Volume 78 — Massachusetts Reports

<p>Action of contract to recover the sum of $1977.43, deposited by Robinson & Co. of San Francisco in the Exchange Bank in Boston, of which the defendant was president.</p> <p>At the trial before Bigelow, J., it appeared that on the 20th of March 1855 the defendant received a letter from one of the firm of Robinson & Co., enclosing their order for the funds, directing him to place them “ to the credit and subject to the order of” the plaintiff, and stating that the reason for so doing, was to prevent attachment by creditors of Robinson & Co., who were in embarrassed circumstances; and that he, on receiving this letter and order, drew out the funds from the bank, for the purpose of placing them to the plaintiff’s credit, but declined upon the plaintiff’s demand to remit them to him or place them to his credit without a bond of indemnity. “ For the purpose of settling the questions of fact arising in the case, it was submitted to the jury upon the foregoing and other evidence, with directions to return a verdict for the defendant, if they found the purpose of Robinson & Co. was to transfer said property to the plaintiff, to prevent attachments and to conceal it from their creditors, and the plaintiff had knowledge of such purpose, and assented to said transfer, and now claimed to hold the funds in order to carry out and effect that purpose, and there were creditors of said Robinson & Co. who had never been paid, and whom said Robinson & Co. intended to hinder, delay and defraud by said transfer.”</p> <p>The jury returned a verdict for the defendant, and the question of the correctness of this instruction was reserved for the full court, and argued at October term 1857.</p>

Bill in equity by the administrator with the wills annexed of Joseph Rowe and Mary Rowe, both dated July 19th 1845, to obtain the instructions of the court respecting the distribution of their estates.

Bill in equity, averring that before 1841 a large sum ol money was collected from individuals and by contributions in churches for the purpose of purchasing land and building a meeting-house thereon… Held: occupied and improved; and the society, recognizing such trusts, had. until the occurrences complained of, so held, occupied and improved it.

Action of contract to recover back the amount of a tax assessed on the 1st of May 1856 upon personal property held by the plaintiff as trustee under the will of John D. Williams, for the benefit of Mrs. Sarah A. W. Bradlee, formerly Miss Merry, and paid under protest.

<p>Appeal by the assignees of Enoch Train from a decree of the judge of insolvency allowing the proof against his estate of a claim for rent from the 1st of January to the 1st of May 1857. The case was submitted to the decision of the court upon the following facts:</p> <p>The plaintiff leased by indenture a portion of a building in Boston for ten years from the 1st of May 1855, to the firm of Enoch Train & Co. (then consisting of Train and Frederick W. Thayer,) who covenanted to pay the rent reserved quarterly, and occupied the premises until the 31st of December 1856, when the firm was dissolved, and by indenture Thayer assigned and conveyed to Train all his interest in all the assets and property of the firm, and Train agreed to assume and pay all the debts of the firm. Train afterwards continued to occupy the premises and carry on the business under the like style of Enoch Train & Co. On the 11th of March 1857 Train, having become embarrassed in business, made a proposition to the plaintiff, which he by letter of March 20th accepted, as follows s “ I will release you from the lease I hold May 1st next, you paying me rent as per lease to that date, and you receiving all rents due previous to that date; any rents earned on good leases owned by you, but not due May 1st, to be deducted from the amount to be paid me on the 1st of May, and to be collected by me when due under leases assigned,” namely, the existing leases from Train to undertenants. To this Train assented by letter of March 24th.</p> <p>The petition to the judge of insolvency was filed on the 6th of April 1857. On the 1st of May the plaintiff offered to cancel the lease and fulfil the agreement, but Train refused to act while the petition was pending.</p>

<p>Allowing a new answer to be filed at the trial, after the plaintiff's evidence is in, is no ground of exception.</p> <p>The admission of the depositions of several witnesses, taken out of the State under one commission, one caption and one set of interrogatories, is no ground of exception.</p>

Complaint for an unlawful sale of intoxicating liquor. The record of conviction transmitted to the court of common pleas was signed “ Attest, Sami. B. Noyes, justice of the peace,” without showing that it was a copy; and the defendant, upon that ground, after conviction in that court, moved in arrest of judgment, and, that motion being overruled by Sanger, J*, alleged exceptions.

Indictments on St. 1855, c. 215, §§ 15, 17, for being common sellers of intoxicating liquors, and for unlawful single sales thereof. At the trial of Anthes in the court of common pleas, the Commonwealth offered evidence tending to show sales of lager beer only. This the defendant did not deny; but offered to show, by the evidence of chemists, experts and those who were accustomed to use lager beer as a beverage, that it was not intoxicating.

Action of contract. The parties submitted the case to the decision of the court upon the following statement of facts: On the 7th of October 1857, the defendant, who then owed to the plaintiffs the amount of the debts now sued on, represented himself to his creditors as unable to pay his debts then, but as able eventually to pay them in full; and was believed by the plaintiffs to be insolvent; and the plaintiffs and other creditors of the defendant signed and sealed this…

<p>Action of tort for the conversion of a horse. The answer denied the plaintiff’s property and the conversion, and alleged that if the plaintiff ever had any right, title, claim or lien to the horse, he transferred, discharged, released or waived it before the commencement of the action.</p> <p>At the trial in the court of common pleas, at October term 1855, before Sanger, J., the plaintiff claimed title to the horse Under a mortgage of sundry horses, vehicles and harnesses to him from Nathan Bricbett, Asa Faxon and James M. Monroe, “ stablers and copartners under the firm of Bricbett & Faxon,” purporting to be signed, by each of the mortgagors, with a seal against each name, attested by J. B. Lawton and R. L. Hobbs and duly recorded.</p> <p>The plaintiff, to prove the execution of the mortgage, called Lawton, who testified that, being at worb in the stable where the stocb was, he was called by some one, he did not bnow whom, into the stable office, and there attested the mortgage, but did not bnow that either of the mortgagors was then present. The plaintiff then called one Langmaid, and proposed to prove by him the signatures of the mortgagors from his bnowledge of their handwriting. The defendants objected; and the court ruled that the plaintiff must first call Hobbs, the other attesting witness, or show some reason for not producing him. Hobbs, who then was and during the trial had been in the court room, was then called by the plaintiff, and testified that he was called into the stable office by the plaintiff, and there saw Monroe sign the mortgage; “ that he did not see either of the other mortgagors sign it; that neither of them requested him to witness it, or aclmowledged to him that they had signed it, and that he did not bnow that they were present at the time, though they might have been and he not have seen them.”</p> <p>The defendants, who claimed title under a sale from Monroe subsequent to the mortgage, were allowed, notwithstanding the plaintiff’s objection that it was not admissible under the pleadings, to give evidence tending to show that the mortgage was made without consideration ; and that the mortgagors, after the execution of the mortgage, sold some of the mortgaged property with the bnowledge of the plaintiff.</p> <p>The mortgage contained a provision authorizing the mortgagee to tabe immediate possession in case the mortgagor should attempt to sell the property or any part thereof without his assent in writing. The defendants were allowed, the p’aintiff objecting, to inquire of Hobbs, “ Whether, immediately after the signing of the mortgage, anything was said by Monroe or the plaintiff to the other about selling the property ; ” and Hobbs testified that “ Monroe said to the plaintiff, 11 have a perfect right to sell or swap horses,’ and the plaintiff said, ‘ You have ; ’ that this conversation . occurred within fifteen minutes after the signing, and before the plaintiff and Monroe separated.”</p> <p>At the close of the plaintiff’s evidence the defendants moved for a nonsuit, upon the ground that no proof had been offered of the execution of the mortgage, which would authorize a verdict for the plaintiff. But the court overruled the motion; and instructed the jury “ that, as to the proof of execution, other evidence might be considered in connection with the testimony of Lawton and Hobbs; but that no conversation or acts of the mortgagors, treating it as a subsisting mortgage, would be evidence as against the defendants, unless brought home to them; ’’ “ that after the execution and delivery of the mortgage, if they should find that it had been executed and delivered, its terms could be varied by a new paroi agreement; and if they should find that subsequently to the execution and delivery of the mortgage the plaintiff gave Monroe a general power to sell the mortgaged property without any permission in writing therefor from him, the subsequent sale by Monroe, under which the defendants claimed, would be valid, and would pass the property in the horse to the defendants ; ” and “ that the execution of the mortgage by Monroe alone would not convey to the mortgagee the property therein described.”</p> <p>The jury returned a verdict for the defendants, and the plaintiff alleged exceptions, which were argued and decided at October term 1856.</p>

Action of contract upon a promissory note for $5108, payable to Bradford Lincoln, Jr., the plaintiff’s intestate, and purporting to be attested by C. J. F. Binney.

<p>A devise of land to be equally divided among three persons, with a subsequent provision that in case one of them shall die without lawful issue, the property given to him shall descend to the testator’s heirs in fee, gives him an estate tail, and not an estate for life, under the Rev. Sts. c. 59.</p>

Writ of entry to foreclose a mortgage of land in Medway. Plea, nul disseisin. The case whether the plaintiff could maintain the action was submitted to the decision of the court upon these facts: On the 23d of September 1853 Emeline Grant, owner in fee of the premises, gave a mortgage thereof to Albert Grant, who on the same day delivered it to the plaintiff with the following writing indorsed upon it: “ Medway, September 23, 1853.

<p>Petition for partition of land in Stoughton, of which Thomas Curtis died seised, and disposed in his will by a residuary devise and bequest to trustees ; “ which estate said trustees shall manage and improve at their discretion and apply so much of the income thereof as they may deem necessary for the comfortable support of my two sons, viz: Thomas Curtis, Jr. and Nathaniel Curtis, or either of them, (should they be unable to support themselves,) during their natural lives and a decent burial after death, and it is my will that suitable gravestones may be procured for my children at the expense of my estate, and if the income of said estate is not sufficient for the purposes aforesaid and incidental charges, then the said trustees may dispose of so much of the principal as may be necessary. At the decease of both of my sons, the remainder of my estate shall be equally divided amongst my grandchildren, and the legal descendants of any that may be deceased (if any there be) for their use and behoof forever; it is to be understood that each grandchild shall receive one share of said estate, and all the descendants of a deceased grandchild (if any there be) shall receive one share to be equally divided amongst them.”</p> <p>The two sons died without having exhausted the real estate The petitioner was an illegitimate son of a granddaughter of the testator, and the respondents were grandchildren of the testator, living when he made his will, or the lawful heirs of such grandchildren. The case was submitted to the court upon these facts.</p>

<p>A railroad corporation, which is obliged by statute to make all needful fences and cattle guards on the sides of its railroad, is liable for injuries by its engines to cattle straying at large through the land of a stranger upon its road, by reason of its negligence in placing such fences and guards.</p>

Writ of entry to foreclose a mortgage. The defendant was defaulted, and filed in set-off an account for goods sold and delivered and work and labor done. At the hearing in the court of common pleas, the defendant offered evidence to prove the items in his account, by way of set-off against the debt secured by the mortgage, to reduce that debt, and the amount for which conditional judgment should be rendered.

Action of tort for breaking and entering the school house of the plaintiffs in Weymouth. The case was submitted to the decision of the court upon the following facts : In February and March 1857 Roscius R. Walker was dub elected prudential committee for the district for the year ensuing, and was authorized by the town to select and contract with the teachers for the district during the ensuing year.

<p>An open policy of insurance “ on property on board vessel or vessels at and from any port or ports in the United States to any other port or ports in the United States, as per indorsements, with liberty to stop at any intermediate ports or places,” bore this indorsement: “ Liberty is given to stop at Norfolk or other ports for trade, by adding one eighth per cent, for each. This policy attaches as follows; Schooner Potomac; Norfolk to Salem or Boston.” Held, that the risk terminated by arriving at Salem without a previous election of Boston as the port of final destination, although the vessel immediately received orders to proceed to Boston; and that evidence of former usage under similar policies between the same parties to put into Salem and then proceed to Boston, and to settle with the underwriters afterwards by paying an additional premium of one eighth per cent, did not affect this policy.</p> <p>A bill in equity to reform a policy of insurance, filed more than six years after notice of the ground on which the liability is denied, and more than a year after judgment for the defendants on that ground in an action at law thereon, is barred by the statute of limitations, although jurisdiction in equity to reform the policy is not conferred on the court until after the expiration of six years and immediately before the filing of the bill.</p>

<p>The condition of a vessel, falling within the warranty of seaworthiness, nee*d not be represented to an underwriter at the time of obtaining insurance thereon, except in answer to inquiries; and the burden of proving misrepresentation in answer to such inquiries is upon the underwriter.</p> <p>It seem, that it is not a deviation, for a vessel driven into a port by stress of weather, to proceed in good faith for repairs to a neighboring port where her owners reside, although she might have been repaired at the first port.</p> <p>After underwriters have paid a partial loss as adjusted by their agent with knowledge of a previous deviation, they are estopped to set up that deviation as a defence to a claim for a subsequent total loss.</p> <p>It is sufficient evidence of an abandonment, that the assured, within ten days after receiving news of a loss of a vessel, went to the underwriter’s office, and asked for the papers of the vessel (which included the survey on which she had been condemned and sold), and, on the president of the office saying that the adjuster had them and had not made up the loss, said there was nothing to make up, as he claimed a total loss.</p> <p>A policy of insurance on a vessel and cargo “ at and from” a certain port is not, by reason of such description, avoided by the cargo having been laden at a previous port.</p> <p>Under the provision in the memorandum clause in a policy of insurance, that the insurers shall not be liable “ for any partial loss on salt, grain, fish, fruit, hides, skins or other goods that are esteemed perishable in their own nature, unless it amount to seven per cent, on the whole aggregate value of such articles and happen by stranding,” the underwriters are liable as for a total loss on any one kind of these articles, which in consequence of perils insured against is of no value at the time of its arrival at the port of destination and is thrown away, although other kinds are only partially injured before arrival.</p> <p>Underwriters are not liable for a constructive total loss of goods, not included in the memorandum clause, consigned to the port of destination for sale, and actually delivered to the consignees and sold there.</p> <p>Under a policy of insurance to the charterers of a vessel “ for whom it concerns,” “ on freight on board,” the charterers may recover the amount of the money payable under the charter party at the termination of the round voyage, and which they have agreed to get insured; although the vessel is totally lost at the outward port.</p>

<p>Action of tort for breaking and entering the plaintiff’s shop in Rockport, and carrying away and destroying a barrel of vinegar and other goods of the plaintiff.</p> <p>The answer denied that the defendants entered the shop, or destroyed or carried away any goods; and alleged that the building was kept for the sale of intoxicating liquors, and s< was a public nuisance, and that a large number of persons assembled to abate the same, and destroyed and injured no article of merchandise, but only spirituous liquor unlawfully kept for sale, and did no other act, and' used no more force, than was necessary to abate such nuisance.</p> <p>At the trial before the chief justice, the plaintiff and others testified that he was a grocer, and kept a shop in Eockport; that on the 8th of July 1856, the defendants and others broke open his shop and destroyed various articles therein; and that there was no spirituous liquor there at the time.</p> <p>The defendants introduced evidence tending to show that about three hundred women, some of whom were armed with hatchets, met, according to previous appointment, in a neighboring square and marched in a procession to the plaintiff’s shop, and broke it open, and brought out and destroyed spirituous liquors which they found there ; that, on previous occasions persons had been seen coming out of the shop intoxicated; and that when the shop was broken open Perkins was on the opposite side of the street, and his wife was not there at all; and there was conflicting evidence as to the part taken by her in the subsequent destruction of the property. One of the defendants’ witnesses testified: “ There were many men there, and almost all the women in Eockport; all who could walk or move on crutches. All the men appeared to be approving, except the rumsellers; I heard no objection. The selectmen, ministers, deacons, policemen were present; none of them forbade what was done, but all was peace and harmony. They appeared to be very happy, and the shouts came up from the gentlemen. The justices of the peace were there; everything that could walk. We determined to carry it through and destroy all the liquor.”</p> <p>So much of the judge’s instructions as concerned the points decided by the full court was reported by him as follows :</p> <p>“ The most material question is, whether this proceeding was justifiable upon the grounds stated and relied on. That justification is, that by statute all intoxicating liquors kept for sale, and the vessels and implements actually used in selling and keeping the same, contrary to the provisions of that act, (St. 1855, c. 215, § 37,) are declared to be common nuisances and are to be regarded and treated as such ; and that by another statute (St. 1855, c. 405) all buildings, places or tenements, used as houses of ill fame, resorted to for prostitution, lewd ness, or for illegal gaming, or used for the illegal keeping or sale of intoxicating liquors, are declared to be common nuisances, and are to be regarded and treated as such.</p> <p>“ Upon this three questions arise: 1st. Whether all persons, members of the community, have a lawful right to destroy intoxicating liquor thus kept, by way of abatement of a com mon nuisance ? 2d. Whether for this purpose they have a right to use force to break open the place where it is so kept, if the nuisance cannot be reached and abated otherwise ? 3d. Is it justifiable for a large number of persons to combine and agree together to take and destroy such intoxicating liquor by force, and to use force in breaking open such a shop, in order to come at and get possession of the liquor to be destroyed ?</p> <p>“ Upon these questions I was of opinion and instructed the jury as follows: 1st. That intoxicating liquors kept for sale,</p> <p>with the vessels containing them, and articles used in the sale, being declared by law to be a common nuisance, it is lawful for any person to destroy them, by way of abatement of a common nuisance, and that it is the exercise of a common and lawful right. 2d. That if kept in such a shop, not a dwelling-house, locked or otherwise closed, it is justifiable to use force, but no more force than is necessary to reach the liquor and vessels, if it cannot be come at otherwise. 3d. That if the combination or conspiracy of a large number of persons extends no further than to take and destroy intoxicating liquor and the vessels, and to use no unnecessary force, the fact that such combination is entered into by a large number of persons to act together, in doing that and no more, would not take away the justification they would have, if done by one or a few of them.</p> <p>“ But the jury were cautioned that this was a dangerous power, to be construed under very strict conditions; comment was made upon the danger of permitting people to take the law into their own hands, alluding to lynch law, vigilance committees, etc., leading to resistance, to riots, bloodshed and violence, destruction to the peace of a civilized community; that as a general rule private persons must rely upon the law for their protection and the redress of grievances, and if the law is in any respect inoperative and ineffectual, it is the province of the legislature to amend it.</p> <p>“ The restrictions under which this power can be lawfully exercised, the jury were instructed to be as follows: 1st. The</p> <p>power claimed by the defendants is a power conferred by law, and not by license or authority conferred by private persons, and must therefore be construed strictly, and if they exceed their authority, they are trespassers ab initia, this justification wholly fails, and the plaintiff is entitled to recover for all the damage sustained ; so, if they break open a shop where no intoxicating liquor is kept, or, if kept, if none is kept for sale, they do it at their peril; and if none such is found, the justification fails; so, if after entering they do unlawful acts, they are trespassers ab initia. 2d. If any more force was used than was necessary, or any damage done to the building or to any articles in the building, beyond that of taking and destroying the intoxicating liquor kept for sale and the vessels which contained it, then the parties so acting were trespassers ab initia, and the justification is not established.</p> <p>“ Under these views the evidence was briefly reviewed and submitted to the jury, upon the several questions of fact above stated; especially whether any unnecessary force was used, in breaking open the shop, without first requesting the owner to unlock it; or whether any unlawful acts were done by the party after entering the shop, either to the building or articles in it, and whether a barrel of vinegar, or any article other than intoxicating liquor and the vessels, was taken away or damaged.”</p> <p>The jury returned a verdict for the defendants; and the plaintiff moved for a new trial, on the ground that the jury were misdirected in matters of law; and this motion was reserved for the consideration of the whole court.</p>

<p>The day before the expiration of the time for redeeming land from a mortgage, a third person, at the request of the mortgagor, who was a woman in feeble health, called upon the mortgagee, told him that he had oral authority from the mortgagor to pay off the mortgage, and asked him to execute a quitclaim deed to another person who had furnished the redemption money. The mortgagee objecting to sign such a conveyance because there was no written authority, the agent proposed that he should execute a quitclaim deed to the mortgagor and then receive the money due upon the mortgage; but he declined to do so, and said he wished to see the mortgagor, and whatever she wished he would do, and that he would meet the mortgagor two days after, and would take no advantage of the expiration of the time. Held, that if the agent had oral authority, direct or indirect, from the mortgagor, or the mortgagor ratified his doings, the tender was sufficient to entitle the mortgagor to redeem.</p>

Bill in equity, filed on the 12th of October 1857, alleging that in 1827 David Brace made a mortgage of real estate in Marblehead to… Held: that in a hearing in equity, on a bill seeking relief in equity against such a record alleged to have been made by accident or mis take, the evidence is admissible. “ Instead of stating the testimony of Crocker as given, I propose to state the facts as they appear to me to have been proved by that testimony and the other evidence,…

, Action of contract by a mutual fire insurance company to recover assessments for losses before January 1st 1852 upon a premium note dated December 24th 1847, whereby the defendant, in consideration of a policy from the company upon his cotton mill, promised to pay to the company or their treasurer for the time being “ in such portions and at such time or times as the directors of said company may agreeably to their act of incorporation and by-laws require.” “ And the…

<p>Writ of entry to recover land in Lynn and Saugus. Plea, nul disseisin. Trial before Thomas, J., who directed a verdict for the demandant, subject to the opinion of the whole court upon the following case :</p> <p>The demandant, who was under coverture as the wife of David Atherton from 1806 till his death within ten years, claimed title under the will of her father, Matthew Hawkes, which was admitted to probate on the 1st of January 1806, and the partition of his real estate in 1808, by which the premises in controversy were set off to her.</p> <p>The tenants claimed title through mesne conveyances from Edward Jones, collector of taxes under the United States statutes of 1813 and 1815, by whom it was alleged that the premises were sold for nonpayment of taxes assessed thereon ; and in support of their title introduced the following documentary evidence:</p> <p>1st. This extract, duly certified by the clerk, from the returns made to the United States district court for this district, of the “ List of the tracts of land or other real property, sold by Edward Jones, collector of the direct tax for the eleventh collection district in the State of Massachusetts, and designated by the secretary of the treasury to receive the taxes from nonresident proprietors of property for the nonpayment of said taxes, which property may be redeemed under the provisions of the 27th and 30th sections of the act of congress passed 9th January 1815 for the assessment and collection of direct and internal duties.” “ Names of taxable persons on the list received from the collector in whose district property is situated : David Austherton. Where registered: Shirley. Amount of tax and additions: 69 cents. Description, situation and quantity of property sold: Lynn, Lynnfield or Saugus, for one third of the property. Name of owner or supposed owner: David Austherton. When sold : June 23d 1817. Name of purchaser : I. Munroe. Amount paid by purchaser: 69 cents.”</p> <p>2d. Notices, published by the collector on the 13th of March 1815, and the 29th of August 1816, that he had received 'lists of taxes, under the acts of 1813 and 1815 respectively, remaining due upon property of nonresidents in this county; and was authorized to receive such taxes on such property within one year from July 15th 1814 and December 31st 1815 respectively, being the dates of his notifications that these taxes had become due.</p> <p>3d. Advertisements, published on the 8th of January 1816 and the 17th of April 1817, for the sale of the property described therein for nonpayment of taxes, the first of which included the following described property: “ Town in which the property lies, and name of taxable person : Lynn, David Atherton. Where resident: Boston. Amount tax: 28 cents.; ” and the second this: “ Names of owners and where situated: Lynn, Lynn-field or Saugus : David Austherton. Where resident : Shirley. Tax: 57 cents.”</p> <p>4th. A deed, dated the 28th of October 1820, and duly acknowledged and recorded, from Jones as collector to Israel Munroe, in consideration of sixty nine cents, of “ one third part of the whole property assessed to Daniel Atherton of Shirley; said whole property was valued at one hundred and thirty dollars; said one third part of said whole property was sold on the twenty-third day of June one thousand eight hundred and seventeen for nonpayment of the United States direct tax and additions for the year one thousand eight hundred and fifteen, and is situated and lying in the town of Saugus, in the county of Essex and collection district number nine in said State of Massachusetts, which is to be set off conformably to instructions of the treasury department of the 1st July 1814,” habendum in fee, “ saving and reserving any and all right that any infant, person of insane mind, feme covert or person beyond the sea, who may be interested in the premises, may by law have to redeem the premises or any part thereof, after the removal of their respective disabilities, or return to the said States.”</p> <p>5th. A certificate, dated May 17th 1821, of three freeholders of Lynn and Saugus, sworn to “ act faithfully and impartially according to their best skill and judgment,” that they had appraised and set off one third of the property described in said deed to Munroe, “ bounding northerly on the Vinegar Hill Road, so called, there measuring nine rods; easterly on No. 1 and No. 2 as by the former division, there measuring thirty one rods; southerly by the river three and a half rods ; westerly on the remaining part of said lot, there measuring about thirty six rods.”</p> <p>6th. Mesne conveyances from Israel Munroe to the tenants.</p> <p>The tenants also introduced evidence that they had been in the quiet and undisturbed possession of the demanded premises from the 17th of May 1821, to the present time; and (in explanation of the misnomer of “Daniel Atherton” in the deed of Jones) that David Atherton, the demandant’s husband, was the only person by the name of Atherton who lived in the town of Shirley in the years 1815 to 1817 inclusive, and that he was a native of the town of Saugus; and that due diligence had been used to procure other papers, including the assessor’s list, without success.</p>

Action of contract ; 1st. On a promissory note for $525, dated August 4th 1854, made by the defendants to Henry Fowler & Co. and indorsed by them ; 2d. For money paid. The parties submitted the case to the decision of the court upon the following facts: Before this note was given the defendant owed Fowler & Co. a note for $512.74, which had been discounted at a bank.

Complaint for an unlawful sale of intoxicating liquors. After a jury had been empanelled in the court of common pleas for the trial of this complaint, and the paper filed in that court as a copy thereof had been read to the jury, and before any further proceedings, the district attorney suggested to the court that the paper was not a true transcript of the original complaint, but that, by a clerical error, the year of the commission of the offence was misstated ; and the…

<p>The testimony of a witness that the defendant sold intoxicating liquor to him in the presence of others, and that he did not testify before the grand jury, is sufficient to be submitted to the jury on the trial of an indictment alleging a sale to some person to the jurors unknown.</p>

Indictment on S¿. 1855, c. 215, § 17, against Alfred Pillsbury and Renton M. Perley, for being common sellers of intoxicating liquors in a building used as a shop. At the trial in the court of common pleas, before Aiken, J. the defendants called the city clerk of Newburyport as a witness, who produced the records of the mayor and aldermen ; and gave in evidence the following record: “ Board of Mayor and Aldermen, Monday evening, July 6, 1857.

<p>An indictment for unlawfully selling intoxicating liquors, “ not being then and there duly appointed and authorized therefor,” sufficiently excludes all modes of selling allowed by the St. of 1855, c. 215.</p> <p>The St. of 1855, c. 405, § 1, declaring buildings used for the illegal sale of intoxicating liquors to be common nuisances, to be treated as such, does not repeal so much of the St. of 1855, c. 215, as to prevent the maintenance of an indictment upon § 17 thereof against a common seller of such liquors in a building.</p>

Indictment on St. 1855, c. 405, § 1, for a nuisance in keeping and maintaining at Gloucester “ a ‘certain building, to wit, a shop,” resorted to for illegal gaming and used for the illegal sale and keeping of intoxicating liquors. At the trial in the court of common pleas, Perkins, J., instructed the jury that the indictment described the building with sufficient precision and accuracy.

Action of tort, brought before a justice of the peace,'for breaking and entering the dwelling-house of the plaintiff’s intestate in Boxford. Ad damnum $180. The justice gave judgment for the plaintiff for $100, and the defendants appealed to the court of common pleas. In that court the plaintiff moved to amend his writ by reducing the ad damnum to $100, but the court overruled the motion, and dismissed the action. The plaintiff appealed to this court.

Action of tort for the conversion of a gold coin. The parties submitted the case to the decision of the court upon the following statement of facts : The coin, which was a ten dollar gold piece, known as California money of “ Moffat’s issue,” and not United States issue, was passed by mistake for a half 'dollar by one of the plaintiffs to S. A. Furbush, and by Furbush, under a like mistake, to the defendant, who received it as such, and took it without any knowledge of any…

Action ' of contract on an account annexed for goods sold and delivered in Lynnfield.

Petition for the removal of the assignees of the estate of Townsend 5c Currier, insolvent debtors, alleging' that at an adjourned third meeting of the creditors of said insolvents the petitioners filed their petition to the commissioner, praying him to remove the respondents from their trust as assignees, upon the following grounds, (which the petitioners alleged to be true,) 1st. That they had refused to allow the petitioners to have resort at reasonable times to the…

Petition for a mandamus to compel the judge of probate tor this county to take jurisdiction of a petition presented to him on the 6th of July 1858, for a grant of letters of administration on the estate of an inhabitant of this county; and upon which he had refused to take any action, because by the provisions of St. 1858, c. 93, his office had been declared to be abolished and all his jurisdiction and authority as such to be transferred to the judge of probate and…

Replevin of two locomotive engines taken by the defendants from the plaintiff, who claimed to hold them under attachments at the suit of creditors of the Newbury port Railroad Company The replevin was dated July 22d 1856. The answer denied any attachable interest in the railroad company, and set up property in the defendants.

<p>An ordinance of a city, providing that no person shall maintain an awning before his door without the consent of the mayor and aldermen, is reasonable; and an awning erected without such consent is an unlawful obstruction.</p> <p>The mayor of a city, whose charter provides that he “ shall be the chief executive officer of the city,” that “ it shall be his duty to be vigilant in causing the laws and regulations of the city to be enforced,” and that “ the executive power of said city generally and the administration of the police shall be vested in and may be exercised by the mayor and aldermen as fully as if the same were herein specially enumerated,” may lawfully remove an awning, erected in violation of an ordinance of the city, after a vote of the board of aldermen authorizing and instructing him " to proceed forthwith to remove all wood awnings now standing in said city in violation of law,” although a street commissioner has been appointed, with the powers and duties of a surveyor of highways.</p>

<p>Action of contract, brought by a mutual fire insurance company to recover an assessment of $98.40. The declaration contained two counts : 1st. That the defendant, in consideration of having received a policy of insurance from the plaintiffs, agreed with them and by the statutes of the Commonwealth became liable to pay his proportion of any losses and expenses up to $150, incurred by them while he was a member of the company ; that bis proportion of the losses and expenses so incurred was duly assessed to and demanded of him, and he neglected and refused to pay it, being the sum sued for; 2d. On a premium note by which the defendant promised to pay the plaintiffs or their treasurer for the time being the sum of $60, in such times and proportions as the directors should, agreeably to their by-laws, require.</p> <p>At the trial in the court of common pleas, before Perkins, J., the plaintiffs offered in evidence the policy upon which the assessment was claimed to have been made, which recited that the defendant, a member of the company, had, agreeably to the by-laws of said company, (which were printed on the policy,) paid sixty dollars and given a promissory note for a like sum and also bound himself to pay all such sums as might be assessed by the president and directors pursuant to said by-laws, but not in any event to exceed the sum of $150; and which insured him “ under the conditions and limitations expressed in said by-laws,” one of which provided that “ the president and directors may assess on each member, in case losses should require it, a sum in addition, not exceeding the amount by him paid as premium and deposit note, and collect the same without delay.” The defendant objected to the admission of the policy, upon the ground that it had no tendency to prove the plaintiffs’ claim. But the judge overruled the objection, and admitted it.</p> <p>To prove a demand, the plaintiffs called John Vose, who testified that he made a demand on the defendant for the sum sought to be recovered ; that he had the note and bill with him; that he was directed by the plaintiffs’ secretary and treasurer to make the demand, and so told the defendant; that he did not demand payment of the note otherwise than by telling the defendant that he had a bill against him and wished him to pay it, and the defendant took and looked at the bill and said he should not pay it. The judge, against the defendant’s objection, ruled that this was sufficient evidence of a demand to be submitted to the jury.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>Indictment for the manslaughter of Jeremiah A. Agin. At the trial in the municipal court of Boston, before Nash, J., the defendant admitted the killing, but contended that it was in selfdefence. The Commonwealth offered evidence that the defendant and Agin had a verbal altercation, and Agin advanced with his hand uplifted towards the defendant, who then shot him with a pistol. The defendant offered evidence that Agin advanced and seized him by the throat, while Agin’s brother</p> <p>stood near with an uplifted shovel, and Agin was choking the defendant when he fired.</p> <p>The surgeon who made a post mortem examination testified that the rigor mortis was very marked. The defendant, to show that he was in danger of his life from the great strength and violence of the deceased, proposed to ask the surgeon these questions : “Was not Jeremiah A. Agin a very strong and muscular man ? Did not the rigor mortis, being very marked, indicate that Agin was a remarkably powerful man ? ” But the judge excluded them.</p> <p>The defendant also offered to prove that “Agin was an experienced and practised garroter.” Garroting was said to be seizing a person by the throat in a peculiar mode, which in a very short time takes away life, and deprives a person of his powers almost immediately. The j'udge excluded this evidence ; but allowed the defendant to prove how he was actually seized by the throat, and then to show by experts the anatomical structure of the parts, and the various effects of such seizure and compression on the individual’s consciousness, strength, life and system generally.</p> <p>John Perham, Jr., testified that he saw the defendant shoot Agin, and that Agin was, at the time, between one and three feet from the defendant. To contradict Perham, the defendant called several of the grand jurors who found this indictment, and proposed to show by them that Perham testified differently before the grand jury as to the distance between the defendant and Agin when the pistol was fired. But the judge excluded this evidence, on the ground that it was against public policy and the established practice, to allow grand jurors to be called to detail the testimony of witnesses, given on a partial and ex parte, examination, and in the grand jury room, for the purpose of impeaching the witnesses at the trial of the indictment. The defendant was found guilty, and alleged exceptions.</p>

<p>The defendant was indicted in the municipal court for the manslaughter of William R. Chapman, by gi'-'ing him a mortal wound on the right side of the abdomen with - knife ; and after he had pleaded not guilty, and a jury had been empanelled to try the case, moved to quash the indictment because it did not set forth the length, breadth and depth of the wound. Nash, J. thereupon excused this jury until the next day, and proceeded with other trials before the other jury. The grand jury meanwhile returned a second indictment against the defendant for the same offence, to which, in his counsel’s absence, he pleaded not guilty, and the judge granted the motion to quash the first indictment. The defendant’s counsel afterwards claimed a verdict of acquittal on the first indictment, but the judge refused to direct one. The defendant’s counsel then stated that he had supposed that the case had been postponed until the next day, and that the court would not act upon the motion to quash until that time ; and requested leave to withdraw that motion. But the judge refused. The defendant’s counsel then moved for leave to withdraw the plea of not guilty to the second indictment, and to plead autrefois acquit, on the ground that the proceedings on the first indictment were tantamount to an acquittal. But the judge refused to allow it. It was agreed that the defendant should have the same benefit of these facts as if pleaded by him and found on demurrer or special verdict. The defendant was found guilty, and alleged exceptions.</p>

<p>An indictment against a common carrier of passengers for the loss by his negligence of the life of a passenger, on the St. of 1840, c. 80, which gives the fine to the use of the passenger’s executor or administrator for the benefit of his widow and heirs, mnst allege that administration has been taken out in this commonwealth.</p>

<p>Indictment, alleging in the first count that the defendant, at a certain time, at Boston, did “ keep and maintain a certain common nuisance, to wit, a building in said city of Boston, then and there used for the illegal sale and illegal keeping of intoxicating liquors, to the great injury and common nuisance of all the peaceable citizens of said commonwealth there residing, inhabiting and passing; against the peace and dignity of said commonwealth, and contrary to the form of the statute in such case made and provided.” The second count was precisely similar, except in substituting the word “tenement ” for building.</p> <p>The defendant, after conviction in the municipal court of Boston, moved in arrest of judgment, for the insufficiency of the indictment in not alleging in what the illegal sale and illegal keeping of intoxicating liquors consisted, nor setting forth and describing the offence of a common nuisance. Nash, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>Indictment on St. 1855, c. 405, for keeping and maintaining a building-and tenement used for the illegal sale and illegal keeping of intoxicating liquors. At the trial in the municipal court of Boston, before Huntington, J., the defendant requested the court to instruct the jury that evidence of illegal sales of intoxicating liquor was not sufficient of itself to make the building and tenement common nuisances, within the meaning of the statute, although such evidence would be sufficient to convict the defendant on an indictment charging him with being a common seller of intoxicating liquors. But .the judge refused and instructed the jury “ that the statute described what constituted a nuisance; and that, after the court had instructed them what constituted the offence, if the jury found, from the sales proved, that the defendant kept and maintained a building and tenement, used for the illegal sale and keeping of intoxicating liquor, that would be evidence upon which the jury might find the defendant guilty of a nuisance within the meaning of the statute, without proving other acts, not required by the statute, and which might be necessary to be proved to constitute a common nuisance at common law.” The defendant, being convicted, alleged exceptions, which were argued before the decision of the next preceding case of Commonwealth v. Kelly, ante, 175.</p>

<p>A railroad corporation, which has built a branch railroad under authority from the legislature, maintains it in good condition for use, uses it regularly and sufficiently for the transportation of freight, and is ready at all times to transport passengers and draw passenger cars over it whenever any shall be offered to be transported or drawn for a reasonable toll or compensation, does not forfeit its franchise by discontinuing, after public notice, the running of regular passenger trains over the branch railroad, when there is not sufficient passenger business at any rate of toll or fare to pay the expenses of running them, by reason of the establishment under authority of the legislature of a competing line for the transportation of passengers over a horse railroad.</p>

<p>Bastardy process under the Rev. Sts. c. 49, brought in the police court of Boston. At the trial in the superior court of Suffolk at March term 1857, the respondent objected that the complaint was improperly brought in the police court, and that he could not be holden thereon. Abbott, J. sustained the objec-</p> <p>tian and directed a verdict for the respondent, and the complainant alleged exceptions.</p> <p>In this court, A. K. P. Joy, for the respondent, suggested that the complainant had removed from the Commonwealth, and moved for an indorser of the writ, citing Rev. Sts. c. 90, § 10; Hill v. Wells, 6 Pick. 104; Cummings v. Hodgdon, 13 Met. 246; St. 1851, c. 96.</p>

<p>Action of contract against the administrator of the estate of Lemuel Pope. Trial before Bigelow, J., who reserved for the consideration of the full court the question whether, on the facts alleged in the declaration, any action at law could be maintained against the defendant as administrator, and other questions stated in the opinion.</p> <p>This case was argued and decided at November term 1855.</p>

Writ of error by the assignee in insolvency of William Pool to reverse a judgment of the court of common pleas on his default at the first term, in an action brought by the defendant in error. ■ The officer returned on the writ that he had attached real estate belonging to Pool, and had left a summons for him at his last and usual place of abode in Abington.

<p>Action of contract upon ajudgment of the supreme court of the State of Maine. Trial before Merrick, J., by whom the question whether that court had sufficient jurisdiction of the action in which that judgment was rendered, to enable this action to be maintained, was reserved, after verdict for the plaintiff, for the judgment of the whole court upon the following facts:</p> <p>The defendants are a corporation established and organized under the laws of this commonwealth, having their place of business in Boston. Edwin A. Norton of Portland, in Maine, was duly appointed by them their agent to transact certain por tians of their business at that place. The policy declared on in that action was issued and countersigned by him as their agent, in conformity with the usual course of business, and the defendants’ instructions. After bis agency had been revoked, but while he continued to reside at Portland, the writ in that action was served upon him as required by the statute of that state of 1846, c. 186, by leaving an attested copy at his last and usual place of abode in Portland; and this was the only service made upon the defendants; but Norton, immediately after receiving the copy of the writ, informed the defendants in writing of the fact.</p>

Action of tort on the Rev. Sts. c. 38, § 28, against the officers of the Lawrence Carpet Company, an insolvent manufacturing corporation, for knowingly making a false certificate under § 16, that the capital stock of that corporation, amounting to $130,000, had been paid in.

Action on the Rev. Sts. c. 104, .brought before a justice of the peace on the 13th of June 1856, in the form prescribed by § 4. The answer admitted possession, but denied that the defendant held the premises unlawfully or against the right of the plaintiff.

<p>Under the Si. of 1858, c. 93, § 10, proceedings in insolvency can be had only in the county in which the debtor resides, and not in any other county in which he has a place of bus* ness.</p>

Petition filed in the court of common pleas on the 15th of April 1854, for a jury to assess damages occasioned by taking, to widen Atkinson Street in Boston, land leased to Samuel Sanford, of whose estate the petitioners were assignees in insolvency.

Action of tort for forcibly excluding the plaintiff from a theatre in Boston, called the Howard Athenaeum. At the trial in the superior court of Suffolk at September terrr, 1857, the plaintiff, who was a colored person, introduced evidence tending to show that he bought of the defendant, at the box office of the theatre, a ticket of the usual size and form of tickets of admission to places of amusement, on which were printed the words, “ Marsh’s Juvenile Comedians.

<p>A sale in good faith of shares in the stock of a manufacturing corporation, accompanied by an assignment and delivery of the certificate, without notice-to the corporation, is invalid as against a subsequent attachment and sale on execution against the seller.</p>

<p>Action of contract by indorsee against maker of a promissory note. At the trial in the superior court of Suffolk at March term 1857, the plaintiff produced the note declared upon and proved its execution and indorsement, and rested his case.</p> <p>The defendant introduced evidence that the note in suit was given for the amount remaining due on a larger note given by him for spirituous liquors sold to him by the indorser in 1853 and 1854, in violation of the St. of 1852, c. 322. The plaintiff offered no other evidence.</p> <p>Nash, J., instructed the jury that the plaintiff by producing the note and proving the signatures, had established a prima facie case; that the law presumes the holder of a negotiable note to be a bona fide holder for value, before maturity, but that if the jury found that the note was tainted with illegality in its inception, it was necessary for the plaintiff to show that he gave value for the note, and if, the illegality having been established, he did not introduce such evidence, they should find a verdict for the defendant; that if the original note was given for an illegal consideration, and this note was given in renewal of it, then the law deemed the second note to be founded on an illegal consideration, and this defence would apply to it, and the fact that the defendant knew his legal rights at the time made no difference; and that if the note was given for liquors sold in violation of the St. of 1852, the repeal of that statute did not purge it of its illegality, and the note in suit given in renewal thereof after such repeal would be deemed in law to be founded on an illegal consideration.</p> <p>The judge further ruled that an objection that this defence was not. open under the answer could not first be taken after the arguments had been made to the jury.</p> <p>The jury returned a verdict for the defendant, and the "plaintiff alleged exceptions.</p>

<p>Upon B.’s agreement to credit A. a sum of money in consideration of value received from C., C. may sue.</p>

<p>The indorsee of this order, “ At sight after the arrival and discharge of coal by brig G. pay to the order of myself fifteen hundred dollars, value received,” indorsed in blank and delivered before acceptance, may maintain an action thereon after acceptance and express promise by the drawee to pay to him personally, and demand accordingly.</p>

<p>Action of contract on two counts: 1st. For use and occupation of certain rooms; 2d. Upon an account annexed, which included a charge for storage of certain goods.</p> <p>At the trial in the superior court of Suffolk, before Huntington, J., after the case was opened to the jury, the defendant moved to strike out the first count, because the plaintiff had filed no bill of particulars. But the judge overruled the motion.</p> <p>It appeared that both counts were for the same cause of action ; that when the defendant quitted the premises hired of the plaintiff, he left there two or three trunks and a stove, which were in the plaintiff’s way, and she was obliged to remove them from one place to another, until the time of bringing this action. The defendant offered evidence tending to show a demand upon the plaintiff for said goods some time after he left the premises, and contended that the plaintiff had no lien for storage, and therefore could not recover for storing the goods, after such demand. But the judge instructed the jury that the plaintiff had a lien upon said goods for storage, and that as the demand had not been accompanied with any offer or tender of payment therefor, she could recover a reasonable compensation for subsequent storage, if the jury found that she had furnished it. The plaintiff did not claim a lien by virtue of any special agreement, or as an innkeeper or keeper of a warehouse. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Petition for a mandamus to the superior court of this county to compel the removal of an action of contract brought in that court by Bardwell & Dwight against the Grafton Manufacturing Company, (a manufacturing corporation established by the laws of the Commonwealth, and which, the petitioner alleged, had taken advantage of the insolvent laws, and suggested their insolvency on the record and intended no further defence to the action,) in which the petitioners and others had been summoned as stockholders of the corporation under St. 1851, c. 315, and the petitioner had filed an affidavit and motion under Sts. 1840, c. 87, § 3, and 1855, c. 449, § 4, for the removal of the action to this court, which the justices and the clerk of the superior court had'refused to allow.</p>

<p>A partner is not bound by the execution of a replevin bond by his copartner as surety in his own name, without affirmative evidence of authority so to bind him.</p>

<p>Bill in equity, in the nature of a bill of interpleader, to obtain the instructions of the court in the disposition of property held by the plaintiff under the following declaration of trust :</p> <p>“ This memorandum witnesseth that I have in my hands eighty one shares in the Eastern Railroad, thirty nine shares in the Eastern Railroad, New Hampshire, making in all one hundred and twenty shares ; also fifty shares in the Fitchburg Railroad ; all such shares standing in the name of Harriet Kittredge or Harriet P. Kittredge, as trustee. The said several shares were purchased with the money of Dr. Rufus Kittredge of Portsmouth, New Hampshire, and are in my hands in trust for the following purposes and uses, that is to say, the income and dividend on said several shares are to be paid to the said Rufus Kittredge, during his lifetime; and at his decease, twenty shares in the Fitchburg Railroad are to go to the Trustees of Donations for Education in Liberia in Africa; the remaining shares are to go, one half to the American Board of Commissioners for Foreign Missions, the property to remain invested and the income to be used as specified in the act of incorporation; the other half to be given to the McLean Asylum, situated in Somerville, Massachusetts, and to remain invested, and the income to be used in aid of the support at the asylum of poor insane persons of the State of New Hampshire. Said Rufus Kittredge retaining the right to modify said uses or to revoke said trust. Ellen K. Stone.”</p> <p>The case was set down for hearing upon the bill and answers, and was as follows:</p> <p>Dr. Kittredge in his will, executed on the 28th of October 1852, and. confirmed by a codicil of the 1st of October 1853, made provision for his wife, and bequests to many individuals and to the American Board of Commissioners for Foreign Missions, and constituted the Trustees of Donations for Education in Liberia his residuary devisees and legatees.</p> <p>About the 1st of December 1853 Dr. Kittredge, having previously purchased the stock mentioned in the above declaration of trust, and taken certificates thereof in the name of Harriet P. Kittredge, or Harriet Kittredge, trustee, (who had previously signed a declaration of trusts similar to this, and afterwards died,) sent the certificates, with blank transfers indorsed upon them and signed by Harriet P. Kittredge, to the plaintiff, with the above declaration of trust, which he requested her to sign and return it to him, and she did so. The plaintiff never paid any consideration for the shares, and the dividends thereon were paid to Dr. Kittredge during his life;</p> <p>Dr. Kittredge died in February 1854 without issue, and his will was admitted to probate in New Hampshire in April 1854. He left property enough, besides the stocks mentioned in the declaration of trust, to pay and satisfy all the legacies and provisions of his will. His widow waived the provision made for her in her husband’s will, and claimed the share of his estate to which she was then entitled by the statute of New Hampshire, which provided that the widow of every man deceased testate, leaving no lineal descendant, should be entitled, beside her dower, to one third of all his estate, after paying debts and expenses, if no provision was made for her in the will, or if she waived the provision. Rev. Sts. of N. H. c. 165, § 8. Comp. Sts. c. 175, § 8.</p> <p>After the death of Dr. Kittredge, and before filing this bill, the plaintiff filled up, as of the date of December 1st 1853, the blank transfers indorsed on the backs of the certificates of stock, and demanded new certificates; but the corporations declined to issue them.</p> <p>The Massachusetts General Hospital in their answer insisted upon the validity of the declaration of trust, and claimed the portion of stock therein given to the McLean Asylum in Som erville, which was one department of their institution.</p> <p>The widow answered that the stock enumerated in the declaration of trust was never transferred or delivered to the plaintiff, and that such transfer, if made, was testamentary in its nature, designed to avoid the effect of the laws of New Hampshire, and, as to her, fraudulent and void.</p> <p>The executor of the will of Dr. Kittredge, the representatives of Harriet P. Kittredge, the American Board of Commissioners for Foreign Missions, the Trustees of Donations for Education in Liberia, and the railroad corporations, filed answers submitting their rights to the decision of the court, or suffered the bill to be taken for confessed against them.</p>

<p>Action of contract by the receivers of the Cochituate Bank upon a bill of exchange and a promissory note. The defendant filed a declaration in set-off, and the case was submitted to the determination of the court upon the following facts:</p> <p>An injunction issued from this court against the Cochituate Bank on the 15th of April 1854, restraining it from paying any uill, deposit or other debt, negotiating, assigning or transferring any security, and transacting any business, except receiving payment in cash of any debt falling due. This injunction was continued from time to time, and finally made perpetual on the 5th of June. On the 20th of April the plaintiffs were appointed receivers. The bill and note sued upon did not become due until after the appointment of the plaintiffs as receivers. When they did become due, the defendant offered in payment bills of the Cochituate Bank to the amount of $1750, and a check drawn by the Cochituate Bank on a bank in New York, for $3000, duly protested. The plaintiffs refused to receive them in payment of these debts, but offered to give to the defendants certificates of these such as were given to other billholders and creditors of the bank. Of this sum of $4750, the plaintiff held only $1200 when the first injunction was granted, and $1400 when the plaintiffs were appointed receivers, but the whole when the injunction was made perpetual.</p>

Action of contract by one of the three children and heirs at law of Thomas J. Lobdell against the administrators with the will annexed of his estate, to recover a share of the rents of land of which he died possessed, since collected by the defendants at the request of the widow and heirs and as agents for all parties interested.

<p>Action of tort for slander, in falsely and maliciously accusing the plaintiff of the crime of larceny by words in substance as follows: “ Dr. Krebs was imprisoned many years in a penitentiary in Germany for larceny.”</p> <p>At the trial before Thomas, J., the plaintiff introduced evidence tending to show the speaking of these words to the father, brother and brother in law of a woman whom the plaintiff was about to marry, and to a fourth person, who was not related to the family, but whose brother in law had married her sister.</p> <p>The defendant testified that he had been on intimate terms with the members of the family to whom the charges against the plaintiff’s character had been communicated ; that he had always repeated them as reports which he had heard ; that he had not been previously acquainted with the plaintiff; that he had no malicious intent in speaking, and that he made the communications in good faith, and in pursuance of what he considered a duty.</p> <p>The defendant asked the court to rule, as matter of law, that the words alleged to have been spoken by the defendant did not impute to the plaintiff the commission of the crime of larceny, and the plaintiff could not recover. But the court declined so to rule; and left it to the jury to say whether on the whole they were satisfied the defendant by these words had meant to impute to the plaintiff the commission of the crime of larceny.</p> <p>The defendant also prayed the court to instruct the jury, “ that if the words alleged to have been spoken by the defendant of the plaintiff were confidentially communicated by the defendant to members of the family of a lady whom the plaintiff was about to marry, with which family the defendant was familiarly acquainted and on terms of frie.ndship, and if the defendant believed them to be true, and they were spoken in good faith and without malice, and in pursuance of what the defendant believed to be his moral duty, it was a privileged communication, and the plaintiff cannot recover.” But the court refused to give this instruction; and ruled “that the fact that the plaintiff was about to be married could not justify the defendant in reporting to the members of the lady’s family the charges alleged, if false, no inquiry having been made of the defendant or information requested from him; that the defendant sustained no relation to the family of the lady which would make the communication privileged in law, and that the defence could not be maintained.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>A contract made in this state to subscribe to shares in the capital stock of a railroad corporation established by the laws of another state, and having their road and treasury there, is a contract to be performed there, and is to be construed by the laws of that state.</p> <p>Under the Rev. Sts. c. 94, § 60, at the argument before this court upon a report which shows that at the trial one of the parties referred to the decisions of the courts of another state, he may prove the law of that state by citing the books of reports of decisions of those courts.</p> <p>A contract “to take and fill ” a certain number of shares in the capital stock of a railroad corporation established in Maine, which by its charter is to consist of not less than four thousand nor more than ten thousand shares, upon condition that “the corporation may organize when four thousand shares shall have been subscribed, but no contract for the building and completing the road shall be entered into until seven thousand shares have been subscribed,” renders the subscriber liable after four thousand shares have been subscribed and the corporation has been organized and passed a vote to dispose of the residue of the capital stock authorized by the charter, although no other vote has been passed fixing the amount of the stock and the ten thousand shares have not been taken.</p>

<p>The construction of a contract contained in letters is a question of law for the (jurt.</p> <p>The submission of a question of law to the jury is no ground of exception if they decide it aright.</p> <p>After a manufacturer’s death his agent wrote to his factors, announcing that he had since sent them a quantity of goods, and asking them to accept a draft drawn upon the day of the death. They answered, declining to accept the draft until they saw what course would be taken about the estate, but offering to accept it if drawn by the agent in the name of the estate, and with the agent’s written guaranty. The agent wrote that he had been appointed administrator, but had not yet been qualified as such, sent them a draft for acceptance, informed them of his intention to send them all the goods, and said; * As to the guaranty of drafts now made, I am willing to do, so far as I can, in any form you dictate. The drafts now accepted, if not overdrawn above the goods now sent in and being sent in since the decease, I think are safe to you, whether the estate pays or not. Any paper you wish me to sign please send me.” They replied, “If 3rou propose sending the goods you are now making to be sold on account of the estate for the payment of this and other drafts, we do not know as we want any guaranty from you.” Held, that these letters constituted no contract on the part of the administrator that the factors might appty the proceeds of the goods to the pa3rment of the debt due to them from the estate; or if they did, that by the laws of Vermont and Massachusetts an administrator has no power to make such a contract.</p>

<p>Action of contract,-brought in the superior court of Suflolk on the 22d of December 1856. One count in the declaration alleged that the defendants sold a quantity of hay and straw belonging to the plaintiff, of the value of $640.36; that the expenses and charges, including a guaranty commission for the same, were $67.21; that, in consideration of said guaranty commission, the defendants agreed to guaranty and did guaranty said sales of bay and straw to the plaintiff, and thereby became liable to pay and owed the plaintiff the sum of $573.15. The defendants demurred to this count, because it proceeded upon a contract of guaranty, yet did not allege that the plaintiff had endeavored and been unable to collect the amount due on the sales of hay and straw from the purchaser, and had applied to him for the collection of that amount. Huntington, J. overruled the demurrer.</p> <p>Another count alleged that the defendants sold certain hay and straw belonging to the plaintiff, and represented to the plaintiff that they had in their hands, after deducting all expenses and charges, the sum of $573.15, and authorized the plaintiff to draw on them for that amount, and agreed to accept and pay the draft; and that the plaintiff thereupon drew such a draft, at thirty days, payable to the order of Samuel L. Jackson, which was duly presented to the defendants for acceptance, and they then refused to accept it. The defendants admitted that they made an offer to accept the plaintiff’s draft for the amount stated; but alleged that it was merely for the plaintiff’s accommodation, and was withdrawn before it was accepted.</p> <p>At the trial in the superior court there was evidence of the following facts: The defendants, who were dealers in coal and lumber and commission merchants in Boston, took a quantity of hay and straw belonging to the plaintiff, who resided in Portland, on storage, and agreed to sell it, if they had an opportunity, and receive a commission therefor; sold it to one Bayley, and on the 16th of October 1856 sent him an account, in which they charged a commission of five per cent, and showed a balance in his favor of $573.15, and a letter saying: “ We have not yet collected the amount. Such sales, although made for cash, are usually allowed to remain a month or so, and we are promised the money in a few days. When we receive it, we will do with the same as you may direct us. If it will accommodate you, you may draw on us at one month’s sight for the above amount, and we will accept the same.”</p> <p>The plaintiff returned an answer, dated October 22d, expressing dissatisfaction with the charge of the commission; and sent to Jackson, bis agent in Boston, a draft on the defendants for a larger sum, allowing a commission of two and a half per cent, only. This draft was presented to the defendants for acceptance by Jackson, and they refused to accept it, but told Jackson that if the plaintiff would draw on them for the proper amount, allowing five per cent, commission, they would accept it.</p> <p>Jackson testified that a day or two afterwards he read to the defendant Jones an extract from a letter from the plaintiff to him, dated October 27th, complaining that the defendants had charged five per cent, commission without a guaranty; that thereupon Jones said that the charge included a guaranty commission, and offered to guaranty if the plaintiff would allow the five per cent, commission, and Jones agreed to accept the plaintiff’s draft, if drawn upon the defendants for the amount stated in the account rendered.</p> <p>Jones testified that there never was any such conversation about a guaranty or a guaranty commission; that he never agreed to guaranty, and that the five per cent, commission was for the sale alone, which was attended with extra trouble.</p> <p>There was no evidence that the defendants ever represented that they had collected the money due on the sales, or that they did in fact collect it, except the sum of $52.84, which was less than they claimed for charges, commissions and expenses. It appeared that they told Bayley that the hay belonged to the plaintiff and was sold on his account, and soon afterwards told the plaintiff’s son in Boston to whom they had sold it; and that on the 25th of October Bayley became insolvent and stopped payment.</p> <p>There was evidence that on the 29th of October the defendants wrote to the plaintiff, saying: “ We have made out another account according to your wishes, although the trouble we have had in this business is well worth a good deal more. When the amount is collected, we will pay the same to your order, but until then we must decline doing anything else in the matter;” that the plaintiff received this letter, and on the 30th of October wrote to Jackson, enclosing the draft declared on in the second count, which was presented by Jackson to them for acceptance, and acceptance refused; and that Jackson received this draft only as the plaintiff’s agent to get it accepted.</p> <p>The question of the times of mailing and receiving the various letters was left to the jury on conflicting evidence. The defendants’ counsel argued that the defendants’ letter of October 29th reached the plaintiff before Jackson had presented the second draft; and requested the judge to instruct the jury that if the defendants’ letter reached the plaintiff before this draft was presented, and Jackson acted merely as the plaintiff’s agent to get the acceptance, if there was a previous contract to accept a guaranty, that contract was withdrawn by that letter. But the judge refused so to' instruct; and did instruct the jury that if the negotiations were conducted by correspondence between the plaintiff and defendants, and the defendants offered to treat the sale as a guaranty and to pay or accept a draft for the amount of sales, based on the amount of sales and allowance of five per cent, commission, they had a right to retract the offer at any time before it had been accepted by the plaintiff; but if the plaintiff accepted the offer, and relinquished the two and a lalf per cent, to the defendants, and wrote to them to that effect, t would be too late for them to withdraw their prior offer when the draft drawn pursuant to that such offer was presented to hem personally.</p> <p>The defendants argued to the jury that their offers to accept the plaintiff’s draft were offers to accept for his accommodation merely; and contended that the measure of damages for nonacceptance of the defendants was the inconvenience and loss which the plaintiff had sustained from relying on their offer to accept and their failure to do so. But the judge instructed the jury that the measure of damages was the amount of the draft. The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>This clause in a policy of insurance against fire, “ other insurance permitted without notice until required,” applies to insurance already existing on the property, notwithstanding that the policy provides that “ in case the assured shall have already any other insurance against loss by fire on the property hereby insured, not notified to this company and mentioned in or indorsed upon this policy,” the policy shall be void and of no effect.</p> <p>A policy of insurance on goods in “ the brick building situate on Main Street in C., known as D. & Co.’s car factory,” covers goods in a building erected as a wing against the rear wall of D. & Co.’s car factory on Main Street, with an opening through the wall of less than three feet square, usually closed by an iron door, if both wing and main building are used for manufacturing cars and known as “ D. & Co.’s car factory.”</p> <p>If, alter the preliminary proofs of a loss by fire under a policy of insurance, the officers of an insurance company visit the premises and converse with the insured and make no reference to the preliminary proofs, or raise any objection to them, while any defect therein may be remedied, and refuse to pay on other and distinct grounds, the insurance company will be estopped to set up any defect in the preliminary proof, although the conditions made part of the policy give explicit directions about proofs of loss, and the policy provides that no condition, stipulation, covenant or clause in the policy shall be altered, annulled or waived, except by writing indorsed on or annexed to the policy and signed by the president or secretary.</p> <p>A policy of insurance expressed to be issued on property described in a certain application, “ which is hereby declared to be a part of this policy and a warranty on the part of the ” assured, and to be " made and accepted in reference to the written and printed application whereon it is issued,” is not void, if there was no written application ever made; nor if issued upon a defective application, if that application was correct so far as it went.</p> <p>Where property covered by several policies of insurance is destroyed, the proportion of its value to be paid by one underwriter is that which the amount of his policy hears to the amount of all the insurance thereon; although some of the policies cover other property in addition to this.</p>

<p>Action of contkact against the Lawrence Carpet Company, the executors of the will of John Raynor, and Samuel G. Wheeler, as joint promisors of three promissory notes payable to the plaintiffs, signed on their face by the company, and on the back, before delivery, the first “ John Raynor, Samuel G. Wheeler,” and the other two “ Samuel G. Wheeler, John Raynor.” The corporation was defaulted. The other defendants answered that they were liable as indorsers only.</p> <p>At the trial the defendants offered to prove that the real agreements between the plaintiffs and Raynor and Wheeler, under which they wrote their names upon the back of the notes,, was that the plaintiffs should receive the notes from the Lawrence Carpet Company, indorsed by Raynor and Wheeler, and that Raynor should be first and Wheeler second indorser on the first note, and Wheeler first and Raynor second indorser on the other.two; that they were not joint promisors on either note; and that the notes had not been so protested for nonpayment as to charge indorsers. They also offered to prove these facts by the mortgage given at the same time with the notes, as a part of the same contract, and to secure their payment. But Thomas, J. ruled that Raynor and Wheeler, having signed said notes at their inception and before their delivery, were joint promisors thereon; and that the evidence offered could not vary that liability ; and directed a verdict for the plaintiffs. The defendants alleged exceptions.</p>

<p>In a bill in equity to enforce rights depending on the construction of a written contract set forth in the bill, the construction alleged, if not the true one, is not admitted by a demurrer.</p> <p>Insolvent debtors conveyed their property to assignees for the payment of their debts; the assignees issued certificates to the creditors of the amounts of their claims, and after payment of certain dividends, the assignees and creditors agreed that the remaining assets should be specifically valued so as to equal in all the sums remaining due to the creditors, and should be sold by auction in lots to the creditors at such valuations as minimum prices, and be taken by the purchasers in payment of¡ their claims, and any surplus obtained should constitute a fund for a future dividend among the creditors according to the amounts of their original claims. One of the creditors indorsed on the certificate of his claim a memorandum addressed to the assignees, by which he assigned “ my demands on you for the debt within named to A., without recourse to me in any event, and authorize you to make ah settlements with him; ’’ and by a similar paper assigned to A. “ all my right, title Dr interest in and to a certain portion of a certified claim to K., now held by me, said portion amounting to $1335, and authorize you to make settlement of above sold portion of said claim with him 5 ” and A. rendered an account to this creditor, in which he credited him with “ balance of your claim on estate ” of the debtor “ and for $1335 of claim of K.,” each fifty per cent, of the original claim. Held, that A., by these transfers, acquired the interest of this creditor in the surplus fund belonging to the transferred debts as well'as in the debts themselves; that paroi evidence was inadmissible to vary the terms of these assignments; that a demurrer to a bill by this creditor against A. and the trustees, which set forth the written transfers, and alleged that the plaintiffs reserved all right in the surplus fund, did not admit that fact; and that the plaintiff, after the demurrer had been sustained, could not amend his bill by alleging a mistake in the terms of the transfers, notice thereof to A., and his reply that he claimed onIjr a part of the surplus fund, proportionate to the portions of the claims which were unpaid at the time of the assignment.</p>

<p>Bill in equity, filed on the 24th of January 1851, against George W. Coffin ; George K. Jewett and Leonard March, partners under the firm of Jewett & March; John W. Veazie, and Samuel Smith; to enforce against Coffin, and against Jewett & March as holding under him, a contract in writing made on the 31st of August 1844 by Coffin with Smith, and by Smith on the 21st of September 1844 assigned to the plaintiff. The bill was taken for confessed against Veazie and Smith, and they were examined as witnesses in behalf of the plaintiff by order of court de bene.</p> <p>At November term 1853 the case was heard before Bigelow, J. upon the bill, amended bill, answers of Coffin and of Jewett & March, exhibits and proofs. C. B. Goodrich, in behalf of Jewett & March, submitted certain positions, one of which was that “ the complainant and bis assignor Smith have by their loches lost any right which they might otherwise have had to any equitable relief.” The presiding judge reserved several questions, not including this,* which were argued before the whole court at March term 1855. The facts are stated in the opinion which was delivered at March term 1856.</p>

<p>Writ of error to reverse a judgment rendered by the municipal court of Boston upon a plea of nolo contendere to an indictment which alleged “ that Sarah E. Wells of Boston, in the county of Suffolk and Commonwealth aforesaid, spinster, on the first day of December in the year eighteen hundred and fifty-seven, and on divers other days and times between said first day of December and the first day of June eighteen hundred and fifty eight, at said Boston, did knowingly keep and maintain a certain building, then and on said other days and times there by her kept and used as a house of ill fame, and then and on said other days and times there resorted to for the purpose of prostitution and lewdness, and that the said Sarah E. Wells in said house, for her own lucre and gain, certain persons whose persons and names to said jurors as yet are not known, as well men as women, of evil name and fame and of dishonest conversation, to frequent and come together did then on said other days and times there unlawfully and wilfully cause, permit and procure, and the said men and women in said house, as well in the night as in the day, then and on said other days and times there did suffer and permit to be and to remain whoring; to the common nuisance of all good citizens then and on said other days and times there residing, passing and being, and in evil example to all others in like case offending, against the law, peace and dignity of said Commonwealth, and contrary to the form of the statute in such case made and provided.” The errors assigned are stated in the opinion.</p>

<p>Action of contract to recover $100, the amount of a reward offered by the defendant on the 21st of February 1856 for the íecovery of eight cases of boots stolen from him.</p> <p>At the trial in the superior court of Suffolk at March term 1857, the plaintiff called as a witness Luther A. Ham, who testified that on the 21st of February 1856 he was deputy chief of police in Boston; that about noon of that day the plaintiff called upon him, and inquired if he had any information of any boots or shoes having been recently stolen; to which he answered that he had not; that the plaintiff then told him, if any were reported as stolen, to let him know it, as he thought he could put him in the way of recovering the property; that between two and three o’clock in the afternoon of the same day the defendant called on him, and told him that he had had eight cases of boots stolen from him that day, and was about getting out handbills offering a reward of $100 for their recovery ; that he told the defendant to send his handbills and have them distributed ; that the defendant then left, and in the course of the afternoon sent the handbills in question for distribution, and the witness took one of them to the plaintiff; that the plaintiff said he thought he could get the boots and the thief, and gave such a description of the thief that he was arrested the same night and subsequently convicted ; that the next morning the witness went to the plaintiff and asked him for the boots, and the plaintiff showed him the eight cases of boots, then in his possession, and the witness took possession of them and carried them to the police office, where they were delivered to the defendant; that the witness afterwards asked the defendant when he was going to pay the reward, and the defendant replied. Never,’ he did not offer it for thieves, and was going to get the plaintiff indicted.</p> <p>Abbott, J. ruled, “ that taking this testimony as all true, the plaintiff was not entitled to recover; because all that he had done towards the recovery of the property, after the offer of the reward by the defendant, was not to conceal the stolen property ¡ which was then in his possession ; that he was legally bound to do all that he did do on the application of the officer; and that any attempt to conceal the property and keep it from the possession of the officer or the defendant, after be was notified that it was stolen, would have been a felony under the Rev. Sts. c. 126, § 20; and also because the plaintiff was not solely entitled to the whole reward, it appearing that the recovery of the property in question was the joint result of information given by him, and of the acts and exertions of Ham; and that if the defendant was liable at all, the property having been recovered and restored to him by Ham, the suit must be in favor of the plaintiff and Ham jointly, or in favor of Ham alone.” A verdict was taken for the defendant, and the plaintiff alleged exceptions.</p>

<p>Action of tort for breaking and entering the plaintiff’s close in Boston, and there breaking down a seawall and digging and piling up earth, and thereby letting in the sea and destroying the foundations of the plaintiff’s house. After the case had been referred by rule of court, the plaintiff filed another count, alleging the breaking and digging to have been on land adjoining the plaintiff’s. The referee made a general award for the plaintiff, which the defendant moved to set aside. Bigelow, J. overruled the motion, and gave judgment on the award. The defendant alleged exceptions.</p>

Action of contract upon a promissory note. Trial and verdict for the plaintiff in the superior court of Suffolk at January term 1858, before Huntington, J., to whose rulings the defendant alleged exceptions. The facts material to the point decided are stated in the opinion.

<p>An agreement by a bailee not to remove the chattel from the premises without the bailor's consent is not broken by its removal by an officer attaching it on mesne process against the bailee; and such removal does not give the bailor a right of possession sufficient to enable him to maintain replevin against the officer.</p>

<p>Action of tort for taking a quantity of calf skins. The declaration in one count alleged title in the plaintiff; and in another a lien for work done upon them by the plaintiff as a currier. Answer, that the goods belonged to William Jameson, and were taken possession of under a warrant issued in proceedings in insolvency against Jameson, directed to the defendant as messenger. •</p> <p>At the trial in the superior court of Suffolk at September term 1857, the plaintiff offered evidence that the calf skins were left with him by Jameson to be curried ; and that when the work was partially done, Jameson sold them to him in payment of a debt due him, a part of which was for the work done on these skins and gave a bill of sale thereof to the plaintiff, in whose possession they then were.</p> <p>It appeared that proceedings in insolvency were duly commenced against Jameson soon after this sale; and a warrant issued to the defendant as messenger, on which he took the skins. The defendant offered evidence that the sale to the plaintiff was fraudulent and void as against Jameson’s creditors.</p> <p>The plaintiff claimed to recover the whole value of the skins, on the ground that the sale was not fraudulent; and also to recover, on the second count, the amount of work performed on the skins, on the ground that he had a subsisting lien on them therefor.</p> <p>Abbott, J. ruled, “ that if the plaintiff bought the skins of Jame-son, taking a bill of sale of them, together with the possession, and this purchase was good as between the parties, then if the jury were satisfied that the sale was fraudulent as against the creditors of Jameson, and that when the defendant took them the plaintiff claimed under said bill of sale to him, and not on the ground of having a lien on them, and had so continued in his claim till the commencement of this action, never demanding the amount of his lien of the defendant, or notifying him that he claimed any, but persisting in his claim under the sale to him, the plaintiff would not be entitled to recover on the second count the amount of his lien.” The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>A teacher in one of the public schools of the city of Boston, who is elected annually, and whose salary is payable quarterly, if dismissed in the middle of a quarter by the school committee, under Sis. 1844, c. 32, and 1854, c. 448, § 56, although for no misconduct on her part, cannot recover salary for the subsequent time.</p>

<p>Action of contract upon a judgment for $140.03 recovered in 1839. Answer, accord and satisfaction.</p> <p>At the trial in the superior court of Suffolk at Novemoer term 1858, the defendant offered evidence “ that in 1842 the plaintiff agreed that if the defendant, who was then poor and unable to pay, would raise and pay the plaintiff the sum of twenty dollars, he would receive the same in full settlement and satisfaction of said judgment; and that the defendant did by borrowing and collecting procure the amount named, in bank notes, and pay the same to the plaintiff, which the plaintiff received in full settlement and satisfaction of said judgment, and gave the defendant the following receipt: ‘ Boston, August 8th 1842. Received of J. Harriman twenty dollars in full of all demands of whatever name or nature to this date.</p> <p>‘ Charles Harriman.’ ”</p> <p>Abbott, J. ruled that such settlement and receipt did not constitute in law a valid accord and satisfaction, if the bank notes were received and paid as money, and so instructed the jury, who accordingly found their verdict for the plaintiff for the amount claimed, deducting the sum of twenty dollars. The defendant alleged exceptions.</p>

<p>Action of contract upon a promissory note. Answers, that the note was given for an illegal consideration, to wit, for spirituous and intoxicating liquors sold to the defendant Barker in violation of law. At the trial in the superior court of Suffolk at May term 1857, Huntington, J. ruled that under these answers the defendants could not introduce evidence that this note was made in renewal of two former notes the consideration of which was spirituous and intoxicating liquors illegally sold by the plaintiff to Barker. The defendants submitted to a verdict for the plaintiff, and alleged exceptions.</p>

Action of contract brought in the superior court of the county of Suffolk. Within the tithe fixed by statute for filing an affidavit of merits, the defendant filed the following affidavit: “ I verily believe that I have a substantial defence to the above entitled action, and intend to bring the same to trial.” The answer afterwards filed alleged that the plaintiff was a married woman, and therefore not entitled to maintain said action.

<p>Action of contract for goods sold and delivered in 1850. Writ dated May 7th 1851. After filing an affidavit of merits, but during the time allowed by law for filing an answer, the defendant put in a plea in abatement for nonjoinder of defendants, which was overruled because filed too late.</p> <p>At the trial in the superior court of Suffolk at November term 1858, before Abbott, J., the plaintiff gave in evidence a letter to him from the defendant while agent of the Worcester Shuttle Company, dated May 16th 1851, in which he sent him an account between the plaintiff and that company, showing a sum due the plaintiff, and said, “ Herewith you have account as it stands on our books; the amount due you can draw for at sight, or send order by express, as you please.” The judge ruled that this was sufficient to take the case out of the statute of limitations to the extent of the sum named in it.</p> <p>To prove payment, the defendant offered evidence that he put in the post-office at Worcester a letter containing the amount-due, addressed to the plaintiff at his residence and place of business in Lowell; and contended that this was prima facie evidence of payment, and raised a presumption of law and fact that the plaintiff received the money, which, unless overcome by the plaintiff was sufficient evidence of payment. But the judge</p> <p>ruled “ that there was no such presumption; and that the enclosing and mailing the money was only evidence to be weighed and appreciated by the jury with other evidence on that question ; without stating how strong or how weak that evidence was.” The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of tort for the conversion of personal property, claimed by the plaintiff to be exempt from attachment, as tools, and implements necessary for the plaintiff’s trade as a tinsmith. Writ dated September 30th 1856.</p> <p>The defendant Keith justified as a constable of Boston, under a levy upon an execution in favor of one of the other defendants, and under an attachment on mesne process in favor of the third; and they all denied that the property attached was the plaintiff’s or exempt from attachment.</p> <p>At the trial in the superior court of Suffolk, it appeared that the plaintiff served an apprenticeship, and from 1843 to the summer of 1856 was engaged in the trade of a tinsmith ; but during that summer he also kept a refreshment room under his own name; that in August 1856 he gave up his tin shop, stored the chattels now attached, went to New York in pursuit of employment in his trade, or some other occupation, taking with him some of his tools, and assisted in keeping a refreshment room there, in a house occupied by himself and family, until he returned to Boston, early in September; that he did some work as a tinsmith in New York, and on his return tc Boston he opened a refreshment room, because the tools of his trade had been seized by the defendants.</p> <p>The defendants contended, that the word “ necessary ” in the statute excluded everything that the debtor could dispense with in his trade; that the exemption applied to the principal business of the debtor, if he had two occupations; and that if the plaintiff had abandoned his trade, the exemption would not apply at all.</p> <p>Huntington, J. instructed the jury, “that the tools claimed to be exempt from attachment must, at the time of the taking, be absolutely necessary for the debtor in his trade or calling, and such as he could dispense with would not be so exempt; that the exemption applied to the principal business of the debtor; that as to giving up his trade, there was a distinction between a permanent abandonment and a temporary one ; that if he had abandoned the occupation of a tinsmith, the tools necessary would not be exempt; but that if he intended to return to it at a future day, the tools would be protected from attachment during the suspension.”</p> <p>The defendants, to disprove the plaintiff’s title, offered evidence that before the attachment the plaintiff executed to George E. Prescott a bill of parcels of the property attached. The plaintiff was then permitted, against the defendants’ objection, to prove by paroi evidence that this instrument was delivered as a mortgage to secure the repayment of sixty dollars lent at the same time by Prescott to the plaintiff. Prescott cancelled the instrument in court, without objection on the part of the defendants; and the judge instructed the jury that they might assess damages without regard to the mortgage. The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>The St. of 1848, c. 252, providing that no action shall be brought' to charge an assignee in insolvency personally upon any special promise, unless in writing and signed by him, does not apply to a promise by an assignee to the insolvent debtor to pay a certain sum in consideration of his having arranged a compromise of a suit brought against the assignee.</p> <p>A party to an action, who is called as a witness, cannot be asked on cross-examination, in order to affect his credibility, about his part in transactions irrelevant to the issue on trial.</p> <p>A party to an action, called as a witness, was allowed, against his objection, to be asked on cross-examination about matters irrelevant to the issue, in order to test his credibility; and the jury were afterwards instructed that his answers to such questions should have no further influence. He alleged exceptions, which were allowed by the presiding judge, and which stated that no exception was taken to the ruling at the time of permitting the cross-examination. Heldt that the admissibility of the questions was open to revision in this court.</p>

Action of tort by an infant, by his father and next friend, against the defendant, for breaking the plaintiff’s leg on the 2d of July 1855. Writ dated May 16th 1856. At the trial in the superior court of Suffolk at March term 1857, before Nash, J., it appeared that the plaintiff lived with his father.

<p>Bill in equity by the widow of George Savage to redeem land from a mortgage and to establish her right of dower therein. The case is stated in the opinion.</p>

<p>Bill in equity, under the St. of 1851, c. 206, to apply to the payment of a debt due from the defendant Bancroft, who resided in California, to the plaintiff, the proceeds of a mortgage of land in Marlborough, made by Brigham, another defendant, to Bancroft, and assigned for no consideration to Tubbs, the third defendant, without the note, which there was no evidence to show had passed out of Bancroft’s hands.</p>

<p>A bill m equity alleged that the plaintiff conveyed land to the defendant by an absolute deed, and took back a defeasance by which it was to stand as security for advances by the defendant to the plaintiff’s brother, and the defendant afterwards sold the land and took back a note and mortgage for the purchase money; and prayed for an account, and that, upon payment of the amount due to the defendant, the note and mortgage might be transferred to the plaintiff. Held, that the suit need not be brought in the county where the land was; that the plaintiff was entitled to relief in equity, although the defendant had not actually received any money for the land; and that the plaintiff’s brother need not be made a party to the bill.</p>

Action of contract, with two counts, by the executors of the will of Sarah Burroughs Foster, formerly Sarah Burroughs Alley, widow of Joseph W. Foster, upon an agreement to purchase for distinct prices three twelfths and one twelfth, undivided, of certain land in Boston. The parties agreed that if upon the following facts the plaintiffs could convey a good title in their own names, judgment should be entered for them; otherwise, for the defendant.

<p>A testator gave to his wife all his estate, real and personal, “ under the following conditions 2 She to be residuary legatee and to receive the entire income thereof during her natural life, to use or dispose of or to give away to any of her relations or friends so much as shall not be given in the following legacies: namely, I direct her to take and maintain our two grandchildren, the two daughters of our deceased son, provided their mother and father in law will let her have them to bring up and educate in that way she thinks best for the children; but if the parents will not consent to give them up to their grandmother to be so educated, then she shall be at liberty to do for the children what she pleases.” Then followed legacies to the grandchildren, which, in case they died unmarried, were to go to several charitable societies named; and a legacy to another woman in case she should outlive the testator and his wife; and then this clause: “ The remainder of my estate, after my wife has used and given away what she chooses, and all the legacies and expenses are paid out of the estate, I give the balance left to the above written societies in equal proportions.” He appointed his wife “ executor and residuary legatee ” and another person coexecutor, and empowered them to sell his real estate and invest it in stocks or otherwise manage it at their discretion. Held^ that the wife took a fee in the real estate, which after her decease went to her heirs at law and not to the societies.</p>

Bill in equity in the nature of a bill of interpleader by the administrator with the will annexed of the estate of Henderson Inches, which contained the following clauses : “ After all my just debts shall have been paid, the sum of four thousand dollars shall be taken from my estate for the use of each of my five children, Henderson, Charles, Herman, Martin and Caroline, each of them to have said sum of four thousand dollars, to carry out and fulfil the intention of my…

Action of tort against the defendants as common carriers, for the loss upon their railroad of a trunk and its contents, of the value of $214.

<p>A provision in the charter of a railroad corporation that proprietors of certain wharves and lands should have the right to construct upon such lands railroads connecting with the main road, and of entering upon that road with their cars and vehicles, “ and that the owners and conductors ofesaid cars and vehicles shall be liable to pay the same and nr other rates of toll, and be subject to the same rules, regulations and provisions as the owners and conductors of other cars and vehicles travelling upon said main road,” does not, since the passage of the St, of 1845, c, 191, regulating and limiting the rights oí connecting roads to use a railroad, give the proprietors of those wharves and lands tho right to have goods transported in the cars of the corporation owning the railroad at ths same rates and no higher than those charged to others for the same and similar kinds of goods.</p> <p>A railroad corporation is not obliged as a common carrier to transport goods and merchandise for all persons at the same rates.</p> <p>In an action to recover for transporting merchandise over a railroad, in the absence of a special contract, evidence is admissible that the plaintiffs raised their charges without giving notice thereof to the defendant, and without his knowing that they were different from what he had been accustomed to pay.</p>

<p>When trial by jury is waived under St. 1857, c. 267, the presiding judge’s findings of facl have the same effect as a verdict, and are not open to exception.</p> <p>In an action against an officer for storage of articles attached by him in another action, and left by him on the premises of this plaintiff in this, his return on the writ, in which he adds to his fees a claim of this plaintiff for the storage, is admissible for the purpose of showing that he was aware of the claim and admitted it, but not evidence of the amount due therefor.</p> <p>In an action by a railroad corporation against an officer for storage of freight cars attached by him and left for some days on their premises, freight agents of other railroads are competent witnesses to the proper charge for such storage, although they have never known a case of storing cars except when the freight in a car has been attached.</p> <p>In an action against an officer for the storage of chattels attached by him and left on the premises of this plaintiff, the evidence of other officers is inadmissible to show that in similar cases no charge for storage had ever been made to them.</p> <p>An officer who attaches chattels in the possession of a person other than the owner, and appoints a keeper of them, is liable for storage if he continues to keep them on the premises of the original bailee, although no agreement to that effect has been made, and he has had no notice to remove them.</p>

<p>Appeal from a decision of the board of aldermen of the city of Boston, awarding damages occasioned by the construction of the respondents’ railroad. The petition alleged that the petitioner was seised in fee and possessed of a lot of land and a right of way in a street, and that the respondents had taken a part of his land and the whole of the street for their railroad.</p> <p>When the case came on for trial in the superior court of Suffolk at November term 1857, before Hunting-ton, J., the respondents moved that Henry Gardner, mortgagee of the land described, should be summoned to appear and become a party to the proceedings. Gardner thereupon appeared, and asked leave to file a written waiver of all claim to damages by reason of the location of the respondents’ railroad. The respondents objected; but the court overruled the motion and allowed the waiver to be filed.</p> <p>The petitioner gave in evidence a warranty deed, with the usual covenants, from Gardner to him, dated October 25th 1849, of “ a certain piece or parcel of land, situate in that part of Boston called South Boston, and butted and bounded as follows, to wit: beginning at a point in the easterly side of Turnpike Street at the southwesterly corner of lands formerly bonded to Rowell, and from said point running southerly twenty feet and five inches by said Turnpike Street to Sixth Street; thence running southeasterly ninety one feet-and ten inches by said Sixth Street to a thirty foot street which runs parallel with and one hundred and sixty feet distant northwesterly from B Street; thence running northeasterly sixty eight feet ten inches by said thirty foot street, by a line which is parallel with and one hundred and ninety feet distant from said B Street; thence running northwesterly forty six feet by a line parallel with said Sixth Street to the southeasterly corner of said land formerly bonded to Rowell; {hence running westerly by the land bonded to said Rowell eighty feet to the point of beginning on said Turnpike Street; containing fifty five hundred and fifty nine and two thirds square feet of land.”</p> <p>It was admitted that the respondents took no land of the petitioner described in this deed, unless by taking the street. It was proved that the petitioner’s only rights in and to the street were derived from the deed; that the street had been opened for passing; that the petitioner had never used it; and that it had not been used by any one as a street or way; but a small portion of it near an adjoining street, and not adjoining the petitioner’s premises, had been laid out, though not used.</p> <p>Upon this evidence the respondents asked the court to role that the petitioner had no right of way in the street, and no claim for damages against them for locating their road over it. But the court refused so to rule.</p> <p>The respondents then asked the court to rule, that if the jury found there was no street or way in fact, but only one laid out on paper, and not used as a way, there was no obstruction of a private way by the respondents, and no claim for damage by the petitioner. But the court refused so to rule; and ruled that the petitioner had a right of way in the thirty foot street; and that the building of the railroad was an obstruction of a private way, for which the respondents were liable in damages.</p> <p>In proving the ámount of damages, the petitioner called Joseph Frye, who testified that he had lived in South Boston six or seven years, that he was a carriage maker, that he had bought two or three lots of land in South Boston, and that he knew the value of land there; and asked him “ whether the building of the railroad would diminish the value of land; how much less the petitioner’s land was worth in consequence of building the railroad; how much the building of the railroad had damaged the property.” The respondents objected to these questions; but the court permitted them to be put and answered.</p> <p>The respondents then 'offered to show that Gardner, the mortgagee, before the location of the railroad, gave them a warranty deed of the land alleged to be a private street, free from all incumbrances, and asked the court to rule that whatever damages the jury might find for obstructing the street should, to the extent of the mortgage, be applied in payment of the mortgage, and judgment rendered for the petitioner for only the balance. But the court refused so to role, or to admit the evidence.</p> <p>The jury returned a verdict for the petitioner, and the respondents alleged exceptions.</p>

<p>The stockholders of a railroad corporation voted to pay interest on subscriptions for stock until the completion of the railroad; and after payment of such interest for some time, and the completion of the road, passed another vote, reciting their pecuniary inability to pay one such dividend in arrear, and authorizing the issue of certificates therefor, payable at a future day named, “ with the express understanding and agreement that if there is not sufficient money in the treasury on the day that it falls due,” the holders of such scrip should recover p)'o rata so much as the treasurer should be able to pay, and that as soon afterwards as he should be able to paj it he should give notice by advertisement. Held, that so long as the treasurer had no funds, the holders of scrip could maintain no action.</p>

<p>Action of tort for injuries occasioned by the upsetting of the plaintiff’s wagon from driving at night against a pile of mud and seaweed placed and left by the defendants in a public road or highway in Boston. The defendants denied that this was a public road or highway, or that there was any negligence on their part.</p> <p>At the trial in' the superior court of Suffolk at September term 1857, before Abbott, J., it appeared that the accident occurred upon the branch road built upon the cross dam "leading from Gravelly Point in Roxbury to the milldam road from Boston to Brookline, and near the intersection of the two roads; and that the plaintiff had driven from Roxbury over this branch with the intention of going to Brookline by the milldam road without passing the toll-house thereon.</p> <p>Samuel Nicholson, who had been superintendent of the Boston and Roxbury Mill Corporation and of the defendant corporation for twenty seven years, testified that the Roxbury branch of the milldam belonged to the Boston and Roxbury Mill Corporation ; that it was built more than thirty years ago, and was kept in repair by that corporation for the purpose of bringing travel to their toll-house; that until within twenty three or twenty five years there was a toll-house at the westerly corner of the two roads, which had been given up on account of the inconvenience and expense of collecting toll in two places; that persons might drive over any part of the roads of that corporation without paying toll, unless they passed the toll-house; and that the seaweed had, since the construction of.the road and mills, been taken up from time to time at this place to prevent the obstruction of the flow of water to the defendants’ mill.</p> <p>Another witness, whose place of business was near the spot, testified that he had known the road called the Milldam Branch more than twenty years; that it had been a travelled road, open to the public, as far as he knew, during that time; that it was frequently travelled, and sometimes by persons passing from Roxbury to Brookline; and that the road was kept in repair by the agents of the Boston and Roxbury Mill Corporation.</p> <p>The defendants requested the court to give to the jury the following instructions: “ 1st. There was not sufficient evidence for the jury to find that there was a public road or highway over the land on which the seaweed was alleged to have been placed. 2d. If the jury believe that the way called the Roxbury Branch Milldam was constructed by the Boston and Roxbury Mill Corporation, for the purpose of bringing travel to their toll-house, and that it had been kept in repair by said corporation for that purpose, then the use of the way by the public for the purpose of passing from Roxbury to Brookline without passing the toll-house was merely by virtue of a license, and the public acquired no right by such use, and must use the way at their own risk.”</p> <p>The judge declined so to instruct the jury; and instructed them as follows: “ 1st. If the road on which the alleged accident happened was built by the Boston and Roxbury Mill Corporation, under and by virtue of their charter, to be used as a dam, and also as a road opening on their main milldam road, and had been finished by that corporation and kept in repair by them since for those purposes; and if it had been thrown open by them to the public, to be used by any one as a road, who might desire to make such use of it, and had been so used since its creation; then if the defendant corporation placed an obstruction in this road, and the plaintiff, while driving over the same with due care, was injured in his person or property by the obstruction, without any default on his part, the defendants would be liable for such injury. 2d. In order to make the obstruction such an one as the defendants would be liable for, the jury must be satisfied that the spot where it was placed was within the limits of the road which had been built by the Boston and Roxbury Mill Corporation as a road, and thrown open to the public and appropriated by them to the uses of a road, and also within the part of such road appropriated to travel; but the defendants would be equally liable for such obstruction, whether it was so placed as to interfere with those passing from the road in question towards Boston and the toll-house, or only so as to obstruct the passage of those passing towards Brookline.” The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

Action of contract by the executors of the will of Henry H. Fuller, counsellor at law, to recover the sum of $1240, under an indenture executed by him and the defendant on the 27th of July 1849, which recited that Fuller had rendered professional services for the defendant, the charges for which on his books, after deducting payments, amounted to the sum of $1980.83, in full payment and satisfaction of which he had agreed to receive and accept of the defendant the sum of…

Action of contract against expressmen between Boston and Providence,' R. 1, to recover $600 delivered to them at Providence to be forwarded to the plaintiff at Boston.

<p>A landlord, whose tenant holds over after the expiration of his lease, and is removed from the premises by execution on a judgment in a landlord and tenant process, may recover in an action of tort damages for his exclusion from the premises, from the expiration of the lease to the removal of the tenant.</p>

<p>Action of contract for money had and received by the defendant to the plaintiff’s use, being money collected of third persons upon claims belonging to the plaintiff. Answer, that the subject matter of this action had been tried and determined in a former action between the same parties.</p> <p>At the trial in the superior court of Suffolk at January term 1858, before Nash, J., the defendant offered the former judgment in evidence, to which the plaintiff objected, because it was not set forth in or annexed to the answer. But the judge admitted it.</p> <p>The declaration in the former action was in contract, alleging that, the plaintiff owning these claims, it was mutually agreed between the parties that the defendant should collect them with due diligence, and, after deducting ten per cent, for collecting, pay over the balance to the plaintiff as soon as collected; that the defendant had not used due diligence in collecting the claims, and had made large collections thereof, yet had neglected and refused to pay over the same or any part thereof to the plaintiff, and so had broken his contract. The answer in that action denied the plaintiff’s ownership of the claims and the defendants agreement to collect them ; and the defendant obtained a verdict and judgment.</p> <p>It was admitted that the plaintiff sought to recover the same sum of money in both actions. The plaintiff offered to prove that “ in the first action the only point left to the jury, and the only point on which the jury found for the defendant, was the special agreement.” But the judge was of opinion “ that on the above facts the subject matter of the present action had been litigated in the former suit, and that the difference of form in the declaration did not, and the evidence offered by the plaintiff would not, prevent the judgment in the first action from barring the present.” A verdict was taken for the defendant, and the plaintiff alleged exceptions.</p>

Action of contract, originally brought in the justices’ court of the county of Suffolk, and judgment rendered there for the plaintiff on the 20th, but not entered upon the record until the 23d of December 1856, when the defendant moved to strike off the default, and that motion being overruled, moved for leave to appeal, and that motion was allowed.

<p>Trustee process, returnable at March term 1855 of the superior court of Suffolk. The plaintiff and defendant resided in Connecticut. Parker, White and Gannett, partners doing business in Boston, being summoned as trustees, appeared and filed general answers, and afterwards specific answers to interrogatories of the plaintiff, in which they stated that Smith, the principal defendant, consigned to them a quantity of merchandise for sale, under an agreement that they should make advances thereon to half its value, or more if they should think proper, by their promissory notes, to be paid by the defendant at maturity if the trustees should not have sold enough to pay them; that a short time before the service of this process on them, he wrote to them, asking for two notes for $500 each, (which was more than they were bound to advance under this agreement,) and before this letter had been answered, Parker, one of the trustees, fearing the service of a trustee process on them, made and delivered to Benjamin D. Osgood, their bookkeeper, two promissory notes for $1000 and $500, signed in the name of the firm, and payable to Smith’s order, and told Osgood to enter them in the proper books, and charge them to Smith, and then to take them as Smith’s agent and deliver them to him and no one else, and not to give them back to any of the trustees; that Osgood received the notes accordingly, and sent them before the service of this process to the defendant, who received and accepted them before the entry of the action, but at what exact time the trustees did not know ; that the notes were thus from the time of their delivery to Smith put out of the possession and control of the trustees, and were afterwards paid by them at a bank in Boston, without any agreement that they should be indemnified if charged in this process ; and that at the time of the service of the writ they had on hand a quantity of the merchandise, which they afterwards sold for $1680.21 above all expenses and commissions.</p> <p>At November term 1856 the plaintiff filed allegations of facts not stated or denied in the trustees’ answers, and by agreement of parties the testimony of Smith and others was taken thereon by deposition. After the evidence had been taken, the trustees moved for leave to file further answers, which was objected to by the plaintiff, but granted by the superior court. At the trial upon these allegations at May term 1857, Abbott, J. ruled, that these answers were to be taken as conclusively true.</p> <p>In these answers they stated that at the time of making the agreement with Smith for the consignment it was agreed between him and Parker that in case any danger should arise of their being summoned as Smith’s trustees, Parker might act as his agent, and appoint other persons agents of Smith if Parker should think best; that Parker in appointing Osgood agent of Smith acted and intended to act in pursuance of that agreement ; that Parker, believing he had put the notes entirely out of his and his firm’s possession at the time of service, told his counsel so, but did not tell him of the previous agreement, not understanding the necessity of it; but, after Smith’s deposition was taken, in which this agreement was disclosed, Parker was instructed that the agreement ought to form part of the answer, and it was so made.</p> <p>Upon the allegations of fact, the judge found that neither note was delivered to the defendants, nor Osgood personally appointed by him his agent to receive the notes, before the service of this process on the trustees ; but excluded evidence, offered by the plaintiff, that Parker had no authority to constitute Osgood Smith’s agent to receive them. The plaintiff alleged exceptions to the rulings of the judge.</p>

<p>Action of contract, commenced on the 9th of December 1856, for board of the defendant’s wife from June 15th 1855 to January 26th 1856. Benjamin Shreve, who was summoned as trustee of the principal defendant on the 10th of December 1856, disclosed in his answer the following case :</p> <p>In July 1855 the defendant, a jeweller in Boston, owed debts to the amount of about $5000, and not being able to meet his payments, assigned his stock, which had cost him $6500, to Shreve, one of his creditors, in trust for the benefit of all his creditors. Before the end of the year 1855 the defendant and all his creditors agreed that they should take in full discharge of their debts the property assigned, which was clearly insuffieient to pay their debts in full. Drown relinquished all hia interest in the property, and Shreve took possession of it as the property of the creditors, and, after paying them a dividend of twenty per cent., agreed with them to take the rest of the stock off their hands and pay them a dividend of fifty per cent on the balance, disposed of the rest of the stock to the firm of Jones, Shreve & Brown, of which he was a partner, and with the proceeds paid such a dividend to all the creditors, except one who lived at a distance, whose dividend was ready for him on demand. The trustee, at the time of the service on him, had paid out an amount which, together with his interest as a creditor in the property, exceeded its value.</p>

<p>Trustee process. At the trial in this court, Merrick, J. ordered James M. Beebe and others, summoned as trustees, to be charged upon their answers, and they alleged exceptions, which sufficiently appear in the opinion.</p>

<p>Trustee process. James M. Beebe and others, summoned as trustees, in their answer disclosed that a year before service of this process the defendants, by an indenture between themselves, the trustees, and a number of the creditors, not including the plaintiffs, conveyed their property to the trustees in trust to pay the expenses of the assignment, and divide the residue without preference among their creditors. Upon these facts the superior court of Suffolk charged the trustees, and they appealed.</p>

<p>Action of contract upon this guaranty, signed by the defendant: “ For value received I hereby guaranty to Messrs. Jones & Wheelwright the prompt payment of W. W. Messer’s note dated March 20th 1852 and payable in eight months from date for five hundred and seventy and dollars.” The case was submitted to the decision of the court upon the following facts : The plaintiffs received from Messer, in payment for merchandise, a promissory note, corresponding to the description in the guaranty, payable to his own order, but not indorsed. The defendant, at the time of signing the guaranty, was shown this note, and was paid a commission for his guaranty. Neither party then knew that the note was not indorsed. In May 1852 Messer went to California, and has never since resided in Massachusetts. His note was left at a bank in Boston for collection, and the usual demand and protest for nonpayment were made, and notice thereof given to the defendant, who, on going to the bank, for the first time found out that the note was not indorsed, and refused to pay it.</p>

Action of contract upon this agreement: “ Boston, November 20th 1856. Mr. J. Mellen : Mr. Tamplin informs me that he is about making an agreement with you to remove a building in Charlestown, which I have an interest in; and if he does not pay you for so doing, I will see you paid, not to exceed ¡$200 — say two hundred dollars. Jos.

Action of contract upon this guaranty: “ Boston, December 22d 1856. To Messrs. Hatch, Hill & Co., Gentlemen : I hereby guaranty the sum of five hundred dollars, to be drawn out in merchandise by W. J. C. Hobbs from time to time as he may want. This guaranty to remain good until further order, or until April 1st 1857.

Action of contract. Writ dated December 30th 1855. The declaration contained two counts : one for money had and received according toan'account annexed; the other upon the following agreement, signed by the parties: “ Potsdam, December 16th 1863.

Action of contract on a promissory note, dated October 3d 1855, for $10,000, payable to the plaintiffs on demand, with interest; and on a check on the Grocers’ Bank, dated November 3d 1855, for $2500, payable to bearer.

<p>A bank, holding a note for collection, received the amount from an agent of the matter, and by mistake gave up to him a similar note of another person, and returned the first note to its owner, to whom the maker paid it on demand, and immediately, though four days after the payment to the bank, examined the note in his agent’s hands, and, discovering the mistake, returned it to the bank, and demanded back his money. Beld^ that he was entitled to it, with interest from the time of the demand, although the bank had meanwhile paid the amount to the owner of the other note, the maker of which was insolvent and the indorsers discharged for want of demand.</p>

<p>The pledgee of a promissory note, who has delivered it back to the pledgor under an agree ment to return it or another note, which he refuses to do, may maintain an action against him for the conversion of the note, although he obtained it without fraud.</p>

Action of contract on a promissory note. Answer, want of consideration. At the trial in the superior court of Suffolk at July term 1857 before Nelson, C. J., the plaintiff put in the note, and rested. The defendant then called witnesses who testified that there was no consideration for the note, and the plaintiff in rebuttal called other witnesses who testified that there was.

<p>Action of contract by an incorporated banking company in Vermont against the firm of W. & F. H. Whittemore & Co. as second indorsers of the following promissory note:</p> <p>“ $1000. Boston, May 1st 1855. Twelve months after date I promise to pay the Commercial Mutual Marine Insurance Company or order, for value received, one thousand dollars.</p> <p>“ Wm. P. Moore.”</p> <p>The case was submitted to the superior court of Suffolk, and, on appeal, to this court, upon certain depositions which showed the facts to be as follows:</p> <p>The note was made in Boston on the day of its date, but the maker’s home and place of business then and ever since were at Newbern in the State of North Carolina. In March 1856, the plaintiffs, through the agency of Ezra C. Hutchins of Boston, who was employed by their president, and by him furnished with money for that purpose, bought the note after it had been indorsed by the payees and by the defendants. It did not appear that the plaintiffs knew where the maker resided, except that he lived out of the city. On the 24th of March 1856, the plaintiffs’ cashier sent the note to Hutchins, with no instructions or explanation besides these words : “ I enclose for collection and deposit in Suffolk Bank; Wm. P. Moore, due May 1-4.” Hutchins then knew the maker’s residence and place of business. On the 24th of April following the cashier sent the note to the Merchants’ Bank of Newbern, whose cashier returned it, not protested, to Hutchins, in a letter dated April 30th, saying, “ Your letter of the 24th instant with one enclosure as stated is received, and which enclosure I return herein as below. Note of Wm. P. Moore, $1000. Exchange is so scarce that I could not remit if paid.” The 4th of May was Sunday. Hutchins received this letter and the enclosed note on the 5th of May, and immediately informed the defendants, and asked them to waive demand and pay it; but they declined to do so, and Hutchins on the same day sent the note back to Newbern, where, on the 12th of May, it was presented by a notary public to Moore for payment, which he refused, and the note was duly protested and notice thereof sent to the defendants, who received it on the 17th of May.</p>

<p>A promissory note in this form: “ One year after date I promise to pay to the order of my self $522, value received,” signed “ J. S., Trustee of Sullivan Railroad,” and indorsed “ J. S., Trustee,” binds J. S. personally.</p>

Action oi; contract against the owners of the barque Dublin on an account annexed for disbursements for towage, pilotage, and other charges and expenses at New Orleans; and also on the following bill of exchange, signed by the master : “ Exchange for $1709.69.

<p>Action of contract against the owner of the barque Edwin, to recover for money lent for and on his account to the master of the vessel. Trial in the superior court of Suffolk at May term 1858, before Morton, J., who signed the following bill of exceptions:</p> <p>“ The plaintiffs claimed that the Edwin was a foreign vessel, owned in and sailing from the port of New York, and that the money was lent in Boston, at a time when it was necessary for the payment of her crew. To prove that she was a foreign vessel, the plaintiffs offered to show that she had the words ‘ Barque Edwin of New York ’ painted on her stern, as required by the laws of the United States. The defendant objected to this testimony, on the ground that the ownership of the barque and the place where she belonged should be proved by the custom house register, and that paroi testimony was not admissible to show these facts. But the court overruled the objection, and admitted the testimony.</p> <p>“ The plaintiffs called witnesses who testified that the barque Edwin was a New York vessel, owned by the defendant. The defendant objected to this testimony, on the grounds above stated. But the court overruled his objection, and admitted the testimony.</p> <p>“ The only testimony to prove the loan and the circumstance? attending it was that of Caleb Eaton, one of the plaintiffs, wh< testified that he knew the barque Edwin and her master, Captain Matthews, and had known him for two years ; that in the last of July 1857 the barque was at Battery Wharf in Boston, with a full cargo, which the captain had just commenced discharging that he knew Captain Matthews to be master, because he told him so, and. because he had seen him on board the barque, acting in the capacity of master; that the vessel had cleared from New York about a year before ; he had seen her clearance in a news paper, and Captain Matthews told him he had been gone about a year; that in the latter part of July the captain applied to the plaintiffs for a loan, representing that he needed the money ai once to pay off his officers and crew, that he had no money oi means, and that there was no consignee or agent of the ownei in this port, but that he did all the business for the owner; that the plaintiffs thereupon lent him the money in suit "on account of the barque Edwin and owners, and took his receipt therefor; and that there were no circumstances or facts to lead him to suspect that the money was not needed immediately, or that the captain could procure it elsewhere.</p> <p>“ The defendant’s counsel then objected to the plaintiffs’ right to recover, and moved for a nonsuit, upon the following grounds: 1st. That on the evidence it does not appear that this vessel was a foreign vessel. 2d. That there was not in the evidence reasonable diligence used by the plaintiffs to' ascertain whether this money was necessary. 3d. That in the facts disclosed no such necessity is shown to have existed as authorized the captain to borrow this money. 4th. That assuming on the evidence that the vessel belonged in New York, the distance and means of communication are such that the master could have applied to the owner, and therefore no necessity existed to borrow this money. 5th. That the master was not authorized to borrow money to pay for work already done. 6th. That the master’s authority is limited by the necessity of the case; he cannot make the owner responsible for money not actually necessary for those purposes, although he may pretend it is; and on the evidence no such necessity is shown to exist. But the court overruled the objections and motion.</p> <p>“ The case was then argued to the jury by the respective counsel; and the defendant’s counsel asked the court to instruct the jury, that if the jury are of opinion that the cargo could have been discharged and the freight collected on or before the day when the money was borrowed, no necessity existed for borrowing, and the defendant is not liable; that if the captain could have raised the money by advances from the consignees, then he was not authorized to borrow, and the defendant is not liable; that the burden of proof is on the plaintiffs to show that there existed an actual necessity for the money for the use of the vessel, that the captain could not have raised the rponey in any other manner, and that the captain or the plaintiffs could not have communicated with the owner without great prejudice and delay; and if they fail to satisfy the jury in all these points, the verdict must be for the defendant.</p> <p>“ But the court declined to give the instructions as prayed for by the defendant, and, upon the whole case, instructed the jury, that if the vessel was a foreign vessel and in a foreign port, and there was an apparent -necessity for money to be advanced immediately for the necessary disbursements here; and if the owner had no agent or consignee in this port, and the master had no means or money of his own or of the defendant; and if the plaintiffs in good faith advanced to the master for that purpose a sum of money; and if the plaintiffs used reasonable care and diligence to ascertain whether or not the advances were necessary to be made at that time, and there were no facts or circumstances in the transaction, or which could have been ascertained upon a reasonable and prudent inquiry, to lead to a suspicion of the contrary; then the plaintiffs would be justified in lending money to the master under such circumstances upon the credit of the owner; and that the burden of proof was upon the plaintiffs to satisfy the jury on all these points.</p> <p>“ The court also instructed the jury that the ports of the several states of the Union were, as to each other, foreign ports; that if they were satisfied that the barque Edwin was a New York vessel, then, when in Boston, she was in a foreign port within the meaning of the above instructions; that the nearness of the two ports and the facility of communication between them were proper to be considered by the jury in determining the question whether there existed an apparent necessity for the advances to be made immediately, and whether the plaintiffs used due diligence to ascertain whether or not such advances were necessary, but were not, of themselves, conclusive as to the liability of the defendants.</p> <p>“ The jury returned a verdict for the plaintiffs. And to the foregoing rulings, instructions and refusals to instruct, the defendant excepts.”</p>

<p>Action of contract against the owners of the schooner Phoenix for provisions and money furnished the master while she was sailing under the following contract between the defendants and him : “ I, John H. Johnson, master of the Schooner Phoenix of Boston, agree with the owners of said schooner to take said schooner on shares to sail from Boston to Savannah and back to Boston ; that is to say, I agree to make no charges against said owners except one half of the port charges, and to receive for my pay for victualling said schooner one half of the net amount of all charters and freight in full.</p> <p>“ John H. Johnson.”</p> <p>At the trial in the superior court of Suffolk at May term 1857, Nelson, C. J. ruled that this contract did not relieve the owners from liability for necessaries furnished at the master’s request during the voyage; and admitted statements made by the master to the plaintiff at the time of obtaining the supplies, as evidence that the supplies furnished by the plaintiffs were necessaries. The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>Representations made before the execution of a bill of lading by the consignor 01 goons shipped under it, as to the depth of water at the place of landing named therein, cannot be given in evidence by the owner of the ship in an action against him by the consignee for the loss of the goods.</p> <p>Under a bill of lading reciting the shipping of goods on a particular ship to be landed at a certain place, the goods must be landed there from the ship, if it can be done with safety to her.</p> <p>In an action for the loss of goods shipped under a bill of Jading, in which perils of the sea only are excepted, the owner of the ship has no grounu of exception to an instruction to the jury that the burden is on him to prove that they were lost by per Is of the sea.</p>

Action of contract to recover fifty dollars “ for services and commissions in procuring charter for schooner Broad Field to Canary Islands and back of,William F. Weld & Co.,” being two and a half per cent, on $2000, the amount of the charter money.

<p>in an action against the proprietors of a wharf for injuries occasioned by a defect therein to a person upon it in the employment of a third party to whom the wharf was let, the'jury were instructed that if the defendants had established the wharf for the uses of the public for a reasonable compensation, they were bound to keep it safe for such use; and if the plaintiff, when properly on the wharf, in the exercise of reasonable care and diligence, sustained injury through a defect in the wharf, he was entitled to recover, unless the defect was so hidden and concealed that it could not be discovered by such examination and inspection as the construction, uses and exposures of the wharf reasonably required; and if the defendants knew that causes rendering the wharf insecure were constantly or occasionally in operation, which they could by the exercise of ordinary diligence and care provide against, they ought to do so. Sefof, that the defendants had no ground of exception.</p>

<p>Under a policy attaching on a ship or its cargo at sea, there is no implied warranty of seaworthiness at the inception of the risk.</p> <p>At the inception of the risk under a policy on cargo from the date of the policy to the end of the voyage, the ship was at sea in a very leaky condition, but carried her cargo to au intermediate port, was there condemned as unseaworthy from no subsequent peril, sold, and the cargo transhipped to another vessel. Held, that the underwriters were liable for a subsequent loss of the cargo before arrival at the port of destination.</p>

<p>A policy of insurance upon a ship for a year, and, “if the ship is at sea at the end of the year, then to continue at pro rata premium until she arrives at her port of destination,’* terminates when the ship at the end of the year is, or afterwards first arrives, at.a place to which she is sent to take in cargo, although it is not a port by law, but an open road-stead, with no haven, harbor or custom house, and is not her final destination.</p>

<p>Action of contract upon an open policy of insurance against perils' of the seas, fire and the other usual risks, “ on provisions on board steamers, hulls and barges at and from Madison, Indiana, to New Orleans, and at and thence in vessel or vessels to Boston; to cover the risk of fire while landed during transportation ; to cover all provisions shipped 11 said Mansur, and this company to be advised of the name of each boat and vessel and amount at risk as soon as known to the assured in Boston; ” “ beginning the adventure upon said provisions as aforesaid, and to continue during the voyage aforesaid, on the vessel until she shall be arrived and moored at anchor twenty four hours in safety, and on the property until landed.” Under this policy was insured a quantity of provisions shipped on the steamer Landis from Indianapolis to New Orleans, and on the ship Middlesex from New Orleans to Boston, and valued in one gross sum by indorsement on the policy.</p> <p>The Middlesex arrived at Battery Wharf in Boston on the 26th of April 1855. On the next day, the men employed in discharging other parts of her cargo began to take out the plaintiffs’ provisions, without any knowledge by the plaintiffs’ consignee other than the general notice that the vessel had arrived at the wharf and was about to discharge her cargo ; and about half an hour later, while they were so occupied, and after they had landed one hundred and fifty six tierces and three barrels of these provisions, the buildings on the wharf took fire, and the fire spread so rapidly that many vessels lying at the wharf were seriously injured ; there was no time to move the provisions landed, either back into the ship or away from the wharf, and they were totally destroyed by the fire; and the Middlesex, with the residue of her cargo, was with great difficulty hauled away from the wharf and saved, and the remaining provisions were afterwards safely delivered to the plaintiffs’ consignees at another wharf. This action was brought to recover the value of the provisions so destroyed by fire, and was submitted to the judgment of the court upon the facts above stated.</p>

<p>Action of contract on a policy of insurance upon the barque John Murray, for the term of one year from January 30th 1856, in the usual printed form, but containing this clause in writing: “ It is agreed that the company shall not be liable for any loss or expense in replacing the copper now on the bottom of said vessel, or any part thereof, should the same be removed from any cause whatever, but this company shall be liable for the loss and expense that may happen to the copper after .she shall have been new coppered.” Trial before Bigelow, J., who reported for the decision of the full court the following case:</p> <p>“ In February 1856 the vessel sailed from Buenos Ayres for England, and after sailing encountered bad weather, sprung a leak, put back, was surveyed, condemned and sold. The defendants admitted that if the expense of coppering the bottom of the vessel was included in the repairs, the amount thereof would be sufficient to make a constructive total loss. There was evidence to show that if the vessel had been repaired and had not been recoppered, she would have required a brimstone bottom to make her seaworthy, which would have cost about half the price of copper. The defendants contended that by reason of the clause in the policy no expense of this kind could be included in the repairs. In relation to this, the jury were instructed to exclude the cost of recoppering, but if it was necessary in order to refit the vessel to repair her bottom, and in order to make her seaworthy a brimstone bottom was necessary, the cost of it would be properly included in the estimate. The jury found for a total loss, and, upon inquiry, said that they had considered a brimstone bottom necessary to render the vessel seaworthy, if the vessel was repaired and not recoppered, and considered the cost of it in determining whether the expenses of repairs would exceed half the sum insured.”</p>

<p>Upon a policy of marine insurance, issued by a mutual insurance company, to insurance brokers “ on account of whom it may concern,” and payable to the brokers in case of loss, an action may be maintained by the real owners of the property, although the by-laws of the company provide that none but members of the company shall be insured therein. And the defendants cannot set off any claim against the brokers.</p>

Action of contract against a mutual fire insurance company established at Worcester, upon a policy whereby they insured the plaintiffs for one,year from the 28th of September 1855, “ against loss or damage by fire to the amount of twenty five hundred dollars, to wit, $1250 on sugar in process of refining, and $1250 on machinery,” contained in their building in Dedham; “ the said loss or damage to be estimated according to the true and actual value of the property at the time…

<p>Action of contract upon a policy of insurance to “ P. E. Kingman and others of Boston, on their sugars in process of refinery and machinery $1500, sugar in store-house $1000, in wood buildings in Dedham, Mass., payable in case of loss to the Shawmut Sugar Refining Company.” By indorsement, consented to by the defendants, Kingman assigned bis interest in the policy to the plaintiffs. Trial in the superior court of Suffolk at November term 1857, before Huntington, J., when a verdict was taken for the plaintiffs for the amount of the premium only, and they alleged exceptions, upon the grounds stated in the ■ opinion</p>

<p>Action of contract upon a policy by which the plaintiff was insured “ against loss or damage by tire, under the conditions and limitations expressed in the by-laws” of the defendants, annexed to the policy, on his “ stock in trade, being mostly chamber furniture in sets and other articles usually kept by furniture dealers, contained in second story of the building known as Gerrish Market in the City of Boston, on Portland Street, corner of Sudbury Street, $2000; and other insurance of $3000 subsists; with liberty to have and make further insurance to an amount being not more than three fourths of the value of the property described in the application of the said insured dated the thirtieth day of October 1855, which application is lodged with the secretary of this company and shall form part of the contract to be taken in connection with this policy.”</p> <p>Among the by-laws annexed were the following: Art. 1. “ The object of this corporation is to insure such dwTelling-houses and other buildings with their contents and such personal property as shall not be generally considered extrahazardous, and to insure upon those only which are ordinarily considered as first class risks.” Art. 2. “ The company may make insurance for the term of five years; but a greater amount than three thousand dollars shall not be taken on any one risk, or on separate risks where the buildings or property are so situated as to render the same in effect equivalent to a single risk. When property is insured by this company solely, three fourths only of the value will be taken, and in cases of loss this company will be liable to pay three fourths only of the value at the time of the loss, but in no case more than is insured by this company. But in case of partial losses on real estate, this company will pay the full amount.” Art. 8. “ In case any other insurance, prior or subsequent, shall subsist upon property insured by this company, the policy issued by this company shall be deemed and become void, unless such other insurance subsists with the consent of the directors, signified by a statement thereof in the policy, or by indorsement thereon, signed by the secretary; and in case of loss or damage of property upon which such authorized double insurance subsists, this company shall be liable to pay only such proportion thereof as the sum insured by this company bears to the whole amount insured thereon, such amount not to exceed three fourths of the actual value of the property at the time of the loss.” Art. 16. “ Unless the applicant for insurance shall make a true representation in writing of the property on which he requests insurance, and of his title and interest therein, of its situation, and of all other matters materially affecting the risk, also all incumbrances, the policy shall be void.” Art. 24. “ All applications shall be approved by two directors, and no director shall approve an application for insurance on property in' which he is in any way interested.”</p> <p>The application was for insurance “ on household furniture in the second story of the Gerrish Market, being my stock in trade, mostly chamber furniture in sets; ” and provided that “ all the questions must be answered,” and that “ the answers to the following interrogatories shall form the basis of the contract for insurance, and the applicant warrants them to be entirely true, and will be bound by them.” “ 8. Is cotton waste, or any explosive or highly inflammable matter, kept near or in the premises on which this insurance is applied for 1 ” Answer. “ Not to my knowledge.” “ 11. Are there any other circumstances material to the risk: if so, what are they ? If there be a livery stable qr steam engine in the vicinity, state how near to the risk.” Answer. “ There is a small steam engine in the fourth story.” “ 14. Who owns the building to be insured or which contains the property to be insured ? ” Answer. “ George W. Gerrish.” “ 15. Who occupies it ? ” Answer. “ Market-stall men; self; White & Co., polishers; Barnard & Dillingham, painters; San-born, Carter & Bazin, bookbinders, and one ornamental do.” And " the said applicant hereby covenants and agrees with the said company that the description herein given is a full and true description of the property to be insured and of all circumstances in relation thereto, material to the risk, and that the estimated valuation shall not be conclusive upon the company; but in case of loss the true value at the time of loss may be inquired into and ascertained; the questions not answered above shall be construed most favorably to the risk; and that said applicant shall be bound by the provisions of the constitution and bylaws annexed to the policy, and all laws of the Commonwealth of Massachusetts in relation to the premises, as a part of this contract for insurance.”</p> <p>At the trial in the superior court of Suffolk at May term 1857 before Huntington, J., it appeared that the Gerrish Market building was a very large building, in which a great variety of business was carried on under a great number of tenants; that, from the time of the application for insurance to that of the fire, the premises occupied by the plaintiff consisted of a large hall or salesroom and three rooms adjoining, a paint room, varnish room, and store or packing room; the furniture was made at another establishment or manufactory, sent up to the salesroom “ in the white” or unpainted, and varnished, painted and trimmed in the rooms adjoining the salesroom ; and a quantity of varnish, oils and paints was kept in the premises for use in finishing the furniture. There was no evidence of any intention on the part of the plaintiffs to conceal or neglect to make inquiries about the occupation. The whole stock was consumed by fire on the 12th of April 1856.</p> <p>There was evidence tending to show that it was usual for furniture dealers in Boston to keep varnish as part of their stock, and that varnish was a highly combustible matter. The plaintiff introduced evidence tending to show, that varnish kept in casks was not a combustible or highly inflammable material, and also that some furniture dealers sold furniture “in the white ” to other dealers, to be painted, varnished and sold by them.</p> <p>The defendants objected that the policy covered only the stock of furniture finished, and did not extend to the paints or varnish or any other articles; and introduced evidence that several of the answers in the application were not true, and that some questions were not fully answered, and others not answered at all.</p> <p>The judge ruled “ that the contract of insurance covered the furniture of a furniture dealer, and such other articles as were proved to be usually kept by furniture dealers, and necessary to the pursuit of the plaintiff’s business; and that it was not confined to household furniture, mostly chamber furniture in sets, as the defendants contended, but might include the other articles usually kept by furniture dealers, as stated in the body of the policy: That in order to recover for the varnish and oil destroyed, the plaintiff must show that such articles were usually kept by furniture dealers ; that the jury were to inquire to what amount they were usually kept; and that the plaintiff would not be entitled to recover more in value than the usual amount, taking into consideration the nature and extent of the plaintiff’s business and the quantity of furniture on hand: That, the declarations, representations and statements in the application, so far as they related to the risk, were warranties, and no matter whether material or immaterial to the risk, if untrue, whether from design, ignorance or mistake, it would be fatal to a recovery by the plaintiff; that they were made the basis of the contract, and were to be construed according to their true spirit and real meaning; that they were to be read fairly and not captiously : That so far as no answers were given to questions in the application, they might find that the company waived such answers, but that the company must have the benefit of the provision in the contract that such” omission should be construed most favorably to the risk; and if there was any material concealment, or concealment of a material fact, it would avoid the policy: That as to the answers given to specific questions, the meaning of the language as to both was to be determined by common use and acceptation, and by all the other provisions of the contract touching the same subject matter, and by the different answers themselves; that if a misstatement could have no possible relation to the risk, it would not affect the policy; that the clause as to explosive substances would not be violated in having on hand so much varnish and oil as were necessary in carrying on the business of a furniture dealer, and in such quantities as were usually kept, under the former limitations; and that the jury, in determining whether this question was answered truly, might refer to the answers made to another question as.to the occupation of the building; and that as to the answer relating to the livery stables, the jury were to inquire whether it was proved that there was a livery stable in the vicinity at the time of the application; (the plaintiff contending that the evidence did not apply to that time but to a subsequent period;) and that if it was so proved, they were to determine what was the meaning of the question, and of the word ‘ vicinity,’ and whether there was a livery stable in that vicinity, having reference to the situation of the building, in which the property was situated, the situation of other buildings, and the locality, as ascertained from the contract and evidence.” As to the question in regard to the occupation of the building, there being evidence tending to show that at the time of the application there were occupants in one or two rooms of the building not named in the answer, besides the general instructions given, the jury were also instructed, “that if there were such occupants, not mentioned in the answer, the omission would not necessarily avoid the policy, if the jury were satisfied that by such occupation the risk was less hazardous than it would have been if the occupation and occupants were all such as stated in the answer; and that the purpose of the inquiry was to be borne in mind.</p> <p>On the question of damages, the jury were instructed, “ that the defendants were liable, if af all, for such proportion of the loss or damage as the sum insured by them bears to the whole amount insured on the property, subject to double insurance, not exceeding three fourths of the actual value; taking care, however, that the plaintiff should not recover in any event, more than three fourths of the value of the property covered by insurance with interest after ninety days from notice of loss.”</p> <p>The jury returned a verdict for the sum of $2,106.67, and found under directions of the court, specially, the value of the property insured to be $5,917.25. The amount of the whole insurance was agreed to be $5000. The defendants alleged exceptions.</p>

<p>Information in equity, in the nature of a writ of intrusion, filed by the attorney general at the relation of George Odiorne and others, for extending a wharf over flats of the Commonwealth in the cove on the northerly shore of South Boston, filling in the channel and obstructing navigation. The case was submitted to the judgment of the court upon the information, answer and master’s report. The defendants, who were incorporated by St. 1836, c. 259, claimed title under a deed from the South Boston Association, dated May 9th 1836, of “ all the flats of said South Boston Association at South Boston, north of First Street, lying between the flats on the west now or formerly belonging to John Winslow and the flats on the east now. or formerly belonging to William Sullivan and others, measuring at the south part on First Street eight hundred and twenty one feet or thereabouts, be the same more or less, and running out as far as the said association has a right to go, but without warranty as to the courses of the side lines, but meaning to sell the whole of its flats to the greatest extent said association has a right to them below First Street, and between the flats now or formerly owned as above.” The other facts appear in the opinion. The commissioners’ and harbor lines referred to are mentioned in St. .1853, c. 385, § 2. Annexed to the master’s report was a plan, the material part of which was as follows:</p> <p> </p>

Action of contract, praying for relief in equity, brought on the 1st of October 1855 by one partner against his copartner, in which the plaintiff alleged that on the 15th of April 1845 they entered into copartnership for the purpose of carrying on the flour and commission business, under the name of S. S. Jackson & Co.; that by an oral agreement Topliff furnished $10,000 as capital, and the defendant his services, the profits and losses were to be shared equally, and…

<p>Bill in equity to enforce the specific performance of a written contract made on the 1st of July 1858 by Weld with the plaintiffs for the purchase of their meeting-house and land at the corner of Washington and Pine Streets in Boston. The case was submitted to the decision of the court, upon the bill, answers and master’s reports, from which it appeared to be as follows :</p> <p>On the 6th of May 1828, Samuel Hubbard, John Tappan and William Ropes conveyed the premises in fee to John C. Proctor and thirteen others as joint tenants, by an indenture of three parts, which recited that the grantees “ and others their associates did agree together to found two new churches of the Orthodox faith in the said city of Boston, and to erect two houses for the public worship of Almighty God, for the accommodation of said churches, one to be located in the northerly part and the other in the southerly part of the city, and for the accomplishment of this charity they did subscribe and pay divers sums of money,” and appointed a building committee for each house; that the building committee for the house in the southerly part of the city, “ pursuant to the design of the said founders, and the authority by them given to said committee,” purchased the land now in question, and took a deed thereof to said Hubbard, Tappan and Ropes, and erected thereon a house for public worship; that “ a church of Christ has been gathered upon this foundation, called the Pine Street Church, to occupy said house, a part of the male members of which church are the parties of the third part hereof; and whereas it is intended by the members of the said church, agreeably to the design of the founders thereof, to maintain in the said house the public worship of God, under such Protestant Congregational or Presbyterian minister of the Gospel of Christ, as the male members of said church shall from time to time elect, independently and exclusively of such persons as may at any time form part of the congregation usually worshipping in said house, although such persons may be proprietors of pews therein ; to the end that, by the blessing of Almighty God, a succession of holy persons may be elected pastors of said church, and the faithful preaching of Christ crucified, agreeably to the general system of doctrines expressed in the Westminster Assembly’s Shorter Catechism, and in the Confession of Faith owned and consented to by the elders and messengers of the churches assembled at Boston, May 12th, A. D. 1680, be continued in the said house to the latest generations; and whereas, after deliberation, it has been thought advisable that the fee in said house and land should be vested in and held by a number of persons, selected from among the founders thereof, who are also members of sister Orthodox churches, in trust for the said church of Christ gathered as rforesaid, and for the more perfect protection thereof, according to human judgment; and also to preserve the rights of those persons who are, or may become, proprietors of pews in said house, but who may not be members of the said church; so that the rights of the church, and congregation who are not of the church, may be equally guarded; and whereas, in pursuance of this object, the said founders and the said parties of the third part hereof have mutually selected and agreed upon the parties of the second part, from among the founders aforesaid, as fit and suitable persons to become such trustees; and the said parties of the second part, upon the united solicitation of the said founders and the parties of the third part hereof, have agreed to receive and execute said trust, and receive and hold the fee of said house and land, for such use and purposes.”</p> <p>The indenture declared “ that this sale and conveyance is made upon the trusts and for the purposes hereinafter expressed, and for no other use, intent or purpose whatsoever: that is to say, upon this special trust and confidence, that the said parties of the second part, the survivors of them, their assigns and the survivor of them, shall and do permit and suffer so much of the said house and land as is designed for public worship, at all times hereafter, to be used, occupied °and enjoyed, as and for a meeting-house or place for the public Protestant religious worship and service of the one living and true God, Father, Son and Holy Spirit, by the said Pine Street Church, and such society or congregation as shall regularly attend public worship under the ministration of the present pastor, the Rev. Thomas H. Skinner, D. D., or such pastor or pastors as shall from time to time be elected by the male members of said church : and shall suffer and permit such Protestant Congregational or Presbyterian ministers of the Gospel as the male members of' said church shall from time to time elect and engage, and no others, statedly to preach and to perform religious exercises and services therein; and shall and will suffer and permit the deacons or a committee of the said church to lease the remaining part of said house and land, and to sell, demise and dispose of, or covenant and agree for, the having, holding and enjoying the pews or seats in said meeting-house ; ” and that “ for the purpose of reimbursing the original proprietors,” the parties of the third part should cause the pews in the house to be appraised and sold according to the directions of the indenture, and the proceeds appropriated to the payment of the expenses incurred by the building committee, and of the amounts paid by the subscribers; “ provided however that no such sale be contrary to nor inconsistent with any of the trusts herein expressed and declared, and subject also to all the rights of property of said truste'es as proprietors of the fee of said land and tenement 4” and upon the further trust that the parties of the second part and the survivors, their assigns and the survivors of them, should permit the deacons of the church or any committee chosen by the male members thereof to collect all taxes, rents and profits of the house and land, and to appropriate and pay over the same according to the direction of a majority of the male members of the church at a regular meeting, and to account with and be accountable therefor to the church only, and to make such repairs as the male members of the church should judge necessary or expedient; “ it being well understood that no proprietors of pews, who arc not members of the said church, shall ever have a voice, or be allowed to take any part or to act in the said business, or in the choice of a pastor, either directly or indirectly, and that their title and right, interest and property, in these pews, shall ever be subject to these incumbrances, restrictions and reservations; ” and upon the further trust that as often as the trustees should by death be reduced to the number of seven, the survivors should elect and appoint seven new trustees to be cotrustees and joint tenants with them ; provided however, and it was expressly declared and agreed, that upon any default so to elect and appoint new trustees within two years after the number of trustees should be reduced to three, “ or upon the dissolution of said churchy which-soever shall first happen, the premises shall thereafter remain and be held to the sole use of the several persons who shall then be proprietors'of pews in said house, and to their respective heirs, executors, administrators and assigns forever. And the parties of the second part hereof do solemnly hereby covenant, and as in the presence of God severally grant and agree to and with the parties of the third part hereof, and the successive male members of the Pine Street Church,” and with each other, “ that during the whole continuance of the trusts aforesaid, they will together hold the said land and house in joint tenancy,” and not sue for, attempt or permit any partition and division of the .premises, and that this covenant and agreement might be pleaded by any one or more of the trustees, or of the members of the church, ór by any other person or persons interested therein, in bar of any attempted partition , and also that they would faithfully perform and not refuse or neglect to execute, the trusts confided to them respectively, and never do or cause or suffer to be done any act or thing to prevent, interrupt, molest, disturb or hinder the use, occupation and enjoyment of the house and land in the manner and for the uses and purposes in this indenture expressed and declared. “And it is clearly understood and agreed, that such persons so offending in any of these respects shall be liable and subject to the' action of the said parties of the third part hereof and their successors, or of the said church itself, or of the deacons thereof, to compel such persons, in case of refusal or neglect as aforesaid, to execute the said trusts, or any or either of them; or in case of interruption, molestation, disturbance or hindrance, to recover such damages as may have been sustained by reason thereof. And to prevent all doubts with regard to the meaning of the word ‘ Church,’ as used in this indenture, it is hereby mutually understood and agreed by the parties to these presents, that by the word ‘ Church ’ it is intended to express a company of believers united into one body by an holy covenant, for the public worship of Almighty God, and the mutual edification of one another in the fellowship of the Lord Jesus. And by1 the Pine Street Church ’ is intended, as well the' several persons composing the third party of these presents, as the persons, whether females or males, who have entered or may hereafter enter into a written covenant and agreement, publicly consented unto by them, whereby they give up themselves unto the Lord Jesus Christ, to the observing of his ordinances together in the same society; which covenant, as entered upon the records of the Pine Street Church, may be referred to at pleasure by either of the parties to these presents. And lastly, it is mutually understood and agreed, and again declared by all the parties hereunto, that the said house and land are to and shall be holden by the said parties of the second part hereof, and their associates and successors to be chosen as aforesaid, upon the trusts and for the uses and purposes expressed and declared in this indenture, and for no other use, intent oi purpose whatsoever.”</p> <p>From the date of this indenture until the 17th of December 1831 the land and meeting-house were occupied by the Pine Street Church according to its terms; the secular and pecuniary affairs of the church were managed by the deacons under the direction of the male members of the church ; and the deacons, acting under the indenture, gave deeds of the pews. The church began in 1828 with a debt of $20,000, which was increased during these three years ; and could not long go on, and support preaching and other institutions of worship, without pecuniary aid, which it was unable to procure, either by sale of pews or by subscriptions, in consequence of the provisions of the indenture, by which pewholders had no voice in the affairs of the church.</p> <p>The plaintiffs were incorporated by St. 1831, c. 37, and on the 10th of August 1831 the male members of the church passed a unanimous vote, the material parts of which were as follows: “ Whereas, after solemn deliberation on the part of the male members of said church, it has been thought to be expedient that the restrictions to which the proprietors of pews in said meeting-house are subject by the said deed of trust should be removed in part, and that the fee in said bouse and land should be conveyed to the Pine Street Congregational Society, which has recently been incorporated by an act of the general court, so that the said society may give deeds of pews, by virtue of which the proprietors of pews in said house shall have a concurrent voice with the male members of the church in the choice of a minister, and shall also have the sole management of the secular and pecuniary affairs of the society; and whereas the proprietors of pews under said trust deed have generally surrendered the deeds held by them to be cancelled: Therefore voted, that the parties of the second part to the aforesaid indenture be and they are hereby authorized and requested to execute such deed or deeds of the property held by them as aforesaid, as may be suitable and proper to vest the fee in said meeting-house and the land thereto belonging in the said Pine Street Congregational Society, free and clear of all the trusts subject to which the said premises are now held by the said trustees, and that the said Hubbard, Tappan and Ropes be also requested to unite in such deed or deeds, on behalf of the founders of said Pine Street Church, to express their assent to the conveyance so to be made to the,said Pine Street Congregational Society.”</p> <p>On the 17th of December 1831, a second indenture was executed by Hubbard, Tappan and Ropes, Proctor and the other trustees under the first indenture, and the plaintiffs, which repeated the recitals of that indenture, and also recited the vote of August 10th, and by which said trustees conveyed the premises to the plaintiffs in fee; and Hubbard, Tappan and Ropes, “for themselves and their respective heirs, and so far as they have power and authority for this purpose, in behalf also of the founders of said Pine Street Church, do hereby declare their full and free assent to this conveyance ; and do in like manner for themselves and their respective heirs, and in behalf of the said founders, release and discharge all the covenants and agreements contained in said indenture of May 6th, A. D. 1828, on the part of the parties of the second and third parts thereto, which may in any manner interfere or be inconsistent with this present conveyance ; meaning hereby, so far as they have power and authority to do it, to approve and confirm the conveyance made by these presents, so that the said Pine Street Congregational Society may be seised and possessed of an absolute,estate in fee simple in the premises, freely and clearly acquitted and discharged of and from all and all manner of claims and demands of them the said parties of the first part hereto, or of the said founders of said Pine Street Church,” except on account of' a debt of $10,000 secured by mortgage on the estate, which the plaintiffs paid in 1843.</p> <p>All persons who had received deeds of pews from the deacons of the church (except one for whom a deed was prepared, and who afterwards died, and neither he nor his heirs ever applied for the deed, although duly notified of its existence) delivered them up and took new deeds from the plaintiffs. Since the1 17th of December 1831, the plaintiffs have been in possession of and have managed and controlled the estate, with the full knowledge and consent of the male members of the church, and without any one ever claiming, acting upon or attempting to enforce the trusts of the first indenture ; and there has never been any dispute or difficulty between the church and the plaintiffs concerning the property. In consequence of the conveyance of 1831, the church was enabled to procure the necessary money for the support of divine worship, and to reduce its debt. The plaintiffs have also expended the sum of $21,000 in repairing and altering their meeting-house, with the full knowledge and consent of the members of the church, and with the understanding that thé trusts in the indenture of 1$28 were fully discharged.</p> <p>In 1858, the plaintiffs obtained and duly accepted an act of the legislature, purporting to authorize them to sell their land and meeting-house free and discharged of all trusts, and to use the proceeds thereof, after paying the debts of the society, to purchase a lot of land in any part of Boston and build thereon another meeting-house. St. 1858, c. 153. The plaintiffs, for the purpose of selling their meeting-house and building another, caused the pews in the house to be duly appraised by three disinterested persons according to law; and sold their house and land by public auction to the defendant Weld, who signed a memorandum of sale, and refused to accept a deed solely upon the ground that the plaintiffs could not give a good title. The survivors of the grantors and grantees in the indenture of 1828 were made parties to the bill, and answered disclaiming any interest in the premises.</p> <p>H. W. Suter, for the defendant Weld. By the indenture of 1828, the founders of Pine Street Church dedicated and limited the premises conveyed to be used as and for a meeting-house and for no other use or purpose whatsoever, except as is therein provided; and distinctly prescribed the form of worship to be observed and the articles of belief to be inculcated and disseminated. ' Although by the terms of this indenture those pew holders who were not members of the church could have no voice in the management of its affairs, yet their rights as pew-holders are distinctly recognized and equally guarded with the rights of all others interested. Neither the indenture of 1831 nor any other evidence shows that any one wished or intended to change or pervert the uses and purposes to which the premises had been dedicated, or to do more than to confer on the pew-holders the same rights and privileges that pewholders enjoyed in religious societies organized under the general laws of the Commonwealth ; and to carry out this intention more effectually an act of incorporation of the plaintiffs was obtained. St. 1831, c. 37. It is not probable that within three years from the foundation of this charity all parties interested had become so indifferent to the trusts which they had so carefully defined, as to unite in a conveyance to discharge the premises of all trusts.</p> <p>The indenture of 1828 conferred no power of sale on the trustees. Even where the cestui que trust is sui juris, or where there is a valid limitation over, the trustee has no right to sell or dispose of the trust property unless express power is given him; and although the cestui que trust may call upon a trustee to convey the estate, yet he should generally seek the sanction or direction of a court of equity. 2 Story on Eq. §§ 978, 979. Hill on Trustees, (3d Amer. ed.) 381, 382 & notes. In re Turner, 10 Barb. 557. Moody v. Walters, 16 Ves. 309. Here the male members of the church were "not the only parties interested. Upon the sale of the pews by the deacons, the pewholders not members of the church became interested and cestuis que trust, and acquired good and valid interests in the premises, which the court would recognize and protect, and of which they could not be deprived without their own consent or upon a satisfactory indemnity. And it would seem that the unanimous consent of the pewholders was not obtained. The plaintiffs’ title was therefore defective. Attorney General v. Federal Street Meetinghouse, 3 Gray, 45. Gay v. Baker, 17 Mass. 435. If the premises became vested in the plaintiffs, burdened with the trusts, it would be a perversion and breach of trust for the plaintiffs to sell the property; and a purchaser with notice (as Weld would be) would be liable to be called upon to restore the property. A majority of those interested have not the power to discharge the trusts and appropriate the property to different purposes, and so pervert it, and the founders may insist on the trusts being held sacred. Milligan v. Mitchell, 3 Myl. & Cr. 72 Attorney General v. Pearson, 3 Meriv. 400,419. Miller v. Gable, 2 Denio, 525. Kniskern v. Lutheran Churches, 1 Sandf. Ch. 502</p> <p>& seq. Dartmouth College v. Woodward, 4 Wheat. 630.</p> <p>The trusts declared in the indenture of 1828 were intended to be of perpetual obligation, and for the benefit not only of those who were then the male members of the church, and who were parties thereto, but also for the benefit of all successive male members “ to the latest generations.” This created an equitable remainder, and the trust could be discharged by the. indenture of 1831 only as to those who were parties to it. The premises would thus come to Weld charged with the original trusts. Hildreth v. Eliot, 8 Pick. 293. • Salisbury v. Bigelow, 20 Pick. 180.</p> <p>If the court shall hold that the plaintiffs can make a good title, Weld will be liable to see to the application of the purchase money; for where a trust is of a defined and limited nature the trustee can give no receipt. 2 Story on Eq. § 1127. 1 White & Tudor’s Lead. Cas. in Eq. 80, 92, notes to Elliot v. Merryman.</p> <p>If the plaintiffs cannot otherwise give a good title to the property discharged of all trusts, the St. of 1858, c. 153, will not aid them; and, if it proposed to do so, it may be questioned whether it was within the constitutional power of the legislature. Solder v. Massachusetts General Hospital, 3 Cush. 497. Gay v. Baker, 17 Mass. 435.</p> <p>C. Demond, for the plaintiffs. By the indenture of 1828, all the parties intended to have the meeting-house and premises held under certain trusts for the use of Pine Street Church, so that no person not a member of that church and not holding a certain faith could have any voice in its affairs, and thus by force of the instrument itself secure forever the preaching of certain doctrines in that place. By the indenture of 1831, as appears by the indenture itself and the previous vote, all the parties to it desired, intended, and, so far as they could, did convey the premises to the plaintiffs, free from and clear of all the trusts contained in the first indenture. The fact that, the church found itself unable to support the preaching of the gospel as contem plated sufficiently accounts for the change of opinion as to the means by which the end might be secured.</p> <p>The indenture of 1831, executed by the founders of the trust, by all the trustees, and at the unanimous request of the male members of the church, the cestuis que trust, being all the parties interested, discharged the trusts. Salisbury v. Bigelow, 20 Pick. 185. Attorney General v. Federal Street Meeting-house, 3 Gray, 60. Lewin on Trusts, 260, 286. By the terms of the first indenture, pewholders were not only subject to the trusts, but “also to all the rights of property of the said'trustees as proprietors of the fee,” including their right to sell. All the pewholders gave up their deeds and took new ones from the plaintiffs, except one; and if his rights were not terminated by he deed, they are barred by the statute of limitations. Attorney General v. Federal Street Meeting-house, 3 Gray, 61-64.</p> <p>If there was an equitable remainder to those who should -.hereafter become members of the church, still, as the church :ould not sustain the public preaching of the gospel under the rust indenture, but could by discharging these trusts, the change node was beneficial, and such future members, like cestuis que trust not sui juris, were bound by the acts of the trustees; and if the conveyance was such as equity would have ordered, it is good without such order. Lewin on Trusts, 413, & cases cited. 2 Story on Eq. § 978, and authorities cited. If the male members of Pine Street Church had not the whole equity in the premises, they were the cestuis que trust, and, like equitable tenants in tail, could destroy the equitable remainder by destroying the particular estate for life. Archer’s case, 1 Co. 66. Moody v Walters, 16 Ves. 283. Lewin on Trusts, 502.</p> <p>If the trusts were not discharged by the indenture of 1831, the plaintiffs for more than twenty years since its execution have had entire and exclusive possession of the estate, claiming adversely to' both trustees and cestuis que trust, and asserting that all trusts were fully discharged; and have, with the full knowledge and consent of church and trustees, expended large sums of money on the estate. Such adverse possession and acquiescence constitute a complete bar +o all claims by trustees or cestuis que trust. Attorney General v. Federal Street Meetinghouse, 3 Gray, 61-64. Lewin on Trusts, 612, 617. 2 Story on Eq. §§ 1520-1522. Beckford v. Wade. 17 Yes. 97.</p> <p>Weld will not be bound to see to the application of the purchase money, if there are any trusts outstanding; for it is well settled that where the trusts are well defined and the money is not merely to be paid over to third persons, but is to be applied by the trustees to purposes which require deliberation and discretion, the purchaser is not bound to see to its application. 2 Story on Eq. § 1134. Wormley v. Wormley, 8 Wheat. 422,443.</p> <p>The St. of 1858, c. 153, authorizes a sale, and is constitutional and valid. Sohier v. Massachusetts General Hospital, 3 Cush. 497.</p>

<p>A statute empowering this court " to hear and determine in equity any and all matters relating to ” a particular gift for a specific charitable purpose to a corporation capable of receiving and holding it, “ and to malte all necessary or proper orders and decrees touching the same,” confers all the authority of a court of general chancery jurisdiction, and, among other things, to permit such alterations in the mode particularly prescribed by the donor as will best promote his general intent, and for this purpose to refer the case to a master to report a scheme.</p> <p>A gift designed to promote the public good, by the encouragement of learning, science and the useful arts, without any particular reference to the poor, is a charity.</p> <p>A corporation which has once accepted a gift for charitable uses within the scope of its charter cannot afterwards renounce it.</p> <p>A gift to trustees for specific charitable uses, if not accepted, does not revert to the donor’s heirs or residuary legatees, but will be applied to the purposes of the charity, through new trustees.</p> <p>If a gift, made in the lifetime of the donor to a coiporation for specific charitable uses, cannot be applied in the exact mode prescribed by him, the property does not go to another corporation which he has made his residuary legatee for a similar charitable purpose; but is to be applied by the donee, under the direction of this court sitting in equity, in such a manner as to carry out the general charitable intent of the donor.</p> <p>Charitable donations are to be liberally construed with a view to promote and accomplish the general charitable intent of the donor.</p> <p>Where a gift for specific charitable uses, made to trustees capable of taking, cannot be applied precisely in the mode directed, the court of chancery interferes and regulates the disposition of the property according to the general intent of the donor, under its general jurisdiction on the subject of trusts, and not as administering a branch of the prerogative of the king as parens patries.</p> <p>Where all the charitable objects specified by the donor in a gift to competent trustees have been satisfied, any surplus will be applied by the court to objects of a like kind, as nearly following his intent as practicable.</p> <p>Count Rumford in his lifetime gave $5000 in stock of the United States to the American Academy of Arts and Sciences, in trust to pay the interest biennially as a premium to the author of such discovery or improvement on heat or light, published in America during the preceding two years, as should in their opinion tend most to promote the good of mankind; and to invest any unapplied income in the same manner, and add it to the principal, and proportionally increase subsequent premiums. By his will he bequeathed the residue of his estate to Harvard College, for the purpose of founding a professorship to teach by lectures and experiments the utility of the physical and mathematical sciences for the improvement of the useful arts and the industry and wellbeing of society. It having become impracticable to carry out the intent of the donor in the mode prescribed for the application of the income and investment of the fund given to the Academy, ffeld, that Harvard College had no claim to any part of this fund or its accumulations; but that the Academy might, pursuant to a scheme reported by a master, and sanctioned by the court, award premiums at any annual meeting of not more than $600 each, for any such discovery or improvement previously made; and might appropriate the surplus of future income to purchasing such books, papers and philosophical apparatus, and making such publications, or procuring such lectures, experiments or investigations, as should in their opinion best facilitate and encourage the making of discoveries and improvements which might merit such premiums; and that the funds might be invested in different securities.</p>

<p>Assumpsit on a policy of insurance against perils of the sea and other usual perils upon merchandise, consisting of delicate French goods, in the ship Moselle, from Havre to Boston. The declaration alleged that the Moselle upon the voyage “ encountered various storms and tempests of long continuance, by reason of which, and by the violence of the winds and waves, and by the perils of the seas, the said goods were wetted, damaged, spoiled and rendered useless to the plaintiffs.” Trial at March term 1848, before Wilde, J., who reserved the case for the full court upon a report, which, after stating the cause of action, proceeded thus:</p> <p>“ The goods belonging to the plaintiffs were examined by an appraiser agreed upon by both parties, and were valued at $48,134.57, and the damage sustained upon them was estimated at $8,939.24, for $3,343.28 of which the defendants were liable under their policy, provided this loss arose from a peril insured against. The defendants at the trial admitted their liability to pay $1,096.90; that being the amount of the damage upon all the cases of goods which their examining agents reported to have been wet with salt water.</p> <p>“ The depositions of Abraham Somerby, the captain, and of Merrill Sewall, the chief officer, together with the logbook kept by him, which was introduced at the trial before the jury and used as evidence by agreement of parties, are in the case and to be referred to by either party.” By these it appeared that the Moselle, sailed from Havre on the 31st of December 1845, and arrived in Boston after an extraordinarily long passage of eighty-eight days, and meeting with repeated gales and stormy weather which drove the ship south of the usual course, and caused her to ship heavy seas, and to strain and open her seams, but that she was a tight ship and did not leak much.</p> <p>The report contained a detailed statement of all the evidence introduced by both parties, much of which consisted of the testimony of the appraisers who examined the goods upon the warrant of the collector of the port immediately after arrival. They testified to the number of packages damaged ; that the damage was greater than in any similar cargo which they had ever examined ; that many of the cases showed they had been wet with salt water; and some that, were dry outside appeared, when opened, to have been so wet; that some cases were damp in which there was no indication of salt water, and in some of these the goods were as much damaged as in those which appeared to have been wet; and that there appeared to be no difference in the nature of the damage, which consisted in discoloration and mould. Some of the witnesses could not fix how many of the cases, which they examined and found damaged goods in, had been wet with salt water.</p> <p>“Judge Wilde, the presiding judge, instructed the jury as follows:</p> <p>“ It is of no consequence to argue that there was no water in the hold, for it is admitted that some cases are wet; and the defendants admit their liability for those cases. The only difficulty arises from the further claim of the plaintiff:</p> <p>“ 1st. Were more goods wet by salt water than these cases ? It is for the jury to decide whether there were any more wet with salt water; and the burden is on the plaintiffs to prove it. If not satisfied, return the amount of damage by salt water to these cases. .</p> <p>“2d. Consider whether there is anything beyond that wet with salt water. I consider it doubtful, because the plaintiff must show it was from sea peril; and as dampness is ordinary, and is aggravated by a long voyage, it does not appear whether all, or how much, is from peril of the seas. You will consider how many of these boxes were wet; and though the goods were not all touched by salt water, yet you will allow for all in those cases as wet. The plaintiffs say, the goods must have been wet, from appearances; and if you are satisfied they were so, you will allow for them as wet.</p> <p>“ In the cases not wet with salt water, you will exclude all those kinds of goods which are liable to be injured by dampness, and all not injured by a peril of the sea. These ought to be deducted altogether, because the fact of damage is not enough, and if not wet with salt water, no cause from a peril appears. As to the cases not wet with salt water, I think no allowance is to be made for goods liable ordinarily to be injured by dampness, although the damage is extraordinary. I see no evidence that could ascribe the uncommon damage in this voyage to such cases, to any peril of the sea. I rule this upon this posture of the evidence. If the evidence showed different damage from what it does, and the voyage was an ordinary one, I might rule otherwise. Upon this evidence, I cannot rule differently.</p> <p>“ You will therefore find the amount of damage done by salt water, and the amount of damage which does not appear to have been done by salt water, and return them separately.”</p> <p>The jury returned a verdict for the plaintiffs, and assessed damages “on goods injured by salt water in the sum of $1,320.97,” “ and for further damages in the sum of $>1,399.10.”</p> <p>“ If the court, under the rulings in the case, are of opinion that judgment is to be entered on the first assessment of damages, or on both assessments, judgment is to be entered accordingly; otherwise, a new trial is to be ordered.”</p> <p>The case was argued before the full court at March term 1849, by G. G. Loving Sf C. W. Loving, for'the plaintiffs, and B. B. Ouvtis, for the defendants. The following opinion was delivered in June 1849 by</p>