Volume 77 — Massachusetts Reports

<p>Indictment found “ at the court of common pleas begun and holden at Lenox within and for the county of Berkshire on the first Monday of January in the year of our Lord one thousand eight hundred and fifty eight,” against Daniel R. Colton and Rhoda Colton, averring that they at Otis on the 1st of January 1857, “ and at said Otis from said last mentioned day to the day of finding this indictment, without then and there having any license, appointment or authority therefor, first duly had and obtained according to law, was then and there a common seller of intoxicating liquors.”</p> <p>The district attorney discontinued against Rhoda. At the trial before Aiken, J., Daniel objected to the indictment on the ground that the grand jury was not in fact empanelled and sworn until the day after that on which the indictment according to its caption purported to be found. But the court overruled the objection.</p> <p>The defendant further objected to the indictment as not charging any offence with sufficient certainty. But this objection was overruled, and the defendant was convicted and alleged exceptions.</p>

<p>On the tidal of an indictment for having in one’s possession in this State a false, forged and counterfeit hill of another State with intent to render it current as true, and to pass and utter it as true, the evidence tended to show a sale of the bill to another person, both knowing it to be counterfeit, with a suggestion from the defendant not to pass it in this state; and the judge instructed the juiy that unless the defendant knew and participated in the purchaser’s intent to pass the bill as true or to dispose of it in violation of law, or if he was the agent of the purchaser, he could not be convicted; but that if the defendant had the bill with intent to sell it to the purchaser, who purchased it with intent to render it current as true, the defendant knowing such intent and participating in it, and selling the bill for that purpose, the indictment would be supported; and declined to instruct the jury that it would not be supported by proof of a sale or delivery of a counterfeit bill to a person knowing the same to be counterfeit. Held, that the defendant had no ground ot exception.</p> <p>The question whether certain words have been erased from an indictment is for the court, and leaving it to the jury is ground of exception.</p>

Action of tort for malicious prosecution, by writ of attachment from the police court of Pittsfield, upon which Bernard’s property was attached and a trial was had and judgment rendered for him by the police court; and also by making a complaint to that court, charging Bernard with peijury, and obtaining a warrant thereon, upon which he was arrested and held for trial; and for procuring an indictment and prosecuting it against him in the court of common pleas, upon which he…

Action op tort. The declaration alleged that the defendant by his false and fraudulent representations in November 1854 (which were set forth in the declaration) induced the plaintiff to purchase at that time stock in the Lackawanna Railroad Company, and in October 1856, by false and fraudulent representations that it was for the interest of the stockholders to do so, induced the plaintiff to purchase at that time bonds of the same company; “ and by said false and fraudulent…

<p>Action of tort. The declaration alleged that the defendant “ Vv rongfully, wilfully and without right ” dug and excavated a sluice way and ditch along the line of a highway in West Stock-bridge, and near the plaintiff’s dwelling-house, and thereby injured the house. The answer denied “ each and every allegation contained in the plaintiff’s declaration.”</p> <p>At the trial in the court of common pleas, the defendant offered to show that the sluice way and ditch were excavated with the consent and approbation of the surveyor of highways. Mellen, C. J. admitted the evidence for the purpose of rebutting any inference of the wilfulness of the act complained of; but refused to admit it for the purpose of establishing a legal justification, on the ground that no such defence was set up in the answer. The verdict was for the plaintiff, and the defendant alleged exceptions.</p>

Action of tort. The defendant, within the time allowed for answering, but without leave of court, on different days filed two answers to the declaration, setting forth different grounds of defence; and at the trial in the court of common pleas was allowed by Mellen, C. J., against the plaintiffs’ objection, and without having made any motion for leave to file an additional answer, to introduce evidence under both answers; and obtained a verdict.

Action of contract on the common counts. The defendants denied all the allegations in the declaration, and averred that they delivered to the plaintiff certain goods, which they relied on both in their answer by way of payment and also in a declaration in set-off. At the trial in the court of common pleas, the defendants proved the delivery of those goods, and offered to prove an accord and satisfaction in June 1855.

Bill in equity. The parties stated this case: Wilde recovered judgment in the court of common pleas against Delano and Horton, (who held the land in trust for Greene and others,) took out execution thereon, and levied it on land in Lenox, which was set off to him, and by him mortgaged to the other defendants, who supposed he had a good title. That judgment was reversed by this court at September term 1857, upon a writ of error sued out by Horton and Delano.

Trustee process. The inhabitants of this county, being summoned as trustees, disclosed in their answer that the defendant served as a juror at October term 1857 of the court of common pleas for this county for thirty eight days, and was allowed for his travel and attendance $82.24 by an order of the court passed at the expiration of that term, and a week after the service of this process.

Trustee process. The trustee in his answers disclosed that he had in his hands the sum of two dollars of the goods, effects and credits of the principal defendant; and was adjudged a trustee. After final judgment for the plaintiff against the defendant, the trustee moved that he might have judgment against the plaintiff for the balance of Ms costs after deducting the said sum of two dollars, according to the provisions of the St. of 1845, c. 188.

<p>An attachment made after the first publication of notice of proceedings in insolvency and before the assignment of the debtor’s property is invalid.</p> <p>A creditor, after the first publication of notice of proceedings in insolvency against his debt- or’s estate, but before the appointment of assignees, attached furniture in his debtor’s house; some of the property in the house was claimed by his wife and other persons, and the assignees, to avoid litigation, and by way of compromise, left with such claimants a part of the property, including that attached; the attaching creditor recovered judgment and delivered the execution to the officer who had attached the goods; and he did not levy the execution, and did not return the writ till seven months afterwards. Meld, that the creditor could not recover against the officer for neglecting to levy on the property attached; but could only recover nominal damages for neglect in returning the execution</p> <p>On the trial of an action against a deputy sheriff for neglecting to levy and return an execution, the plaintiff stated that there was one count in the declaration which charged the defendant with neglecting to return the execution; the defendant introduced no evidence on this point, but relied on proceedings in insolvency against the plaintiff’s debtor as a defence to the action; and this position was sustained by the judge, who assured the plaintiff that everything would be open to him on exceptions. Heldy on a bill of exceptions stating these facts, that the plaintiff could claim nominal damages for neglect in returning the execution.</p>

<p>The discontinuance of a highway gives no right to recover damages under the Rev. Sts. c. 24, § 31, to the owner of land not abutting on the way discontinued, and accessible by other ways.</p>

Action of tort against a deputy sheriff for taking insufficient bail in an action brought by Robert F. Barnard, as administrator of Stephen Stevens, against Ensign C. Stevens and another. Barnard died, and Palmer was appointed administrator de bonis non, and prosecuted that action to judgment, upon which execution was issued, and returned unsatisfied for want of property, and non est inventus as to the body.

Action of tort to recover damages for injuries done to the plaintiffs’ sheep by the defendant’s dog, under the Rev. Sts. c. 58, § 13, which provide that “ every owner or keeper of any dog shall forfeit to any person injured by such dog double the amount of the damage sustained by him, to be recovered in an action of trespass.” At the trial in the court of common pleas, before Briggs, J., the defendant contended that this section applied to injuries done to the person only,…

W rit of entry to foreclose a mortgage of land in Hancock, dated November 5th 1840, the consideration named in which was two thousand dollars, and the condition was as follows: “ If the said Thomas Corey, his heirs, executors or administrators doth pay or cause to be paid to the above named Nicholas Gardner, his heirs, the sum of two hundred dollars on the first day of April next, and annually to pay the said Nicholas on the first day of April the lawful interest that there…

<p>In an action for breaking and entering woodland to which the plaintiff showed title under a recent grant from a former owner, and the defendant claimed title by adverse possession, the jury were instructed that if the defendant was in uninterrupted adverse possession of the land for twenty years, the jury were authorized, but "were not bound, to presume that he had a legal grant thereof or other valid title. Held, that the plaintiff had no ground of exception.</p>

Trustee process. The trustee disclosed that he was indebted to the principal defendants; that previously to the service of this process the defendants made an assignment of all their property for the benefit of certain creditors, according to the laws of New York, of which the plaintiff and the defendants were citizens, and that the assignees sent notice to the trustee, which had actually arrived at the post office of his residence in Lee before, although he did not receive…

<p>Action of contract on a promissory note, made by the defendant, and indorsed to the plaintiff on the last day of grace. Answer, that the note was subject to the law of the State of New York, and was usurious and void.</p> <p>At the trial in the court of common pleas, before Mellen, C. J., the defendant was admitted, against the plaintiff’s objection, to testify that, to borrow money, he went to New York, the residence of James Pine, the indorser, who agreed with him to lend money which he was about to receive from the estate of M. S. Wilson, an insolvent debtor, to the defendant, at eight per cent, interest, if the defendant would give him security on his real estate in Lenox; that said Pine afterwards sent him written directions how to make out a note and mortgage, which the defendant did, and sent them to the indorser, who in return sent an assignment of the Wilson debt, which the assignees of Wilson afterwards paid.</p> <p>The plaintiff argued that the negotiation between James Pine and the defendant was simply a contract for the sale and purchase of the Wilson debt to the defendant for a certain sum, namely, the amount of this note; and that it was not the object of the parties to effect a loan of money upon usurious interest. But the jury found that the real purpose of the parties was to make and obtain respectively a loan of money at eight per cent, interest.</p> <p>The judge ruled that “ the note upon the evidence should be treated as a Massachusetts transaction, and governed by its laws as to its validity; but that the note, under the circumstances of the case, might legally carry seven per cent, interest, and that the usury, if any, would be one per cent.; and, if found to be usurious, they should deduct three times the one per cent, usury from the note, and bring in a verdict for the balance; and the jury did find a verdict for such balance according to the instructions.” The plaintiff alleged exceptions, and the parties agreed that if the rulings were correct in all respects, except as to the amount to be deducted, judgment should be rendered accordingly.</p>

Action of tort for the conversion of three promissory notes, brought by a minor through his guardian.

Action of tort, commenced on the 9th of June 1856, against Levi B. Warner and Chester Goodale for expelling the plaintiff from the academy building in Egremont. At the trial in the court of common pleas before Mellen, C. J., there was evidence of these facts : The defendants were tenants in common of that building and the land on which it stood; Warner owning four fifths and Goodale one fifth.

Action of tort for the conversion of a pair of steers. The answer denied the plaintiff’s property ; and also alleged that the steers were taken by Crosby as deputy sheriff on an execution in favor of Noxon, the other defendant, against Samuel L. Deering.

<p>Indictment for keeping “ a certain common house of ill fame ” in Prescott, “resorted to for the purpose of prostitution and lewdness, against the peace and dignity of the Commonwealth, and contrary to the form of the statute in such case made and provided.” The defendant, after conviction in the court of common pleas in Hampshire, moved in arrest of judgment, because the indictment did not allege that said house of ill fame was a common nuisance. Briggs, J. overruled the motion, and the defendant alleged exceptions.</p>

Indictment on St. 1855, c. 215, § 17, for being a common seller of spirituous and intoxicating liquors at Northampton. Plea, that the court of common pleas had no jurisdiction, but that the justices of the peace of the county of Hampshire had exclusive jurisdiction. To this plea the attorney for the Commonwealth demurred, and the court of common pleas sustained the demurrer; and to this order the defendant alleged exceptions.

Indictments for keeping intoxicating liquors with intent to sell the same within the Commonwealth, not being authorized under St. 1855, c. 215, or by any legal authority whatever, against the peace, and contrary to the force of the statute. The defendants, being convicted in the court of common pleas in Hampshire, each moved in arrest of judgment, upon various grounds, one of which was that that court had no jurisdiction.

<p>Indictment on St. 1855, c. 215, §§ 15, 17, for unlawful sales of intoxicating liquors. The defendant demurred, and specially assigned the causes of demurrer. The court of common pleas in Hampshire overruled the demurrer, and the defendant, upon a trial, was found guilty, and then moved in arrest of judgment, which motion was also overruled; and he appealed to this court.</p>

<p>The refusal of a judge in a criminal trial to ask persons summoned as jurors, whether they belong to any association formed for the purpose of enforcing the law under which the defendant is indicted, is no ground of exception, if the defendant’s counsel disclaims any knowledge or suspicion of any such connection, and assigns no ground for making the request.</p>

<p>A juror who states that he has heard of the case upon which he is summoned to sit, but has not heard enough to form any opinion, and is not sensible of any bias or prejudice, is competent to sit upon the jury.</p> <p>Allowing this question to be put by the Commonwealth to a reluctant witness, on direct examination, at a trial for unlawfully selling intoxicating liquors, “ Do you mean to say to the jury that you have not drunk liquor there within three months? ” is no ground of exception.</p> <p>Upon the trial of an indictment for being a common seller of intoxicating liquors, there was evidence tending to show sales in a building kept by the defendantas a tavern,* the judge instructed the jury that delivery in any other place than a dwelling-house was pt'ima facie evidence of sale; and they returned a verdict of guilty, and, in answer to a question of the judge, said they found but two payments had been made. Held, that the defendant had no ground of exception.</p>

<p>No exception lies to the refusal of the presiding judge, on the trial of an indictment containing several counts, to oblige the district attorney to elect upon which count he will rely.</p> <p>An indictment for receiving stolen goods need not name the thief.</p> <p>On an indictment against two for receiving stolen goods, one may be convicted and the other acquitted.</p> <p>On the trial of an indictment for receiving stolen goods, which alleges the receipt of a sheep and of honey in the comb, evidence that mutton tallow and strained honey were found on the defendant’s premises is admissible in connection with evidence that a sheep was killed and honey strained there.</p>

<p>Indictment on St. 1855, c. 215, §§ 15,17, for unlawfully selling intoxicating liquors in January 1857.</p> <p>At the trial in the court of common pleas in Hampden, a witness for the Commonwealth testified that he drank intoxicating liquor but once in the defendant’s shop in 1857, and that Abraham Lewis delivered it to him. The defendant, while putting in his defence, recalled the same witness, and examined him only in reference to certain threats made in his presence and hearing against the defendant by another witness for the Commonwealth, and to a debt from him to the defendant. The district attorney, on cross-examination, among other things in regard to the origin of this debt, and whether it was for liquor, put this question : “ Did you not testify before the grand jury that you bought intoxicating liquor two or three times of Lewis in the defendant’s shop ? ” The defendant objected that it was incompetent to inquire what the witness had testified to before the grand jury; but the court overruled the objection, and the witness answered that he did so testify.</p> <p>The defendant, being convicted, alleged exceptions, and also moved in arrest of judgment, because the court in which the indictment was found had not jurisdiction of the offence alleged in the indictment.</p>

Complaint .to the police court of Chicopee, alleging that the defendant on the 1st of April 1857 at Chicopee, “ not then and there having any license, appointment or authority therefor first duly had and obtained according to law, did then and there sell to Daniel C. Hart, of Springfield in said county, a quantity of intoxicating liquor, to wit, one gill of intoxicating liquor,” in violation of the provisions of the St. of 1855, c. 215; and, in a separate paragraph, “ Also…

<p>Upon an appeal from a judgment of a police court upon complaint for unlawfully selling intoxicating liquors, the trial must be upon the certified copy of the complaint and not upon the original record; and the defendant cannot be tried and convicted on a copy which alleges a sale on a different day from that alleged in the original complaint.</p>

<p>Upon a criminal trial, the Commonwealth cannot ask one of its witnesses to recnr In nls own mind to his testimony before the grand jury and then state circumstances to which he has not testified at the trial.</p> <p>On the trial of an indictment for being a common seller of intoxicating liquors, the Commonwealth may introduce evidence of sales of which there was no evidence before the grand jury.</p>

<p>On the trial of a complaint for keeping intoxicating liquors with intent to sell, a witness who went to the defendant’s house with a search warrant was allowed to be asked “ Where did you go while there? ” without proof that the defendant was present. Seldt that he had no ground of exception.</p> <p>On the trial of a complaint for keeping intoxicating liquors with intent to sell, witnesses may testify to what was written on labels attached to jugs and decanters in the defendant’s shop, without producing them, or accounting for their not being produced.</p> <p>On the trial of a complaint for keeping intoxicating liquors with intent to sell, proof that decanters mentioned by the witnesses for the Commonwealth contained only colored water does not render them incompetent evidence upon the question whether the defendant kept intoxicating liquors with intent to sell.</p> <p>On the trial of a complaint for keeping intoxicating liquors with intent to sell, the judge instructed the jury that the government must show an intent to sell in this commonwealth, but if an intent to sell existed, no presumption arose, in the absence of prop^ that his intent was to sell out of the Commonwealth rather than in. Held, that the de* fendant had no ground of exception.</p> <p>On the trial of a complaint for a violation of the St. of 1855, c. 215, § 24, a statement of the judge to the jury that the principle of this section was to punish any person for preparing or procuring means to violate other sections of the same statute affords no ground of exception.</p>

<p>Complaint to the police court of Springfield for keeping intoxicating liquor with intent to sell the same in this commonwealth, “ not being authorized to sell the same in said commonwealth, for any purpose, under the provisions of” the St. of 1855, c. 215, “ or by any legal authority whatever.”</p> <p>At the trial in the court of common pleas in Hampden before Morris, J., a witness for the Commonwealth was asked what he did at the house of the defendant concerning the finding of intoxicating liquors ? The defendant objected, unless it was shown that he was present. The court overruled the objection; and the witness detailed what he did, stating that he found a quantity of intoxicating liquors there in a bar, and some implements and utensils of trafile, destroyed a lot of liquors there, and broke a decanter and jugs, &c., and that he had no warrant. The defendant objected to this evidence; but the court admitted it.</p> <p>The defendant, to satisfy the jury that the witness had feelings of hostility to him, asked the witness, “if he had ever exercised that authority in any other place where he knew liquors were kept for sale.” The district attorney objected; and the court sustained the objection, and refused to allow the witness to answer the question.</p> <p>The defendant then asked the witness “ if, in his destruction of liquors at that place, he did not hit the defendant’s wife, while breaking any of these articles,” stating that he intended to show that the defendant was so carried away and influenced by passion, madness and rage, as not to be a credible witness to what occurred while he was there or to what he did. The district attorney objected; and the court sustained the objection, and refused to allow the question to be answered.</p> <p>The defendant, being found guilty, moved in arrest of judgment, because the complaint did not show that the defendant had not a right to keep with intent to sell; nor that the liquors were not imported and still in the original packages; nor where in the Commonwealth the defendant intended to sell them. This motion was overruled, and the defendant alleged exceptions.</p>

<p>Complaint on St. 1855, c. 215, § 20, averring that the defendant on the 18th of July 1855 at Springfield, “ did illegally transport and convey from place to place within said commonwealth, to wit, from the Western Railroad freight depot in said Springfield to West Union Street in said Springfield, so called, to a certain shed in said West Union Street, occupied by one Patrick Goden, of said Springfield, certain intoxicating liquors, to wit, forty gallons of whiskey, said Waters then and there having reasonable cause to believe that said liquors were intended for sale by said Goden in said Springfield, contrary to the provisions of” St. 1855, c. 215.</p> <p>At the trial in the court of common pleas in Hampden, after evidence that a barrel of intoxicating liquors was conveyed by the defendant to Goden, and by him placed in a shed, and a day afterwards seized by a policeman under a warrant, Morris, J. refused to allow the defendant to show that Goden had been tried and acquitted on a complaint for keeping the same liquor with intent to sell the same; and, after a verdict of guilty, overruled a motion in arrest of judgment, made upon the grounds that the complaint did not show that the liquor was not imported under authority of the laws of the United States and still in the original package ; and that the places between which the defendant was alleged to have transported and conveyed the liquor were not described with sufficient definiteness and certainty, nor such places as the statute contemplated. The defendant alleged exceptions.</p>

<p>On the trial of an indictment on St. 1845, c. 27, for procuring a miscarriage, the Common wealth may introduce evidence of the health and spirits of the patient, and of stains and marks upon her bedclothes, a month afterwards.</p> <p>On the trial of an indictment on St. 1845, c. 27, for procuring a miscarriage, after evidence introduced by the defendant that the patient was pregnant some months after the operation is alleged to have been performed, the Commonwealth may prove by her that she had sexual intercourse with the defendant between the times of the alleged operation and of the subsequent pregnancy.</p> <p>Any wicked or base motive is sufficient malice to support an indictment on St. 1845, c. 27 for procuring a miscarriage; and the consent of the patient or a desire to screen her from disgrace is no justification.</p> <p>It is not necessary, to support an indictment on St. 1845, c. 27, for procuring a miscarriage, to prove that the patient was quick with child.</p> <p>H seems, that an indictment on St. 1847, c. 27, for procuring a miscarriage, cannot be maintained, if the foetus had previously lost its vitality so that it could never have matured into a living child.</p> <p>On the trial of an indictment for procuring a miscarriage, the judge instructed the jury that the patient was not technically an accomplice, and therefore, strictly speaking, the rule in relation to the corroboration of an accomplice did not apply, but inasmuch as she in a moral point of view was implicated, it would be proper for the juiy to consider that circumstance in its bearing upon her credibility; that it was also their duty to consider all the evidence in the case tending to contradict her, as affecting the credit they would give to her, her credibility being entirely a question for them; and declined to instruct them that if she swore falsely upon any material point in the case, it so far discredited her whole testimony that they should not place any reliance upon it. Held, that the defendant had no ground of exception.</p> <p>An indictment, on St. 1845, c. 27, for procuring a miscarriage, need not allege that the child with which the patient was pregnant was alive, or that she was quick with child; nor whether she died or not in consequence of the operation.</p> <p>An indictment on St. 1845, c. 27, for procuring a miscarriage, is sufficient, which alleges that the defendant at a certain time and place maliciously and without lawful justification did force and thrust a certain metallic instrument, which he had and held in his hand, into the womb and body of a certain woman by the name of A. B., she being then and there pregnant with child, with the wicked and unlawful intent of the defendant thereby to procure her to miscarry and prematurely to bring forth the said child with which she was pregnant as aforesaid, and she the said A. at the same time and place, by means of the said forcing and thrusting of said instrument into her womb and body in manner as aforesaid, did bring forth said child, of which she was so pregnant, dead; and is not open to objection, as not alleging that the defendant used the metallic instrument, nor who the woman was or what was her name, nor that she brought forth the child prematurely, nor brought it forth dead in consequence of what the defendant had done.</p>

Complaint on St. 1855, c. 215, § 24, for keeping intoxicating liquors with intent to sell. At the trial in the court of common pleas in Hampden the Commonwealth put in evidence a drainer found in the defendant’s shop, and contended that it was one implement of the traffic in intoxicating liquor.

<p>A testator bequeathed to his wife “ her support and maintenance in sickness and in health, and meaning all that shall or may be necessary for her comfort for and during her natural life; ” and, subject to this, gave all his property, amounting in value to about $1000, to his son. Held, that the wife was not obliged to reside with the son in the homestead; and that the fact that she had been accustomed and was able to labor was to be taken into account in computing what sum was necessary for her support under the will.</p>

Action of tort for diverting the water from, the plaintiff’s mill and canal in Huntington.

Action of contract for the non-performance of an indenture between the plaintiff of the first part, and the defendant, D. W. Castle, of Beloit, Wisconsin, and David S. Young, of Lee Centre, New York, of the second part, dated the 18th of March 1857, whereby the plaintiff agreed to convey to them on the 15th of April a parcel of land in Northampton, and the buildings thereon, used by the plaintiff for dealing in flour and grain, and the personal property and stock used…

<p>A commitment of a lunatic to a hospital by a judge of probate need not be in open court nor be recorded.</p> <p>Under the Rev. Sts. c. 48, §§ 9,10, and Sts. 1837, c. 228, § 7, and 1841, c. 77, the amount paid by a town for the support at a state lunatic hospital of an insane pauper committed by the judge of probate may be recovered from the town of the pauper’s settlement, within two years after the payment, although more than two years after notice.</p> <p>Notice by one town to another of a claim made by the treasurer of a state lunatic hospital for the past and future support of a pauper, is sufficient to support an action for the past expenses, (though not actually paid until more than three months after,) but not for expenses of the support of the pauper after such notice. -</p>

<p>Action of contract upon this account annexed to the writ: “ 1855, April 11. To cash received by you for thirteen shares of stock in the Vermont and Massachusetts Railroad Company sold by you for me, $286.”</p> <p>At the trial in the court of common pleas in Franklin, before Morris, J., the plaintiff put in evidence the defendant’s answers to interrogatories propounded to him by the plaintiff, from which it appeared that on the 27th of March 1855, the plaintiff sent from Northfield to the defendant, a broker in Boston, nineteen shares of the stock of the Vermont and Massachusetts Railroad Company, thirteen of which belonged to the plaintiff, and the other six to his father, Jabez Parsons ; that on the 9th of April, in answer to a letter from the defendant, the plaintiff wrote: “ The six shares of Jabez Parsons he wishes to have sold without delay. As to my thirteen shares, I think with yourself that they will go up on the passage of the loan bill, of which from the reports of the Daily Telegraph (which I take) and the opinion of members of the house, there is not much doubt; but you have the best opportunity of knowing when it will be best to sell. I am in no hurry, and wish to wait until in your opinion that time has come, but do not let it pass; ” that on the 10th of April the defendant sold the six shares belonging to Jabez Parsons to David Russell for $22 a share, and the next day sent the proceeds of that sale to the plaintiff, and transferred four of the plaintiff’s shares to Russell and the remaining nine to his own name. Upon this point the defendant made this statement:</p> <p>“ It is the custom among brokers to place the stock sent them for sale to their own names on the books of the company, and, in making transfers, to do so indiscriminately, without regard to the person from whom the stock was received, or for whose account the same is sold ; and in order to avoid a double transfer on the company’s books, I did temporarily transfer four of the shares received on sale for the plaintiff to Mr. Russell, but the same were not sold on the account of the plaintiff, as I thought my instructions from the plaintiff were such as to compel me to hold his stock longer, as I then believed it would reach a higher price. In accordance with this custom I transferred the remaining shares to my name on the 11th of April. The highest market price on that day was $22 a share, but it was unsettled, and fluctuated between $18 and $22 from day to day.”</p> <p>The defendant made no further return of his doings to the plaintiff, who on the 14th of January 1856 wrote to him about the stock; and he on the 19th sent him a statement of his doings and a certificate of thirteen other shares of the same stock. In reply the plaintiff demanded the money for the shares as transferred on the 11th of April. The certificate of shares sent by the defendant to the plaintiff was returned by the plaintiff without any transfer or power of attorney, sent back again to the plaintiff and then by him put in the hands of Francis O. Irish, of Boston, subject to the defendant’s order, but without any transfer or power of attorney, and there it has since remained.</p> <p>The defendant presented a series of prayers for instructions, which the judge declined to give in terms; but did give instructions, the material parts of which, as well as of those requested, are stated in the argument and opinion. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Upon a suit in equity to redeem land from a mortgage given to secure negotiable promissory notes, brought against one to whom the notes were indorsed and the mortgage delivered before the notes became due, but to whom the mortgage was not assigned until afterwards, the plaintiff cannot set off against the defendant claims upon the mortgagee, acquired by the plaintiff after such indorsement and delivery, and before maturity of the notes or assignment of the mortgage.</p>

<p>A widow to whom two distinct estates are set off for dower cannot take firewood from one of them for use upon both. 1</p>

<p>Action of contract upon a promissory note. Answerj that the note was given in payment for horses, a wagon and harness sold by the plaintiff to the defendant, and falsely and fraudulently represented and warranted by the plaintiff to be fit for the defendant’s service, when they were not.</p> <p>At the trial in the court of common pleas in Hampshire, the defendant’s counsel argued to the jury that the burden of proof being on the plaintiff to prove the consideration of the note, if, on the whole evidence, the jury were in doubt whether there was a warranty and breach thereof, or whether the sale was effected by such false and fraudulent representations, the defendant should have the benefit of such doubt; and the plaintiff’s counsel, in his closing argument, did not controvert this.</p> <p>Aiken, J. instructed the jury that the production of the note (the signature to which was admitted) made a prima facie case for the plaintiff, and was prima facie evidence of consideration ; and that upon this evidence the plaintiff would be entitled to recover, unless it was made to appear that there was a warranty and a breach thereof, or false representations, as alleged by the defendant. No request was made by either party for other or different instructions upon this point. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of contract by the indorsee against the maker of a promissory note dated at New York, October 22d 1856, and payable to the order of Joseph Colton. Answer, that the note was made for the accommodation of the plaintiffs and Colton, and that the plaintiffs agreed with the defendant that they would provide for and take up the note at maturity, so that the defendant should not be compelled to pay it.</p> <p>At the trial in the court of common pleas in Hampshire, before Briggs, J., the defendant admitted, on cross-examination, that at the time of making the note the following receipt was given to him for it:</p> <p>“ Received, New York, October 22d 1856, from Mr. A. P Howe, of Amherst, Mass., his note at ninety days from date to the order of Mr. Joseph Colton, for fourteen hundred and twenty four and ,§, dollars, payable at Bank of North America, New York, being in payment of note of Mr. Joseph Colton, due this day, amount fourteen hundred dollars. And in consideration of the receipt of said note made by Mr. Howe, we hereby agree to discharge from record the security we now hold as collateral, viz: three quarters interest in a lease of an iron mine on the farm of Joseph Leake, near Knoxville, Tennessee, and three fourths interest in a patented lifeboat, given as collateral security by the said Joseph Colton. John W. Corlies & Co.”</p> <p>The defendant offered to prove by his own oral testimony the tacts stated in his answer. But the judge excluded the evidence, a verdict was returned for the plaintiffs, and the defendant alleged exceptions.</p>

Action of contract on a promissory note made by the defendants’ intestate. Trial and verdict for the defendants in the court of common pleas in Hampden, before Aiken, J., to whose rulings the plaintiff alleged exceptions. The facts material to the point decided appear in the opinion.

Action of contract for money had and received to recover money alleged to have been deposited in the Springfield Institntion of Savings in the name of Electa Ayres in trust for Rhoda Ayres, the plaintiff’s wife, and paid by the bank after Electa’s death to the defendant as her executor.

Action of contract on a joint and several bond to indemnify the plaintiffs “ from all loss, damage, liability or cost by reason of” their having become sureties on the official bond of Augustus Clarke, deputy postmaster at Northampton, to the United States.

<p>A creditor of an insolvent manufacturing corporation, who holds collateral security from a stockholder therein, may prove his whole debt against the corporation in insolvency, without first applying the security in payment, or surrendering it to the assignees.</p>

<p>Actions of contract against the Union Tool Company, described in the writs as “ a corporation established according to law in Goshen,” in the county of Hampshire. The principal defendants were defaulted; and several persons were summoned in as stockholders, pursuant to the St. of 1851, c. 315, and filed answers, upon which trials were had in the court of common pleas in Hampshire.</p> <p>The plaintiffs proposed to prove by the records of the Union Tool Company that the respondents were stockholders therein. The respondents objected to the admission of this evidence before the existence of the corporation had been shown, and unless it was shown that it was a manufacturing corporation whose stockholders might become liable as such for its debts. Morris, J. ruled that it was not necessary for the plaintiffs to prove the existence of the corporation, that being admitted by the default, but that it was necessary to show that it was such a corporation that its stockholders might become individually liable ; and admitted evidence that the company had made by-laws and done other acts as a corporation, and the respondents had attended meetings as stockholders; without proof that the company had ever been incorporated by the legislature, or by articles of association in writing, setting forth the amount of the capital stock, and the purpose of their establishment, as required by St. 1851, c. 133, §§ 1-3. Verdicts were taken for the plaintiffs, and the respondents alleged exceptions. The other facts sufficiently appear in the opinion.</p> <p>These cases were argued at Northampton in September 1858, and decided at Boston in April 1860.</p>

<p>A loaded wagon, while the driver was using reasonable care, was strained and injured by a defect in the highway, and the driver stopped, examined it, proceeded on his journey, and after passing over a rough and muddy road, and while on a smooth and level road, the axletree broke and he was thrown from the wagon and injured. Held, that the breaking of the axletree had been caused in part by the driver proceeding on his journey after the first injury to it, and there was no snfiicient evidence to be submitted to the jury in support of an action by the driver against the town for the personal injury to him.</p>

Action of tort for obstructing a watercourse across the defendant’s land in Hadley. At the trial in the court of common pleas in Hampshire before Morris, J., the following facts appeared : The plaintiff bought from Charles P. Phelps in 1832, and had since occupied, land on the easterly side of a highway. The defendant owned land on the opposite side, to which he claimed title under Thaddeus Smith, who owned it from 1828 to 1835.

Action of tort for obstructing a right of way claimed by the plaintiff across the defendant’s land in Chicopee. The case was submitted to an arbitrator, who reported the following case for the decision of the court: Of a row of four lots of land running from west to east, the plaintiff purchased lot 1 in 1853, and lots 2 and 3 in 1855; and the defendant owns lot 4, bounded on the highway, and across. which the right of way is claimed.

Action of tort for injuries to the plaintiff’s horse, while he was travelling in the highway.

<p>Action of tort for injuries occasioned by a defect in a highway to the plaintiff’s horse, while hired and driven by Joseph Baldwin.</p> <p>At the trial in the court of common pleas in Hampden, before Aiken, J., it appeared that the highway ran along the bank of Green River, and in consequence of recent freshets had become unsafe, and at the time of the accident was undergoing repairs, but that no railing had been erected along the river bank ; that Baldwin, a stranger travelling over the road, came at sunset to a bridge three miles distant from the place of the accident, upon which also repairs were being made in consequence of the freshet, and finding it impassable, crossed at a ford marked by wagon ruts, and (as he testified) “driving as carefully as he could,” continued on his journey after dark, and while going at a slow trot “ suddenly felt his wagon and himself going down a precipice.”</p> <p>Upon this evidence the defendants requested the judge to instruct the jury that the absence of the bridge was an obstruction, and under the circumstances conclusive notice that the road was dangerous, and that the plaintiff at the time of receiving the injury was not in the exercise of ordinary care. The judge declined so to instruct the jury; and instructed them that, the condition of the bridge and the ford were circumstances which, in connection with the other evidence in the case, they might take into consideration in ascertaining whether Baldwin was in the exercise of ordinary care.</p> <p>Baldwin brought another action against the defendants for personal inj uries suffered by him at this time ; and it appeared that the plaintiff, before this action was brought, had settled with Baldwin and received payment in full for the injury done to the horse, but with an agreement that this action might be prosecuted by Baldwin in the plaintiff’s name, at Baldwin’s risk and for his benefit. The defendants requested the court to instruct the jury that the plaintiff could not recover in this action, or at least could only recover nominal damages. But the judge declined so to instruct them, and instructed them that this was not a bar to the recovery of full damages. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Action of contract upon a policy of insurance for $1400 upon a building in Springfield, made by the defendants to Robert G. Marsh, and by… Held: or improvements on the same, or property contained in buildings so standing, shall not be insured, unless specially described as such in the application.” Art. 13. “ Unless the applicant for insurance shall make a correct description and statement of ajl facts inquired for in the application, and also all other facts material in…

<p>Action of contract, in which the plaintiffs alleged that they had sold and delivered to the defendants their flour mill and fixtures in West Springfield, their store in Springfield and their good will in trade in both; and that the defendants had agreed to pay the sum of $3350 therefor; $500 in cash upon delivery of the property, and the residue in a promissory note of $500 payable on demand with interest, and two other notes of $1175 each, payable in one year with interest; but that though payment had been demanded, the defendants refused to pay the same according to the agreement, or any part thereof. The parties submitted the case to the judgment of this court upon the following facts:</p> <p>The plaintiffs sold to the defendants their flour mill and the fixtures therein, and all the personal property and fixtures in the store lately occupied by the plaintiffs in Springfield, and the good will of their business in both places ; and verbally agreed with the defendants that they would not engage or be interested in the flour and milling business at such place or in such way as to interfere with the business to be done by the defendants as millers and traders. In consideration of this sale the defendants agreed to pay to the plaintiffs the sum of $3350, as stated in the declaration, and entered into possession of the property on the 1st of April 1857, and requested the plaintiffs to execute an indenture containing the above agreement, but the plaintiffs refused. On the 3d of April the plaintiffs offered to the defendants a bill of sale of the property and demanded payment in cash and notes as stipulated, but the defendants refused to pay unless the plaintiffs would execute the indenture or an agreement substantially like it; and this suit was brought at June term 1857 of the court of common pleas.</p>

<p>A promissory note, in terms payable to order, but containing a condition that it shall be given up to the maker as soon as the amount of it is received by the payee, is not nego* tiable.</p> <p>The objection, that a conditional note payable to order is not negotiable, is open at the trial of an action thereon, in which the plaintiff alleges that it was made to order and indorsed to him, and truly sets forth a copy of the note, and the defendant does not demur, nor deny that the note was payable to order or that it was indorsed to the plaintiff.</p>

<p>Action of contract on a promissory note for $150, made by Edmund Hubbard, the defendant’s testator, to his daughter, the female plaintiff, payable at his death.</p> <p>At the trial in the court of common pleas in Hampden, before Bishop, J., the plaintiffs, for the purpose of proving a consideration, (which was denied,) called Heman S. Lucas, who testified that he was the attending physician upon Hubbard during his last sickness, and that in a conversation with him about this note, a week before his death, Hubbard said, “ When John C. Gamwell went to Becket to reside, his father told me he would help John to $150; and I told him I would help Margaret as much as he would John, and I gave her a note for $150 ; I wanted to encourage them.”</p> <p>. The defendant requested the judge to instruct the jury that if they believed that the note was given for the purpose stated in this testimony, it was a gratuitous note, without such legal consideration as would enable the plaintiff to maintain an action upon it. The judge declined ; and instructed the jury that the admission in the note of “ value received ” was prima facie evidence of consideration, and it was incumbent on the defendant to rebut the presumption arising therefrom, by evidence satisfactory to them that the note was without legal consideration ; and that if they found it was given for services rendered by the daughter after her majority, and before marriage, or if the father of John C. Gamwell proposed to Hubbard that they should aid the plaintiffs, and Hubbard, in consideration that Gamwell’s father would help him, promised to help Gam well’s wife, and the note was given in pursuance of that agreement, it would be a sufficient consideration. The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

Action of contract on a promissoTy note, dated November 15th 1855, and payable in four months to Henry Stewart or bearer. Answer, that the consideration was a patent right, represented by the plaintiff to the defendant at the time of the sale to be useful and valuable, but in fact worthless; that the note was procured by false and fraudulent representations ; and that the plaintiff had always been the owner or bearer of the note.

<p>A sealed lease executed by one partner only in the name of the partnership, though for a term which required no seal, does not pass the estate of the other partners without evidence of previous authority or subsequent ratification by them.</p> <p>In an action for breaking and entering a close, a defendant need not set forth in his answer a lease under which he justifies.</p>

<p>A notice'to a tenant at will, to quit premises “ within fourteen days from date,” served more than fourteen days before action brought, is sufficient, under Rev. Sts. c. 60, § 26.</p> <p>A police court, which has jurisdiction of actions on the Rev. Sts. c. 104, may allow an officer to amend his return in such an action so as to show service on the defendant, although the return as originally made shows no jurisdiction.</p> <p>Upon the hearing in this court on appeal of certain questions submitted on facts agreed, no other questions can be raised.</p>

Petition in equity, filed at April term 1858, by insolvent debtors, representing that they applied to the judge of insolvency for a discharge, which he refused on the 28th of December 1857, and they thereupon gave to him and the register of insolvency notice of an appeal to this court, and requested to have it entered on the records of the court of insolvency, but for some unknown cause the register omitted to do so ; and praying that the register might be required to amend…

<p>Action of tort by the assignee in insolvency of Charles F. Smith, to recover the value of a stock of goods sold to the defendant on the 20th of January 1857.</p> <p>At the trial in the court of common pleas in Hampden, it appeared that Smith in July 1854 bought of the defendant a stock of goods and furniture of a tailor’s shop, and gave his note therefor, with Caleb Clapp and A. G. Clapp as sureties, to whom he mortgaged the goods as security; and that the goods in Smith’s shop on the day of the sale to the defendant consisted in part of the original stock so mortgaged and in part of goods purchased since. It was admitted that on the 20th of January 1857 Smith was insolvent and knew himself to be so, and that proceedings in insolvency were commenced against him a month afterwards.</p> <p>There was conflicting evidence upon the question whether the defendant bought the goods of Smith directly, or of Caleb Clapp, and also whether Clapp and the defendant knew at the time of the sale that Smith was insolvent and contemplated insolvency, and that the sale was made to prevent the assignment and distribution of his property under the insolvent laws.</p> <p>The defendant contended that he purchased the goods in good faith of Caleb Clapp, and had no negotiation with Smith therefor. And Clapp testified that on the 19th of January he took possession of the goods which were mortgaged and of all the goods in the shop, and obtained leave from Smith to sell without waiting for a formal foreclosure; that on the 20th he sold to the defendant, designing to sell no other than mortgaged goods to him, and that Smith knew nothing of the sale until it was concluded ; and that the price of the goods was to be indorsed on the note signed by the Clapps as sureties.</p> <p>Bishop, J. instructed the jury “ that if the purchase was made by the defendant of Smith, and the defendant knew of Smith’s insolvency, and bought the goods to secure to himself a preference over the other creditors, and prevent their assignment and distribution under the insolvent laws, the plaintiff was entitled to recover; that if the purchase was made by Clapp with the same knowledge, and for the same purpose, and with the same intent, the sale to Clapp was void; and if, with full notice thereof, the defendant purchased of Clapp, he stood on Clapp’s title, and became a purchaser with notice of the fraud, and could not hold the property as against the assignee, notwithstanding the mortgage.”</p> <p>The judge requested the jury to find whether the purcha se was made directly by the defendant of Smith. The jury found for the plaintiff, and stated that they found the goods were purchased .of Smith, and did riot take into consideration the mortgage. The defendant alleged exceptions.</p>

<p>The seller of a stock of goods, who had taken the note of the purchaser therefor, secured by mortgage of the goods, after receiving payment in part, being told by the mortgagor that he had a number of debts coming due which he could not pay, delivered up the note and mortgage, and took another note secured by a new mortgage of the stock as altered and added to by labor, sales and purchases. Held, that the first mortgage was extinguished by the second, and that the second mortgage was void as against proceedings in insolvency instituted within six months after it was given.</p>

<p>If a prisoner, lawfully arrested without a warrant by order of a justice of the peace, for an assault "committed in his presence, escapes, a constable may be ordered by the justice without a warrant to pursue and retake the offender; and, after demand and refusal of admission, may break doors for the purpose.</p> <p>An assault upon a constable by one whom he is arresting without a warrant by order ot a justice of the peace for an offence committed in the justice’s presence may be alleged to be an assault upon the constable in the discharge of his official duty.</p>

<p>Signing a promissory note in the name of a fictitious firm, with intent to defraud, and falsely representing that the firm consists of the writer and another person, are not forgery.</p>

<p>Indictment for stealing a cow of Joseph Densmore. At the trial in the court of common pleas, an officer called as a witness for the Commonwealth testified that on the night of the arrest he went to the defendant’s house with a warrant against him for stealing another cow known as the Chase cow, and, after searching the house, said to the defendant, (referring to the Chase cow,) “ Where did you get that beef? We’ve got you this time. We have traced it round until we are satisfied you’ve got the cow; ” and then took the defendant to the jail; and there on the same evening had a conversation with the defendant about both cows. Bishop, J., against the defendant’s objection, allowed his declarations then made to be admitted in evidence as confessions of guilt; and the defendant, being convicted, alleged exceptions.</p>

<p>Complaint on St. 1855, c. 215, § 24, for keeping intoxicating liquor with intent to sell. The defendant was convicted and sentenced by a justice of the peace, on the 4th of April 1857. The record of the justice, after stating the conviction and sentence of the defendant, concluded as follows: “ From which sentence he claims an appeal to the court of common pleas at Worcester on the second Monday of May next.”</p> <p>The defendant, being tiled in the court of common pleas amd found guilty, moved in arrest of judgment, because the record of the justice did not show that the appeal was taken to the court of common pleas, next to be holden within the county, having criminal jurisdiction; nor that the defendant entered into a recognizance to prosecute his appeal. Sanger, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>Complaint on St. 1855, c. 215, § 24, for keeping intoxicating liquor at Milford, with intent to sell the same in this commonwealth without authority of law.</p> <p>At the trial in the court of common pleas, before Sanger, J., the evidence for the Commonwealth tended to show that “ on the day mentioned in the complaint the defendant was found in Milford in possession of a certain quantity of intoxicating liquor, which was in a wagon with a horse attached, and under circumstances tending to show that she was conveying the same and peddling the same from house to house.”</p> <p>The defendant asked the judge to instruct the jury that if the defendant was conveying the liquor from place to place with intent to sell the same in this commonwealth in violation of law, it was an offence against § 20 of St. 1855, c. 215, and not an offence under § 24, and therefore this complaint could not be maintained. But the judge refused so to instruct the jury, and instructed them that if the defendant kept liquor as charged in the complaint, it would constitute the offence described in § 24, whether the liquor was so kept in a building or in a wagon, and whether there was a horse harnessed to the wagon or not. The defendant, being found guilty, alleged exceptions.</p>

<p>Scire facias on a recognizance taken under St. 1852, <?. 322, must be brought at the next term after default, although appointed by law for the transaction of civil business only.</p>

<p>A petition to this court, under St. 1856, c. 173, § 7, for the removal of a public officer, musí be under oath of the petitioner, and supported by affidavits showing reasonable and probable cause.</p>

<p>Under Sts. 1855, c. 215, § 25, and c. 397, a search warrant for intoxicating liquors need not state “ that probable cause has been shown for the issuing thereof.”</p> <p>In an action against a deputy sheriff for seizing intoxicating liquors, who justifies under a warrant and notice under St. 1855, c. 215, § 25, the plaintiff cannot introduce evidence that the warrant was not returned upon the day mentioned in his return thereon, and that the notice issued on the warrant was intentionally dated back by the magistrate.</p>

<p>Appeal from a decree of the judge of probate, dismissing a complaint filed by one under guardianship as a spendthrift, charging the appellee with having concealed, embezzled and conveyed away money, goods and effects of the complainant, and praying that he might be cited in to be examined on oath as to the matter. The judge dismissed the complaint, on the ground that the complainant could not maintain it without the intervention of his guardian.</p>

<p>Replevin of a cow. Trial in the court of common pleas, before Perkins, J., who signed this bill of exceptions :</p> <p>“ The plaintiff offered evidence tending to show that he had raised the animal in question from a calf, and was intending to keep it for his cow; that at twenty months old it was sold as his property on an execution issued in due form of law against him, and purchased by the defendant; that the animal first gave milk at about three years old; and that at the time of the levy he had no other cow. Upon this evidence, the plaintiff contended, and the judge instructed the jury, that, if they were satisfied of the facts which the evidence tended to prove, the animal was exempt from the levy of an execution as the debt- or’s only cow. The jury returned a verdict for the plaintiff; and to the foregoing instruction the defendant excepts.”</p>

<p>In an action upon a judgment rendered in another state for the penalty of a bond, to stand as a security for future as well as for past breaches, the plaintiff can recover only the amount of damages for past breaches, for which execution has been there awarded; and not the amount of the penalty, although the defendant has- removed out of the jurisdiction of the court in which judgment was recovered.</p>

<p>The right of homestead, secured to husband and wife by St. 1855, c. 238, is not lost by their both leaving the house and removing their furniture and, going out to work separately elsewhere, so long as the wife continues to visit the house from time to time for the purpose of taking care of it, and they acquire no new homestead; and a deed of the estate by the husband in which the wife does not join is void, under § 5 of that statute.</p>

<p>A conveyance of real estate by a husband, after he has committed adultery, though before his wife has filed a libel for divorce, is void, if made to prevent her from recovering such alimony as the court may decree to her.</p> <p>An equity of redeeming land from a mortgage, if conveyed by a debtor in fraud of his creditors, may be sold on execution under the Rev. Sts. c. 73, notwithstanding the St. of 1855, c. 453, providing for levying execution in such cases by extent.</p> <p>A sale on execution of an equity of redemption, under the Rev. Sts. c. 73, will bar homestead rights under the St. of 1857, c. 298, unless claimed before or at the sale.</p> <p>In an action to recover land conveyed in fraud of creditors, the tenant, with notice of the fraud, is not entitled to be allowed for improvements under the Rev. Sts. c. 101, unless he files a claim therefor before verdict.</p>

<p>Action op contract upon a promissory note. Answer, payment. The action was entered and the answer filed at March term 1857 of the court of common pleas. Afterwards, before June term, the plaintiff went into insolvency and an assignee was duly appointed. Before December term 1857 the plaintiff died.</p> <p>At March term 1858, Morris, J., against the defendants’ objection, allowed the assignee, upon his motion, to come in and prosecute the suit; and overruled a motion to dismiss the action for want of any party to prosecute it; and at the trial permitted him to testify to conversations and declarations of the defendants, after the assignee’s appointment and after the plaintiff’s death, tending to show that the note had not been paid in the plaintiff’s lifetime. The defendants offered themselves as witnesses to rebut the testimony of the assignee and others, but were not allowed to testify. A verdict was taken for the plaintiff, and the defendants alleged exceptions.</p>

<p>An administrator is not liable as trustee in foreign attachment of a distributee, who owes him debts exceeding the amount of his own distributive share; even if before contracting such debts he executed to the administrator an assignment of such share in fraud of creditors.</p>

Scire facias against the defendant, who had been sued and defaulted in foreign attachment as the trustee of William B. Fenner. In the court of common pleas, at the return term of the scire facias, Joseph H. Merry appeared as claimant of the funds in the defendant’s hands, and, against the plaintiff’s objection, was admitted by Morris, J. as a party to the suit, and obtained judgment. The plaintiff alleged exceptions.

Action of contract upon a recognizance entered into on the 6th of October 1857, before a master in chancery, under the St. of 1857, c. 141, by Russell as principal and the other defendant as' surety, reciting that Russell had been arrested on execution and did not desire to have any time fixed for his examination ; and conditioned that he should within ninety days deliver himself up for examination, giving notice to his creditor, as provided by that statute, “ and make no…

<p>An action on a written contract made with two persons jointly may be brought in the names of both, although one had parted with his interest therein to the other, before it was signed.</p> <p>A contract was made in writing “ by and between A. and B., of the first part, and the subscribers to these presents, stockholders in the Cape Cod Telegraph Line, of the other part, that the said stockholders shall pay to the said A. and B. $25 for each and every share of stock set opposite their respective names,” in .consideration of which A. and B. agreed to build a telegraph line along a certain route and upon certain conditions; and it was agreed that “ the stock subscribed ” should be payable when a stated portion of the line should be finished, “ at which time A. and B. shall convey in fee simple the said Cape Cod Telegraph Line, with all the fixtures by them erected and constructed.” At the completion of the line, a meeting of the subscribers was called by notice published in a newspaper, at which it was voted to apply for an act of incorporation; an act was obtained accordingly; and A. and B. conveyed the telegraph line to the corporation. Meld, that A. and B. might recover the subscription of a subscriber of the contract, who had not seen the notice nor attended the meeting; and that the books of the corporation were competent evidence to show an acceptance of the*conveyance by them.</p>

<p>Work performed according to a special contract, after the contract has, as the workman contends, been terminated by his employer, cannot be recovered for on quantum meruit, without proof of a new engagement.</p> <p>It seems, that an answer to an action for wages does not, by relying upon a special contract only, admit the value alleged by the plaintiff.</p>

<p>Upon a promise to pay a debt of the promisee, he can maintain an action for the whole amount before paying it.</p>

Action of contract on an account annexed, to recover §32.23 for cabbages sold and delivered.

<p>Action of contract for goods sold to the defendant, and delivered by his order to Jeremiah B. Wheeler since February 1854. The answer denied any sale to the defendant, or delivery to Jeremiah B. Wheeler by his authority.</p> <p>At the trial in the court of common pleas, before Perkins, J., the plaintiffs introduced evidence tending to show that Jeremiah B. Wheeler was engaged by the defendant to carry on a mill, and was directed by him to obtain the goods needed on his account at the plaintiffs’ shop; / and communicated this to J. L. Perkins, the plaintiffs’ head clerk, and obtained goods which were charged on the plaintiffs’ books to Jeremiah B. Wheeler; and that the defendant, on being afterwards told by the clerk what Jeremiah had said and done, said “ it was all right.”</p> <p>The plaintiffs then asked Perkins, Upon whose credit the goods were delivered to Jeremiah, and upon whom he relied for payment for them. The defendant’s counsel objected. But the judge allowed the question to be put, for the purpose of showing that, notwithstanding the charges on the books, the plaintiffs really gave credit to the defendant; and the witness answered that after his conversation with Jeremiah he relied upon the defendant for payment.</p> <p>The plaintiffs introduced evidence that Jeremiah B. Wheeler was, as they knew, a poor man, having but little property, if any; and one of them was allowed, against the defendant’s objection, to testify that Jeremiah was not in good pecuniary credit at the time of the sale of the goods, “ for the purpose of arguing to the jury from it, in connection with the other facts in the case, upon the probabilities of credit being given to so large an amount, under the circumstances, by him.”</p> <p>Charles B. Eaton, another clerk of the plaintiffs, who had charge of their books and settled their accounts, testified, without opposition, that in February 1854 he settled a previous account with Jeremiah B. Wheeler, for goods delivered (as the plaintiffs claimed) under the same agreement, by transferring it to the defendant, who by his agent, Holland Fan-, paid it, without objection ; and that one of the plaintiffs was present at that settlement. Farr, being called by the defendant, testified that the plaintiffs had no bill of Jeremiah B. Wheeler’s account, but said that Jeremiah had a “ pass book,” and if it was not all right they would make it so ; and so the witness allowed it. The defendant then asked, “ Did you settle that account because you considered Jonathan Wheeler liable ? ” This question was objected to by the plaintiffs and excluded by the judge.</p> <p>The defendant was allowed to prove all that occurred at and in connection with that settlement, and to read to the jury all the items of account settled, and in this manner it appeared that at the time of that settlement bills due from other persons were allowed to be transferred to and were paid for in the account of the defendant. The defendant thereupon offered to show that these persons were in the defendant’s employment, and were then in his debt. But the judge excluded the evidence.</p> <p>The defendant further offered to show by Farr that Eaton had inquired of him, after about $125 worth of goods had been delivered, as to the solvency of Jeremiah B. Wheeler, and had informed him that “ Jeremiah had run up considerable of a bill there.” But the judge ruled, “ that, so far as this was offered for the purpose of affecting the plaintiffs by Eaton’s conversations as their agent, it was not admissible, as the inquiry of Eaton did not appear to be a part of any transaction in which Eaton was engaged for the plaintiffs.”</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

Action of contract for timber sold and delivered. At the trial in the court of common pleas, it appeared that the plaintiff sold a quantity of timber to one Cleveland, who resold it to the defendants through their agent Shattuek. All of it was taken from the land upon which it was cut into an adjoining pasture, also belonging to the plaintiff, where it was measured and a portion of it carried away.

<p>Action of contract for money paid to the defendants for lumber beyond the lumber actually furnished by them to the plaintiff. Trial and verdict for the plaintiff in the court of common pleas, before Aiken, J., to whose rulings the defendants alleged exceptions. The case is stated in the opinion.</p>

Action of contract upon a negotiable promissory note for §83, dated November 28th 1855, and payable in six months from date at the Lancaster Bank to George W. Cushing, the plaintiff’s intestate. Answer, want of consideration.

<p>Action of contract upon a promissory note made by Henry D. Stone, and payable “ at Bank of Commerce, Boston,” to the defendant and indorsed by him. Answer, that the defendant indorsed the note for the accommodation of Stone; that after the indorsement, and before delivery to the plaintiffs, it was materially and fraudulently altered by inserting the words “ at Bank of Commerce, Boston ; ” and also that the note was void and the plaintiffs had no right of action thereon, because, when it was discounted, it was corruptly agreed between the plaintiffs and Stone that the plaintiffs should take a greater rate of discount than six per cent, a year, calculated according to the established rules of banking, adding the rate of exchange between Worcester and Boston.</p> <p>At the trial at April term 1858 before Merrick, J., it appeared that the note was indorsed and delivered by the defendant for Stone’s accommodation, and that the plaintiffs were the holders of the note and had duly demanded payment of Stone, and given notice to the defendant as indorser.</p> <p>The defendant offered evidence that the 'plaintiffs discounted the note for Stone, and received for discounting it a greater rate of interest than six per cent, a year, according to the established rules of banking, and in addition to the rate of exchange between Worcester and Boston. But the judge, being of opinion that this would not, if proved, render the note void, rejected the evidence.</p> <p>The defendant introduced evidence that the note had been fraudulently altered by Stone, as alleged in the answer. The plaintiffs, to rebut this, called Stone, who testified that no alteration whatever had been made in the note since the defendant’s indorsement. In order to show that Stone was testifying under a strong apprehension of criminal proceedings against him on account of such an alteration, the defendant asked him, upon cross-examination, whether he did not leave his residence in Worcester and conceal himself shortly after the maturity of the note; to which he replied that he did run away from Worcester about that time; that he did so to avoid being arrested on civil suits, which he feared or expected would be commenced against him; and afterwards, for the purpose of avoiding arrest, travelled in different parts of the United States; but, having heard that he had been accused of forgery, determined to return at once to Worcester; and on the Saturday evening previous to the trial of this action, was arrested at Springfield, while on his way to Worcester. To show that at the time he absconded he had ample means of procuring bail in any civil suits then likely to be instituted against him, the defendant asked him what sum of money he had in his possession at the time of his departure from Worcester. This question was objected to by the plaintiffs; and excluded by the judge as immaterial.</p> <p>The defendant called witnesses in relation to the general reputation of Stone for truth and veracity, who testified that it was bad. The plaintiffs in reply called several witnesses upon the same subject, who testified that until the time of his failure in January last his general reputation for truth and veracity had been good; that since that time it had been bad. The answers of these witnesses as to what had been his general reputation before his failure were objected to by the defendant; but admitted by the judge.</p> <p>One of the plaintiffs’ witnesses testified that the general reputation of Stone for truth and veracity was still good, and was asked, on cross-examination, what was Stone’s reputation as a man of integrity, and whether the witness had ever heard his integrity questioned ; but these questions, being objected to by the plaintiffs, were excluded.</p> <p>The plaintiffs called one Southgate to testify as an expert, that in his opinion the note in suit had not been altered; but that the whole of the written part of it, including the words, “ Bank of Commerce, Boston,” was written at one and the same time. After full examination and cross-examination of the witness, the judge decided that it was satisfactorily proved that the witness was a person of skill and experience upon this particular subject, and capable of forming an opinion relative thereto as s person of skill and experience; and that his opinion might therefore be asked, after sufficient inspection and examination of the note; and he testified that in his opinion the whole of the written part of the note in suit was written at the same time. The defendant’s counsel objected that it was not competent for the plaintiffs to give in evidence the opinion of any expert on this subject; and also that the evidence upon which the judge decided that Southgate was an expert was insufficient. But these objections were overruled.</p> <p>The defendant further contended that he had a right to have the evidence upon this subject reported, or stated in a bill of exceptions, that the whole court might determine whether any evidence had been adduced which would authorize the admission of the witness as an expert. But the judge declined to report the evidence, or to allow it to be stated in the bill of exceptions.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

Action of contract against the indorsers of a negotiable promissory note, dated December 11th 1856, and payable in one year. Trial before Merrick, J. and verdict for the plaintiff, subject to the opinion of the court upon these facts : Adams P. Barnes took the note for valuable consideration soon after it was made, and died on the 15th of November 1857.

<p>An indorser, paying a note which the holder has proved in insolvency against the maker’s estate, may take an assignment of the debt proved and receive dividends upon the whole amount thereof, although he holds security for his indorsement from a prior indorser to nearly the amount of the note; and although that prior indorser took the security from the maker in fraud of the insolvent laws, and has therefore been obliged to pay the value thereof to the maker’s assignee in insolvency.</p>

<p>Bill in equity against the assignees in insolvency of Waterman A. Fisher. The bill alleged that Benjamin Wadsworth, having previously made promissory notes to the amount of $3300, payable to Fisher or order, and secured by thirty three mortgages of different parcels of real estate in this county, which were held by Fisher, and a large portion thereof overdue, which Wadsworth was unable to pay, on the 15th of April 1857, in order to enable Fisher to raise a sum of money on those notes and mortgages, agreed that Wadsworth should make a promissory note for $600, payable to Fisher’s order in five months; “ that Fisher might get the note discounted, and it should be substituted for the same amount of said notes secured by said mortgages, and that Wadsworth should pay said note at maturity to the holder thereof, and such payment should be considered a payment and discharge of said mortgages to the amount thereof, and said mortgages should be held as collateral security for said note for $600, and should not be discharged or cancelled until that was paid; ” that pursuant to this agreement Wadsworth made a note, which Fisher indorsed to the plaintiffs, and which, notwithstanding due demand and notice, was still unpaid; that Wadsworth had taken the benefit of the insolvent laws and received a certificate of discharge; that Fisher also, in October 1857, applied for the benefit of the insolvent laws, and his estate was assigned to the defendants, who had since received from the proceeds of the mortgages a larger amount of money than the amount of this note and that the mortgages were held in trust by Fisher, and by the defendants as his assignees, to secure the payment thereof.</p> <p>The defendants demurred to the bill, as not making out a case which entitled the plaintiffs to relief in a court of equity, or showing that the defendants held the mortgages in trust for the plaintiffs, or that the plaintiffs were entitled to have the mortgages enforced and applied towards the payment of said note.</p>

<p>A. mortgagee, who has assigned the mortgage and indorsed the mortgage note, may, upon the indorsement of the note back to him, and the cancellation of the assignment before it has been recorded, maintain a writ of entry to foreclose the mortgage.</p>

<p>On a writ of entry to foreclose a mortgage, which the defendant pleads has been paid, if the jury find that nothing is due upon the mortgage, the plaintiff cannot recover, although the mortgage was actually paid after breach of condition.</p> <p>On a writ of entry to foreclose a mortgage, the defendant, under a bill of particulars filed by order of the court, setting forth an account between the parties and a balance due the defendant, may introduce evidence that it was agreed between the plaintiff and himself that the sum due to the defendant on this account should be applied to the payment of the mortgage note.</p>

<p>Bill in equity to redeem land in Templeton from a mortgage. The case is stated in the opinion.</p>

<p>A testator appointed two of his brothers executors of his will, and did “ fully authorize them to take upon themselves the trust hereby created, and to do and execute whatever is herein ordered or authorized to be done; and, if necessary for the execution thereof, to sell at public or private sale any part or all my real estate, and make, execute and de liver deeds to convey the same.” One of the brothers declined the trust, and the other undertook the duties of executor. Setd, that he had power to sell and convey the estate, if necessary for the payment of debts and legacies, and might do so at private sale and by a simple warranty deed.</p>

<p>The title of the owner of land bounding upon a highway is presumed to extend to the cen tre of the way. But this presumption is rebutted by the production of a deed from which he derives his title, granting the land to the side of the way only.</p> <p>The use, by the owner of land bounded on the side of a highway, of the land between his own and the travelled part of the way, by moving a wall, planting trees, cutting brushwood and digging up the soil for fifteen years, gives no right to maintain an action of tort in the nature of trespass quare clausum fregit, for the interruption of such use and possession by another person.</p> <p>Xn an action for breaking and entering the plaintiff’s close, under an answer denying that the close belonged to the plaintiff or that the defendant entered it, the defendant may show that the plaintiff had only an easement in it.</p>

<p>Petition by Issachar J. Elliott, Prince Davis and Lovan B Davis his wife, for leave to file a bill of review against Sumne Balcom and George W. Tourtellot.</p> <p>The petition alleged that on the 3d of October 1850 Gran’ and Ensign had certain real estate in Webster set off to then on execution against Sumner Bates, and on the 11th of Octobe. sold all their rights under that levy to Tourtellot; that Tourtel lot by quitclaim deeds for good consideration conveyed a par? of the premises to Elliott on the 2d of November, and anothe part to Lovan B. Davis on the 4th of December 1850 ; that on the 21st of October 1850 Bates’s right of redeeming the prem ises from the levy in favor of Grant and Ensign was attached on mesne process in favor of Lyman Sheldon, and on the 16th of August 1851 sold on execution to Balcom, who on the 21st of September 1851 filed his bill in equity against Tourtellot, Elliott and Lovan B. Davis, describing her as “ yeoman,” for redemption from the levy, in which he set forth his own title, the levy of execution by Grant and Ensign, their conveyance to Tourtellot, Tourtellot’s conveyances of parts of the estate to Elliott and Lovan B. Davis, and his seisin of the rest; prayed the court to ascertain how much was due and to whom, and offered to pay into court the amount found due, within such time as the court should order; that on this bill a subpoena was issued and served on all the defendants, of whom Tourtellot appeared and answered, and Elliott and Davis did not appear, and the bill was taken for confessed against them by order of the court, and a final decree made, reciting that it appeared to the court “ that the said Lovan B. Davis by an instrument in writing by him signed ” disclaimed all right to any portion of the redemption money, and ordering that Balcom, upon paying §3259.18 to the clerk for the use of Tourtellot, should have judgment and execution as at common law against Elliott and Davis for seisin of the portions conveyed to them respectively, and against Tourtellot for seisin of the rest of the premises. The petition also contained the following allegations:</p> <p>1st. That Lovan B. Davis, at the time of filing the bill in equity and ever since, was the wife of Prince Davis, who at the time of the proceedings in the suit resided within the Commonwealth, and was entitled to a life estate in the lands conveyed to her by Tourtellot, and, upon redemption of the same, to a share in the redemption money, and should have been made a party to the bill.</p> <p>2d. That Elliott, supposing the facts stated in the bill to be true, and knowing that, if they were, he would be entitled to a proportion of the redemption money by virtue of the deed to him, which was set forth and its validity and legal effect not denied in the bill, suffered the bill to be taken for confessed against him; yet the decree directed the whole money to be paid to Tourtellot, who was entitled to a part only.</p> <p>3d. That Lovan B. Davis was induced to sign the disclaimer by the fraudulent misrepresentations of Sheldon, and without any knowledge of its contents, either on the part of herself or her husband, who attested it, until long after the decree.</p> <p>4th. That since the decree Elliott had learned for the first time that Tourtellot in his answer represented that Elliott had paid no consideration for the deed from Tourtellot to him and had agreed to claim no part of the redemption money; that this representation was false; and that Elliott did pay from §1500 to §2000, by obtaining from Lavina Bates a release of a claim to that amount which she held against Tourtellot.</p> <p>5th. That both Tourtellot and Balcom acquired their titles as agents and in secret trust for Sheldon.</p> <p>The petitioners upon all these grounds prayed for leave to file a bill of review and for further relief.</p> <p>The respondents answered severally, objecting that the facts alleged, if true, were not sufficient to warrant granting a review; denying the truth of the allegations made as grounds for a review; and alleging that Elliott paid no valuable consideration for the deed to him, and agreed to claim no part of the money if the premises should be redeemed; that Elliott came to Worcester with counsel and inspected the bill in the clerk’s office, and, upon being informed of the probable expense of putting in an answer, declined having anything to do with it; that the disclaimer of Mrs. Davis was given voluntarily and knowingly, and with the knowledge and assent of her husband, and that the deed to her was a mere release of Tourtellot’s interest in a portion of the premises to which she already had a paramount title.</p> <p>Balcom also alleged that he had sold the estate, and great injustice would be done to him and to the purchaser if a review should be granted and the decree amended or reversed; and that the paramount title of Mrs. Davis to part of the land had come to his knowledge since the decree, and he had thereupon procured reconveyances thereof to himself, and now offered a deed thereof to her.</p> <p>The case was argued at October term 1855 upon the petition and answers, with an agreement that all facts alleged in the petition and not denied were true.</p>

<p>Francis E. Heath and Miriam Y. Heath were indicted for the murder of their father, Joshua Heath, and tried at Lowell at April term 1858, before Justices Dewey, Metcalf and Thomas. One question at the trial was whether the defendants were of sufficient intelligence to be responsible for a homicide ; and upon this point, and the burden of proof thereon, the court gave the following instructions in the charge then delivered by</p>

<p>A bill of a bank incorporated by the laws of this state is a promissory note, within the meaning of the Rev. Sts. c. 127, § 2, although not payable in terms to any one named oi to bearer.</p> <p>A criminal case should not be brought to this court upon exceptions to the overruling of a demurrer to the indictment by the court of common pleas, until after final judgment in that court.</p>

Indictment for uttering and passing “ a certain false, forged and counterfeit paper, purporting to be a bank bill,” and “ in the similitude of the bills payable to the bearer thereof, and issued by the president, directors and company of the City Bank, then being a banking company established in said commonwealth, to wit, at Worcester in the county of Worcester,” a copy of which was set out in the indictment.

<p>On the trial of a complaint for keeping open a shop on the Lord’s day, evidence is not rendered inadmissible for the Commonwealth by having been also introduced in support of an indictment against the defendant for unlawfully selling intoxicating liquors.</p> <p>A shop is kept open on the Lord’s day, within the Rev. Sts. c. 50, § 1, if all who please can obtain access thereto to buy, although the entrance is closed.</p> <p>On the trial of a complaint for keeping open a shop on the Lord’s day, the Commonwealth is not confined to the particular day named in the indictment.</p> <p>On the trial of a complaint for keeping open a shop on the Lord’s day, the judge instructed the jury that they must be satisfied that the acts alleged were done on the Lord’s day; that it was for them to decide upon the whole evidence whether the acts were acts of necessity and charity; and that if there was a reasonable doubt in their minds on this point, they must acquit the defendant; but refused to instruct them that it was incumbent on the government to show when the sun set on the day relied on. Held, that the defendant had no ground of exception.</p>

Complaint on St. 1855, c. 215, § 15, for two unlawful sales of intoxicating liquor to John McGary. At the trial in the court of common pleas, before Sanger, J., there was evidence that the liquor was sold on the Lord’s day, and the defendant requested the court to instruct the jury that the offence, if any, having been committed on the Lord’s day, the defendant could not be convicted on this complaint. But the court declined so to rule.

<p>Allowing the district attorney, on the trial in the court of common pleas of a complaint lor unlawfully selling intoxicating liquors on certain recent days, to ask a witness whether he had obtained liquors of the defendant before the trial before the justice, or since the passage (more than two years before) of the act on which he is prosecuted, and before the trial before the justice, is" no ground of exception, unless the defendant at the trial objects to the question as covering some time between the date of the complaint and the first trial.</p>

Complaint on St. 1855, c. 215, § 15, to a justice of the peace for unlawful sales of intoxicating liquors.

Complaint on St. 1855, c. 215, § 15, to a justice of the peace, for unlawful sales of intoxicating liquor. At the trial in the court of common pleas, before Mellen, C. J., the Commonwealth, to show that the defendant had control of the premises where the liquor was alleged to have been sold, called a witness to show that once, when he was there, he saw the defendant’s wife come in from another part of the premises.

<p>Complaint to the police court of the City of Lowell for an unlawful sale of intoxicating liquors. The papers transmitted to the court of common pleas were headed “ Lowell Police Court; ” the first, being the bill of costs, was signed “ S. P. Hadley, Jr., Clerk P. C.; ” and each was certified at the bottom “ A true copy, attest: S. P. Hadley, Jr., Clerk.”</p> <p>At the trial in the court of common pleas, the defendant contended that none of the papers in the case, except the complaint, should go to the jury, when they retired to consider their verdict. Yet Bishop, J. permitted the jury to take all the papers; but instructed them that the complaint only should be referred to as setting out the offence charged, and that no part of the record could be used as evidence of the offence.</p> <p>After conviction, the defendant moved in arrest of judgment, that the complaint was not properly certified from the court below. This motion was overruled, and the defendant alleged exceptions.</p>

<p>On the trial of an indictment on St. 1855, c. 215, § 17, for being a common seller of intoxicating liquors, evidence that the defendant’s shop contained counters, on one of which was “ a pitcher containing something that looked like ale or beer,” and “ a pump which looked like a beer pump,” is admissible for the Commonweath.</p> <p>An indictment for being a common seller of intoxicating liquors on a day named, and from that day to the day of finding the indictment, is supported by proof of three separate sales within the time alleged.</p>

The defendant, being indicted by the name of Alfred E. Gale, pleaded in abatement that his name was Alfred Atwood Ezra Gale, by which name he had hitherto been known and called. The district attorney replied that long before and at the time of the preferring of the indictment he was and still is known as well by the name of Alfred E. Gale as by the name of Alfred Atwood Ezra Gale; upon which issue was joined.

<p>A complaint for a sale of intoxicating liquor to John Hemessey is not supported by evidence of a sale to John Hennessey, if the jury do not find that the two names are usually sounded alike.</p>

<p>The giving in evidence by one party of part of a conversation entitles the other party to introduce so much of the rest of it only as relates to the same subject.</p> <p>On the trial of a complaint for unlawfully selling intoxicating liquor, a witness testified that he and another man went into a shop and bought liquor, and after they had come out his companion told him that the name of the seller was that of the defendant. Held, that this did not entitle the defendant to ask the witness what else was said, or why they went there.</p>

<p>Indictment, found at February term 1858 of the court oí common pleas, for being a common seller of intoxicating liquor at Natick, from the 1st of August 1857 to the day of finding the indictment.</p> <p>At the trial at the same term, before Mellen, C. J., the Commonwealth introduced evidence of sales of liquor by different persons at a public house in Natick, called the Lake Shore House; and, to show that the defendant kept that house during the time covered by the indictment, offered to prove that the defendant, about a year and a half before the time of the trial, said that he was repairing this house, and that it was about as expensive as building a new one. The defendant objected to this evidence, but the judge admitted it.</p> <p>For the purpose of showing that the defendant owned and occupied this house, the Commonwealth was allowed, against the defendant’s objection, to give in evidence an article, purporting to be signed by the defendant, published in the Natick Observer, a newspaper published at Natick, on the 2d of January 1858, an extract from which is copied in the margin.* George O. Willard, the editor of that newspaper, had previously testified that after the publication of this article he had a conversation with the defendant about a series of articles furnished for publication and purporting to come from the defendant,' but the defendant did not give him any of them; that the defendant asked him if he wanted another article, and he replied he did not; that he set up the article, but could not say that the printed impression was an exact copy, although ho made it as nearly so as he could ; that he supposed the original manuscript was burnt, and that he did not know whether it was in the defendant’s handwriting.</p> <p>The defendant offered to prove that the manuscript was not in his handwriting. But the judge excluded the evidence ; and refused to instruct the jury that in order to bind the defendant by this article, they must be satisfied that he wrote it, or ordered it to be written; and instructed them that if the article was not written by the defendant or by his authority, but he afterwards ratified it, the jury would regard it as his.</p> <p>The defendant further requested the judge to instruct the jury that as there was no evidence of sales of intoxicating liquor after the 1st of December 1857, the publication of the article in the Observer on the 2d of January 1858, being in general terms, had no tendency to show that the defendant was keeper of the Lake Shore House from August 1st to December 1st 1857. But the judge declined so to rule, and ruled that the article had a legal tendency to show such keeping of the house.</p> <p>The jury found the defendant guilty, and he alleged exceptions.</p>

Scire facias, returnable at February term 1858 of the court of common pleas, on a recognizance taken in that court at October term 1855, conditioned that Austin, having been convicted at that ,court of selling intoxicating liquors in violation of St. 1855, c. 215, and having alleged exceptions, which had been allowed, “ shall personally appear before the supreme judicial court next to be holden for said county of Middlesex, and then and there prosecute his said exceptions…

<p>Writ of entry to foreclose a mortgage, which, as given in evidence at the trial in the court of common pleas, was in the common form of a deed of warranty, beginning, “ Know all men by these presents, that I, Robert R. Turner, of Charles-town,” and in his name alone throughout until the last clause, which was in these words: “ In witness whereof I, the said Robert R. Turner, and my wife, Pamelia W. Turner, have hereunto set our hands and seals the fifth day of November in the year of our Lord eighteen hundred and fifty one.</p> <p>“ Robert R. Turner, [Seal.]</p> <p>“ P. W. Turner, [Seal.] ”</p> <p>Before this mortgage was made, the defendant a.nd his wife had executed and recorded a deed of the premises as a homestead, pursuant to the St. of 1851, c. 340; and the defendant objected that the mortgage was invalid, because the wife had not joined in the conveyance, within the meaning of § 6 of that statute.</p> <p>But Mellen, C. J. ruled, “ for the purposes of the trial, that if the jury found that ‘ P. W. Turner,’ whose name appeared on said deed, was the wife of the mortgagor, and that she wrote her name and executed the mortgage deed as it there purports to have been written and executed, that was in point of form a sufficient joining in the mortgage deed with her husband, the mortgagor, to defeat the homestead title.”</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions, which were argued at October term 1857.</p>

<p>Opon the recovery of judgment against principal and surety on a promissory note, the principal gave a note to the surety, who indorsed it, had it discounted and applied the proceeds to the payment of the judgment. The principal nvt paying the second note at maturity, the surety paid it by giving a third note (which he afterwards paid) made by himself and indorsed by the principal. Held, that the surety could recover of the principal the amount of the second note; and that his right to do so was not affected by his having said before the third note fell due that he did not know whether the second note was of any value.</p> <p>A surety to whom the maker of a promissory note has assigned a bond for a deed may, upon being obliged to pay the note, recover the amount of the note from a prior party, in the absence of evidence that he could by due diligence have obtained anything by enforcing the bond.</p>

<p>A town may appropriate money to indemnify its school committee for expenses incurred in defending an action for an alleged libel contained in a report made by them in good faith and in which judgment has been rendered in their favor.</p> <p>A warrant for a town meeting “to hear the report of any committee heretofore chosen and pass any vote in relation to the same,” is sufficient to enable the meeting to vote sums recommended b3r a committee appointed at a former meeting, the warrant for which fully set forth the business to be brought before it.</p>

<p>In an action against a town for injuries sustained from a defect in a highway, evidence that other persons than the plaintiff passed and repassed the place "in safety is inadmissible for the town.</p> <p>Evidence that a highway was in the usual condition of other country roads is inadmissible in defence of an action against a town for damages from a defect therein.</p> <p>Driving a sleigh without the bells required by the Rev. Sts. c. 51, §§ 2, 3, does not make the driver liable, nor exempt the town from liability, for injuries caused by collision with ais sleigh upon a defective highway, unless his neglect contributes in some degree to the accident.</p>

<p>Action of tort for breaking and entering the plaintiff’s close, bounded northerly on a passage way, and southerly on Merrimack Street, in Lowell, and building and maintaining a drain through it. Writ dated September 9th 1856.</p> <p>The answer denied the plaintiff’s allegations, and alleged “that the city council in the year 1849, by resolution, laid out, according to law, a sewer in the rear of the Museum Building, so called, extending through a passage way” (the close in question) “ to Merrimack Street, and there entering another common sewer or drain ; that said sewer was laid out on the petition of the then owners of the close now claimed by the plaintiff, and by and with the consent of the owners and abutters; and said sewer was, according to law, laid through said passage way, deep in the ground below the cellars, on notice to the abutters, in the year 1850, before the plaintiff -was the owner of said close; and that the sewer as laid is of no damage to the plaintiff.”</p> <p>At the trial before Thomas, J., it appeared that the close in question was a private passage way between two buildings, and had formerly belonged to the proprietors of the Freewill Baptist Meeting-house, and been conveyed away by them in two lots, the dividing line between which ran through this passage way ; that the conveyance of one of the lots having been declared void, the title vested in certain persons as trustees for the creditors of the grantors, who held it during the year 1849 and conveyed it to the plaintiff in April 1850; and that those trustees acquired title to the other lot after the sewer was built, and conveyed it to the plaintiff in September 1852.</p> <p>The defendants admitted the building and maintenance of the sewer, and in justification thereof introduced copies of the following proceedings :</p> <p>1st. A petition. of Walter Kidder and others to the city council of Lowell on the 29th of May 1849, representing that there was in the rear of the museum a pool of stagnant water, which was a nuisance, and asking them to “ consider the propriety of causing the same to be drained; ” which was referred by the city council to the joint committee on sewers and drains.</p> <p>2d. The report of that committee, the material parts of which were as follows : “ Your committee gave public notice to all persons and corporations known by them to be interested in the premises, to appear before said committee ” at a certain time and place, “ by publishing the substance of said petition three weeks successively” in three newspapers published in Lowell, “ the last publication having been seven days prior to the time appointed for the hearing; and by causing copies of said notice to be left by Daniel G. Greenleaf, constable, with all persons and corporations within the city, known to your committee to be interested in the premises, and by posting copies of said notice at the city hall and at the post-office; which notices, and the service of the said constable thereon, are certified by said constable, and put bn file in the office of the city clerk. At the same time and place,, agreeably to notice, your committee attended, and heard all persons interested in the premises, who appeared and expressed a desire to be heard. No person appeared to object to the laying out and building of a sewer as petitioned for, but several of the abutters appeared and advocated the necessity of its construction.” The committee reported that common convenience and necessity required that a common sewer should be laid out and built from Merrimack Street northwardly “through a passage” (being the premises in question) to another passage way in the rear of the museum building; and appended to their report “ a schedule of the names of owners of land abutting upon said sewer, with the length of abutting lines.” No damages were awarded to any one for building and maintaining this sewer, nor did it appear that the subject of damages was acted upon by the committee.</p> <p>3d. Resolutions of both branches of the city council, recommending the construction of the sewer, and vote of the board of aldermen that it should be constructed, both passed on the 2d of January 1850.</p> <p>The only evidence of notice of these proceedings to the owners or tenants of the premises, was Greenleaf’s return upon the notice to parties interested to appear before the committee on sewers and drains, that he had served it by delivering copies thereof to certain other persons, and leaving copies at the places of abode of .others, and posted copies at the city hall and post-office ; and his testimony “ that he had no doubt in his own mind that his return as to such service was true, but could not recollect any such service as an act of memory, and the return did not refresh his memory upon that point.”</p> <p>The sewer was built in the summer of 1850, and the plaintiff, being the owner and occupant of part of the premises, forbade those having charge of the work to enter upon the premises to dig up the soil or to construct the sewer.</p> <p>Upon these facts, the presiding judge, inclining to the opinion that the action could not be maintained, took a verdict for the defendants, and reported the case.</p>

Action of tort for damages occasioned by an obstruction in a culvert, running under River Street in Lowell, to the plaintiff’s dwelling-houses on the southerly side, and his shop and stable on the northerly side of that street. The writ was dated September 9th 1856, and contained only a general .allegation of damages.

<p>Bill in equity, filed at April term 1857, alleging that the plaintiff' for forty years had been seised in fee of certain lands in Cambridge; that she had incurred great expense in procuring a survey and plans thereof, and constructing and grading streets thereon, intending the same for private residences; that on the 10th of September 1851 she sold and conveyed by warranty deed (duly recorded) to Artemas White a lot of this land, subject to these restrictions : “ That if the said Artemas White, his heirs or assigns, shall suffer any building to stand or be erected within ten feet of Lambert Avenue, or shall use or follow, or suffer any person to use or follow, upon any part thereof, the business of a taverner, or any mechanical or manufacturing, or any nauseous or offensive business whatever, then the said grantors, or any person or persons at any time hereafter, who at the time then being shall be a proprietor of any lot of land, represented upon said plan, east of lot No. 27 and north of Lambert Avenue, shall have the right, after sixty days’ notice thereof, to enter upon the premises with his, her or then servants, and for* cibly, if necessary, to remove therefrom any building or buildings erected or used contrary to the above restrictions, and to abate all nuisances, without being liable to any damages therefor, except such as may be wantonly and unnecessarily done.” The bill further alleged that White erected a stable on this lot, and kept horses for hire and at livery, against the remonstrance of the plaintiff, and to her nuisance and injury; that the defendants had since by mesne conveyances acquired White’s title, and enlarged and added to the stable, and were building urther additions, and kept and intended to keep a much larger number of horses, contrary to the reservations and restrictions in the deed, and to the injury, nuisance and annoyance of the plaintiff, and to the injury of a lot with a dwelling-house thereon, still owned and occupied by the plaintiff, on the opposite side of the same street and within the tract mentioned in the restrictions; and that the defendants had laid down rails and were proceeding to construct a turntable in Lambert Avenue.</p> <p>The bill prayed for an injunction to restrain the defendants from erecting additional stables, or laying rails or constructing a a turntable in the street, or keeping a stable for horses upon the premises, and for an abatement of these nuisances.</p> <p>The defendants in their answer admitted so much of the allegations of the bill, as related to the laying down of rails and the construction of a turntable, but alleged that immediately after the filing of the bill they entirely removed and abated the same; and they demurred to the rest of the bill, upon grounds which are sufficiently stated in their argument.</p>

<p>In an action for taking the plaintiff’s horse and wagon, and the contents of the wagon, an answer which alleges that the defendant, as an officer, found them in the act of transporting intoxicating liquors in violation of law, and detained them only so long as was</p> <p>. legal and necessary, and in other respects denies all the allegations of the declaration, admits aprima facie case; and obliging the plaintiff to introduce further evidence is ground of exception, although the defendant afterwards introduces evidence in his own justification.</p> <p>In an action against an officer for seizing, under St. 1855, c. 215, § IS, a horse and wagon as having been engaged in the transportation of intoxicating liquors, the defendant cannot introduce evidence, even by cross-examination of the plaintiff’s witness, that the plaintiff was engaged in the sale of intoxicating liquors before that statute took effect.</p> <p>In an action against an officer for seizing the plaintiff’s horse and wagon under St. 1855, c. 215, $ 13, on the ground that they were used in the transportation of intoxicating liquors, evidence that the defendant had reasonable cause to believe that- they were so used is incompetent.</p> <p>An officer who seizes property under St. 1855, c. 215, § 13, without a warrant, for being employed in the illegal transportation of intoxicating liquors, and does not procure a warrant within a reasonable time afterwards, is liable as a trespasser.</p>

<p>Action of tort, brought in the police court of Cambridge by an inhabitant of that city against an inhabitant of Somerville, to recover penalties for setting a seine in Little Brook, a stream between Cambridge and Somerville, in which the tide ebbs and flows, and emptying into Mystic River; contrary to the provisions of the Sts. of 1788, c. 68, and 1820, c. 67. The defendant appealed from a judgment of the police court to the court of common pleas, and there moved that the action be dismissed because the police court of Cambridge had no jurisdiction thereof. The court of common pleas ordered the action to be dismissed, and the plaintiff appealed. '</p>

<p>Since the St. of 1857, c. 305, the complainant in a bastardy process is a competent witness to prove her accusation of the respondent during her travail; and this fact, so proved, is corroborative evidence in her favor.</p>

<p>In an action upon a recognizance to prosecute an appeal, upon which judgment has been rendered in the appellate court, and execution issued and returned unsatisfied, a subsequent payment to the officer is inadmissible in defence, without evidence that he was authorized by the plaintiff to receive it.</p> <p>A declaration upon a recognizance to prosecute an appeal, which does not aver that the recognizance has been entered of record in the appellate court, cannot be first objected to for that cause at the argument upon a bill of exceptions.</p>

Scire facias against Nathan Haynes as trustee in foreign attachment of Charles E. Underwood. The officer returned upon the execution in the original suit that he had made demand upon Haynes to pay over all goods and effects belonging to Underwood in his hands, but that he had wholly neglected and refused so to do, and the execution was returned unsatisfied. Answer, that the defendant did offer to pay the amount in his hands to the officer, and the officer refused to take it.

Audita querela, in which the plaintiff complained that the defendant, in an action of tort, commenced in the court of com mon pleas, in which he recovered judgment in this court against the plaintiff, fraudulently procured more costs to be taxed for term fees in both courts than were allowed by law, and obtaining execution therefor. The defendant demurred to the writ.

Action of tort for the conversion of a watch and chain. At the trial in the court of common pleas, it appeared that the watch and chain had been purchased in 1853 by the female plaintiff during coverture, with money earned by her.

<p>Action of tort. The parties submitted the case to the decision of the court of common pleas on an agreed statement of facts. After judgment there for the defendants,"the plaintiffs appealed to this court, and now moved that the statement of facts might be discharged and they become nonsuit.</p>

<p>Action of contract, entered on the 21st of July 1856 in the police court of Lowell, from whose judgment the defendant on the 6th of August 1856 appealed to the court of common pleas, and there filed a copy of the record of the police court, which stated that on the 4th of August 1856, “ issue being joined, and the parties fully heard and understood by said court, it appears to said court that the defendant owes the plaintiff $24.98, in manner and form as the plaintiff hath declared. It is therefore on the sixth [this fourth] day of said August considered by said court that the said plaintiff recover against the said plaintiff [defendant] the sum of” $24.'98 and costs.</p> <p>After the entry of the case in the court of common pleas, the police court, upon the plaintiff’s motion, amended its record, by substituting the words in brackets, and adding the following: “ And entry was made by the clerk upon the docket as follows: Aug. 4. Trial and judgment for plaintiff for $24.98.” And the plaintiff filed a copy of the amended record in the couit of common pleas.</p> <p>By the Rev. Sts. c. 87, § 43, the civil terms of the police court are held once a fortnight, and one of them began on the 4th and ended on the 6th of August. By a rule of that court judgments are entered as of the last day of the term, unless otherwise ordered.</p> <p>In the court of common pleas, the plaintiff moved to dismiss the appeal, and, that motion being overruled, alleged 'tc°d* tians.</p>

Action op contract against Alvin Adams and three others described in the writ as “ expressmen and late copartners under the name and style of Adams & Company,” upon the following bill of exchange: “ Adams & Co. Express and Banking Office, San Francisco. February 15, 1855. No. 637.25. Exchange for $850.

<p>If on the trial in the court of common pleas of an action under St. 1852, c. 312, § 3, against parties severally liable on a promissory note, the jury return a verdict in favor of one of them, without finding any verdict as to the others, exceptions to rulings at the trial in favor of that one may be entered in this court, before the case is disposed of as to the others in the court below.</p> <p>Notices of nonpayment of a promissoiy note, addressed to all the indorsers respectively, and inclosed in a letter to the last indorser, are sufficient to charge the prior indorsers, although the last indorser was only a collecting agent of the owner and never received the letter.</p>

<p>The alteration of a note by the payee without the knowledge of the maker, but without any fraudulent intent, and merely to correct a mistake and make the date what the parties intended that it should be, does not avoid the note in the hands of an indorsee.</p>

<p>In an action upon a bond given by a judgment debtor for the liberty of the prison limits, the plaintiff has the burden of proving a breach.</p>

<p>In an action by the purchaser of a chattel against an officer for attaching it as the property of the. vendor, the defendant cannot, under an answer simply denying the plaintiff’s property, prove that the sale was fraudulent and void against creditors.</p>

Action of contract on a promissory note, the making of which the defendant admitted, but filed an account in set-off. At the trial in the court of common pleas, the plaintiff being a witness, his counsel, disclaiming any inquiry as to any statement made in reference to a compromise, asked him if the defendant ever said anything to him about a settlement.

<p>The solvency of a debtor is inadmissible in evidence of the payment of his debt. But even after the rejection of such evidence when offered, the defendant cannot except to being asked on cross-examination about the amount, and about his taking the benefit of the insolvent laws.</p> <p>In an action to recover for work done under a special contract, the jury were instructed that if the work had been only partly done, and the defendant had availed himself of the plaintiff’s work, the plaintiff might recover what the work was reasonably worth to the defendant. Held, that the omission to instruct the jury that the plaintiff must have unintentionally failed to finish the work, and that they should deduct what it would cost the defendant to finish it according to the contract, was ground of exception.</p>

<p>Action of contract upon a judgment obtained in the court of common pleas in 1841, in an action for money paid by the plaintiff to the defendant’s use in 1835. The only defence relied on was a certificate of discharge granted to the defendant in 1857, according to the St. of 1838, c. 163, § 7, under proceedings in insolvency, in which neither the original claim nor the judgment was proved. The parties, both of whom were citizens of the Commonwealth, submitted the case to the decision of the court upon these facts.</p>

Action of tort for breaking and entering the plaintiff’s close, and cutting, carrying away and converting to the defendant’s use wood and timber.

Trustee process. The alleged trustees in their answers, upon which the case was argued, disclosed that in January 1856 they were appointed trustees of Division No. 112 of the New England Protective Union, formed for the purpose of buying groceries and other supplies for family use and selling them to the members and others, the capital of which was owned equally by the members, and the surplus, if any, to be divided among them ; that they did not know whether the principal…

Writ of entry to foreclose a mortgage of land in Dracut, made on the 23d of January 1854, to the trustees of the Merrimack Mutual Loan Fund Association, which was not then incorporated, and by them assigned to the plaintiff on the 19th of May 1856. Pleas, nul disseisin ; that the bond secured by th mortgage was usurious; that the assignment was unauthorized and void; and that the plaintiff could not maintain this action.

<p>Writ of entry to recover possession of three shops under the demandants’ meeting-house. The tenants pleaded nul disseisin, and specified in defence a lease from the demandants.</p> <p>, At the trial before Thomas, J., the tenants introduced an indenture, dated February 7th 1856, whereby the demandants “ do lease, demise and let ” to the tenants “ three stores ” under the demandants’ meeting-house, “ to be used as dry goods stores; provided that said lessees erect, complete and finish, in a good and substantial and workmanlike manner, and in strict conformity and keeping with the plans and specifications of the architect, Mr. James H. Rand, a new front to said stores at their own expense, the glass used in the same being of the best French plate double thick glass, similar to that used in the stores under the city hall; and provided further, that no fuel but anthracite coal shall be used in said stores; that all repairs shall be made by said lessees; and that this indenture shall be forfeited or not, at the option of the lessors, by the infringement of any one of its provisions; ” to have and to hold the premises for the term of ten years from the date hereof, at a yearly rent of $1000, payable quarterly in advance, beginning on the 1st of March 1856.</p> <p>The demandants contended that the provisions as to repairs and alterations of the premises, and the glass in the windows thereof, were all conditions precedent, a compliance with which must be shown in order to give the tenants any estate in the premises. But the judge ruled otherwise, and instructed the jury “ that to enable the demandants to recover, they must show a breach of the condition of the lease, and an entry on the premises claiming a forfeiture; that the burden was on them to show that the glass actually used by the tenants was not such as was described in the lease ; that this provision required the best quality or kind of thick French plate glass; that no question had been made as to the thickness of that used ; that the jury would inquire whether there was an article of manufacture and merchandise known as the ‘ best French plate glassif so, the provision, of the lease required the use of that quality ; that in articles of the same quality or kind of goods, there might be slight differences; that this provision required that the glass used should be a fair sample of that kind or quality, and not that each plate should be the best possible specimen of the kind ; it was to be similar to that in the stores under the city hall, that is, of the like quality or kind; there might be a slight difference between the two as samples of a quality or kind, and yet the one used fairly meet the contract; that it would be no answer to say, if it was not the best French plate, it was as good, or nearly as good; and that it was for the demandants to show that the tenants had failed to put in such glass.” The jury returned a verdict for the tenants, and the demandants alleged exceptions.</p>

<p>A man holding and occupying land, under a bond for a deed from the owner upon his performance of certain stipulations within a limited time, and with a right to use the premises meanwhile, may, upon tender of the amount of taxes, costs and interest, maintain a bill in equity under SL 1856, c. 239, § 4, to compel a purchaser at a sale for non-payment of taxes to release his title to him.</p> <p>A tender of money, which the person to whom it is tendered refuses to accept, but, upon its being left with him against his wish, afterwards refuses to give up, is sufficient.</p>

At the trial the sheriff instructed the jury “ that they were to estimate the damages sustained by the petitioners, and must allow by way of set-off the benefit, if any, occasioned by the alteration and laying out; that this benefit must be some direct, peculiar and special benefit derived by this estate from the alteration, and not the general benefit, acquired by all the estates adjacent, of having a broader avenue to the city or elsewhere ; that, for instance, if the…

<p>Appeal from a judgment of the court of common pleas, accepting a verdict for damages occasioned by laying out a town way over the petitioners’ land.</p> <p>At the trial before the sheriff, it appeared that the centre of •the way had been raised above the level of the location and of the petitioners’ adjoining land, leaving the sides sloping, so that it would be necessary to fill up the space thus made, in order to get from the travelled part of the highway to the petitioners’ land. There was also conflicting evidence whether the value of the adjoining land had been increased or diminished by the location of the road.</p> <p>The petitioners offered evidence of what it would cost to fill up this space between their land and the centre of the highway. But the sheriff excluded it.</p>

Action of tobt for breaking and entering the plaintiff’s close in Weston. Answer, a right of way by prescription. At the trial in the court of common pleas, the evidence tended to show that the defendant, and those under whom he claimed title, had used the way since 1819, and that this use originated in a trespass known to be such by them.

Action of tort for injuries to the plaintiff’s chaise by the negligence of the defendant’s servant.

Action of tort for personal injuries in January 1855 from a defect in the highway. A verdict rendered at September term 1856 of the court of common pleas was set aside by this court. 7 Gray, 100. At the second trial in the court of common pleas at March term 1858, before Perkins, J., the defendants denied that the plaintiff had received any injury from the accident.

Action of tort for breaking and entering the plaintiff’s close in Newton. Answer, a right to enter for the purpose of constructing and maintaining an aqueduct and reservoir for conducting water from a spring thereon to land of the defendant.

Action of contract by the master of the schooner Pavilion against the consignees to recover freight on a cargo of corn carried from New York to Danvers under this bill of lading : “ Shipped in good order and well conditioned by Lane & Man gum on board the schooner called the Pavilion, whereof is master , now lying in the port of New York, and bound for Danvers, Mass.: To say, twenty two hundred and eighty two bushels corn, more or less, all to be delivered, being marked and…

Petitions filed in the court of common pleas in Plymouth to enforce mechanics’ liens for work done and materials furnished and used on houses of the respondents. That court dismissed the petitions, because not brought within seventy days after the work had been performed and the materials furnished, and the petitioners appealed.

<p>Action of tort against the assessors of Marion for arrest and false imprisonment, and compelling the plaintiff to pay a school tax voted by a school district formed by the union of the Old Landing, Sippican North and Sippican South school districts in that town. The case turned upon the legality of the action of the town in establishing this district, and was submitted to the decision of the court upon an agreed statement of facts, the substance of which appears in the opinion.</p>

Action of tort for the obstruction of a watercourse in Hing-ham.

Indictment for unlawfully selling intoxicating liquors in violation of St. 1855, c. 215, §§ 15, 17. At the tidal in the court of common pleas in Plymouth, before Bishop, J., there was evidence tending to show that the defendant was a married woman and that at the time of the sales, which were in a dwelling-house, her husband was either within or just outside of the house.

<p>Abigail Gardner was indicted in Plymouth for the murder of her husband, and pleaded not guilty at May term 1857. A trial was had at that term and resulted in a disagreement of the jury. She was again tried at May term 1858, before Justices Metcalf, Bigelow, and Merrick, after the passage of the St. of 1858, c. 154, was found guilty of murder in the second degree, under the provisions of that act, and moved in arrest of judgment upon the following grounds :</p> <p>“1st. Because issue was joined and the defendant pleaded not guilty at May term of this court in the year 1857, under chapter 125, section 1 of the Revised Statutes, and said indictment was tried at the present term of this court, and the issue presented to the jury by the order of the court was whether the defendant was guilty or not guilty of murder in the first or second degree under the provisions of chapter 154 of the statutes of 1858.</p> <p>“ 2d. Because section 1 of chapter 125 of the revised statutes is repealed.</p> <p>“ 3d. Because the defendant cannot be legally sentenced for murder in the second degree under the provisions of the statute of 1858.</p> <p>“4th. Because there is no law applicable to the punishment of the defendant under this indictment, under which she can be legally sentenced.</p> <p>“ 5th. Because this court has no jurisdiction of this case.”</p> <p>The defendant also moved for a new trial, “ because the court instructed the jury that the issue to be tried by them was whether the defendant was guilty of murder in the first or in the second degree, or not guilty of murder, as provided and declared in chapter 154 of the laws of 1858.”</p>

<p>On the trial of an indictment for adultery, evidence of acts of improper familiarity between the defendant and the person with whom the adultery wáfc alleged to have been committed, prior and subsequent to the time and occasion relied upon as the time and occasion of the offence charged, was admitted without objection, and the judge instructed the jury that evidence of such prior acts was competent, but that evidence of such subsequent acts was not. Held, that the defendant had no ground of exception.</p> <p>On the trial of an indictment for adultery, the defendant requested that the evidence of acts committed by the defendant with the person with whom the adultery was alleged to have been committed might be confined to the time and occasion on which the Commonwealth intended to rely as the time and occasion of the offence charged, and the judge declined so to do; but the bill of exceptions did not show that any evidence of any subsequent acts was admitted. Held, that the defendant had no ground of exception.</p>

<p>Upon the trial of an indictment for adultery, evidence of acts of improper familiarity, amounting to adultery, between the same persons, before the time relied on as the time of the commission of the adultery charged, is inadmissible, either in corroboration of n itnesses for the Commonwealth, or to show the disposition of the parties to commit the crime.</p>

<p>Indictments on Si. 1855, c. 405, each averring that the defendant did “ keep and maintain a certain tenement ” used for the illegal sale and illegal keeping of intoxicating liquors; and that “ by force of the statute in such case made and provided, the said tenement was a common nuisance.” Trials and convictions in the court of common pleas in Bristol, to whose rulings exceptions were alleged.</p> <p>In Godley’s case, it appeared in evidence that the building was of two stories, the lower of which the defendant occupied for a saloon and bar-room, and the upper as a home for his family and boarders, and that the bar-room only was used for the illegal sale and illegal keeping of intoxicating liquors; and he requested the court to rule that, as the defendant kept and maintained the whole building, the government had failed to show that he kept and maintained “ a tenement ” within the meaning of the statute. But Sanger, J. instructed the jury that if they were satisfied that the defendant kept and maintained the whole building, a part of which was used for the illegal sale and illegal keeping of intoxicating liquors, the allegation of the indictment would be established.</p> <p>In Mwrphy’s case, the evidence tended to prove that the place kept by the defendant was a small building, having but one room in it, and formerly used as a shoemaker’s shop, and that there was a bar therein. Perkins, J. instructed the jury that if they found the building described to have been affixed to the soil, they would be justified in finding the room described “ a tenement,” although it was the only room in the building, and might fairly be called a shop.</p>

<p>An indictment on St. 1855, c. 405, for keeping “ a certain tenement ” for the illegal sate and illegal keeping of intoxicating liquors, may be sustained by proof of keeping a grocer’s shop and twice selling intoxicating liquors in an adjoining room in the same building.</p>

Complaint alleging that the defendant at New Bedford on the 26th of April 1858, “ without any legal authority therefor, did sell to one Martha A. Wilson spirituous and intoxicating liquors.” At the trial in the court of common pleas in Bristol, before Sanger, J., Martha A. Wilson testified that she purchased rum of the defendant and paid for it, and was arrested and taken before the police court of New Bedford upon a complaint for drunkenness, and, when arraigned, disclosed…

Complaint on St. 1855, c. 215, § 15, averring, in due form, that the defendant unlawfully sold “ intoxicating liquors, and mixed liquors part of which was intoxicating.” At the trial in the court of common pleas in Bristol, the Commonwealth proved one sale of gin. The defendant contended that there was a variance between the indictment and the proof, because the government had proved a sale of intoxicating liquors only, and not of mixed liquors also.

<p>Complaint to the police court of Taunton on St. 1855, c. 215, § 15, for unlawful sales of intoxicating liquors. The complaint was certified to be “ received and sworn to before me, S. R. Townsend, Justice,” and the warrant issued thereon ended thus: “ Witness my hand and the seal of said court at Taunton, this second day of September, in the year of our Lord one thousand eight hundred and fifty eight.</p> <p>“ S. R. Townsend, Justice.”</p> <p>The defendant, being convicted in the police court, appealed to the court of common pleas, and in that court, before the jury were empanelled, moved that the complaint be quashed, because the person receiving it had no authority to do so; and also that the defendant might be discharged, because there was no proper warrant, issued by any competent authority, upon which he could be held. Briggs, J. overruled both motions; and the defendant, being convicted, moved in arrest of judgment on the same grounds; and, that motion also being over* ruled, alleged exceptions.</p>

Complaint on St. 1855, c. 215, § 15, for an unlawful sale ol intoxicating liquor to John Kennedy.

<p>An indictment on a public statute need not recite it or specially refer to it, but may conclude “ against the form of the statute in such case made and provided.”</p> <p>An indictment on St. 1855, c. 215, § 17, is sufficient, which avers that the defendant, at a certain time and place, “ was, without being duly authorized or appointed thereto according to law, a common seller of intoxicating liquors, against the peace of the Commonwealth and contrary to the form of the statute in such case made and provided.”</p>

Complaint on St. 1855, c. 215, § 17, for being a common seller of intoxicating liquors. The defendant was tried and convicted in the police court of Taunton, and appealed to the court of common pleas, and, before trial in that court, moved that he might be discharged and the case dismissed, because the police court had no jurisdiction to try the case, and because the defendant could only be tried for this offence in the court ox common pleas upon indictment by a grand jury.

<p>Action of tort against a justice of the peace and a constaole of the town of Pawtucket for false imprisonment. The case was submitted to the decision of the court upon the following facts:</p> <p>The plaintiff is an inhabitant of Attleborough, and was arrested by the constable upon a warrant issued by the justice for incumbering a street in Pawtucket with stones, lumber and dirt, in violation of a by-law of the town; was brought before the justice, tried, found guilty, and sentenced to pay a fine and costs, and in default thereof committed to jail. The by-laws of Pawtucket (which were approved by the court of common pleas in 1849) provided that all penalties recovered for violations of them, after paying the expenses of prosecution, should be paid into the town treasury. The defendants are both inhabitants of Pawtucket, and there are other justices of the peace in the county of Bristol.</p>

Petition of the justice of the police court of Taunton, under St. 1856, c. 173, § 7, for the removal of the sheriff of Bristol, for leaving with the jailer of the county original processes issued by that court for the commitment of persons convicted before it, and refusing to return them to the court.

<p>A testator bequeathed $5000 in trust for each of his grandchildren who should be living at the time of his decease, or be born afterwards, to be applied for the benefit of said grandchild until majority, “it being my wish that if any grandchild of mine, on attaining the age of twenty one years, shall have become dissipated, immoral, 01 in any way disqualified to hold and prudently manage property in the opinion of” the trustees, this sum should be withheld “ until a reformation in such grandchild, or forever, in their discretion.” The testator left five sons and two daughters, and bequeathed the residue of his property, one seventh to each of four of his sons and their children in right of representation, and three sevenths “ in special trust,” at such times as the trustees should judge expedient to “ pay the income or convey the principal ” of one seventh to his other son “ or his children or descendants,” and one seventh to each of his daughters, “ or her children or descendants.” Held, that the gift of $5000 to afterborn grandchildren must yield to the testator’s general intent that his own children should enjoy the residue in their lifetime; that the time for the formation of the residue must therefore be limited, and that the time of filing a bill by the executors for the instructions of the court, five years after his death, and after all claims against the estate were barred, was the proper time for its formation and for excluding all grandchildren subsequently born. Held,, also, that upon the death, after the testator, of one of his daughters, leaving children, the power of election of the trustees to pay over to her or her children ceased, and their duty became absolute to pay over to her children as a class, subject to the power to withhold the share of any one who should become disqualified as aforesaid; and that upon the death of one of her children in infancy its father was entitled to receive the legacy of $5000, and its part of its mother’s share in the trust estate, as its administrator and next of kin.</p>

<p>After entry for breach of condition of a mortgage of real estate, duly certified and recorded, and the lapse of three years, the mortgagor, in defence of a writ of entry to recover possession of the estate, may show by paroi evidence that there has been no breach of condition.</p>

Action on the Rev. Sts. c. 104, to recover possession of an estate with a block of buildings thereon, “ except so much as is occupied by William Reed, Jr., for a store.” At the trial in the court of common pleas in Bristol, before Aiken, J., there was evidence of these facts: On the 1st of July 1856 the heirs of Israel Washburn owned nine tenths, and Reed one tenth, of the premises, and the defendant occupied the premises under them.

Action of contract by the heirs of Israel Washburn for use and occupation. The case was referred by rule of the court of common pleas to an arbitrator, who found that the defendant occupied a tenement belonging to some of the plaintiffs at a yearly rent, but that during his occupancy some of the plaintiffs had no title or interest in the premises..

Action of contract upon a judgment for $352.32 damages and $39.97 costs, recovered in this court at April term 1842 on a promissory note for $233.33.

Action of contract upon a judgment recovered by the plaintiff against Lewis Hodges.

Action of tort, begun in the court of common pleas in Bristol, for turning cattle upon the plaintiffs’ close. Before the entry of the writ, the defendant made a tender to the plaintiffs, which was not accepted; and afterwards brought the money into court, and pleaded the tender in the answer. Upon the trial, a verdict was returned for the plaintiffs for more than the amount tendered, but less than twenty dollars. The clerk allowed the plaintiffs full costs.

Action of contract for money had and received, to recover back the amount of a school district tax.

Action of tort for suffering a division fence between the plaintiff’s and the defendant’s closes, which the defendant was bound to keep in repair, to be out of repair, whereby cattle passing over the defendant’s land broke and entered the plaintiff’s close, and trod down, ate and injured the plaintiff’s crops there growing.

<p>Petition for partition. The commissioners appointed by the court of common pleas reported that, after notice to all parties interested, they had viewed and appraised the premises, “ and having adjudged that the same cannot be divided without injury thereto and depreciating the value thereof,” had set off and assigned the whole to the petitioner, he paying the respondents a fixed sum, “ as the full value of their one tenth part thereof.”</p> <p>The respondents objected to the acceptance of the report, because the commissioners had “ not offered or given the respondents the privilege of taking the whole of said premises by paying the value of the petitioner’s share therein to him.” This objection was overruled, and the report accepted, and judgment given accordingly; and the respondents appealed.</p>

<p>Action of contract for money had and received by the defendants from the plaintiff on a sale of real estate to him by public auction, and which, by the terms of a written receipt signed by the defendants and assented to by him, was to be forfeited to them if he did not comply with the “ conditions of sale,” which were not stated in the receipt.</p> <p>At the trial in the court of common pleas in Bristol, the plaintiff introduced evidence that the conditions of sale, as announced by the auctioneer, were that one fourth of the price (including five per cent, on the day of the sale) should be paid in cash on delivery of the deed, and the remainder in six, nine, and twelve months, “ with satisfactory indorsed notes, payable at bank with interest added, or mortgage on the property.” It appeared that the only thing which prevented the contract of sale from being carried out was that the defendants demanded a mortgage containing a power of sale, and the plaintiff refused to give such a mortgage, although he was ready to give a mortgage in common form.</p> <p>The defendants requested the court to instruct the jury that, “ under the terms and conditions of the sale, the defendants, if there was more than one kind of mortgage, had the right to elect what kind of mortgage they would take, and had a right to require the plaintiff to execute to them a mortgage containing a power of sale, if they saw fit to do so.” But Briggs, J. instructed the jury that the defendants had no right to require of the plaintiff a mortgage containing a power of sale. The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

Action of contract against a manufacturing corporation, who were defaulted.

Bill in equity, in which the plaintiff alleged that he was aged and infirm, unable to read and write, and unaccustomed to the transaction of business; that the defendant, his brother in law, obtained from him authority to collect his rents and take charge of his property ; and some time afterwards, with intention to defraud the plaintiff, plied him with intoxicating liquors, and brought him, while thus intoxicated, a document to sign, fraudulently representing it to be a…

<p>. Bill in equity, filed August 27th 1854, to redeem six undivided seventh parts of the Orne farm in Attleborough from a mortgage. Issues to a jury were framed, and a trial had before Thomas J. in Bristol at November term 1856, at which there was evidence of the" following facts:</p> <p>The plaintiff took under the will of her father, James Orne, who died in 1804, one undivided seventh part of the farm, (subject to the life estate of her mother, who died in 1819,) and was married in 1810 to Martin Whitney, who died in 1850. Martin Whitney purchased five other undivided sevenths of the farm, and afterwards, in 1821, he and the plaintiff joined in a mortgage of the six sevenths; and his interest in the equity of redemption in the five sevenths was sold on execution in 1825. Guild purchased this mortgage and took conveyances, in which the plaintiff did not join, of Whitney’s equity of redemption, and on the 10th of May 1827, with his wife and children, moved into and occupied one of the two houses upon the land, Whitney and his family continuing to occupy the other until the autumn of 1828, when Whitney and his family moved away, and none of them have since occupied any part of the premises.</p> <p>The plaintiff then admitted that Guild had bad uninterrupted and exclusive possession of the premises for more than twenty years prior to the filing of the bill, and that this would have barred all the plaintiff’s rights, but for her coverture. The defendants contended that her coverture did not prevent Guild from acquiring an absolute title to the premises. But the judge ruled otherwise.</p> <p>The defendants then contended that as Guild entered in May 1827, after breach of the condition of the mortgage, the presumption was that he entered for condition broken and for the purpose of foreclosure. But as it was admitted by the defendants that Guild had by quitclaim deeds acquired Martin Whitney’s right of redemption before such entry, the judge ruled otherwise.</p> <p>The judge further ruled that the burden of proof was on the defendants to prove a foreclosure.</p> <p>The defendants then proposed to prove that Guild, on the 10th of May 1827, made an open and peaceable entry on the premises after a breach of the condition of the mortgage, and with intent to foreclose the same, and while the plaintiff and her husband were living in the house opposite, in the presence of his own family and other persons, and that he had ever since remained in actual, open, peaceable and notorious possession, claiming absolute title in himself, and that such possession and claim of title were known to Martin Whitney and the plaintiff. But the defendants did not offer to show that any declaration was made by Guild, at the time of such entry, of his purpose to foreclose, or that he gave any formal notice to the plaintiff that he had entered for that purpose, or that any formal entry was made under the mortgage in the presence of two witnesses called for that purpose and requested to take notice thereof.</p> <p>The presiding judge, inclining to the opinion that such facts, if proved, would be insufficient in law to foreclose the mortgage, directed a verdict for the plaintiff, and reported the case for the decision of the full court.</p>

<p>An indorsee of a promissory note, payable on demand in certain articles of merchandise “ as he shall need,” cannot, upon demand of payment from the maker and his neglect to pay and notice to the indorser, recover the amount thereof in money from the indorser.</p>

<p>Bill in equity for specific performance. The bill alleged that Isaac Fobes died on the 22d of June 1855, leaving the female plaintiff his sole daughter and heiress, and the defendant, her stepmother, his widow; that on the 9th of April preceding he had executed an instrument purporting to be his will, giving most of his property, real and personal, to the defendant, the provisions of which, as the plaintiffs then and now believed, and had good reason to believe, were brought about by undue influence exercised over him in his last illness and while he was very weak in body and mind, and the plaintiffs therefore objected to its probate as his will; that while the probate was pending, on the 3d of July 1855, the plaintiffs and defendant compromised the matter by agreeing that the provisions of the will as to them should be set aside, and the testator’s real estate, shares in corporations and other personal property be divided between the defendant and the female plaintiff according to an agreement then executed by them under seal; that the plaintiffs offered to perform their part of the agreement and to make conveyances and transfers to the defendant according to it, and requested the defendant to convey according to the agreement to the female plaintiff the rest of the testator’s real estate, stocks and other personal property, but the defendant declined to accept the conveyances and transfers tendered by the plaintiffs, or to execute any herself.</p> <p>The answer under oath admitted the making of the will; denied the other allegations of the bill; and alleged that the testator married the defendant in 1822; that by their joint industry and frugality they acquired most of the property of which he died seised and possessed, and she contributed largely to it; that the homestead was unproductive; that in making his will he was uninfluenced by* any one, and deliberately made it of his own free will, and the plaintiffs knew it and did not believe that they could break or defeat it; that he told her a few days before his death that he had made good provision for her in his will, and was afraid that Franklin Leach would make her a great deal of trouble, and she must go to Aretas Fobes and Benjamin Keith for advice and assistance; that on the 2d of July she called on Aretas Fobes to take her to the probate court, and he then, and Leach afterwards, each told her that Leach would break the will, for Aretas knew enough to do it; that she was induced to sign the agreement alleged in the bill without anything having been said by or to her about several matters contained in it, and without any or adequate consideration, by the artful and improper management of the plaintiffs, and of Aretas Fobes, who falsely pretended to be her friend, and by their unlawful combination, and false and fraudulent pretence that the will could not be established, and with the intent of entrapping her into a surrender of part of the property given her by the will, and while she was by their threats and declarations greatly disturbed in her mind and disqualified to understand or do business, and believed the paper then signed not to be binding until a duplicate was signed and each party had one, and the agreement was never completed or delivered; that on or about the 15th of July 1855 she called on the plaintiffs to see the paper which she had signed, and, on hearing it read, told them that she did not know that it contained the things mentioned in it, that she had never agreed to any such things, and should treat it as null and void, and set up the will; that she afterwards proved the will in the probate court; that no evidence was offered, and none existed, to show that the testator was unduly influenced in making the will; that the plaintiffs appealed on the ground that “ there was undue influence used upon the mind of the testator in the making of said will,” but failed to prosecute their appeal, and the probate was affirmed in this court; that the agreement was imperfect, unjust and oppressive, and so not binding; and that the plaintiffs had a full, adequate and complete remedy at law.</p> <p>The plaintiffs filed a general replication, and at May term 1858 two issues were submitted to a jury whether the defendant signed, executed and delivered the agreement; and whether the agreement was procured by fraud, imposition and false representations on the part oí the plaintiffs or their agents. The jury found for the plaintiffs on both issues; and the case was reported to the full court.</p>

Writ of entry to recover land in Plymouth. Plea, nul disseisin, with a specification of defence of entry and possession under a certain instrument which the tenant claimed to be a mortgage. The tenant at the trial was allowed to amend, by disclaiming all title in a part of the land, and setting up her possession of one third under said mortgage, and a title in the remaining two thirds under two mortgages under which she had not taken possession.

Petition for a writ, of certiorari to quash proceedings of the respondents in laying out a highway across a railroad in North Bridgewater.