, excepting so far as disturbed or evicted as stated below. On the 1st of June 1855 Tower assigned to the plaintiff, by instrument under seal, his lease to the defendant, and also all his interest in the lease from the plaintiff, subject to said lease to the defendant. The defendant knew of this assignment and assented to it, continued in possession, attorned to the plaintiff, and on the 1st of July 1855 paid him the amount of one month’s rent, but had paid none since, although the plaintiff had demanded rent of him monthly.</p> <p>The defendant contended that if there was a tortious eviction of the defendant by the plaintiff from part of the premises described in the lease declared upon, the entire rent was suspended. The statement in the bill of exceptions of the facts on this point was thus:There was evidence tending to show that the roof of a shed on the premises had been used for years previously by the tenants foi drying clothes, access to which was by stairs and a scuttle door, and that the plaintiff some time in July 1855 told the defendant that he had no right to pass up there for that purpose; that the door was nailed up or locked up, and so continued; and that the defendant told the plaintiff he would pay no more rent, because he cut off that privilege.”</p> <p>Huntington, J. instructed the jury that if the defendant, knowing of the assignment to the plaintiff, paid rent to him under the lease and assignment, admitted that he was the plaintiff’s tenant, and continued in possession under the lease, and the plaintiff accepted rent of him as his tenant and treated him as such, it was competent evidence from which the jury might infer that the defendant waived the claim that the rent was merged, and which might rebut the presumption of law as to a merger; and that if the right to use the roof existed previously to July 1855 under the lease,-and the plaintiff interrupted that use by stopping it, the defendant continuing in the beneficial occupation of the rest of the estate, it would not, as a rule of law, suspend all claim for rent, but the jury might deduct such sum from the rent reserved by the lease as they thought reasonable. The jury returned a verdict for $67.00, and the defendant alleged exceptions.</p> <p>This case was argued at November term 1857.</p>

Action on the Rev. Sts. c. 104, commenced on the 12th of July 1855, for possession of a dwelling-house in Boston.

<p>A lessee’s covenant “ to pay all taxes or duties levied or to be levied ” on the premises during the term does not bind him to repay the expenses of paving the sidewalk in front of the premises, required of the lessor by the town under authoritj’ of a statute.</p>

<p>Action of contract to recover the amount agreed to be paid for an assignment of a lease from Samuel Sheafe to the plaintiff. . Answer, that the plaintiff did not obtain his lessor’s assent in writing to the assignment, although the defendant requested him to do so, and offered to pay him said amount if he would. The facts are stated in the opinion.</p>

<p>fhe record of losses kept by a mutual insurance company is sufficient prima facie evidence that such losses have occurred, in an action to recover an assessment laid upon the members.</p> <p>An assessment by a mutual insurance company is valid that is based upon a computation of the losses from month to month, and includes in the losses chargeable upon each policy all those of the entire month in which it expires, excluding those of the month in which it began.</p> <p>A premium note, payable in such portions and “ at such times as the directors may agreeably to their by-laws require,” to a mutual insurance company, whose by-laws provide that the deposit note shall be double the premium, and “that on all policies for less than a year the deposit note may be for such a sum as the president may determine; ” and which has issued such policies, with a deposit note of one dollar and a premium paid of a larger sum; is not invalidated by a slight disproportion, occasioned by laying an assessment on the deposit notes only, instead of the amount of the premiums and deposit notes.</p> <p>An assessment by a mutual insurance company is not invalid because it is made to cover losses occasioned by bad investments; nor because it is laid in place of a previous illegal assessment which the directors have not enforced; nor because in consequence thereof it has been 6 clayed for some months.</p>

<p>in a policy of insurance upon a saw-mill, the assured covenanted “ that the representation given in the application for this insurance contains a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property insured, so far as the same are known to the assured and material to the risk; and that if any material fact or circumstance shall not have been fully represented, the risk hereupon shall cease and determine, and the policy be null and void." The applicant, to a question “Is a watch kept upon the premises during the night? Is any other duty required of the watchman than watching for the safety of the premises? ” answered, “ A good watch kept; men usually at work. Watchmen work at the saws; ” and answered in the negative this question: “ Is the building left alone at any time after the watchman goes off duty in the morning till he returns to his charge in the evening? ” In fact, no watch was ever kept on the premises after twelve o’clock on Saturday night, 01 at all on Sunday night, other than the workmen sleeping there, who were instructed to and habitually did examine the mill with reference to fires before going to bed; and the fire occurred on Sunday night, when no one was on the premises. Geld, that the term “good watch” must be interpreted to mean “suitable” or “proper watch”; and that it was for the jury to decide whether the watch kept was a suitable and proper one, and whether the risk was affected by the watch actually kept, as compared with the one stipulated for.</p>

<p>Action of coni ract upon a policy of insurance, insuring the life of John Hammond, in consideration of a premium “ to be paid annually in advance, during the term of this policy, or half or quarter yearly in advance, with interest on each portion deferred ; ” and payable to the plaintiff “ within ninety days aftei proof of the death of the said John Hammond, provided this policy is then in force.” The policy upon its face declared that “ in case the premium charged hereon shall not be paid annually in advance, or half or quarter yearly in advance, on or before the day, at noon, on which the same shall become due and payable,” it should “ cease and terminate, and neither the whole nor any part of the sum herein agreed to be paid shall be due or payable; ” and that the policy was “ granted and accepted in reference to all the conditions herein contained,” and others annexed. The “ conditions of insurance ” annexed to the policy, provided that “ policies are null and void during the nonpayment of any premium due; but the company will, at their discretion, receive a payment after due, and continue the policy, if satisfied that the party remains in perfect health.”</p> <p>Upon the back of the policy were these words: “ Premiums payable 1st January ; or 1st January and 1st July ; or 1st January, 1st April, 1st July and 1st October, at noon.”</p> <p>The parties submitted the case to the decision of the court upon the policy and the following facts : John Hammond paid the premiums quarter yearly, as provided by the policy, and was taken sick on the 24th of September, and afterwards confined to his house, but not thought to be past recovery until the morning of Sunday, October 1st 1854, and on that day, between the hours of two and four in the afternoon, died, without having paid the premium for the quarter which began on that day. The defendants’ office was not open on Sunday, and no one was there to receive the premium, but this was not known to the plaintiff, and no attempt was made to pay it until Monday, October 2d, in the forenoon, when it was tendered and refused. The death of the assured was notified by the plaintiff to the defendants on the 18th of December 1854.</p>

Action of contract on a policy of insurance, dated' April 9th 1851, upon the Brig Josephine, “ at and from New York to Gibraltar, and at and from thence to Tarragona, with liberty of using one port (European) between Tarragona and Gibraltar, and at and thence to New York.” On the 18th of August 1851 this memorandum was indorsed on the policy: “ Permission is given to stop at one other port between Tarragona and Gibraltar, paying one fourth additional premium if liberty is…

<p>The holder of a policy of insurance, made by a stock company when under liability for losses to an amount equal to their capital stock, cannot maintain an action on the Rev. Sts. c. 37, § 18, against the directors for a loss under his policy, without first recoveiing a judgment against the company, fixing the amount of the loss.</p>

Action of contract upon a promissory note. Answer, a certificate of discharge in insolvency. Replication, that the defendant had once before taken the benefit of the insolvent law; and that upon the second insolvency his estate did not pay fifty per cent, of the claims proved against it, and three fourths in value of his creditors did not, within six months of the assignment, assent to his discharge.

<p>A writ sued out by an assignee of the estate of an insolvent debtor need not aver that h* is such under.the insolvent laws of the Commonwealth.</p> <p>The affidavit of a party to a suit, that he has made diligent search for a deed of assignment to him under the insolvent laws, and that it has been lost or mislaid, and is not to his knowledge recorded, is sufficient to allow the introduction of secondary evidence of its contents.</p> <p>The testimony of the clerk of a commissioner of insolvency, that he drew the assignment of the estate of an insolvent debtor, and kept no copy of it; but that the blank form of a copy produced by him was the same used by the commissioner, and that he has tilled it up from minutes on his docket, and believes it to be a correct copy of the assignment, is sufficient to verify the copy.</p>

<p>Action of contract on a bond made by Hubbard Blakesley as principal, and the defendants as sureties, to dissolve an attachment on mesne process. The case was submitted to the decision of the court upon the following statement of facts:</p> <p>The due execution and delivery of the bond are admitted. In the action in which it was given, the plaintiffs recovered judgment on the 26th of March 1856, upon which execution issued the day following. That judgment is wholly unsatisfied. On the 7th of April 1856 a warrant in insolvency was issued against Blakesley upon his own petition, the first publication of notice of which was on the 8th of April. If these proceedings in insolvency are a good defence to this action, judgment is to be entered for the defendant; otherwise, for the plaintiff.</p>

<p>Replevin of eleven cases of brogans. At the trial in the superior court of Suffolk at May term 1856, it appeared that George A. Putnam made to the plaintiff a mortgage of brogans, and of stock for the manufacture of brogans, which stock was then cut and prepared for the soles and the upper leather to be closed, and was afterwards made up into brogans by the mortgagor ; that some of the brogans mortgaged, and of the brogans so made up from the mortgaged stock, were delivered by the mortgagor to the defendant for sale, and while in the defendant’s possession were attached by trustee processes against the mortgagor, which were still pending.</p> <p>The defendant objected to the maintenance of the action, that the plaintiff had not made a demand upon the attaching officer, as required by the Rev. Sts. c. 90, §§ 78, 79 ; and- that the mortgage of stock did not cover brogans, manufactured out of it at the expense of the mortgagor.</p> <p>But Huntington, J. overruled both objections, the jury re« turned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Action op tort for malicious prosecution and false imprisonment. At the trial in the superior court of Suffolk at September term 1856, before Nelson, C. J., it appeared that the prosecution complained of was an action upon a promissory note of the plaintiff’s for $42, payable to Charles Curry; and the plaintiff offered evidence to prove the following facts, many of which were controverted by the defendant.

<p>An accommodation indorser, before maturity, of a negotiable promissory note, given to a mutual insurance company for premiums, who has been obliged to pay the amount thereof to a subsequent indorsee, may recover the amount so paid of the maker, on a count for money paid; or, it seems, as indorsee of the note; although when he indorsed the note, the insurance company, as he knew, had become indebted to the maker for the amount of a loss larger than the amount of the note.</p>

<p>Action of contract on a promissory note, payable to the Commercial Mutual Marine Insurance Company or order, and indorsed by them to the plaintiffs, and bearing on its face the number of a policy, for which it was given.</p> <p>At the trial in the superior court of Suffolk at November term 1856, the defendants proved a loss under the policy, which had not been paid, and sought to set it off against the note; and it was proved that one of the plaintiffs was a director of the company, and knew that the note was given for premiums.</p> <p>Huntington, J. instructed the jury, “that as the plaintiffs, or one of them, had actual notice, when they received the note declared upon, that it was a premium note given by the defendants to said company for premiums of insurance, upon the facts found cr admitted in the case, they took it so far subject to such equities and such defences as the same would have been subject to, if held by the company.”</p> <p>A verdict was taken for the defendants, and the plaintiffs alleged exceptions, which were argued before the decision of the next preceding case of Barker v. Parker, ante, 339.</p>

<p>In an action by an indorsee against the maker of a negotiable promissory note, indorsee* by the payee in blank, to which the defence is failure of consideration, the presumption is that it was transferred to the plaintiff on the day of its date, unless the defendant shows that the note was indorsed after maturity, or remained the property of the payee after the indorsement.</p> <p>In an action by an indorsee against the maker of a negotiable promissory note, payable at a future da3, and indorsed in blank b3r the payee, the judge refused to instruct the jury that “the burden of proof, the evidence being contradictoiy, was on the plaintiff to show that the note was discounted b3 him before it became due; ” and instructed them that “ if the plaintiff discounted the notes before they were due, and for a valuable consideration, in good faith, he was entitled to recover,” and that “ the presumption from the notes themselves was that they were indorsed on the day of their date; and if they were shown to have been in the hands of the pa3ree after that time and before thej'- were due, the presumption continued that the indorsement was made after the time when they were thus shown to be in the hands of the payee, and before the3T were due; and if the evidence left it in doubt, the burden of proof was on the defendant to show that the notes were passed to the plaintiff after they were due, or that they remained the property of the pa3ree.” The defendant did not specificalty except to this instruction, nor call the attention of the court to the distinction between prima facie evidence and changing the burden of proof. Held, that he had no ground of exception.</p> <p>In an action by the indorsee against the maker of a negotiable promissory note, the testimon3T of a bookkeeper who examined the plaintiff’s books at a time not shown to have been after the indorsement, that the books showed that all the payee’s notes had been sent to the indorsee for collection, but he could not say the note in suit was enumerated among those sent, is inadmissible for the plaintiff.</p>

<p>Action of contract on a promissory note made by the defendant to Henry Bun- or order, indorsed by the latter to Horace Burr and by him to Lot Newell.</p> <p>At the trial in the superior court of Suffolk at September term 1856, it was admitted that the plaintiff took the note from Lot Newell after maturity. The defendant introduced evidence tending to show that the note was made by the defendant and indorsed by the payee for the accommodation of Horace Bun-, without any consideration from either of them ; and then offered the deposition of Horace Burr to show that he transferred the note to Lot Newell in New York for a usurious consideration, in violation of the laws of New York, which render all usurious contracts void. But Nelson, C. J. refused to admit it, on the ground that Horace Burr, being a party to the note, was not a competent witness to show that it was tainted with usury and void. The verdict being for the plaintiff, the defendant excepted to the rejection of this deposition, and to other rulings not material to be stated.</p>

Action of contract. Answer, a tender of the amount of the debt.

Action of tort for converting to the defendant’s use stereotype plates, the property of the plaintiffs. The declaration alleged no special damage.

<p>One who has contracted to build the sea-wall of a wharf, and failed to perforin his contract, and, on being requested to rebuild it, promised to do so, and thereby induced the other party to delay rebuilding it himself, is liable for the loss of rent of the wharf occasioned by his own negligence.</p>

Action of contract upon a promissory note. At the trial in the superior court of Suffolk at January term 1857, the defendant introduced in evidence a deposition taken by commission, to which the plaintiff then for the first time objected, because the interrogatories were leading, and because in one of them the defendant assumed a fact to have been stated in reply to a previous interrogatory, which the witness had not stated, and which had not been otherwise proved at the…

<p>it seems, that an action for injury to real estate of a wife may be maintained by her husband alone.</p> <p>In an action of tort for obstructing a right of way, damages for the consequent diminution of rents cannot be recovered unless specially alleged in the declaration.</p>

<p>Action of contract to recover the proceeds of goods received by the defendant in Boston as a commission merchant, and sold by him there on account of the plaintiffs, who were citizens of New York.</p> <p>At the trial in the superior court of Suffolk at November term 1855, it appeared that the defendant sold the goods on a credit of sixty days to the firm of Blood & Bent, who were then in good credit, and took their promissory note for the price, payable to himself or order; that before the maturity of the note Blood & Bent failed, and took the benefit of the insolvent law of Massachusetts, and obtained their certificate of discharge, and the defendant proved the note under the proceedings in insolvency against their estate, and received a.dividend of thirty per cent, thereon; that the defendant was largely in advance to the plaintiffs, and the plaintiffs owed him more than the amount of the note, when he proved the claim in insolvency ; and that he subsequently rendered an account thereof to the plaintiffs, charging back the amount of sale and crediting the dividend received.</p> <p>The plaintiffs contended that the defendant by so proving the note had made himself liable therefor, unless he could prove that he was authorized by the plaintiffs so to do.</p> <p>But Nelson; C. J. instructed the jury “ that when the purchasers of the goods became insolvent after the sale, it became the duty of the defendant within a reasonable time to give notice of the transaction and of the insolvency to his consignors, the plaintiffs; that if, in giving such notice, he received any instructions, he was bound to follow them; but if he received no instructions, then he was bound to use all reasonable care and skill in managing the debt against the purchasers, for the nest advantage of his consignors. He must not compromise the rights of the plaintiffs, if by the use of reasonable and proper care and skill he could avoid it; if he failed in these duties, then the plaintiffs could recover the amount of the sale. But if the defendant had taken the note according to the express direction of the plaintiffs, or had taken it, in the absence of any instructions, according to the usage of trade, and his principals, after notice, gave no instructions as to what course was to be pursued, the defendant could then prove the note in the ordinary course .of proceedings in insolvency, and receive a dividend for the benefit of his principals, provided he in doing so acted with good faith, and with proper prudence, care and diligence for the best interests of his consignors; and the mere proof of the debt would not make him responsible for the amount.” The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions.</p>

Action of tort for assault, battery and false imprisonment. At the trial in the superior court of Suffolk at November term 1856, it appeared that the defendant, a constable of the city of Boston, arrested the plaintiff on a writ of execution, and took him to the jail, but that the jailer refused to receive and detain the plaintiff, because the defendant had delivered to him no copy of the process under which the plaintiff was arrested ; and that subsequently the defendant…

<p>The liability of a person who negligently receives goods not directed to him is the same as that of a bailee for hire or reward.</p> <p>A contingent benefit is a sufficient consideration for undertaking a bailment.</p>

<p>Action of tort against a wharfinger for the conversion of fifteen sticks of mahogany, part of a lot of thirty two sticks purchased by the plaintiff of Grace, the consignee of the mahogany, while lying on the defendant’s wharf. Trial and verdict for the plaintiff in the superior court of Suffolk at March term 1856, before Nelson, C. J., to whose rulings the defendant alleged exceptions. The facts appear in the opinion.</p>

Scire facias against the defendant as trustee of Jonathan Smith.

<p>•The incorporation of defendants sued as a corporation may be denied after they have appeared generally and filed an affidavit of merits.</p>

Replevin. At January term 1856 of the superior court of Suffolk, the defendant obtained a verdict, and a judgment for the return of the goods replevied, and the plaintiff alleged exceptions to the rulings of the court, and the case was continued until November term 1856, when his exceptions were allowed. At January term 1857, on motion of the defendant, the former judgment was vacated and the case brought forward and judgment entered as of that term.

<p>By the law of Massachusetts, before St. 1852, c. 144, the mere uninterrupted continuance for more than twenty years of a window with a projecting sill, overlooking the land of another, did not necessarily create any easement of light or air.</p>

<p>Action of contract upon an account annexed. The case was referred to an auditor, who allowed certain items of intoxicating liquors, not imported by the plaintiffs, but purchased by them of the importers in the original, unbroken packages, and in quantities not less than the laws of the United States prescribed ; and sold by them to the defendant in this state, without any license, after the passage of the St. of 1852, c. 322, and before the passage of the St. of 1855, c. 215, in the same packages and condition in all respects in which they had been imported.</p> <p>At the trial in the superior court of Suffolk at May term 1856, before Nash, J., the plaintiffs offered the auditor’s report in evidence.- The defendant contended that the plaintiffs could not recover the price of these liquors. But the judge ruled otherwise.</p> <p>A clerk of the plaintiffs testified before the auditor that he sold and delivered to the defendant several of the articles charged in the plaintiffs’ account, and at the same time made entiles of their weights and measures in a book kept for that purpose, which he produced, and which contained marks denoting their delivery; that he knew his entries to have been accurately and truly made; but had no recollection, independently of the book, of the times of sale, or the quantities and prices of the articles sold. He also testified that in one instance, in his absence, the defendant’s name was entered on the same book as having ordered certain articles; that he took the book and put up the articles, and entered their weights and measures upon the book; that those articles with their weights and measures were transferred, but not by the witness, from that book into the plaintiffs’ day book to the debit of the defendant; and after their entry in the day book the witness delivered those articles to the defendant, and made a mark against them on the day book indicating such delivery.</p> <p>The defendant objected to the admission of the clerk’s testimony and the books, and of the auditor’s report founded thereon, because the clerk had no independent recollection of the facts; because the book was not the plaintiffs’ book of original entry; and because the entries of one transaction were made by another clerk. But the judge, upon examination of the two books was satisfied as matter of fact that the first book was the plaintiffs’ book of original entries of charges, and that in the instance last mentioned the entries, although begun in the handwriting of another person, were finished, and the quantities, prices, weights and measures entered, by the witness; and was of opinion that the entries were therefore substantially made by him, and that these entries having afterwards been copied into the day book by another clerk, and certain marks, called “ delivery marks,” affixed to them by the witness, that book was also admissible in connection with the first book.</p> <p>The judge further instructed the jury that the burden of proof was upon the plaintiffs and was not satisfied by the auditor’s report which had been produced in evidence; that this was prima facie evidence of the plaintiffs’ claim, but might be rebutted by evidence adduced by the defendant; that if not rebutted, the verdict should be for the plaintiffs ; and that if on the whole testimony there was a preponderance of evidence in favor of the defendant, the verdict should be for him.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>Action of tort. The declaration alleged that “ the defendant took and carried away the following described goods, the property of the plaintiffs, and converted them to his own use, all of which being against the plaintiffs’ will and consent.” A schedule of the property was annexed to the declaration.</p> <p>At the trial in the superior court of Suffolk at May term 1856, before Huntington, J., the plaintiffs introduced evidence tending to show that the goods were theirs, and had been consigned by them to John G. Haley,, and taken by the defendant as a deputy sheriff on mesne process against Haley.</p> <p>A counsellor at law, and former counsel for the defendant, was permitted, against the plaintiffs’ objection, to testify; and upon cross-examination, the plaintiffs, in order to show the state of feeling and circumstances under which he testified, were allowed to ask him whether he had not filed interrogatories to the plaintiffs, and obtained a continuance of the case at the last term, and refused a continuance at the present term, after ascertaining what the plaintiffs’ witnesses would testify upon a point testified of by him, solely because the plaintiffs themselves would be competent witnesses at the next term.</p> <p>The defendant’s counsel contended that “ the plaintiffs had not, at the time of taking by the defendant, the possession of the articles sued for, nor the right to immediate possession and could not therefore, if the jury found such to be the fact, upon the pleadings as they stqod, maintain this action. But the court instructed the jury that “ although such was the law before the new practice act, it was not so now; and that it was not necessary for the plaintiffs to have actual possession, or the right to immediate possession, if the jury were satisfied that they were the owners at the time of the taking; but that the jury would deduct the value of the use, during the time they were not in possession, from the value at the time of the taking.” The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>Bill in equity, filed June 13th 1847, for the specific performance of the following agreement, signed by the defendants, and renewed by them in writing on the 30th of April 1844 for thirty days: “ To the President and Directors of the Boston and Maine Railroad. Gentlemen, We the undersigned being the owners of a lot of land on the Mill Creek, we do hereby agree to sell the same to you or your representatives, for the sum of twenty thousand dollars, if taken within thirty days from date. Boston, April 1st 1844.”</p> <p>The plaintiffs on the 29th of May 1844 orally accepted the proposition, tendered the purchase money to the defendants, and requested a conveyance; but the defendants, in consequence of a dispute, which had arisen between the parties, whether the buildings upon the land were included in the agreement, refused to execute a conveyance of the land or to perform the contract.</p> <p>The plaintiffs afterwards located their road, and included in the location a small portion of this land ; and on the 7th of June 1847 the defendants petitioned the mayor and aldermen of Boston to assess damages for the land so taken.</p> <p>The defendants introduced testimony that the land greatly increased in value between the 29th of May 1844 and the 13th of June 1847, in consequence of the construction of the railroads of the plaintiffs and the Fitchburg Railroad Corporation, and of a great fire which destroyed many old buildings in that neighborhood.</p> <p>The case was argued upon the bill, answer and proofs, from which it appeared to be as above stated.</p>

<p>Actions of contract upon the following note: “ Boston, Mass. October 1, 1853. $14,000. For value received I promise to pay to the Black River Savings Bank or order fourteen thousand dollars, as follows: four thousand dollars in two years from date, and ten thousand dollars in three years from date, with interest at the rate of six per cent, per annum, payable on the first day of April and October of each year until paid, having deposited with said bank, as collateral security, twenty thousand dollars in the second mortgage bonds of the Ogdens burg Railroad, with interest coupons attached thereto, with full authority to sell the same on the nonpayment of principal ov interest according to the tenor of the above note.</p> <p>“ John F. Edwards.”</p> <p>The first action was brought to recover the interest from October 1st 1854 to April 1st 1855, and was tried in the superior court of Suffolk at September term 1856, before Nelson, C. J.</p> <p>The defendant admitted the making of the note, but alleged that it was made without consideration, at the request and for the accommodation of the plaintiffs. The plaintiffs, having produced the note, and proved their own corporate existence, rested their case.</p> <p>The defendant then called a broker, who testified that between October 8th 1852 and April 12th 1853 he purchased in Boston for and at the request of Daniel A. Heald, who was at that time the treasurer and secretary of the plaintiffs, the mortgage bonds described in the note in suit; that the defendant had nothing to do with giving the orders or making the payments for these bonds, and he never knew" the defendant in any way in the transactions.</p> <p>Heald and the defendant testified that the defendant, who was Heald’s uncle, had no consideration for the note, and no interest in the bonds.</p> <p>It appeared from the testimony of Heald and other witnesses, that the note in suit was placed in the Savings Bank to represent a loan of $14,000 of the deposit of the bank; was so entered upon the books of the bank; and was so taken and received by the finance committee, trustees and other officers of the bank, and was so constantly represented by Heald to the bank and its depositors, and so held by the bank and its officers; and that deposits were made upon those representations and facts.</p> <p>But Heald testified that this was not the truth of the case, but that the note was obtained by him in behalf and fur the accommodation of the bank, and the bonds were previously purchased for the bank, with its money, and the note placed in the bank with the bonds, to give the transaction the form and semblance of a loan ; that his object in procuring the note was, that the bank might not appear to be holding such an amount of bonds, except as collateral; that he thought it a safe and good investment for the .bank ; but did not wish that the trustees, and through them, the public, should know it. This testimony of Heald was contradicted by evidence of his own entries and declarations and official statements under oath.</p> <p>Edwards testified that he signed the note at the request of Heald, without any explanation, except this remark made to him by Heald some months previously, “ We may want to use your name for a short time ; ” and stated on cross-examination, “ that when he gave the note, he did not know or think of, and that he did not now know or think of, and could not suggest, any lawful or honest purpose for which the note was wanted, or to which it could be applied, if not given to the bank for a loan of money; but that he did not know or think of any dishonest or unlawful purpose to which it was to be applied.”.</p> <p>The plaintiffs controverted the credibility of the defendant and Heald; and the questions of their credibility, and of the effect of their testimony, were submitted to the jury with the other evidence.</p> <p>The defendant’s counsel prayed the court to give the following instructions to the jury:</p> <p>1st. “ To recover on the note in suit, the plaintiffs must prov that it was given upon a consideration good and sufficient in law; on this point the burden of proof is upon the plaintiffs; and unless they have, by the weight and preponderance of evidence, established such consideration, they cannot maintain their action.”</p> <p>2d “ To constitute such consideration, it must be shown that the defendant had some value therefor, as money lent him, or the like; something of value, and agreed by the parties to be and to be deemed and taken as of value; or that the plaintiffs, at the time of making it, intentionally, and as the consideration of the note, and at the defendant’s request, agreed to do or did some act believed to be prejudicial to themselves.”</p> <p>3d. “ As the plaintiffs adopt the note, they adopt it in all respects, according to the understanding and agreement of Heald and the defendant, and affected by knowledge of all facts known to them; and if, as between them, it was without value, and for the accommodation of the bank, then, whatever uses Heald made or intended to make thereof, the plaintiffs cannot recover.”</p> <p>4th. “ To establish a consideration, upon the ground that the note was obtained or used by Heald to procure a loan from the bank, or to procure any other favor, benefit or advantage therefrom, it must be shown, that the defendant intended to give the note to Heald for the purpose of enabling him in his individual capacity, or had reasonable cause to believe, that he would use the note in his individual capacity to procure such loan or other favor, benefit and advantage; and also that, relying upon the said note, the bank did make to Heald such loan, or extended to him such favor, benefit or advantage.”</p> <p>5th. “ The burden is upon the plaintiffs to prove some certain and particular consideration for the note '; and unless they point out and establish, by the weight of the whole evidence, some such certain and particular consideration, they do not prove a valid note; and they do not prove a note valid beyond the extent of such established, certain and particular consideration.”</p> <p>6th. “ If the consideration relied upon is money lent to the defendant, the consideration is good only to the extent of money proved to be so loaned; if it is money lent on the note by the bank to Heald, on the defendant’s request, and within the conditions of the prayers aforesaid, it is good only to the extent of money proved to be so loaned to Heald; if the consideration is prejudice to the bank, arising from the defendant’s intentionally assisting Heald to conceal true facts from the bank, it is good only to the extent of the damage proved to be caused by such prejudice; and the principal of the note, if the note is good to any extent, being ascertained, interest is to be cast accordingly,on that basis.”</p> <p>The judge instructed the jury as follows: 1st. “ The burden of proof is on the plaintiffs to establish a consideration, and the burden does not shift from them to the defendant; the note,, containing the words value received,’ in law imports a consideration ; and upon the evidence of the note itself, the plaintiffs are entitled to a verdict, unless there is some other evidence to affect it; the note, being produced, is prima facie evidence of a consideration ; yet the burden is upon the plaintiffs to satisfy the jury, upon all the evidence, and by the preponderance of the evidence, that there was a consideration.”</p> <p>2d. “ If the jury take the stories of the two witnesses, Edwards and Heald, or either of them, as true, the defence is wholly made out; but the jury are to consider all the facts and matters in evidence, and all the statements of those two witnesses on cross-examination ; and if the jury are then in doubt upon these stories, and cannot say, upon all the evidence, that they were true, or so much was true as to affect the credit to be given to the notes, the note will enable the plaintiffs to recover.”</p> <p>3d. “ In regard to the law of consideration, the law requires a valuable consideration ; the gift of a note is not enough ; nor is a mere moral obligation ; it must be some benefit to the defendant, as money or the like; or some detriment, loss or prejudice to the plaintiff, as the forbearance of a right, &c., incurred by that party, at the defendant’s request. The plaintiffs must satisfy the jury that some loss, trouble or prejudice has been suffered by the bank, at the request or by the procurement of the defendant.”</p> <p>4th. “ Another view is : If no money was had by the defendant on the note, and yet it is proved that it was given by the defendant to Heald, to aid him in getting money from the bank and in concealing the condition of the bank, or to aid in any illegal transaction, and the money was accordingly obtained upon it from the bank by Heald, then the defendant is estopped, because this will constitute no defence to the note, he being es-topped from alleging his own baseness.”</p> <p>5th. “ Also if the defendant, not receiving any money for the note, gave it to Heald, not knowing that Heald wanted it for the purpose of concealing the condition of the bank, or of using it for any other illegal purpose, yet if he had reasonable cause to know it would be illegally used, and it was used by Heald to get money from the bank, he is estopped from alleging such fraud; and if the jury are satisfied that they were concerned together in this kind of' enterprise, or if not, yet, if the defendant had reasonable cause to know that an illegal use was intended, the defendant is estopped from alleging such fraud, if money was procured upon it from the bank.</p> <p>“ If, as the plaintiffs contend, the bonds were purchased by Heald for himself, for his own purposes, and this note was obtained to enable Heald "to get, replace or furnish money; and the note was placed in the bank for that purpose; and Edwards knew or had reasonable cause to believe this, the plaintiffs prove their case; and if fraud is alleged by the plaintiffs, the jury will presume against it, the law being, that he who alleges fraud must prove it.”</p> <p>The judge then proceeded to consider the defendant’s prayers for instructions. The first prayer he adopted. The second he qualified thus-: “ I have instructed you, and repeat, that any prejudice caused by the parties to the plaintiffs constitutes a consideration to support the note; and that if the plaintiffs did receive some prejudice, at the request or procurement of the defendant, for which the note was given, it is enough.” Upon the third prayer, he said to the jury : “ I do not instruct you so ; but instruct you, that if they knew that the object of the note was to deceive the bank, or to obtain money for Heald from the bank, then that is enough to create a consideration, if the money was obtained upon it accordingly from the bank.” Upon the fourth prayer he said : “ I repeat what I have said; if Heald wrongfully used the note, in fact to get a personal benefii, and the defendant gave it, intending to aid him, or having rea sonable cause to believe it was to be used for that purpose, then the note going into the bank and representing property of the bank gone somewhere, this would make a sufficient consideration.” The tilth instruction prayed for was refused. The sixth was assented to by the plaintiffs, and therefore adopted by the court.</p> <p>The defendant’s counsel then requested the court to instruct the jury, “ that if they believed, upon the evidence, that Edwards himself did not receive any money or other value for the note, then the note no longer imported, and was no longer prima facie evidence of a consideration; but that the plaintiffs must then show affirmatively, by other evidence than the note, that some prejudice or loss was sustained by the plaintiffs, for which the note was given.” But the court refused so to rule; and instructed the jury, “ that the note was prima facie evidence of a consideration; and that showing that one species of consideration was not the one did not alter this.”</p> <p>The jury returned a verdict for the plaintiffs; and to all the rulings and instructions of the judge, so far as they were inconsistent with and did not sanction the instructions prayed for, the defendant excepted.</p>

Action of contract by a citizen of New York to recover the price of goods sold by his factors in Boston to the defendants. At the trial in the superior court of Suffolk at January term 1858, it appeared that the goods were consigned by the plaintiff to the factors, and sold by them without mentioning their principal or indicating in any way that they were not their own, and that they subsequently presented bills for the goods in their own name.

<p>Action of contract upon a policy of insurance. In the superior court of Suffolk, the parties in writing “agreed that this case be submitted to the court, to be tried without the intervention of a jury,” upon the policy and application and notice of loss, the plaintiff’s evidences of title, and a deposition filed in the case ; and “that the court may enter such judgment and for such amount as shall be thought correct.” That court rendered judgment for the plaintiff, from which the defendants appealed. The plaintiff now moved to dismiss the appeal.</p>

Action of contract for military goods sold and delivered to the defendant.

<p>Under a will which declares that all moneys paid as and for dividends on shares in any corporation held by trustees under the will “ shall be deemed and taken to be income and be appropriated as income according to the provisions of my will, excepting such dividends as shall be made and declared expressly as dividends of capital, ” cestuis que trust for life are entitled to dividends on shares in a wharf corporation, of profits arising from purchasing land, filling up fiats, laying out streets, and erecting, leasing and selling warehouses, although in part consisting of proceeds from the sales of real estate of the corporation, if it does not appear that the capital or the value of the shares has been thereby diminished; and even, it seems, if it does so appear.</p>

Action of contract. The plaintiff alleged that the defend ant with him signed a certain promissory note, and the defendant promised to pay it at maturity, and received from him, as a consideration for paying it, all the assets of a partnership previously existing between them ; yet the defendant neglected to pay the note or any part thereof, and the plaintiff was obliged to pay it.

Action of contract by the assignees in insolvency of the Metropolitan Fire and Marine Insurance Company, upon tw Answer, 1st. That the insurance company were insolvent at the time of issuing the policies, and continued so during the whole. term of the risks; and that the officers of the company knew this, and intended to defraud the defendant, and did in fact deceive and defraud him; 2d. That the company became insolvent by the fraud of their officers, after making the…

Action of tort against a deputy of the sheriff of Suffolk, for the taking on mesne process of one fourth part of the Barque O. J. Chaffee, as the property of N. (3. Bourne.

<p>Merchandise was shipped under an agreement between the shippers and the shipowner that it should be carried around Cape Horn or elsewhere for a market, and the net proceeds, deducting charges and master’s commission on sales, invested in specie or bullion and shipped to the United States or Canton; if to Canton, to be invested in such goods as the shippers might direct, to be shipped to Boston, subject to a deduction of the usual charges, and on their arrival in Boston to be sold by auction, and, after deducting from the net proceeds the original cost and all charges except premiums of insurance and interest on the money, “ the residue or profits to be equally divided between the shipper and shipowner.” The ship went around Cape Horn, and the master sold the careo in Chili and Peru for specie, part of which was forcibly taken from him bj the guvernmeni m CmU, tucu war with Spain; and, being unable for want of funds to proceed to China at once, traded along the coast, and afterwards went to Canton, invested the remaining proceeds of the outward cargo and other funds in a cargo for Peru, went to Peru, and there sold it for specie, part of which he remitted to Boston, where it was distributed among the shippers, and the residue with the brig were seized and appropriated by the Chilian government, who many years afterwards, under treaty with the United States, paid about two thirds of the cost of the original cargo, with interest from the time of seizure. Held, that the owner of the ship was not entitled to any portion of the money paid by Chili, although, including the interest, it exceeded the original cost of the goods; nor of the money sent home by the captain from Peru, without proof of the terms upon which the goods were shipped from Canton to Peru.</p>

Action of contract upon a policy of insurance, numbered 11,927, for “ five thousand dollars on the Ship Carolus, five thousand dollars on the freight of said ship, on board or not, from Boston to San Francisco, and at and thence to port or ports in East Indies or east of the Cape of Good Hope, with liberty to stop at Honolulu, and at and thence to port of discharge in the United States or Europe,” at a premium of five per cent., “ to add one fourth per cent, for each port…

Indictment on St. 1855, c. 405, averring that the defendant, during a certain time, at Boston, “ did keep and maintain a certain common nuisance, to wit, a tenement in Portland Street in said city of Boston,” then and there “ used for the illegal sale and illegal keeping of intoxicating liquors.” At the trial in the municipal court of Boston at November term 1857, it appeared, on cross-examination of some of the witnesses for the Commonwealth, that the defendant with his…

<p>Indictment, alleging that the defendants at Boston on the 1st of June 1857, “ and on divers other days and times between said first day of June and the first day of October eighteen hundred and fifty seven, at said Boston, did knowingly keep and maintain a certain common nuisance, to wit, a certain building, to wit, a house of ill fame, then and on said other days and times, there situated on North Street, in said Boston, numbered one hundred and fifty eight, and then and on said other days and times there by them kept and used as a house of ill fame, and then and on said other days and times there resorted to for the purpose of prostitution and lewdness ; and that the said defendants in said house, for their own lucre and gain, certain persons, whose persons and names to said jurors as yet are not known, as well men as women, of evil name and fame and of dishonest conversation, to frequent and come together did then and on said other days and times there unlawfully and wilfully cause, permit, and procure, and said men and women in said house, as well in the night as in the day, then and on said other days and times, there did suffer and permit to be and to remain whoring; to the common nuisance of all good citizens then and on said other days and times there residing, passing and being; and in evil example to all others in like case offending; against the law, peace and dignity of said commonwealth, and contrary to the form of the.statute in such case made and provided.”</p> <p>In the municipal court of Boston, the defendants pleaded nolo contendere ; and moved in arrest of judgment, because the offences charged in the indictment were inconsistently, vaguely and too indefinitely set forth, and because more than one offence was set forth therein. Huntington, J. overruled the motion, and reported the case to this court.</p>

<p>An indictment for larceny of property pledged and in the possession of the pledgee may describe it as the property and in the possession of the pledgor.</p>

Indictment for stealing sundry bank bills, of some .banks respectively to the said jurors unknown, of the amount and value in all of thirty eight dollars, of the property, goods and chattels of one James Gallagher, in his possession then and there being.” After trial and conviction in the municipal court of Boston at January term 1858, the defendant moved in arrest of judgment, “ because there was no sufficient allegation in the indictment as to the denomination and number…

<p>In a criminal case, in which the only evidence for the prosecution was the testimony of accomplices, the judge advised the jury to acquit, but instructed them that if upon the whole evidence they were convinced beyond a reasonable doubt of the guilt of the defendant, they should find a verdict of guilty. Held, that the defendant had no ground of exception.</p> <p>An indictment for having a counterfeit bank bill at Boston with intent then and there to utter and pass the same ” is supported by evidence of possession with intent to utter and • pass it at a place out of the state.</p> <p>Possession of a counterfeit bill of a bank in this state, with intent to pass it in another state, is within the Rev. Sts. c. 127, § 8.</p> <p>Under an indictment for having a counterfeit bank bill with intent to pass it, evidence that the defendant subsequently had in his possession other and different counterfeit bank bills is admissible to show guilty knowledge and intent.</p> <p>An accomplice, who has testified to facts criminating the prisoner and himself, cannot after-wards decline to answer a question upon the ground that it will criminate himself. But if, after so declining, he offers to submit himself to the examination, a party who refuses the offer has no ground of exception.</p>

<p>Indictment on the Rev. Sts. c. 127, § 2, found at June terra 1857 of the municipal court of Boston, and alleging that the defendant, on the 5th of April 1857, at Boston, “ had in his custody and possession a certain false, forged and counterfeit promissory note for the payment of money, of the tenor following, that is to say:</p> <p>“ State of Rhode Island. The Liberty Bank will pay, Providence, Aug. — 1854, to bearer ten dollars on demand.</p> <p>C. R. Droun, Cashier. D. Evans, Pres,</p> <p>unless upon said promissory note there is a date of the day in the month of August eighteen hundred and fifty four, which is to said jurors unknown; the said James then and there knowing the same to be false, forged and counterfeit, with intent thereby then and there to injure and defraud.”</p> <p>A second count, after the name of Droun, had the abbreviation “ Cash ” instead of the word “ Cashier.”</p> <p>Trial before Nash, J., who signed a bill of exceptions, the material parts of which were as follows :</p> <p>“ The government offered in evidence, to sustain said indictment, a bank note as the promissory note therein set forth. The defendant objected to its admission. But the court admitted the same, and ruled that, under the allegation of a promissory note, it was not a variance to prove a bank note or bank bill.</p> <p>“ The cashier testified that the bank bill produced was originally a genuine one dollai bill; that the figure I had been taken out and X put in, and one dollar ’ taken out and ‘ ten dollars’ put in; and that the day of the month between August and 1854 had been obliterated in removing the figure ‘ one.’ The defendant objected that such proof of an altered bill did not support the allegation of the indictment. But the court admitted the testimony.</p> <p>“ In setting forth the tenor of the bill in the indictment, after the name ‘ C. B,. Droun ’ was written the word Cashier.’ On the bank note put in evidence it was ‘ Cash.’ The defendant objected that this was a variance. The court ruled that this was no variance, if both words or combination of letters sounded substantially the same. And both sides treating the question as one for the court, the court decided that they did, and that there was no variance.</p> <p>“ The defendant contended that in the indictment the name of the cashier was spelt with the letter ‘ u,’ viz: ‘ Droun; ’ whereas upon the bill the name was spelt with a w,’ viz: Drown,’ and that this constituted a variance. The court ruled as upon the preceding objection.</p> <p>“ During the trial before the jury it appeared that some of the government witnesses were not before the grand jury at the term at which this indictment was found. Certain inquiries thereon following, it appeared, from the statement of the Commonwealth’s attorney, (which it was agreed should be received as sworn testimony, if the facts stated therein were at said stage competent, which the government denied, and subject to all objections on either side as to its competency,) that at May term 1857 three false, forged and counterfeit bank notes were before the grand jury; that, on due evidence, said grand jury duly found and returned into court three indictments against the defendant for uttering said notes, each on distinct occasions; that all of said indictments were alike in their allegations, except that, in setting out the tenor, one read ‘Aug. 3, 1851,’ another Aug. — 1854,’ and the third ‘ Aug. 7, 1854’; that in the mean time, the Commonwealth’s attorney having become convinced that the date of the day of the month had by the process of the alteration or forgery been substantially obliterated, and, on inspection, was practically a blank, brought the matter before the same grand jury at the succeeding June term ; and thereupon the grand jury, without the examination of any witnesses at said June term, and at the suggestion and request of the Commonwealth’s attorney, returned three new indictments against the defendant for the same three distinct utterings, and on the same three bank notes, as the first three indictments, and as substitutes for the original indictments, one of which is the present, and in all of which the date of the bill was set forth as in this one.</p> <p>“ Thereupon the defendant moved that, for the above reasons, and on the ground that it did not appear that he was upon trial for the same offence for which he stood indicted, the indictment be quashed. The judge overruled the motion.”</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions to the rulings above stated, and also to the overruling of a motion in arrest of judgment, founded upon the manner of the finding of the indictment.</p>

Indictment on the Rev. Sts. c. 127, § 2, alleging that the defendant “ had in his custody and possession sundry false, forged and counterfeit promissory notes, which the said Thomas then and there well knew to be false, forged and counterfeit, which said false, forged and counterfeit promissory notes were five in number, one of which said false, forged and counterfeit promissory notes was of the tenor following, that is to say.” The indictment then set forth successively…

<p>On the trial of an indictment for receiving stolen goods, evidence is admissible of conversations between the defendant and the thief, before the commission of the offence, making arrangements for receiving the goods.</p> <p>A witness, who has been impeached by evidence that he previously testified different^, cannot be corroborated by evidence that he had made still earlier statements, not under oath nor in the prisoner’s presence, in accordance with his present testimony.</p> <p>Whether it is ground for setting aside a verdict, that one of the jurors was not an inhabitant of the county, and that this was not known before verdict to the party against whom the verdict was rendered — guare.</p>

Habeas corpus. The petitioner was arrested on mesne process and taken before a magistrate under St. 1857, c. 141, § 21, who refused to administer to him the poor debtors’ oath. Upon being committed to jail, he offered to give a bail bond, which was refused, and this writ was sued out.

Petition for a writ of habeas corpus, in behalf of a poor debtor, who, after being arrested on execution, entered into a recognizance under St. 1857, c. 141, § 10, for his surrender within ninety days; and applied to a master in chancery to be admitted to take the poor debtors’ oath; whereupon the creditor filed charges of fraud against him, and the master refused to administer the oath to him, on the ground that he possessed property, and also convicted him upon the charges…

<p>Action of contract on a promissory note payable to the plaintiff or order. The defendant filed a declaration in set-off alleging that the plaintiff was a joint owner with Him and others of the Ship Barclay, the plaintiff owning one eighth ; that the master of the ship drew a bill of exchange for $3384.48 on the defendant as agent of the owners of the vessel, for her use in a foreign port, and for other expenses of the voyage, which bill was paid by the defendant; and that the plaintiff owed the defendant the sum of $438.82, being the plaintiff’s contributory share of the amount of that bill.</p> <p>Trial in the court of common pleas at Nantucket at October term 1857, before Sanger, J., who signed a bill of exceptions, which stated the pleadings, and the residue of which was as follows : “ The plaintiff asked the court to rule that the foregoing claim of the defendant was not a legal matter of set-off to the plaintiff’s action. But the court ruled that it was a proper matter of set-off, and the jury found a verdict for the defendant in the sum of $139.04 ; and to this ruling the plaintiff excepted.”</p>

<p>Action of contract upon an agreement in writing, made with the plaintiffs by the defendants through Horace Gray, their treasurer and general agent, in December 1846, to build four steam engines and set them up at South Boston on or before the 1st of July 1847; the defendants agreeing on their part to have the foundations ready six weeks before, and to pay for the engines, one half in April 1847, and the other half within thirty days after they should be completed and set up.</p>

<p>Action of tort, to recover the amount of a judgment recovered in this court by George F< Southwick against the plaintiffs, who paid the amount to him. Trial before Bigetmv, J., who reported the following case :</p> <p>“ Southwick alleged in his declaration against these plaintiffs that he was greatly injured in his person, by falling into a cellai way in Congress Square, one of the public streets or highways in Boston, which the city was bound to keep in proper repair and in safe condition for public travel; that he fell into this cellar way, while he was passing through Congress Square, and using due care, by reason of the cellar way projecting into the highway and not being properly protected or guarded by railing or otherwise.</p> <p>“ After the commencement of the suit by Southwick, the plaintiffs notified the defendants of the pendency thereof; that they might furnish any evidence they had or could procure in defence thereof; and that the plaintiffs would hold the defendants responsible for all damages which Southwick should recover against the plaintiffs in that action* Two of the defendants were present at the trial, and testified therein. Southwick recovered in that action the amount of $12,000 damages and $257.82 costs.</p> <p>“ The defendants, at the time when Southwick met with this accident, were the tenants of a portion of the building and of the cellar under the same in Congress Square, leading to the cellar of the brick building, which was the cellar way into which Southwick fell; and they held their portion of the premises under a lease, in which they covenanted that no alterations or additions shall be made during the term aforesaid in or to the same, without the consent of the lessors, or of those having their estate in the premises, being first obtained in writing.’</p> <p>“ The defect in the cellar way was, that it was not covered nor protected by a railing three feet high above the sidewalk, as required by the ordinances of the city, and it had been in the same state for over twenty years. [Ordinances of Boston of 1850, p. 528.]</p> <p>“ The plaintiffs contended that the defendants were, under the circumstances above stated, concluded by the judgment of Southwick against them, and all matters therein adjudicated; and that they were estopped to deny the same, or their liability to pay the plaintiffs the amount thereof; and they offered no evidence to support their case, except said judgment.</p> <p>“ The defendants contended that they had not such an estate, in the building and premises occupied by them, as made them liable for the defect in the cellar way, and that they had no control or authority to alter it; and that if they then were so liable, by reason of their tenancy as aforesaid, they were not concluded by the judgment of Southwick against the plaintiffs, but were at liberty, in the trial of this action, to traverse every fact adjudicated therein, except the amount of damages recovered.</p> <p>“ A verdict was returned for the defendants by consent, with the agreement that if, under the lease aforesaid, the defendants were responsible for the condition of the cellar way, and if the judgment aforesaid was sufficient evidence to sustain the plaintiffs’ allegations, without further proof, then the verdict should be set aside, and a new trial ordered; otherwise, judgment to be rendered for the defendants on the verdict.”</p>

<p>It seems, that under the ¿if. of 1852, c. 312, a demurrer to part of one count n a declaration is inadmissible, even if the matters alleged are divisible in their nature. But if admissible, it goes merely to the manner of stating the cause of action, and cannot be argued before the full court, until the whole case has been tried by a single judge.</p> <p>This indorsement upon a policy of insurance, “Pay under the within policy to J. S. or order,” is only an order to pay him the amount of any loss, and not an assignment of the policy; and if the policy stipulates that it shall “ be void in case of its being assigned, transferred or pledged without the previous consent in writing of the insurers,” an assignment of the policy and assent of the insurers cannot be shown by oral evidence.</p>

<p>The testimony of a witness who declares himself unable to answer questions put to him on cross-examination, on the ground that his memory at times fails him in consequence of mental injury resulting from a sunstroke, and that such is his present condition, is not to be stricken out by the presiding judge, but may be submitted to the jury.</p> <p>In an action on a policy of insurance for a constructive total loss, if the plaintiff in his claim of loss has given the insurers credit for a certain amount received for salvage, he is not bound to prove that he did not receive more.</p> <p>A person sent to a foreign port to take charge of a vessel in distress, who ascertains by inquiry the prices of labor and materials necessary to repair vessels there, but has no other knowledge thereof, is not a competent witness on that subject.</p> <p>In an action on a policy of insurance, under an answer alleging a false and fraudulent representation by the assured of the value of the vessel insured, the defendants may prove a. false, though not fraudulent, representation.</p>

<p>The execution of a power, affected by a trust for the benefit of children and their issue, to which the consent of a majority of the children living at the time of executing it is made necessary by the will creating the power, is valid in equity without such consent, if the children are all dead at that time.</p> <p>A. testator, who left a wife, three sons and a daughter, devised the rents and profits of real estate to his wife during her life, and, in case she should die before all his children should be of age, directed his executor to take possession of the estate and, as long as any of the children should be under age, appropriate the income to their support, “and as soon as all my said children shall have come of age (their mother being dead) my said executor shall proceed to sell and dispose of my said estates, consulting and advising however with my said children, and not selling unless the consent of a majority of my said children then living shall be obtained in writing to the said sale,” and distribute the proceeds among the four children equalfy, giving the share of any child who should be dead to its lawful issue, or, if there should be no such issue, to the surviving children, equally; and further, if the wife should not die till all the children should be of age, take possession of the estate and proceed to sell it “in the same way and under the same limitations, and distribute the proceeds thereof in the same manner as is above provided in the case of my wife’s dying before all my children shall have come'of age/ All the children came of age and died in the wife’s lifetime; all without issue, except one bon, who left a child; the daughter conveyed her interest before her death; at the widow’s death, the executor sold the real estate. Held, that the daughter’s interest was either contingent, or, if vested, was devested by the execution of the power, and in either case her grantee had no interest in the proceeds of the sale.</p>

<p>General rules for the division of fiats among coterminous proprietors of land bounding oil the seashore must yield to lines established by a partition affirmed by the court, and acquiesced in by the parties for thirty five years.</p> <p>Commissioners of partition of land bounded southwesterly on Second Street, northwesteily on B Street, and northeasterly “by the sea,” made a return, of which a plan was made part whereon B Street was extended upon the flats at right angles with Second Street: and set off to P. a lot, beginning at the corner of said streets, and bounded southwesterly on Second Street for a certain distance, “ then turning at right angles and bounding on land hereinafter assigned to M., and running northeastvriy to low water mark, then running northwesterly as the channel runs to B Street, then by B Street as that runs to the corner begun at: ” They set off to M. the next lot to the east of this, bounded southwesterly by Second Street a certain distance, “ then turning at right angles and running northeasterly to low water mark, then turning again and running by the channel to laud and flats hereinbefore set off to P., then turning again and running southwesterly along said land of P. to Second Street: ” They left “ undivided and unassigned ” to G., the respondent in partition, the next lot eastwardly: And their return was accepted by the court, and acquiesced in by the parties for thirty five years. Held, that G. had no title in flats westerly of B Street, although independently of the partition they would have come within the lines, as established by the court, of the estate thus divided; or that if he had, no title in flats westerly of B Street was conveyed by a subsequent deed from him, of “ a certain piece or parcel of land and flats,” bounded southerly on Second Street, beginning at the land of M., and running easterly on said Second Street a certain distance, “ then turning at a right angle and running northerly on other land of G. as far as his land extends, then beginning again at the first mentioned point and running northerly on land of M. and parallel to B Street as far as the laud of G. extends; it being the intention of this instrument to convey ” a certain amount “ of upland, together with all the flats to said land belonging, running out as far as G. has a right to go, but without warranty as to the courses of the side lines over said flats; but meaning hereby to sell and convey said upland as above described, together with all the flats to said G belonging, situated on the westerly side of a line beginning at the southeasterly corner of the granted land on Second Street, and running northerly at right angles with Second Street.”</p>

<p>By a fraudulent conspiracy between the paying-teller of the Merchants Bank, the teller of the Atlantic Bank, and a broker, the broker drew a check on the Merchants’ Bank, where he had no funds, which the paying teller marked “ good,” and the broker took it to the teller of the Atlantic Bank, who gave him the money for it in current bills, partly on the Atlantic Bank and partly on other banks. The broker took these to the Merchants’ Bank, and gave them to the paying teller, who, for the purpose of covering a deficit, unknown to any other of the bank officers, in his cash, which was to be counted that afternoon, placed them with it. The purpose for which the money was obtained was known to the two other parties, but no other officer of either bank knew anything of the transaction. The paying teller’s cash was produced by the cashier to the directors, and counted by them that afternoon, approved and returned to him. The next morning he committed suicide, the check was presented at the Merchants’ Bank and payment refused. Eeld, that the Merchants’ Bank could not hold the money as against the Atlantic Bank, and were liable to the latter, after demand, in an action for money had and received. Bigelow and Merrick, JJ. dissenting.</p>

<p>A railroad corporation, empowered by law to mortgage their franchise and property, after making a mortgage of all their lands, franchise and privileges, and “ all the locomotive engines, cars and other articles of personal property whatsoever, now owned or used by the Corporation, or which they may hereafter own or use,” authorized their directors to issue bonds to the amount of $1,200,000 to pay debts contracted in building and furnishing their road, and to secure such bonds by “ an additional or second mortgage of the road, franchise and property of every description, including cars and engines,” subject to the first mortgage, and “as full and complete ” as that. Pursuant to this authority, bonds were issued, and a second mortgage made of all the lands, franchise and privileges of the corporation, “ and the property and premises whatsoever, mentioned, specified, described or referred unto in the ” first mortgage. Held, that the second mortgage, as against a subsequent attachment, conveyed engines and cars acquired by the corporation after the first and before the second mortgage.</p> <p>The objection that one of the plaintiffs in an action brought by trustees had not accepted the trust at the date of the writ cannot first be taken at the argument before the full court upon the report of one of the judges.</p> <p>The president of a railroad corporation, authorized by vote of the corporation to execute and deliver, and “ do and perform all other acts and things necessary to give validity and effect to ” a mortgage of the road, franchise and property of the corporation to trustees for the benefit of bondholders, executed, upon the eve of the failure of the corporation, a deed of surrender of the whole road and property to the trustees, who, upon the failure of the corporation, took possession of the road and property, and afterwards kept exclusive management and control thereof. Held, that the trustees thereby obtained and kept actual possession of the property, as against subsequent attaching creditors; although the laws of the State required not only delivery, but continuous and exclusive possession of the grantees, to perfect such a title; and although the trustees continued to employ in the management of the road the same persons who 'had beén employed by the corporation; and although the mortgage provided that the trustees should permit the corporation to retain the exclusive use and possession of the property until some default in paying the principal or interest of the bonds, which had not yet occurred.</p> <p>In an action for attaching property on mesne process against a third person, which remains in the plaintiffs’ possession after the attachment and until judgment and .execution, the measure of damages is the value of the property at the time of its being taken on execution.</p>

Action of contract against the trustees under the will of Harrison Gray Otis, the plaintiff’s grandfather, to recover a quarter’s income of real estate devised to the plaintiff in fee by that will, but as to which a codicil contained the following provision : “ I so far modify my devise in said will to my grandson Harrison Gray Otis, Jr., that I direct the real estate, therein devised for his benefit, to be held in trust by my said three sons, the survivors or survivor of…

<p>A manufacturing corporation under the laws of this commonwealth cannot form a partnership with an individual.</p> <p>A manufacturing corporation and an individual who have actually made a contract of partnership, and, either with or without the assent of all the stockholders of the corporation, acted and held themselves out to third persons as copartners for many years, and contracted debts as such, cannot, upon the petition of such individual, be put into insolvency as a partnership, under Sts. 1838, c. 163, and 1851, c. 327; and proceedings in insolvency so instituted will be suspended by this court upon the application of the corporation.</p>

<p>The individual liability of stockholders of officers of a manufacturing corporation for debts of the corporation, under the Rev. Sts. c. 38, and St. 1851, c. 315, cannot be proved against their estates in insolvency.</p>

Bill in equity, filed on the 8th of July 1851, against Thomas J. Lobdell and William H. Montague, and after Lobdell’s death continued by bill of revivor against his representatives.