Volume 79 — Massachusetts Reports

Audita querela. At the trial in the court of common pleas in Berkshire, the following facts were proved: Myers sued out of that court a writ of attachment against Dingman, who was described therein as formerly of West Stockbridge, but now of the State of New York, and who in fact was not then, or ever since, a resident of this commonwealth. There was no service upon him and no appearance by or for him in the action.

Action of contract for work and labor. Answer, that they were performed under an oral agreement that they should be applied in part payment for a lot of land which the defendants had agreed to convey to the plaintiff, and that the defendants had always been ready and willing to comply writh their agreement.

Action of contract, praying for relief in equity under St. 1853, c. 371, against Lyman Kinsley and Mason S. Palmer.

Bill in equity against Caleb Benedict and Edward F. Ensign to obtain possession of nine bonds for $1,000 each, issued in Indiana by the Logan sport, Peoria and Burlington Railway Company, and payable to bearer.

Petition for a writ of certiorari to quash the proceedings of the county commissioners of Berkshire, ordering the rebuilding of the Belden Bridge and the repair of the Denslow Bridge across the Farmington Elver between the towns of Tolland in Hampden County and Sandisfield in Berkshire ; and to restrain the execution of a warrant of distress issued by said commissioners against the town of Tolland.

The case was this: On the 4th of September 1857 Johnson and Morton, who had previously been in partnership together, sharing equally, agreed orally with Johnson that Morton should sell out his interest in the firm to Daniels, and that the new firm of Johnson & Daniels should take all the property and pay all the debts of the old firm of Johnson & Morton, and indemnify Morton against all his liabilities as a member of that firm; and Morton accordingly transferred all his…

<p>Writ of entry to foreclose a mortgage made by Levi Clark in October 1856, and in which his wife joined, of his homestead in Plainfield. The defendants were Clark, and his as signee in insolvency, who claimed title as such under proceedings commenced on the 16th of December 1856.</p> <p>At the trial in the court of common pleas in Hampshire, before Morris, J., these facts were admitted: The value of the premises, when the mortgage was given, and at the time of the proceedings in insolvency, was $500. Debts to the amount of more than $700, contracted before the homestead act of 1855 took effect, were proved against the estate of Clark; but the plaintiff’s mortgage note was not so proved.</p> <p>The plaintiff asked the court to rule “that the demanded premises did not pass by the assignment; and that the mortgage was not a conveyance of such property as would constitute a preference void by the insolvent laws.” But the court declined so to rule ; and ruled “ that said premises passed by the assignment; and that if the jury were satisfied, by the other evidence in the case, that said mortgage was made to secure a preexisting debt from Clark to the plaintiff, and with intent to prefer tb e plaintiff as such creditor, Clark being at the time insolvent, an d having reasonable cause to believe himself insolvent, and the plaintiff also having reasonable cause to believe it, the mortgage would be void as against the assignee, and the defendants entitled to a verdict; and that it was competent for the jury to infer the intent to prefer, from the fact of preference.”</p> <p>The jury returned a verdict for the defendants, and the plaintiff alleged exceptions, which were argued and decided &t Northampton at September term 1858.</p>

Petition under the St. of 1838, c. 163, § 18, to this court, sitting in equity in Franklin at April term 1858, to revise a decree of the judge of insolvency, refusing to set off a homestead to the petitioner, under St. 1857, c. 298, § 17.

Indictments on St. 1855, c. 405, § 1. The two first were tried in the court of common pleas for Worcester at May term 1858, before Mellen, C. J., and the exceptions to his rulings argued at October term 1858 at Worcester.

<p>Petition to the county commissioners for a jury to assess the damages sustained by the petitioner by the taking of his land in the location of Orange Street, in Worcester. A trial was had before the sheriff, who certified to the court of common pleas the following rulings:</p> <p>The record of the mayor and aldermen showed that the easterly line of the location of Orange Street passed under the petitioner’s house in such a way as to cut off the southwest corner of the house to the depth of three feet and ten inches, and running thence to a point in the northwest corner, and contained this provision: “As a corner of said Willard Brown’s house comes within the location of Orange Street as herein described, the location is made with the understanding that the said Brown is to have the privilege to have his house remain as it is, and not to be required to remove it until he, his heirs or assigns have occasion to rebuild or remove it, and no longer.”</p> <p>The petitioner called James S. Woodworth, a witness qualified to testify on this subject, and asked him “ if he had made an estimate of the expense of moving the dwelling-house of Brown eastwardly from off said location, so far as it would be necessary to have it moved in consequence of the laying out of said Orange Street.” But the sheriff, at the request of the respondents, excluded the evidence; on the ground that Brown, by the provision in the location, had the right to have his house remain as it was, and, not being required by law to move it, was not entitled to any damages for removing it.</p> <p>Orange Street extended from Plymouth Street on the south to Park Street on the north, at the corner of which was the petitioner’s land. The respondents contended that the petitioner, before the location, had dedicated to the public the land over which the street was located; and also, by certain conveyances of house lots on the east side of the street, “ had obligated himself to his grantees to throw out into said Orange Street, as a part of said street, all that portion of his land covered by the location ; ” and, to sustain this last position, offered in evidence two deeds from the petitioner; one to James A. Whipple, of a lot of land next south of the petitioner’s land, and on the same side of Orange Street, described as “ lying on the southeasterly side of Orange Street,” “ with a right of way in said Orange Street; ” and the other to Stephen Bartlett, of the lot of land next south of Whipple’s, described as “ lying on the southeasterly side of Orange Street,” “ with a right of way in said Orange Street to Park Street; said Orange Street to be thirty seven feet wide from Plymouth Street to” the northwesterly corner of Whipple’s land. It was agreed that, at the time of the conveyances to Whipple and Bartlett, Orange Street, which was then and down to the time of this location a private street, was thirty-feet wide at its junction with Park Street, and gradually widened until it reached the north line of the land conveyed to Whipple, and thence continued of the width of thirty seven feet to Plymouth Street. By this location, no part of the land of Whipple and Bartlett was taken; but a strip of land claimed by the petitioner, extending from Whipple’s land to Park Street, of the width of four feet at the south end, and three feet on Park Street, was taken, which strip of land had always been inclosed and occupied by the petitioner. The petitioner objected to the introduction of the deeds to Whipple and Bartlett; but the objection was overruled, and the deeds were read to the jury.</p> <p>The respondents were permitted, against the petitioner’s objection, to introduce the testimony of Bartlett and Whipple to statements of the petitioner in conversation with them, before and at the time of said conveyances, that he should not throw out this strip of land into the street then, but should “ eventually throw it out all the way.”</p> <p>Upon these points, the sheriff instructed the jury “ that if they were satisfied that the petitioner, in his deeds to Whipple and Bartlett, fixed the east line of Orange Street four feet further east than the line was before he made his conveyances to Whipple and Bartlett, they are entitled to have that line extended to Park Street, cutting off four feet of said Brown’s land all the way, and widening the street to that extent, and that under such circumstances said Brown ought not to recover of the city for the land taken by the city, provided that no more than the four feet was taken.” The petitioner excepted to this instruction, and requested that the jury be instructed “ that if Brown, in his deeds to Bartlett and Whipple, fixed the east line of Orange Street, in front of their lots, and as the street extended south to Plymouth Street, four feet further east than it was before, it did not follow that they had the right to have the east line fixed four feet further east on that part of Orange Street extending in the other direction towards Park Street; ” which instruction the sheriff declined to give.</p> <p>The respondents also contended that the petitioner had waived all his claim to damages, and offered evidence that at the meetings of the mayor and aldermen, when the subject of locating Orange Street was under consideration, it was stated that the petitioner claimed no damages; but there was conflicting evidence whether the petitioner was present when this statement was made. The respondents also offered the testimony of one of the aldermen, that at these meetings he never heard the petitioner make any claim for damages. The petitioner objected to evidence of any statement made at meetings of the mayor and aldermen, unless it appeared that he was present; but the sheriff admitted the evidence; and ruled that the petitioner was not to be affected by any statements not made in his presence and hearing; and instructed the jury “that they must be satisfied beyond a reasonable doubt that a waiver of damages was made by Brown himself, or by some one authorized by him to make it, and that it applied to the location established by the decree, or it could not avail to cut off his claim to damages.”</p> <p>The jury returned a verdict for the respondents, which was accepted by the court of common pleas, and the petitioner appealed to this court.</p> <p>This case was argued at Worcester at October term 1858.</p>

<p>A in New York and B in Massachusetts made this agreement in writing : “ A agrees to furnish stock of sufficient amount to make at least eight and not to exceed twenty cases of boots per week; and B is to take the stock, and make it up to the best of his abilities into boots, and to consign all the boots he makes to A, to be sold by him on a commission of five per cent., the goods to be sold for cash, and the returns made to B as fast as made, and B agrees to put up and ship to A at his store in New York at least eight cases of boots per week.” Held, that the title in stock sent by A to B under this agreement did not pass to B, although accompanied with bills of parcels in common form; and that A might reclaim boots made by B out of this stock from one who had received them from B to secure advances made by him to B thereon after being shown the agreement and bills of parcels.</p>

<p>Action of contract upon a bond dated April 29th 1854, in the penal sum of fifty thousand dofiars, with this condition :</p> <p>“ The .condition of this obligation is such, that whereas the said Ethan Allen has already received the sum of eleven thousand doEars, to aid him in constructing a hotel, according to the terms of a contract signed by Ethan Allen, John F. Pond and others, bearing date the 27th day of AprE A. D. 1853, and now deposited with said Anthony Chase; and whereas WilEam C. Clark and others have made an additional subscription, to the amount of nine thousand dollars, payable when the hotel referred to in said contract shall be completed, at any time on or before the twenty seventh day of October, A. D. 1856; and whereas the said Allen, in consideration of said original contract, and of said additional subscription, has agreed that he will complete said hotel, according to the terms of said contract, and also according to ” certain plans and specifications, on or before that day, and will do certain portions of the work during the year 1854; “ and has further agreed, that in case he shall fail to fulfil said agreement, he will pay to said Anthony Chase, on demand, for the benefit of the subscribers to said original contract, who have paid their subscriptions, the sum of eleven thousand dollars, with interest from the time when the same was paid to said Allen; to be paid by said Anthony Chase to said subscribers, in proportion to the several sums subscribed by them ; and will also discharge the subscribers for the additional sum of nine thousand dollars from all liability and obligation to pay the same; and will further pay to said Chase, for the benefit of all the subscribers, in proportion to the amounts of their subscriptions, the additional sum of twenty thousand dollars, not as a penalty, but as fixed and liquidated damages, and subject to no deduction. Provided however, that in case said hotel shall be destroyed or partially injured by fire in the course of erection, before the twenty seventh day of October A. D. 1856, a reasonable time beyond that day shall be allowed to said Allen to complete said hotel, having regard to the extent of the injury sustained by fire ; and provided further, that in case- of the death of said Ethan Allen before the twenty seventh day of October A. D. 1856, the personal representatives of said Allen shall be liable for no more than said sum of eleven thousand dollars, and the interest which shall accrue thereon: Now if said Ethan Allen shall well atid truly perform his agreement, as aforesaid, then this obligation shall be void; otherwise,shall remain in full force and virtue.”</p> <p>The case was submitted to the decision of this court, and argued in Worcester at October term 1858, upon a statement of facts, the material part of which was as follows:</p> <p>By the original contract for the subscription of $11,000, the defendant agreed with the subscribers that the hotel should be completed within two years and a half from the 27th of April 1853, and it was agreed that the contract should be deposited in the hands of the plaintiff, (who was one of the subscribers,) for the benefit of all parties. The defendant, upon receiving payment of this subscription, agreed that, if he should fail to erect the hotel according to the contract, he would refund all the money so paid, with interest, and would also pay “ full damages to the subscribers for their trouble and disappointment;” provided that in case of his inability, by reason of death, to complete said building, his representatives should pay no damages, by reason of this original provision, beyond the sums so received by him, and interest.</p> <p>The agreement for the subscription of $9,000 was made at the same time as the bond declared upon, and was signed by a portion only of the original subscribers and by many other persons.</p> <p>The hotel was to have been built on the corner of Main and Pleasant Streets in the southerly part of the city of Worcester, where many of the subscribers owned real estate or transacted business. It has never been built.</p> <p>The subscribers of the second agreement gave notes for the amount of their subscriptions, payable on the completion of the hotel; but no payment of those notes has ever been made or demanded.</p> <p>On the 30th of March 1855 many of the subscribers of the agreements acknowledged in writing that they had received of the defendant a certain sum of money in full satisfaction of any sums to which they might be entitled by virtue of the provisions of the bond, and released all claims upon the defendant by virtue of the bond, and directed the plaintiff not to commence any proceedings against the defendant, under or by reason of the bond, to enure to then- benefit.</p> <p>On the 28th of October 1856 the plaintiff made upon the defendant the following demand in writing: “ Worcester, October 28th 1856. Ethan Allen, Esq.: By your bond to me, executed April 29th 1854, you engaged to erect a hotel on your land, corner of Main and Pleasant Streets, and complete the same on or before October 27th 1856. That time having expired, and the building not having been erected, I hereby, in behalf of those for whom I hold said bond, demand of you payment of the sev eral sums agreed by you to be paid in default of your perform anee of your agreement to erect said hotel, being the sums received by you, with interest from the time of payment, and the further sum of twenty thousand dollars. Any releases you may have obtained from any of the subscribers may be produced by you, and the amounts so released will be deducted from the sums to be paid by you. Respectfully yours,</p> <p>“ Anthony Chase, as Trustee.”</p>

<p>Property mortgaged to secure notes indorsed by the mortgagee for the accommodation of the mortgagor will be applied in equity, upon the insolvency of both maker and indorser, to the payment of such notes. ,</p>

Trustee process, returnable to the court of common pleas m Worcester. Winthrop Faulkner, summoned as .trustee of the principal defendant, who was described as of Natchez, in the State of Mississippi, disclosed that he had previously been summoned as trustee in two other writs against this defendant, in the first of which the amount claimed much exceeded the sum in his hands.

<p>Action of contract upon the probate bond of Elizabeth Muzzey as administrator of the estate of her husband, Benjamin Muzzey, brought for the use of Moses G. Cobb, administrator de bonis non of said Benjamin. Trial in this court in Middlesex at October term 1852, before Gushing, J., who reported the following case for the judgment of the full court:</p> <p>“ The case, after default of the defendants, was referred to an auditor, who reported that he found due to the plaintiff from the defendants the sum of $4,872.68; and also the further sum of $47.58 for manure, unless upon the following facts the court should determine otherwise as matter of law: It was proved that a large pile of manure, containing some eight or ten cords, not broken up nor rotten, and not in a fit condition for incorporation with the soil, stood on the land of the said Benjamin at the time of his decease, and so continued until after the appraisal returned by said Elizabeth into the probate court; and this manure was taken from the barnyard of the homestead of said deceased.</p> <p>“ Also the further sum of $31.72, unless upon the following facts the court should determine otherwise as matter of law: It was proved that certain other manure, duly set down in said Elizabeth’s inventory, and without controversy the personal property of said Benjamin at the time of his decease, was, after the date of her said appraisal, by her authority spread upon the lands which descended from her intestate; that this was done judiciously, in an agricultural view, and in the usual course of good husbandry. This manure was taken from the hotel stable standing on the land of said deceased. All the real estate of the deceased was afterwards sold for the payment of debts.</p> <p>“ Also the further sum of $440.49, unless upon the following facts the court should determine otherwise as matter of law: Certain chattels, duly set down in said Elizabeth’s inventory, are also set down in the inventory returned by said Cobb as administrator de bonis non; and in her second account the said Elizabeth alleges that fact in discharge of her liability for the value of said chattels. Said Cobb never received the property as appraised.”</p> <p>This case was argued in writing.</p>

Appeal by the administrator de bonis non of Benjamin Muzzey from a decree of the judge of probate, allowing the second account of Elizabeth Muzzey, widow and first administratrix of said Benjamin.

<p>A city is not liable for an injury, caused to a foot passenger on a sidewalk which the city is bound to keep in repair, by the falling of an overhanging mass of snow and ice from the roof of a building not owned by the city, although it has so overhung the highway for more than twenty four hours before the accident.</p>

<p>Action of contract upon the following agreement: “ Salem, Oct. 6, 1853. Agreed with Jesse Colburn of Tyngsborough to ship say two hundred tons of rough stone, weighing from one to two tons each, from Phillips’s Wharf, to the port of Norfolk, Va., at the rate of $1.75 per ton of fourteen cubic feet, and as soon after they are received as a vessel can be procured, the measurement to be made up from the marks upon each stone. Phillips, Goodhue & Bowker.</p> <p>“ It is understood that Mr. Colburn shall not be liable for any expenses at Salem, except the charge of freight above specified.</p> <p>“ P., G. & B.</p> <p>“ To be delivered at Norfolk, Va., to the order of Gault & Brother. P., G. & B.”</p> <p>The substance of the declaration and of the demurrer thereto, upon which the case was argued in writing, are stated in the opinion.</p>

<p>A debtor who has paid money on account of his debt cannot, upon the creditor’s subsequently recovering judgment against him for the whole amount of the debt, maintain an action against the creditor to recover back the money so paid.</p>

<p>In an action to recover the price of intoxicating liquors, the burden of proof is upon the defendant to show that they were unlawfully sold.</p>

<p>Action of tort for an assault and battery. Answer, that the defendant was resisting the plaintiff in making an unlawful' arrest in the defendant’s dwelling-house.</p> <p>At the trial in the court of common pleas in Middlesex at December term 1858, the plaintiff proved that he was a deputy sheriff in that county, and on the 6th of May 1856 received a copias in due form of law from that court, signed by “ M. Preston, assistant clerk,” with orders to take the body of Francis Measures named therein, and went to the house of the defendant, where said Francis lived and then actually was; that the plaintiff demanded an entrance, and being refused by the defendant, with threats of violence if he entered, broke open the door and arrested Francis, and while so in the house received from the defendant the injuries complained of; but he admitted that the force used by the defendant was not excessive if the plaintiff was unlawfully in the house.</p> <p>When the copias was issued, the clerk of the court was at Lowell in said county, in attendance upon the supreme judicial court then sitting there.</p> <p>The defendant contended that upon this evidence the action could not be maintained, and Sanger, J., “ for the purpose of the trial,” so ruled. A verdict was taken for the defendant, and the plaintiff alleged exceptions, which were argued at Boston in February 1859.</p>

<p>A tender of the amount due for taxes on land advertised for sale for nonpayment of taxes, but not yet sold, need not include any fees of the collector for a levy upon the land, or for travel to make a return to the state and county treasurers, or for a commission on the tax.</p>

Action of contract on a policy of insurance made by the defendants to “ Moses F. & James C. Tate,” “ on their stock and tools in their tannery in Charlestown,” for one year from the 3d of April 1855. The application, which was made part of the policy, described them as copartners.

<p>A certificate of the number of votes given for county commissioner at a town meeting duly held for that purpose, and of the result thereby appearing, signed 44 Attest, J. S.,n without showing that it is a copy of the town record, or that J. S. is town clerk, is not s return which the board of examiners are authorized to receive, or will be required by mandamus to consider, in determining who is elected county commissioner.</p>

<p>An agreement to take a certain annual compensation for damages occasioned by flowing land by a milldam is not an agreement for the sale of an interest in lands, within the statute of frauds.</p> <p>The owner of a mill, under an agreement authorizing him to “ keep his dam to the jury mark, and no higher,” may vary, repair or use his dam as he pleases, if he raises no part of the dam higher than that mark.</p> <p>An agreement to take a certain annual compensation for the flowing of land by a milldam, “ if the owner of the mill would keep his dam to the jury mark, and no higher,” cannot be considered as terminated by such owner’s raising the water and the dam, by the addition of fiashboards, above the mark for two seasons, if the owner of the land flowed gives receipts in full for his damages at the rate agreed upon during those years and afterwards, without giving any notice that he considers the agreement terminated.</p> <p>The terms of an oral contract, when clearly proved, and intelligible and explicit, are to be construed by the court, and not by the jury.</p>

<p>An assignment for the benefit of creditors, made by a citizen of another state, in that state, and valid, by the laws of that' state, holds property remaining in that state, as against a trustee process brought in this state by a citizen of that state against the assignee, who resides here.</p>

<p>The provisions of the Eev. Sts. c. 37, § 40, (which required each agent of a foreign insuiance company to deposit a copy of their charter and of his power of attorney with the treasurer of the Commonwealth,) applied to mutual insurance companies.</p>

<p>A man does not obtain a settlement, under the Rev. Sts. c. 45, § 1, cZ. 4, in a town where he owns a freehold, if before he has lived thereon for three years successively he is committed to the state lunatic hospital and there supported as a pauper; although his family continue to reside on his land for the residue of the three years.</p>

Action of tort against the collector of taxes of Seekonk, for arresting the plaintiff and committing him to jail upon a warrant in due form for the collection of a tax lawfully assessed upon him.

<p>In defence of an action by the payee or his assignee in insolvency on a promissory note, it may be shown by paroi evidence that it was given as collateral security for liabilities incurred by the payee at the request or for the benefit of the defendant, and that the payee suffered no loss by reason of such liabilities.</p> <p>In an action on a promissory note, evidence that the defendant, at the same interview at which the note was given, gave another note to a third person, which had since been given up as made without consideration, is inadmissible to prove want of consideration of the note in suit; and if admitted by referees under a rule of court, who award in favor of the defendant, subject to the opinion of the court on the admissibility of the evidence, is ground for setting aside the award.</p>

Petition to the court of common pleas in Bristol to enforce a mechanics’ lien under St. 1855, c. 431, on the respondents’ factory in Taunton, under a contract set out in the statement under oath, filed by the petitioners in the town clerk’s office on the 15th of December 1857, a copy of which was annexed to the petition.

<p>A devise upon condition that the devisee shall “ comply with what is enjoined upon him in this will,” is grima facie, upon condition that the devisee shall also comply with what may be enjoined upon him in any codicil to the will.</p> <p>A condition, in a devise, to keep a house in good repair, is broken by omitting to rebuild the house within a reasonable time, if destroyed by fire.</p> <p>A testator by his will gave to his wife an honorable maintenance for life, to be provided by his son; to one daughter, so long as she should remain unmarried, the improvement of half of his dwelling-house, and certain privileges, and a certain provision at the expense of his son; the residue of his estate to his son, “ provided he shall in all respects comply with what is enjoined upon him in this will, and if he shall not thus comply,” then to the testator’s two daughters in equal shares; and constituted his son executor. By a codicil, the testator directed his son, his heirs and assigns, to keep in good repair all that part of the dwelling-house, the improvement of which had been given to the unmarried daughter; and charged his real estate with the- support of said daughter in case the provision already made for her should prove inadequate. Held, that the testator’s son took the estate upon condition that he should keep the house in repair; that, in case of the house being burned down, a failure to rebuild within a reasonable time was a breach of the condition; and that the facts, that the daughter had leased her part of the house to the son, and that a sublessee was in possession at the time of the fire, did not affect her right to have it repaired, nor extend the time within which that should be done.</p> <p>T. S. devised the use and improvement of half of his dwelling-house to a daughter for life and devised all his estate to his son upon condition that he should keep that half of the house in repair, and in case of his failure to comply with any provision of the will gave the estate to this daughter and another. After breach of the condition, this daughter in writing requested the son “ to repair the dwelling-house, the use and improvement of which were devised by J. S. to me,” and notified him that she claimed that the estate devised to him was forfeited by his failure to comply with the provisions of the will, and that she claimed her share under the devise thereof in case of such failure. Held, that this was sufficient demand and notice, if any were necessary, before bringing a suit to recover her half of the estate, for breach of the condition.</p>

<p>Appeal by the heirs at law of Thomas Tilden, of itoxbury, from a decree of the probate court of the county' of Norfolk, establishing an instrument as his last will. The questions, whether the will was duly attested by three subscribing witnesses, and whether the proof was sufficient in law to sustain the will, were submitted to the decision of the court upon an agreed statement of the facts, and of the testimony of the witnesses, the material parts of which were as follows:</p> <p>The will is not in the handwriting of Thomas Tilden ; but it is subscribed by him, followed by this attestation clause :</p> <p>“ Signed, sealed, published and delivered by the abovenamed Thomas Tilden, to be his last will and testament, in the presence of us, who at his request and in his presence have hereunto subscribed our names as witnesses to the. same.</p> <p>“ John Hunt,</p> <p>“ Edwin Lemist,</p> <p>“ John W. Lord.”</p> <p>John Hunt testified: “ Mr. Tilden came to my factory, and my impression is that he had a paper in his hand. He said to me, 61 wish you to go with me to witness this.’ He did not call it his will. We went up to Mr. Lemist’s store. After we had entered, he opened a paper, laid it down on Lemist’s desk, and said, ‘ Put your name there ’ — directing me. I did so, and Lemist put his on, and we came off. I did not read a scrap of the paper. I did not see his signature at all. He did not sign it in my presence, nor call my attention to it, as being his signature. My recollection is positive, and I have no doubt the facts are just as I have stated. No other persons were present Some years subsequent I witnessed a will, and then I saw another form of witnessing, which I thought if important in one case, was in the other. I then told the old gentleman of the circumstance, saying to him that I did not think his will was legally witnessed. My reason for doing this was because I did not see his signature. He made no answer. I had known Mr. Tilden ever since I was a schoolboy, for fifty years.”</p> <p>Edwin Lemist testified: “ The late Thomas Tilden came to my store in Roxbury in company with Mr. Hunt. They came directly to the back part of my store, where my desk stood. Mr. Tilden took from his pocket a folded paper and laid it upon the desk, and when he had adjusted his spectacles, he said, ‘ Gentlemen, I wish you to witness my signature to my will.’ I took from the stand a steel pen and handed it to him, with which he signed his name to said paper, in the presence of Mr. Hunt and myself. Mr. Hunt signed his name as a witness, and I did the same, in the presence of Mr. Tilden. The paper was not read in our hearing, nor did we read it that I know of. I had upon my desk an inkstand, and in it usually kept three steel pens. Mr. Tilden used the same ink, I have no doubt, but think he may not have used the same pen that Mr. Hunt and myself did. Mr. Tilden thanked us for witnessing the will, bade us good morning, and left. The impression is very strong on my mind that Mr. Lord was present when the will was signed.”</p> <p>John W. Lord testified: “ The will was signed by me, in my counting room, in Roxbury. Mr. Tilden came in with the paper, and said, ‘ I wish you to witness this.’ No one came with him, and no one else was present. I think the names of the other witnesses were on at the time. I cannot say whether Mr. Tilden’s name was on or not when I signed my name. He did not sign his name in my presence. He did not say anything about his signature, or make any allusion to it. When I signed, he was in the doorway. After the paper was signed, he took it away. I think Mr. Tilden’s position was such that he could see me sign my name. I have no recollection of reading any part of the paper. I was not present when Mr. Hunt and Mr. Lemist signed their names.”</p> <p>Peter Butler, a competent expert, testified that, in his opinion, the signature of Mr. Tilden to the will was made with other ink than that used by Messrs. Hunt and Lemist.</p> <p>This case was argued at Boston in January 1859.</p>

Petitions to this court in the exercise of its chancery jurisdiction in insolvency.

<p>Parol evidence that a railroad corporation established by law in another state has held itself out, through its agents, as a common carrier over a railroad in this commonwealth, is sufficient prima facie evidence of its capacity to contract for such carriage, to maintain an action against it for the loss of merchandise entrusted to it.</p> <p>A railroad corporation which has leased a portion of another railroad connecting with its own is not exempted from liability to the owner of goods delivered to it at a depot on the portion so leased, by an agreement with the proprietors of that road, by which the two corporations upon their respective roads mutually agree to furnish suitable depot accommodations, and receive and deliver freights, and that the liability of the first corporation for upward freight upon the road of the second shall not commence until delivery on the cars of the first.</p> <p>A railroad corporation cannot dispute their liability for freight delivered to them to be carried over a railroad leased to them, on the ground that the lease is void.</p>

Petition under St. 1855, c. 231, to enforce a lien “ for labor and materials furnished in the construction of three ships” described in the petition. The respondents were Currier & Townsend, and their assignees in insolvency.

<p>No lien can be claimed on a ship under 1855, c. 281, for timber sold and delivered to • the owner in another state, and by him brought into this commonwealth, and here used in building a ship, if there was no express agreement that there should be a lien, nor that the timber should be so applied.</p>

Action of contract upon a promissory note, dated February 1st 1856. Answer, that the consideration was illegal and void, being lumber brought into the town of Haverhill by water, not intended for exportation, and sold without being first surveyed, marked and numbered as required by statute.

<p>An application for insurance, in which the applicant agrees that it is “ a correct description of the property, so far as regards the condition, situation, value and risk on the same,” and that “the misrepresentation or suppression of material facts shall destroy his claim for damage or loss,” is not a warranty of the truth of the answers to interrogatories in it, except so far as they are material to the risk; although the by-laws, to which the insurance is expressly made subject, provide that the application shall be held to be a part of the policy and “ a warranty on the part of the assured, ” and that “ unless the applicant shall make a correct description and statement of all facts inquired for in the application, and also all other facts material in reference to the insurance, or to the risk, the policy shall be void." And the materiality of any answer is to be determined by the jury.</p> <p>An application for insurance on a stock of goods represented that it was “ all of goods usually kept in a country store,” and that there was no “ cotton, or woollen waste or rags kept in or near the property to be insured.” The by-laws, to which the insurance was expressly made subject, provided that no building in which cotton or woollen waste or oily rags were allowed to remain at night should be insured; and that all cotton, woollen, hempen or oily waste, or rags, should be destroyed or removed every evening. Seld, that the keeping of clean white cotton rags, if usually forming part of the stock of “ a cohntry store,” did not avoid the policy.</p>

Complaint under the mill act. After a trial before a sheriff’s jury, the presiding officer certified to the court of common pleas the following case: The respondents’ mill is on Little River in Haverhill, which is principally relied on for water.

<p>An auditor’s report is prima facie evidence, but does not change the burden of proof.</p> <p>An instruction to the jury, that the burden of proof is upon the defendant to overturn or control an auditor’s report in favor of the plaintiff, is no ground of exception, if it does not appear that the distinction between being prima facie evidence and changing the burden of proof was brought to the attention of the court.</p> <p>4 ruling that the plaintiff has a right in the first instance to rely upon an auditor’s report in his favor, and, if the defendant should offer evidence tending to control that report, then the plaintiff, as a matter of right, might give evidence in support of his case, is no ground for setting aside the verdict.</p> <p>In an action to recover the price of bricks of a certain kind, a building contract between the defendant and a third person, by which the latter agrees to take the bricks purchased by the defendant at the same prices as those now charged by the plaintiff to the defendant, is admissible in evidence, against the defendant, of the kind and price of the brick.</p>

<p>Action of contract on a promissory note made by a resident of Vermont, and payable “ at bank in Boston ” to the order of the defendant, and by him indorsed.</p> <p>At the trial in the superior court of Suffolk, the only demand of paymenf upon the makers that was proved was, that the note was presented for payment by a notary public on the day of its maturity at the Suffolk Bank in Boston; and the notary was answered “ no funds” at said bank; whereupon he protested the same, and notified the defendant as indorser.</p> <p>The defendant contended that this did not in law amount to a sufficient demand upon the makers of the note, to render the defendant liable as indorser.</p> <p>But Abbott, J. ruled “that such demand was sufficient in law, that the holder of a note like this might elect to present it for payment at any bank in Boston, unless the maker had given notice at which bank he desired it presented; and that a presentment at such bank was a good presentment, for the purpose of charging the indorser, whether the maker of said note had notice at what bank said note would be presented or not.”</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions, which were argued at March term 1859 in Suffolk.</p>

Action of contract, commenced on the 2d of October 1856, upon a bond, dated April 25th 1854, made by the defendant to the plaintiffs as trustees of the Merrimac Mutual Loan Fund Association in Lowell, in the penal sum of $1,650, “ to be paid unto the said association, its successors and assigns,” upon this condition: “ The condition of this obligation is such, that if the above bounden obligor, his heirs, executors or administrators, shall pay or cause to be paid to the…

Writ of entry to foreclose a mortgage of land in Lowell. Held: would entitle him, under said rules, to receive a loan, secured by real estate, of f>1,980, the sum mentioned in the mortgage; that the surveyor of the association reported to the board of di rectors that the property offered as security was only sufficient security for the sum of f>1,650, the sum mentioned in said bond, and that it…

<p>Action of tort against Franklin Sturgis and Benjamin F. Bosworth. Trial in the court of common pleas in Berkshire, before Aiken, J., to whose rulings the defendants alleged exceptions, which were argued at Lenox at September term 1858, and the substance of which is stated in the opinion.</p>

Action of tort against the former sheriff of Berkshire for an arrest of the plaintiff by one of his deputies, upon an execution issued from the court of common pleas on the 19th of June 1855, in favor of Norman Cotton against the Cheshire Iron Works, a manufacturing corporation, in an action in which the plaintiff was summoned as a stockholder in the corporation, and in which both he and the corporation were defaulted.

<p>A passage way which extended from a street, along and upon both sides of the dividing line between two lots, and was the only means of access to the back part of either, was used uninterruptedly for twenty years by the owners of both lots, without limit, restriction, interruption or objection, or any claim of right except what might be implied from such use; and no mention of any right of way was made in any of the conveyances of either lot for a much longer time. Held, that from such use a grant must be presumed, to the owner of each lot, of an easement in that part of the passage way which was upon the other lot.</p>

Action of tort for the obstruction of the water in Blackstone River, and setting it back upon the plaintiffs’ mill, by the erection of a new bridge, in repairing the highway from Millbury to Worcester. At the trial in the court of common pleas in Worcester, before Briggs, J., Josiah G. Perry, who, jointly with his brother Dexter, was owner of the mill when the new bridge was built, was examined as a witness by the plaintiffs.

Writ of entry to foreclose a mortgage. The parties sub» mitted to the decision of the court of common pleas this case ; The premises, after being mortgaged by Levi Johnson, the owner thereof, to the plaintiff, were conveyed to Henry Phillips, by warranty deed, upon condition that he should pay the mortgage, and save the grantor harmless therefrom; and were conveyed away by Phillips, before this action was commenced, to William Durant, and from him, by mesne conveyances, to…

<p>A city cannot be charged as trustee of a teacher of a public school, paid by a quarterly salary, upon a process of foreign attachment served in the middle of a quarter.</p>

Action of tort for malicious prosecution. The declaration alleged that the defendant, maliciously contriving to injure the plaintiff, and without probable cause, made a complaint to a justice of the peace against the plaintiff, for illegal sales of intoxicating liquors ; and that the plaintiff, being tried before the justice, was convicted and sentenced, and appealed to the court of common pleas, and was there tried and acquitted.

<p>Action of contract on three promissory notes made In August 1850, and payable in October, November and December respectively. The case, which was pending in Middlesex, was submitted to the decision of the court, and argued at Boston in February 1859, upon these facts:</p> <p>The notes were given by the defendant to the plaintiffs in pay - ment for furniture sold by them to him, and were secured by mortgage of the furniture, duly recorded. Upon a failure to pay the first note, the plaintiffs foreclosed the mortgage and sold the furniture.</p> <p>In September 1850 the defendant applied for the benefit of the insolvent laws, and his assignees in insolvency afterwards sued the plaintiffs and recovered judgment against them for the value of this furniture, as constituting part of the defendant’s estate, and they were compelled to satisfy that judgment. The defendant failed to obtain his discharge under said proceedings in insolvency.</p> <p>In December 1853 the defendant again instituted proceedings in insolvency, and obtained a certificate of discharge in the ordinary form, by the assent in writing of three fourths of his creditors who had proved their debts.</p> <p>The notes in suit were provable under each of the proceedings in insolvency, but were not proved under either.</p>

<p>Relief in equity will not be granted against a judgment obtained at law upon a promissory note given solely for the purpose of testing, by a collusive action, whether the maker had any title in property held in trust for his wife.</p>

<p>A decree of divorce a vinculo, between parties residing in this state, obtained in another state, for a cause which occurred here and which was not a legal cause of divorce here, and at the suit of a party who went into that state for the purpose of obtaining it, is void by the Rev. Sts. c. 76, § 39, and cannot be set up in defence to a libel for divorce filed by the same party in this state.</p>

<p>The provision of the St. of 1855, c. 283, that the St. of 1852, c. 294, (which shortened from four to two years the period of limitation of actions by creditors against their debtor’s executor or administrator,) shall not apply “ to any right of action of any creditor of the estate of a deceased person against the executor or administrator of such person, which ■had accrued or existed against such deceased person, his executor or administrator, prior to the passage of said act,” applies to a right of action against an executor or administrator who gave bond within two years before the passage of the act of 1855, and which existed against his testator or intestate prior to the passage of the act of 1852.</p>

<p>An action at law, praying for relief in equity, under St. 1853, c. 371, to enforce the specific performance of a contract, is to be treated as a suit in equity.</p> <p>A bill in equity, to enforce the specific performance of a written contract to convey land on the payment of the purchase money, may he maintained without a previous tender of the money or bringing it into court; if the plaintiff has offered the defendant a sum within a trifle of the amount due, which the defendant has refused to accept; and avers his readiness to pay whatever the court shall order.</p>

Action of contbact to recover the rent of a paper mill and water power in Lawrence, from the 1st of January 1854 to the 1st of April 1856, under a sealed agreement, executed by the parties, of which the following are the material parts : “ This indenture, made this first day of October in the year eighteen hundred and fifty three, by and between Dan Weed of Lawrence, and Samuel S. Crocker, witnesseth, that the said Dan Weed hereby leases and demises unto the said Samuel S.…

Action of contract, commenced on the 29th of April 1857 upon a bond executed by Nathaniel Whittemore, the defendant’s testator, on the 20th of June 1841, to perform and abide by the award of Francis G. Ford, Edward Thaxter and Luther J. Barnes, concerning the settlement of the partnership of Loring & Whittemore, and all other matters in dispute between them; “ the award of said arbitrators to be made known in writing to the parties, and delivered by said arbitrators to each…

<p>Action of tort. The plaintiff alleged in the declaration that 6< the defendant hired of him a horse and chaise to ride from Attleborough to Dedham, and from thence back to Attleborough, in a proper manner; and the defendant drove said horse so immoderately that he became sick and died.” The answer admitted the hiring as alleged, but denied “ that the defendant drove the horse so immoderately that he became sick and died.”</p> <p>At the trial in the court of common pleas, in Bristol, before Briggs, J., the plaintiff offered evidence tending to show that the defendant drove the horse from Attleborough to Dedham, a distance of twenty miles, in two hours and forty minutes; that when he arrived at Dedham the horse was covered with sweat* and appeared greatly exhausted, and neither ate nor drank while there; and that the defendant, knowing the condition of the horse, drove him back to Attleborough, the afternoon of the same day; and that the horse appeared very much exhausted when he arrived there, and would eat and drink nothing, arid died in a few days.</p> <p>The defendant offered evidence tending to prove that the horse was not overdriven; that he was in good condition when he left Dedham to return to Attleborough, and went as well all the way as he did in the morning; that he died of a disease which could not be brought on by exhaustion or overdriving alone, but could only be brought on by his taking a severe cold; and that he was not properly taken care of after he was returned to the plaintiff’s stable.</p> <p>The plaintiff’s counsel “ claimed, as a construction of law, that if the horse was exhausted on his arrival at Dedham, and refused to eat and drink while at Dedham, and was not in a fit condition to drive, the defendant would have no right to drive him back to Attleborough on the same day.” And the judge, against the defendant’s objection, so instructed the jury.</p> <p>It was argued by the plaintiff’s counsel, that the horse took cold, either at Dedham or when stopping on the return home, by the want of ordinary care on the part of the defendant; and upon this point the judge instructed the jury as follows:</p> <p>1. “ After the horse went into the possession of the defendant, he was bound to take ordinary care, or such care of him as a prudent man takes of his own horse under the same circumstances.</p> <p>2. “ To entitle the plaintiff to recover, he must prove that the death of the horse was produced by the overdriving, or the want of ordinary care on the part of the defendant.</p> <p>3. “ If the death of the horse was produced partly by the misconduct of the defendant and partly by the negligence or misconduct of the plaintiff, the plaintiff is not entitled to recover in this action.”</p> <p>The defendant’s counsel requested the judge to instruct the jury “ that if they should believe, upon the evidence, that immoderate driving did not of itself alone produce death, but that a cold taken by the horse, or other cause, cooperated with the immoderate driving in producing the death of the horse, the burden is upon the plaintiff to satisfy the jury by a preponderance of evidence, that the second cause existed, or the cold was taken by the horse before he was redelivered to the plaintiff, and that through the negligence of the defendant.” But the judge, refused to give this instruction.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions, which were argued at Taunton at October term 1858.</p>

Indictment against the Essex Company on the St. of 1856, c. 289, for neglecting to make and maintain around their dam across the Merrimac River at Lawrence a suitable and sufficient fishway for the usual and unobstructed passage of fish.

<p>The declarations of one occupying land under a bond for a deed are admissioie in evidence of the boundaries of the land against a stranger, in favor of one who afterwards takes an assignment of the bond from such occupant, and a deed directly from the • obligor.</p> <p>A conveyance of land, “ bounded westerly by the beach,” does not include the land between high and low water mark.</p> <p>In an action for breaking and entering a close, the title to which is disputed, a witness, who has testified that he was in the habit of going upon the premises, cannot be asked “ what he used to go there for,” for the purpose of showing that he and all the neighbors were in the habit of using the land as common property, in an action of trespass on land, evidence of declarations of a person, who formerly occupied it under a bond for a deed from the defendant, that he did nor own the land in dispute, is inadmissible, if that person has not been called as a witness, and no evidence has been introduced that he ever did own the land.</p> <p>In an action for trespass on land, the testimony of a former occupant, that he had a controversy and suit at law with the defendant concerning the land, is admissible in evidence; and the admission of such testimony as to the settlement of that suit is no ground of exception by a party who did not specify, as his ground of objection, that the record of the suit would be better evidence.</p> <p>At a town meeting, the town, under an article to see if they would discontinue a town way, voted “to leave it to the discretion of the selectmen;” and at a meeting sun sequently called “ to see if they would accept the doings of the selectmen in discontinuing the road,” the selectmen reported that the way should be discontinued, and the town accepted their report. JKeld, that the way was legally discontinued.</p>

<p>A boundary in a deed of land, “beginning at the northeast corner of land of J. S., and thence running southerly upon a brook to a creek, and thence running easterly across the said creek six poles to a stake,” and by various courses and distances to the first mentioned bound, passes the land to the thread of the brook only.</p>

Libel filed in October 1854, for a decree declaring the nullity of a marriage contracted between the parties in October 1853, on the ground of the respondent’s insanity at that time. At April term 1858 the respondent, by a guardian ad litem appointed by the court on the ground of her insanity, answered, denying that she was insane at the time of the marriage.

<p>Appeal from a judgment of the court of common pleas at October term 1858, confirming a report of commissioners to make partition of real estate, and overruling the respondents’ objections, some of which were based on partiality and interest of the commissioners, and others on matters of law. The appeal was entered in this court at May term 1859, and continued to this term.</p>

Action of tort. The officer made this return upon the writ: “ Suffolk, ss. April 25,1859. By virtue of this writ, I have made diligent search for the within named Frederick N. Gisborne, but could neither find him nor any last and usual place of abode of his in my precinct, except on board of the steamer bound for Liverpool via Halifax, where he had taken passage, and was then hid away in some part of said steamer.

Trustee process. The defendant was described in the writ as of Davenport in the State of Iowa, and as late of Cheshire in this county. The only service of the writ was upon the alleged trustees, who resided in this county; and the officer returned that he had made diligent search for the defendant and his last and usual place of abode, but could find neither within his precinct. In the court of common pleas, the trustees were discharged by agreement with the plaintiff.

Action of contract. “ And the plaintiff says that one William Field owed him the sum of sixteen dollars for services rendered and labor performed by the plaintiff for said Field, and that the plaintiff was about to sue said Field therefor, and that the defendant, in consideration that the plaintiff would forbear to sue the said Field, promised and agreed to pay the same to the plaintiff, and the plaintiff did forbear to sue the said Field, and the defendant owes him the said…

<p>Action on the Rev. Sts. c. 104, to recover land in which the plaintiff had an estate for life only. After verdict for the defendant in the court of common pleas, and pending exceptions taken by the plaintiff, she died, and her administrator was summoned in at the suggestion of the defendant, and undertook the prosecution of the suit.</p>

<p>Action of contract on a judgment of the court of common pleas. The declaration, after setting forth the recovery of the judgment for the sum of $220, damages and costs, against the defendant and William A. Forbes, averred that it remained in full force and unsatisfied in part, to wit, for the sum of $100 and interest, although an execution had been issued, and duly returned, with an indorsement thereon by the plaintiff’s attorney, acknowledging the receipt, by direction of the plaintiff," of a note for the amount thereof; that said note was by mistake written for one hundred dollars less than the amount of the execution, and that sum and interest were still due and unpaid; and that since said judgment, Forbes had applied for the benefit of the insolvent laws, and obtained a certificate of discharge, and therefore was not fnade a joint defendant in this action.</p> <p>The defendant demurred, because the declaration did not state a legal cause of action, but showed on its face that the plaintiff had, in this form of action, no legal claim against the defendant; and his counsel contended that the plaintiff’s remedy, if any, was in equity.</p> <p>In the court of common pleas, Sanger, J. sustained the demurrer ; and the plaintiff alleged exceptions, which were argued and passed upon by the court at September term 1857.</p>

<p>notion can be maintained on a note given for the price of liquors sold by the plaintiff to the defendant, the plaintiff knowing that they were to be resold in violation of law, and assisting the defendant in that unlawful purpose.</p> <p>an action upon a promissory note, evidence that the consideration of the note was intoxicating liquor sold by the plaintiff to the defendant, for the purpose of being resold in this commonwealth in violation of law, the plaintiff knowing and aiding in this purpose, is admissible under an answer which alleges that the note was “ in payment and compensation for liquors sold in violation of law, and received by the plaintiff without consideration, and against law, equity and good conscience, and no action ought to be maintained thereon; and that the note being given for intoxicating liquors sold in violation of all law, whether in this or any other state, an action thereon is an action for the recovery of the value of intoxicating liquors so sold as aforesaid, and cannot and ought not to be maintained in any court in this commonwealth, such note being not in accordance with the provisions of the St. of 1852, c. 322.”</p> <p>In an action on a promissory note, in which the defence relied upon is that it was given for intoxicating liquors to he resold, as the plaintiff knew and aided in effecting, in violation of law, bills for intoxicating liquors previously sold by the plaintiff to the defendant, though not shown to be the liquors which were the consideration of the note in suit, are admissible in evidence to show the course of dealing between the parties, in connection with the plaintiff’s knowledge that the defendant was a dealer in liquors.</p>

Action of contract to recover the price of intoxicating liquors sold and delivered by the plaintiffs to the defendant.

<p>Action of tort. The declaration averred that the plaintiff employed the defendant to peddle goods for him, and in such employment furnished the defendant with a wagon and horses ; and the defendant, while so employed, over drove and neglected to take care of the horses, by reason whereof they became sick and unfit for labor, and the plaintiff was put ’to great expense in curing them. The answer denied the immoderate driving, the neglect, the injury to the horses, and the expenses of the plaintiff.</p> <p>At the trial in the court of common pleas, the plaintiff introduced his own and other testimony in support of the averments in the declaration. Bishop, J. allowed the defendant to show by cross-examination of the plaintiff, (although the plaintiff objected that “ the evidence thus offered was incompetent, and in all respects improper, and inadmissible under the defendant’s answer,”) that soon after the alleged wrongful acts and negligence of the defendant, and soon after his period of service was ended, the plaintiff settled with the defendant for his wages, and</p> <p>gave him a note (which was also admitted in evidence, against the plaintiff’s objection) for the amount due, and in making said settlement made no claim against the defendant for any of the matters alleged in this action; and that the defendant afterwards called on him repeatedly for payment of said note, and the plaintiff, without setting up any of those matters, promised to pay it. The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

Action of contract on a promissory note. Answer, that the consideration of the note was services performed by th? plaintiff for the defendant; that in the performance of such services the plaintiff was furnished by the defendant with a wagon and horses, and so over drove and neglected the horses that they became sick and of little value ; and the defendant claimed to recover the damages so sustained.

<p>Action of tort for false and fraudulent representations The declaration alleged “that in the year 1852 Henry Thompson was employed in the coaling of wood of the defendant in the town of New Marlborough upon the land of the defendant, and the defendant had agreed to make advances to the said Thompson as the work progressed, said advances not to exceed one half of the amount to which said Thompson would be entitled upon the completion of said contract, reserving in the defendant’s hands the residue of the wages of said Thompson ; and the said Thompson became unable to go on with the prosecution of said contract with the defendant; and this plaintiff made application to the defendant, asking information of him in relation to the said contract, and how far and to what extent the plaintiff could safely be interested in the prosecution of the same; and the said defendant, to induce the plaintiff to enter upon the further prosecution of said contract, falsely, fraudulently, knowingly and deceitfully represented to the plaintiff substantially that there would be no risk in going upon said job and prosecuting it; that he had in his bands reserved funds to pay for all assistance ; that he did not care whom he paid, if the wood was burned into coal, and that he would retain in his own hands the funds which he had reserved; and the said plaintiff, confiding in these representations of the defendant, and believing the same to be true, took upon himself the further prosecution of the said contract, and made large outlay in labor, money, material and other supplies in and upon said contract, and caused to be delivered to the defendant large quantities of coal of great value; and in fact the said representations of the defendant were false, and the defendant had no reserved funds in his hands, and had greatly overpaid the said Thompson for the work which had been theretofore performed upon said contract; and by means of the premises the plaintiff has been greatly injured and defrauded.” Trial in the court of common pleas in Berkshire at February term 1858, before Mellen, C. J., who signed this bill of exceptions :</p> <p>“ The plaintiff’s counsel, in opening, made this statement: Thompson had a coal job with the defendant, on the defendant’s land. Thompson became embarrassed, and applied to plaintiff to aid him. The plaintiff applied to the defendant to ascertain the situation of the contract. The defendant stated that some thirteen thousand to fifteen thousand bushels of coal had already been drawn in ; that he had examined the coal book and found such to be the fact; that one half of the money on the contract had been retained by him; that if the contract was completed, there was an abundance to pay Thompson’s hands, and a good deal more. Relying upon these statements, the plaintiff took an assignment of the contract from Thompson, and completed the job. These representations were not true. They were verbal.</p> <p>“ The defendant objected that these representations being verbal, no action could be maintained upon them. The court sustained the objection. A verdict was thereupon returned for the defendant. To which ruling the plaintiff excepts.”</p> <p>These exceptions were argued and decided at Lenox at Sep* tember term 1858.</p>

<p>This clause, immediately following the description of land conveyed by deed, “ A portion of the above described premises was set off on execution by A against B ” on a certain day for a certain sum, “ and this conveyance is made subject to the incumbrance of said execution,” is an exception of the incumbrance of the execution, and not of the piece of land set off.</p> <p>A judgment for the plaintiff in a writ of entry to foreclose a mortgage is conclusive in his favor against any title acquired by a defendant in that suit before it was commenced.</p>

Writ of entry to foreclose a mortgage of land in Adams. Plea, nul disseisin.

Sts. c. 114. By the terms of the submission, Hubbell agreed to surrender a certain lease of real estate which he held from Bissell on the 1st day of April then next, provided Bissell should pay him such a sum, if any, as the referees should award to be paid for such surrender ; and the parties further submitted to the determination of the referees all claims and demands between them, of every name and kind, which could be the foundation of a suit at law or a bill in equity.

Sts. c. 114, and providing that the award should be “ made and reported within one year from this day to the court of common pleas.” The award was made by the arbitrators on the 14th of June 1858, was filed in the clerk’s office on the 15th of June 1858, when no court was in session, and addressed by the referees “to the court of common pleas next to be holden at Lenox on the fourth Monday of June 1858,” on which day a court was in fact holden.

Action of contract, brought to this court by appeal from a decision of the court of common pleas upon a demurrer to the declaration. The case is stated in the opinion.

Action of tort for slander. Trial in the court of common pleas, before Briggs, J., who signed this bill of exceptions : “ The words claimed to have been slanderous were spoken, if at all, at the dwelling-house of the defendants, and in that part thereof called the bakery, where bread and other articles were sold to customers; and were spoken by Mrs. Van Deusen to Mrs. Sheffill. “ The defendants asked the court to instruct the jury that if the words alleged in the plaintiffs’…

Bill in equity, under St. 1851, c. 206, by a creditor of Couch and Werden, formerly copartners in Lee, where the plaintiff and Couch continued to reside, to attach certain promissory notes made by Couch to Werden, and now in the hands of Josiah A. Royce in Lee. Werden formerly resided in Lee, but at the date of the bill resided in Illinois.

Petition in equity, under St. 1838, c. 163, § 18, to revise a decree of the court of insolvency.

Action op contract against Aaron Colton as a joint and several maker of this promissory note : “ Great Barrington, July 18th 1857.

Petition, under St. 1851, c. 343, to enforce a lien upon real estate for labor upon the stack of an iron furnace, and upon the walls built around three sides of it, and at the distance of a few feet from it, to protect it from the earth which might otherwise slide down upon it from a hill at the foot of which it stood.

<p>Action of tort against a deputy sheriff for the conversion of a quantity of scrap iron, attached by the defendant as the property of John Race.</p> <p>At the trial in the court of common pleas, before Bishop, J., the plaintiff introduced evidence tending to show that Race had been employed, for three years, as the plaintiff’s agent for the purchase of iron, and had purchased, in small qualities, the iron in dispute for the plaintiff, with money furnished by the latter. But there was evidence tending to show that no notice had been given that the business in which Race was engaged was done on account of the plaintiff; and that many persons with whom Race dealt believed him to be acting for himself in purchasing iron. One of the attaching creditors testified that the claim upon which the attachment had been made was for seven tons of iron sold to Race in October 1856; that they never knew he was dealing in any way except on his own account; that Race had bought quite extensively, and, at the time the seven tons were purchased, was doing a business which gave him a credit. The defendant testified that he found Race unloading iron at the station at West Stockbridge, and that no intimation was given him that any other person was interested in it.</p> <p>Two mortgages of personal property from Race to the plaintiff were put in evidence by the defendant, without objection; and other mortgages were offered by him, but were objected to by the plaintiff and excluded by the court. In his closing argument to the jury, the defendant’s counsel was commenting upon these mortgages, when, upon the plaintiff’s objection, the court ordered the two mortgages, and all evidence respecting them, to be struck out of the case.</p> <p>The defendant requested the judge to instruct the jury, “ that even if they found that the iron attached had been purchased by the plaintiff, yet if Race, during the three years in which he had been acting as agent for the plaintiff, had held himself out to the public as a buyer and seller on his own account, and had so dealt with the attaching creditors, and under this supposition they had entrusted their property to him, and given him credit, and this was known to the plaintiff, who permitted it, the plaintiff could not now come in and claim the iron as against the attaching creditors.” But the presiding judge declined so to instruct, and instructed the jury “ that other transactions between Race and the plaintiff, although they might have been fraudulent, could not affect this suit; that the jury must be satisfied that the conduct of the plaintiff, with regard to this particular lot of iron, had been such as to misléad and deceive the officer as to its ownership ; that if they were satisfied that the iron had been purchased by Race, as the plaintiff’s agent and with the plaintiff’s money, and without fraud upon the part of the plaintiff, and that he had not so conducted himself with reference to this purchase as to deceive the officer, the plaintiff was entitled to recover.</p> <p>The defendant also requested the judge to rule that if the plaintiff was entitled to recover, “ he could recover only the market value of the iron at the time and place of conversion.” But the judge declined so to rule, and instructed the jury that “ the plaintiff was entitled to recover such sum as upon the evidence they thought the iron was worth at the time of the conversion.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Orders for money, made payable to bearer, drawn by the selectmen of a town and ao cepted by the town treasurer, without express authority of the town, will not render the town liable to an action in the name of any one other than the person to whom tney were issued.</p>

Action of contract upon the bond given by Howland as collector of taxes of Cheshire for 1855. Trial in the court ol common pleas before Bishop, J., to whose rulings the defendants alleged exceptions, the substance of which is stated in the opinion.

Palmer and Nathan Palmer, administrators of Henry Palmer, for leave to sell real estate of their intestate for the payment of a debt due said Charles, and ascertained by a decree of this court in May 1851 to be $5,313.42 and four years’ interest.

<p>A decree of a probate court of another state, admitting to probate a will within its jurisdiction, is conclusive evidence, if duly authenticated, of the validity of the will, upon an application to prove it in this state; even when no notice of the offer of the will for probate was given, if by the law of that state no such notice was required.</p>

Estey for leave to sell real estate of the deceased for the payment of debts. The court of probate refused leave to sell for the payment of the appellant’s debt, upon the ground that it was barred by the special statute of limitations before the petition was presented ; but granted leave to sell for the payment of other debts.

<p>A debtor, shortly before a debt became payable, wrote to the creditor, asking for an extension of twelve months, and received this reply: “I am satisfied with the determination you express to secure and to pay your indebtedness at a stated time. But so small amount as mine I should feel willing to extend twelve months. If you have many - editors here, there ought to be a concert of action between you and them.” Sold, i oat this did not show an assent to the proposed extension.</p>

Action of contract to recover the expenses of supporting Norman Smith, a lunatic pauper, at the State Lunatic Hospital in Worcester.

Action of tort for injuries sustained by the plaintiff’s horse from a defect in a highway in Enfield, which the town was bound to keep in repair.

<p>Action of contract by a surveyor of highways in Hatfield for 1856 to recover of the town compensation for work done upon the highways in the district assigned to him by the assessors, beyond the amount of his own highway tax for the year, and in addition to the whole amount of the tax list committed to him.</p> <p>At the trial in the court of common pleas in Hampshire at June term 1859, the plaintiff offered in evidence an auditor’s report, which found the following facts : The town of Hatfield passed these votes at their respective dates :</p> <p>“ 1855. April 16th. Voted, to raise the sum of five hundred dollars for highways, and that the same be a labor tax. Voted, To pay the surveyors one shilling per hour, teams one shilling per hour and hands fifteen cents per hour. Voted, That the surveyors be collectors of their tax bills.</p> <p>“ 1856. April 7th. Voted, That the money raised for the repairs of highways the ensuing year be a labor tax, and that the same price for labor per hour be paid surveyors, hands and teams as was paid last year. Voted, That the surveyors be collectors of their rate bills. Voted, To raise the sum of five hundred dollars for highways the year ensuing.”</p> <p>The town also appropriated four hundred and fifty dollars for contingent expenses in 1856. On the 7th of April 1856, the plaintiff was chosen surveyor of highways in a district in which he did not reside, and duly sworn. After his election, in April and May 1856, he did work upon the highways in the district assigned to him, to the amount of $9.58.</p> <p>The list of persons taxed, with the amount of their taxes ($158.66) and the warrant for collection, signed by the assessors, bearing date of the 7th of June 1856, were delivered to the plaintiff on the 9th of June; and the plaintiff caused the whole amount of taxes, thus committed to him, to be expended in the repairs of the highways within his district, either in labor by the taxpayers, or, where they paid in money, in labor for which the money was appropriated, exclusively of his charge for superintendence of such repairs, ($39.69,) and for his personal services on said highways, ($13.93,) all of which was faithfully bestowed upon the improvement of the highways, and for which he received no compensation. The plaintiff’s own highway tax was thirty six cents. The plaintiff, by agreement with some of the taxpayers, worked out their taxes for them; charging some of them only twelve and a half cents an hour, while the town allowed in the tax bills fifteen cents an hour.</p> <p>Some time after all the services were performed, the plaintiff presented a bill to the town, and requested payment. The selectmen objected to the amount of the bill, and brought it before the town. The town referred the subject to a committee, who, after consideration, reported in favor of paying the plaintiff twenty five dollars, provided he would accept that sum, and give a receipt in full of his claim, which he refused to do, and commenced this action.</p> <p>In years previous to 1856 surveyors of highways in Hatfield had been in the habit of doing work beyond the amount of their tax bills, and being paid therefor by an order of the selectmen upon the town treasurer. There was an understanding that a surveyor might do himself, or cause to be done by others, work to the amount of ten dollars, beyond the amount of then tax bills, without authority from the selectmen; but that if such work exceeded that amount, they must have the previous verbal approbation of one or more of the selectmen. Several instances of such work in years previously to 1856, to a larger amount than ten dollars, done by the surveyor himself and by others employed by him, were proved to have been presented to the selectmen and paid for by orders on the town treasurer; and the plaintiff relied upon this usage to sustain his claim.</p> <p>The auditor disallowed the item of $9.58 for services performed by the plaintiff before he received his tax list, and of $13.93 for his personal services afterwards, and allowed the charge of $39.69 for superintending the work of others. The parties agreed that all objections to evidence should be open on the auditor’s report.</p> <p>Briggs, J., “pro forma, and for the purpose of saving all questions upon the auditor’s report, instructed the jury that upon the facts and evidence reported by the auditor they might render a verdict for the plaintiff for the full amount claimed.” The jury returned a verdict accordingly, and the defendants alleged exceptions.</p>

<p>In trover for a manufactured article, which the defendant has declined to exhibit on the trial, a witness who testifies that he is not acquainted with the market value of the article, but that he could form an opinion of the workmanship if he could see it, may be asked by the plaintiff his opinion of the value of the article, as described by other witnesses.</p> <p>In trover for a chattel, the defendant concealed the chattel until a late stage of the trial, and contended that this created no presumption of its value against him, if he produced it at the trial. The court instructed the jury that the plaintiff ought not to be prejudiced by an intentional withholding of the chattel, calculated and intended to prevent him from showing its actual value as the measure of damages; and that they ought to give the full value, no more and no less. Held, that the defendant had no ground of exception.</p>

<p>An agreement by the physician of a country village, transferring his practice and good will to another physician for a certain sum, and guarantieing u that no other physician, for the space of four years, will establish himself in this place as a competitor, unless the increased population of the place should warrant it, or unless the purchaser should commit some act, which shall forfeit to him the confidence of the community,” and agreeing, in case any such competitor shall establish himself there within that time, contrary to the above provisions, to repay the sum paid, is not void as being in restraint of trade, nor too uncertain and insensible to support an action.</p>

<p>Bill in equity to redeem land in Easthampton from a mortgage. At the hearing before Dewey, J., the defendants introduced the report of an auditor, to whom the case had been referred at a previous term without any special order of the court or agreement of parties as to the. effect of his report. The judge declined to hear evidence offered by the plaintiff to control the auditor’s report, and reserved this and all other questions of law arising in the case for the consideration ofx the full court, who, after argument at this term, held that said report was prima facie, but not conclusive evidence.</p> <p>Another hearing was then had before the same judge, and reported to the full court at the ensuing term at Springfie.H, The conclusions of fact at which the court arrived upon the evidence are stated in their opinion.</p>

<p>Bill in equity for specific performance. The bill alleged that the plaintiff and the defendant on the 2d of December 1857 executed mutual and substantially similar bonds of submission to arbitration in the sum of $200 each; and that the condition of the defendant’s bond was this :</p> <p>" Whereas differences have arisen and are now pending between the above bounden Nathaniel P. Dickinson on the one part, and the said James Caldwell on the other part, concerning the matter that the said James Caldwell demands of the said Nathaniel P. Dickinson possession of certain tracts of land lying in Northfield aforesaid: One tract bounded easterly on the road leading from Sawyer’s Mills to Vernon, running west of the Ponds; northerly on the Hunt lands, so called; southerly on land occupied by the said James, and turning westerly as far as said James’s land extends; also one other tract of land, cornering on the first described tract, being the easterly part of the Prindle Lot, so called, and in possession of said Nathaniel P., measuring from the fence twenty rods westerly to a stone wall; which the said James alleges the said Dickinson has without law entered upon and disseised the said James, and still withholds the possession thereof from him; and the said Nathaniel P. denies these allegations ; which differences, and all demands concerning the same, the said parties have agreed to refer to the award and determination of Josiah D. Canning, Esq., of Gill, and Charles Pomeroy, Esq. and Joseph Young of Northfield, arbitrators indifferently chosen by and between the said parties; the said parties agreeing, and it is understood, that the said arbitrators shall make their award and determination agreeably to the principles of law. Now if the said Nathaniel P. Dickinson, his executors and administrators, on his and their part, shall and do in and by all things well and truly observe, perform and keep the award and determination which the said arbitrators or any two of them shall make and publish of or in the premises in writing under their hands on or before the first day of March next, the said parties to give deeds according to the award of the referees, then this obligation to be void, otherwise to remain in full force and virtue.”</p> <p>The bill then averred that the arbitrators, after due notice, hearing and consideration, made, agreeably to the principles of law, the following award :</p> <p>“ Know all men by these presents, that whereas differences and disputes have been and are yet depending and unsettled between James Caldwell and William F. Caldwell of the one part, and Nathaniel P. Dickinson of the other part, for the settling and determining whereof the said parties have submitted themselves, and are become bound each to the other by their several obligations, dated the 2d day of December A. D. 1857, in the sum of two hundred dollars, with conditions therein written to obey, observe and abide by and keep the award, determination and judgment of us, Josiah D. Canning, Charles Pomeroy and Joseph Young, arbitrators indifferently chosen by and between the said parties for the purpose of hearing and determining all matters pending between said parties. Now know ye, that we, the above named and undersigned arbitrators, having met the parties aforesaid, and heard their several allegations, proofs, arguments, and having duly considered the same, do award and determine that the ' north line,’ so called, between said James Caldwell and Dickinson shall be the line established by the survey of Ozias Roberts, as exhibited by him to the arbitrators, and known at the hearing as the ‘ Roberts line,’ viz.: Beginning at a stake and stones on the west side of the highway leading from Sawyer’s Mills to Vernon, by the Pond, and running S. 83¡° W. 129 rods and 5 links to a stake and stones contiguous to an old stone wall; thence on said wall S. 7j° W. 15 rods and 9 links to a corner on land of Moses Caldwell; each party to pay and satisfy their own witnesses; and that the costs of this reference, amounting to the sum of twenty eight dollars, be equally shared and paid by the parties aforesaid. Dated at Northfield this sixteenth day of December A. D. 1857.”</p> <p>The bill then averred the plaintiff’s offer of a deed, drawn pursuant to the award, to the defendant for execution ; and his refusal to execute it, or to convey, release or confirm the premises to the plaintiff, according to the award; and prayed for a specific performance of the agreement contained in the defendant’s bond ; for a conveyance of the land according to the award; or, if the court should be of opinion that the award, by its own force, fixed and established the lines between the lands of the plaintiff and the defendant, or that for any reason it was the more proper remedy for the plaintiff, that the defendant might show cause why he should not bring an action to try his title ; and for further relief.</p> <p>The defendant demurred to the bill, and assigned several causes of demurrer, which are sufficiently stated in his argument, which was made at September term 1858.</p>

<p>An heir’s deed of his undivided share in certain land of his ancestor, “ except the widow’s right of dower,” passes the reversion in the widow’s third of the estate.</p> <p>Under the Si. of 1856, c. 38, this court has jurisdiction to reform a deed of real estate, upon clear oral evidence that it was not written according to the intention of the parties although the scrivener used the words which he intended.</p> <p>Lapse of time since the execution of a deed is no objection to having it reformed in equity according to the real intention of the parties making it, if that intention has been acted upon by both parties, and by those claiming under it, until within a year or two.</p> <p>Under the St. of 1856, c, 38, this court has jurisdiction in equity to reform a deed made before its passage.</p>

<p>A purchaser of land gave a note, secured by mortgage thereof, for the purchase money, and entered into possession of the land; and afterwards, by agreement of parties, the note, before payment of any part of it, was given up to be cancelled, and the land was released to the mortgagee. Beld: that this was no bar to an action of trover by the mortgagee against a purchaser from the mortgagor, with notice, of property attached to the realty.</p> <p>An agreement in writing, by which a mortgagee agrees to deliver up the mortgage note to be cancelled, upon the doing of certain things by the mortgagor, “ which settles all accounts with said mortgagor,” may be shown by paroi evidence to have been intended as a settlement of all claims for property taken from the premises by the mortgagee.</p>

<p>The insertion ot a debt in the schedule of creditors, filed and sworn to by a debtor under proceedings in insolvency, is not such an acknowledgment as will take the debt out of the statute of limitations.</p> <p>The payment of a dividend by an assignee under the insolvent laws will not take the residue of the debt out of the statute of limitations as against the debtor.</p> <p>The pendency of proceedings in insolvency against the debtor does not suspend the operation of the statute of limitations in his favor.</p>

<p>The provision of St 1845, c. 70, § 2, that in actions on constables’ bonds “ the like proceedings shall be had as in a suit by a creditor on administration bonds,” does not require the action to be brought in this court.</p> <p>The attachment by a constable on mesne process of the property of one not the defendant is a breach of the condition of the constable’s bond.</p> <p>An unsatisfied judgment against a constable for the conversion of property wrongfully attached by him is no bar to an action upon his bond.</p>

<p>A guardian, licensed to sell real estate of his ward for the purpose of investment, did not duly invest the proceeds, but charged himself with such proceeds and with interest thereon from year to year in his general guardianship account, which was allowed by the court of probate, and expended sums equal to such interest for the support of his ward. Held, that he was responsible for such proceeds upon the special bond given by him on obtaining the license; but for the interest thereon, upon his general bond.</p> <p>A guardian is responsible on his general bond, for money due from him to his ward at th<> time of his appointment, and for the rent of real estate occupied by the guardian before that time.</p> <p>A guardian, who was also executor of a will in which his ward was residuary legate , paid out for the support of his ward, as appeared by his guardianship account lis allowed, more than he received as guardian. Held, that the excess should have bee i credited to him in his executor’s account as paid over to himself as guardian, ai t charged to him in his guardianship account; and that if not so done in form, it shorn l be deducted from the liability of himself and his sureties on his bond as executor.</p>

<p>Writ of error on a judgment of the court of common pleas in an action of contract brought by Gideon D. Richardson upon two promissory notes made by the plaintiff in error, and payable to Eliphalet W. Richardson, but not purporting to be payable to order.</p> <p>In that action, each count was in this form: “ And the plaintiff says, the defendants made a promissory note, a copy whereof is hereto annexed, payable to Eliphalet Wharff Richardson, and the plaintiff is the owner of said note, and the defendants owe him the amount of said note and interest thereon.” Copies of the notes were annexed to the declaration. The defendants filed an affidavit of merits, but were afterwards defaulted, and judgment was rendered against them for the amount claimed.</p> <p>The error assigned was, that the notes were not negotiable, and were not made to Gideon D. Richardson, and he could maintain no action at law thereon. Plea, in nullo est erratwn.</p>

Action of contract, commenced before a justice of the peace in Franklin, who on the 10th of April 1858 gave judgment for the plaintiff.

<p>A debtor arrested on execution, who enters into a recognizance, under 1857, c. 141, § 10, to deliver himself up for examination within ninety days, giving notice as provided in that statute, is bound to procure the attendance of a magistrate, qualified by law to take the examination, within the hour specified in his notice; and if the magistrate does not appear within the hour, the debtor cannot be discharged without a new notice to the creditor.</p> <p>A recognizance, which recites the obligee’s recovery of judgment against the debtor, the issue of an execution thereon, the taking of the oath required by law in behalf of the plaintiff, the magistrate’s certificate that he was satisfied that there was reasonable cause to believe the truth of the facts sworn to, the arrest of the debtor, and that he was brought before the magistrate for examination, and did not desire any time fixed for examination, and offered this recognizance, which was accepted; and which is conditioned that the debtor “ shall, within ninety days from the time of his arrest, deliver himself up for examination, giving notice thereof as in the statutes in that behalf provided,” &o. is sufficient, under the St. 1857, c. 141, § 10, without stating that the debtor desired to take the poor debtor’s oath, or more definitely naming or describing the magistrate before whom he is to deliver himself up.</p>

Action of tort for breaking and entering the plaintiff’s close in Deerfield, and treading down the grass, and pulling up and carrying away and converting to the defendant’s use certain stakes set in the soil.

<p>Parties who indorse their names on a promissory note before its delivery, for the benefit ot the maker, are not liable as joint makers, if the payee afterwards indorses his name above theirs before the note is delivered; and other paroi evidence is inadmissible to show that they were joint makers.</p> <p>Where several persons indorse their names on a promissory note, in order to enable the maker to get it discounted; and some of them afterwards, on the failure of the maker, pay the note; they cannot maintain an action against the others for contribution, without proving that the relation between them was really that of cosureties. But paroi evidence of that fact will maintain such an action.</p>

<p>Action of contract on a promissory note. Answer, want of consideration. Trial and verdict for the defendant before Bigelow, J., to ‘whose instructions the plaintiff alleged exceptions, the substance of which is stated in the opinion.</p>

<p>An action for trespass on land was referred, by rule of court, “ with full authority to examine and establish boundary lines between the parties, about which there is any dispute, controversy or doubt; ” and an award, giving damages and costs to the plaintiff, and establishing a boundary line by courses and monuments, was accepted by the court, and judgment entered thereon, notwithstanding the plaintiff’s objection to so much of it as established a boundary, upon the ground that that provision was inserted in the submission by mistake and without his consent, and was protested against by him as soon as he discovered it. Held, that the boundary line so established was conclusive upon the parties in a subsequent similar action.</p>

<p>Action of tort for deceitful representations of the soundness of a colt sold by Phelon to Bodurtha for seventy dollars.</p> <p>The answer denied the representations and the unsoundness , and alleged that Bodurtha had sued the plaintiff before a justice of the peace on the note given for the price of the colt; that upon the trial before said justice Bodurtha appeared and answered orally, and was examined as a witness, and introduced evidence of the unsoundness of the colt, and of Phelon’s deceit, to show that the consideration of the note had failed ; that said justice deducted forty dollars for the defects of the colt and breach of warranty, and gave judgment for thirty dollars and costs, from which Phelon appealed to the court of common pleas, and in that court Bodurtha was defaulted ; and that, after the trial of that action before said justice, this action was tried before another justice of the peace, upon the same cause of action which had been set up as a defence to that action, and the same facts were in evidence as at that trial, and judgment was rendered by the justice in this action in favor of Bodurtha for thirty dollars and costs, from which Phelon appealed to the court of common pleas.</p> <p>The plaintiff filed a replication, alleging that on Bodurtha’s default- judgment was rendered against him for the full amount of Phelon’s claim, and that the facts in evidence at the two trials before the justices of the peace were different; and admitting, in substance, the other facts alleged in the answer.</p> <p>Upon these pleadings the court of common pleas gave judgment for Phelon, and Bodurtha appealed.</p>

<p>Paul Dewing on the 24th of March 1857 inserted in a writ returnable to the police court of Springfield, according to St. 1855, c. 431, § 5, a petition to enforce a lien upon a meeting house and land in Wilbraham, for labor performed from the 22d of December 1856 to the 7th of January 1857.</p> <p>After the entry of this petition an order of notice was issued to other persons claiming like liens, and they came in and filed similar petitions on the 26th of May 1857, claiming liens foi work which ceased in January or February 1857.</p> <p>The police court gave judgment for the petitioners, and the respondents appealed to the court of common pleas, where the whole matter was referred to an auditor, who reported the amount due to each petitioner, and the case was submitted to the decision of that court upon a statement of facts, which stated the dates of the proceedings, and the residue of which was as follows:</p> <p>“ The respondents are the owners of the property upon which it is sought to enforce the lien. The church was rebuilt in 1856-7, by the society, and they by their committee made a written contract with William G. Emerson, a master builder, to rebuild the same for a gross sum,6 the contractor to perform all labor, of whatever kind required, and to furnish all the materials, of whatever name or kind, to complete the building finally and fully according to the true and evident meaning of the foregoing stipulations and the accompanying plans.’ Said Emerson employed Paul Dewing and the other petitioners to work either upon the church building in Wilbraham or upon work for the church at Emerson’s shop in Springfield ; said Emerson paying them therefor as he saw fit and they and he agreed. No contract was made between the respondents and either of the petitioners personally for any labor or sum. Each of the petitioners recorded his claim within thirty days after ceasing to labor. The amount due each for his labor and service is agreed to be the amount respectively found for each by the auditor.”</p> <p>Mellen, C. J. gave judgment for the respondents, and the petitioners appealed.</p>

<p>Trustee process, commenced on the 28th of March 1858. Warren Fuller, summoned as trustee of Josiah Williams, disclosed in his answers as follows :</p> <p>“ In January 1852 Williams conveyed to me a farm in Mon-son, worth from six to eight thousand dollars. The consideration expressed in the deed was ten thousand dollars. There was a mortgage upon it for three thousand dollars, besides interest. In consideration of his wife’s joining in this deed, I paid her five hundred dollars, and gave to her, into her own hands, a note for two thousand five hundred dollars. I do not know what were Williams’s reasons for making the conveyance; and I have no recollection of receiving any directions from him as to how the note should be made payable; but I told Mrs. Williams that I would pay the amount whenever she should procure a divorce from her husband. I have since paid seven or eight hundred dollars upon the note, and have paid debts of Williams to the amount of several hundred dollars. I consider that I have paid and am liable to pay more than the full value of the farm at the time of the conveyance.”</p> <p>Mrs. Williams testified that she received the note from Fuller at the time above mentioned, and that it was made payable to her, not to her order or to bearer; that “ the condition of said note was, in substance, that it should be paid to her whenever she did procure a divorce from said Williams; ” and that the note was not now in her possession, but in the possession of another person, whom she named.</p>

<p>A gift of negotiable promissory notes, secured by mortgages of real estate, with proper assignments of the mortgages to the donee, made during the last illness of the donor, who is aware of his condition, and intends the gift as a final disposition of the property, is a good donatio mortis causa.</p> <p>A donatio mortis causa will not affect the rights of creditors ef the donor.</p> <p>An administrator, who has admitted claims made against the estate of his intestate before they were barred by the special statute of limitations, and agreed with such creditors to bring a suit for their benefit to recover back a gift causa mortis of the intestate, may bring such suit after the expiration of such period of limitation.</p> <p>In a suit in equity by an administrator to recover, for the benefit of creditors, the subject' of a donatio moi'tis causa, the defendant, if he has not offered, in his answer, to pay the debts, but has denied that the suit can be maintained against him, will not be exonerated from the payment of costs and expenses of administration.</p>

<p>Bill in equity by Phelps against Foot as trustee of Lucy G. Orne, and against the administrator, widow and children of John Childe, to compel the specific performance of an agreement between Phelps, Foot and Childe, for the division of the hotel and estate in Springfield, known as the Union House Property, and of the furniture therein. The case was heard before Dewey, J., upon the bill, answer, replication and proofs, and by him reported to the full court.</p>

<p>K deeu described the land conveyed as “ laid out into building lots, and described on a plan, recorded," &c. “ and numbered lots 12,14,16,” &c., and as bounded “ westerly by lot 10, or my own land by.the middle of the brook between lots 10 and 12.” The grantee on the same day made a mortgage back to the grantor of land bounded “ westerly by the brook, and is the same land this day conveyed to me by said ” grantor. The brook ran through lot 12 from north to south. Held, that the deed conveyed the land as far as the brook only.</p>

<p>The measure of damages for the breach of a contract to sell and deliver goods at a certain time is the value of the goods at that time, deducting the contract price; and no further damages can be recovered, if it does not appear that the use to which they were to be applied was known to the seller.</p>

<p>In an action upon a policy of insurance upon property which is admitted to have been owned by the plaintiff when the policy was issued, the burden of proof is upon the defendants to show a subsequent alienation of the property.</p> <p>A mere agreement between the owner of property insured and another person,to represent to the creditors of the owner, in order to prevent attachments, that it had been sold to such other person, does not avoid the policy, although the policy is upon condition that the insurance shall be void “in case of any sale, transfer or change of title.’’</p>

<p>Under a policy of life insurance, payable in a certain time 41 after due notice and proof of the death,” a physician’s certificate of the death is not an essential part of the proof, unless expressly required by the policy, or by a usage of the company made known to the plaintiff before he took the policy.</p> <p>A person whose life is insured by a policy which permits him to pass by sea between certain ports 41 on first class decked vessels,” does not forfeit the policy by going as a steerage passenger in such a vessel.</p>

<p>The fee of “ twenty cents for each and every prisoner committed or discharged,” to which a jailer is entitled under St. 1836, c. 277, is not to be included in the allowance to the jailer of “ a reasonable sum for his services, and for the support of the prisoners under his charge, and other necessary expenses,” to be made by the county commissioners, subject to the revision of the court of common pleas, under St. 1846, c. 11, § 3.</p> <p>The remedy of a jailer for the support of infant children of prisoners is against the town in which the prison is situated, and not by application to the county commissioners for an allowance under Si. 1846, c. 11, § 1.</p> <p>The keeping of a prison book, as required by St. 1848, c. 276, § 2, is not a condition precedent to an allowance by the county commissioners of additional compensation beyond the sum fixed by § 1 as the price of board.</p> <p>The amount of additional compensation to be allowed to a jailer, beyond the price of board of prisoners, under St. 1848, c. 276, § 1, upon an appeal from the county commissioners to the court of common pleas, under St. 1846, c. 11, § 1, is within the discretion of that court, and not subject to revision on exceptions.</p>

<p>Action of tort by the owner of a mill on Swift River in Palmer against the owners of another mill higher up on the same stream, for unreasonably detaining and using the water thereof, to the injury of the plaintiff’s mill. The case was referred to arbitrators, and was submitted to the court upon their report, of which the following were the material parts:</p> <p>“1. We find that for a period of more than one hundred years a grist mill and saw mill have been operated on the site now occupied by the plaintiff’s grist mill and saw mill, on Swift River in Palmer.</p> <p>“ 2. We find that the plaintiff purchased said mills and privilege of Emelius Bond in 1851, and that the defendants acquired their title to the lands occupied by their factory (which is situate about fifty rods above the plaintiff’s dam) under a deed of warranty from said Emelius Bond, Horace Parmenter and Benjamin Leonard, dated January 1st 1836 ; that said Bond at the date of said deed was the owner of the mills and privilege now owned by the plaintiff: and that, in the deed of said Bond and others to the defendants, the grantors reserved the right to maintain the said Bond’s dam, and to flow the water thereby to a certain specified height.</p> <p>“ 3. We find that the defendants, having purchased a tract of land of one thousand acres on both sides of the stream above their said factory site, flowed the same by building a substantial dam thereon in the year 1846; and from the reservoir, thus created, they have drawn the necessary supply of water for their factory, through a canal running parallel with the bed of the stream, returning however, all the water so used into the stream above the plaintiff’s dam.</p> <p>“4. We find that prior to the erection of the defendants’ factory, the plaintiff and his predecessors had been accustomed to run their saw and grist mill sometimes by night, and out of the usual working hours, as well as by day and in regular working hours; but we find that at no particular seasons or periods were they accustomed to run said mills out of working hours, and only as the occasional pressure of business might demand; and we find that they had followed this practice more than twenty years prior to the erection of the defendants’ factory, or to the sale of said factory site by said Bond and others to the defendants.</p> <p>“ 5. We find that the defendants completed and commenced running their factory in 1848, and their entire works, operated on said canal, were of about two hundred and fifty horse power; but we find that said works were of such magnitude only as were adapted and appropriate to the size and capacity of said stream and to the quantity of water usually flowing therein. But in our judgment as to said adaptation and suitableness of said works to said stream we have had reference to the ordinary volume and flow of water at different seasons; but no reference to the plaintiff’s necessities or demand for water in such periods of extraordinary and extreme drought as occasionally occur on this stream, when the water, though sufficient to operate the plaintiff’s mills, would be insufficient to operate the defendants’ factory; nor had we reference to any prescriptive or prior right in the plaintiff as the occupant of the older privilege.</p> <p>“ 6. We find that the defendants have caused no further disturbance or interruption of the flow of water to the plaintiff’s mills, than was necessary and unavoidable in and by the reasonable and proper use of it for the propelling and working of the defendants’ factory. But in estimating such reasonable and proper use we have had no regard to" the plaintiff’s necessities or demands for water at such seasons of extraordinary and extreme drought as occasionally occur on this stream, when the water, though sufficient to operate the plaintiff’s mills, would be insufficient to operate the defendants’ factory; nor had we reference to any prescriptive or prior right in the plaintiff as the occupant of an older privilege.</p> <p>“ 7. We find that during the season of greatest drought in the years of 1851, 1852, 1853 and 1854, the defendants were not able to operate their factory throughout the usual working hours of each working day, but were obliged, in order to create the requisite head and supply of water for then own works, to shut their gates earlier than usual on some days, and sometimes for a whole day at once; but this was not done wantonly, but was done with a reasonable regard to the best interests and advantage of the defendants as proprietors of said factory, and in conformity with the general usage of millowners running mills on this and other similar streams. But we further find that in so doing the defendants acted wholly irrespective of the plaintiff’s interests, and of his necessities or demands for water, and neither acknowledged nor conformed wholly or in part to any claim made by the plaintiff that a sufficient quantity should be left flowing to operate the plaintiff’s mills.</p> <p>“ 8. We find that the number of working hours lost to the plaintiff by thus shutting the defendants’ gates in order to replenish their pond, would, during the period sued for, viz.: from the 1st of June 1851 to the 16th of February 1857, in the aggregate, amount to an average of eight and a half days in each of the years 1351,1852,1853 and 1854; while in the years 1855,1856 and 1857 it did not appear there was any loss of working time or hindrance to the plaintiff’s mills or to the defendants’ factory from drought, or any cause imputable to the defendants. And we further find that the above proportion of working time lost is less than the time usually lost each year by similar mills and manufacturing establishments on this • and other similar streams from drought.</p> <p>“ 9. We find that the plaintiff’s mills require less than half the supply of water necessary for operating the defendant’s factory, and that during the dry season aforesaid the plaintiff might nave run his mills, or one of them, during working hours, had not the defendants, by shutting their gates, stopped the supply of water during a portion of the usual working hours as aforesaid ; and we find also that in each dry season as aforesaid, as well as at other times, the defendants have discharged through their wheels at least double the quantity of water necessary for operating the plaintiff’s mills, and that the surplus so discharged flowed over the plaintiff’s dam, and was of no use or benefit to the plaintiff. But we find that the defendants could not have run their factory, so as to have afforded a supply graduated to the wants of the plaintiff, without serious detriment to their own interests, much greater than is sustained by the plaintiff from the causes complained of.</p> <p>“ 10. Whether upon the foregoing findings of fact it was the duty of the defendants, in point of law, to leave their gates or any of them so far open that a supply of water would flow to the plaintiff’s mills during all of working horns in each dry season, or during any part of such hours as the defendants, having a reasonable but exclusive regard to their own necessities, were obliged to stop their works, we refer to the consideration of the court; and if it was any part of the reasonable duty of the defendants to consider the plaintiff’s necessities and demands for water during regular working hours, or to consider and observe any prescriptive or prior right in the plaintiff thereto, and in any respect to conform to the same by furnishing him with water at the time, or during any part of the time, when their own necessities required them to shut their gates, we find for the plaintiff, and award as damages for the detention of water during the years aforesaid (but for no other cause) the sum of three hundred and eighteen dollars. Furthermore, if it was any part of the defendants’ reasonable duty to furnish a supply of water to the plaintiff out of the usual working hours, to enable him to run his mills as he had been occasionally accustomed to run them, at irregular and unusual hours, then we further find on this ground nominal damages and assess the same at one dollar. If on neither of the grounds or for neither of the causes above set forth the plaintiff is entitled to recover, we find for the defendants.”</p>

<p>The St. of 1856, c. 284, § 86, providing for the issuing of warrants by judges of insolvency on the complaint of an assignee, to search for property of the debtor, is unconstitutional and void.</p>

<p>A replevin bond, from a person not the plaintiff, with one surety, is not such a bond “ from the plaintiff or from some one in his behalf, with sufficient sureties,” as is required by the Rev. Sts. c. 113, § 29; and if objection is made at the return term, the action of replevin must be dismissed.</p> <p>A motion to dismiss an action of replevin, for want of a sufficient bond, sufficiently states the cause of the motion, by alleging that the officer did not before the service of the writ u take from the plaintiff or some one on his behalf a bond to the defendant with sufficient sureties,” &c., enumerating all the requisites of the Rev. Sts. c. 113, § 29.</p> <p>The filing of an affidavit of merits simultaneously with a motion to dismiss is not a waiver of that motion.</p>

Writ of review of a judgment of the court of common pleas, granted by this court at the last April term, and stied out on the 28th of June, returnable to October term 1859 of this court. The original action was an action of contract, with an ad damnum of $300.

<p>A debt due from one partner cannot be set off in an action by the assignee in insolvency of the partnership on a debt due to the partnership.</p> <p>A contract by one of two partners in the business of building houses, made without the knowledge of the other, to build a house in payment of a private debt of his own, is a fraud upon the partnership, and void, if the creditor knows that the two are partners in that business; and if both partners actually do the work, they or their assignee in insolvency may recover therefor of such creditor, without proving the terms of their copartnership, or that the partner who made the contract agreed that the work should be done by the partnership.</p>

<p>An agreement between one partner and a third person that the.latter shall participate in that partner’s share of the profits of the firm, as profits, renders him liable as a partner to the creditors of the firm, although, as regards the other members of the firm, he is not their copartner.</p> <p>The acts and declarations of a person not a partner are not admissible to charge him as a partner, without showing that they were brought home to the plaintiff’s knowledge.</p>

<p>No appeal lies to this court from the decision of the court of common pleas upon a demurrer to a plea in abatement.</p>

<p>A person who has paid his tax within the time prescribed by the town, and thus obtained a discount thereon, under the Rev. Sts. c. 7, § 36, cannot maintain an action against the town to recover back the amount, upon the ground that the tax was illegal by reason of too small a portion of the state tax having been assessed on polls; even if he paid under protest.</p>

<p>Action of tort for damages to wool of the plaintiff, delivered by him to the defendants as common carriers of merchandise, to be transported from the Suspension Bridge at Niagara Falls to Albany. Trial before Metcalf J., who made the following report thereof:</p> <p>“It appeared that the wool.described in the declaration was received by the defendants at Suspension Bridge, directed to Boston, on the 27th of January 1857, and that it arrived at Albany on the 6th of February following; and, being there in the defendants’ freight depot, was submerged by a sudden and violent flood in Hudson River, which caused the alleged injury to the wool. It appeared in evidence, that the time required for transporting merchandise, in the usual course of business, from Suspension Bridge to Albany, was forty eight hours.</p> <p>“ The defendants introduced evidence tending.to show that the wool was carried safely and without delay over their route as far as Syracuse, that it was delayed there six days, and was then carried safely and without further delay to Albany, and was there deposited, at the end of their route, in a safe and proper depot, with all due precautions against accident by flood or otherwise ; that the delay at Syracuse was caused by the fact that they had not a sufficient number of engines to transport the freight which was ready for transportation; that they provided engines sufficient to meet all usual demands and all exigencies which could be foreseen; that early in January 1857, when they had a large surplus of engines, a season of unusually severe cold commenced, by reason of which cold their engines were broken at the rate of one a day for a fortnight; but that they had power enough for their business until the 20th of said January ; that the delay at Syracuse was caused solely by the cause above stated, and that they made all" proper efforts to forward the freight,, and did forward it as fast as they could.</p> <p>“ They also introduced evidence tending to prove that the flood which caused the injury to the wool was occasioned by the lodging of ice in Hudson River, below the city of Albany, which formed a dam across the river, and caused a higher-flood in that city than was ever before known; that the water rose four feet in fifteen minutes, and wet the plaintiff’s wool, which had been deposited in a depot, as hereinbefore stated; and that the defendants used their best exertions to secure the wool from injury by said flood.</p> <p>“ It was in evidence that the plaintiff received the wool at Boston, after it was injured by the flood at Albany, and sold the same at a less price than it would have brought, if it had not been injured.</p> <p>“ It appeared from the defendants’ books, which were introduced in evidence, that the car which contained the plaintiff’s wool was detained at Syracuse two or three days longer than the other cars which left Suspension Bridge in the same train on the 27th of January.</p> <p>“ The plaintiff contended, 1st. That the defendants had been guilty of negligence in not forwarding his wool from Suspension Bridge to Albany in a shorter time. 2d. That the wool was not deposited in a proper depot, at Albany, as was shown by its being injured there by water. 3d. That the defendants did not exercise the care required of them by law in attempting to save the plaintiff’s wool from injury by the flood.</p> <p>“ The jury received instructions, which were not excepted to, as to the care and diligence required of the defendants, in transporting the plaintiff’s wool, depositing it in a depot at Albany, and using their efforts to rescue it from the effects of the flood, there. The jury were directed to assess the plaintiff’s damages for the injury to his wool, caused by the flood; and were also requested to find specially :</p> <p>“1st. Whether the defendants were wanting in that degree of care and diligence which the law required of them in seasonably transporting the plaintiff’s wool from the Suspension Bridge to Albany, and whether the wool was injured by reason of the want of such care and diligence.</p> <p>“ 2d. Whether the defendants were wanting in that degree of care which the law required of them in depositing the plaintiff’s wool in a proper place, when it arrived at Albany.</p> <p>“ 3d. Whether the defendants were wanting in that degree of care which the law required of them, in attempting to save the plaintiff’s wool from the injury which it received at the place where it was deposited by them, on its arrival at Albany.</p> <p>“ The jury found a verdict for the plaintiff, assessing his damages at $421.07; and answered the first and third of the .above questions in the affirmative, and the second in the negative. If, on these findings of the jury, the defendants are not, for any legal reason, liable for the injury to the plaintiff’s wool, the plaintiff is to become nonsuit, or a new trial is to be ordered, as the whole court shall direct; otherwise, judgment is to be rendered on the verdict.”</p> <p>The case was also reserved on a motion of the defendant to set aside the verdict of the jury on the third question,, as against the weight of evidence. That motion was, by order of the court, argued first before the judge who presided at the trial, and was granted by him, and the case was then argued before the full court on the questions of law raised by the report.</p>

<p>A corporation incorporated by the laws of another state, authorized by a statute of Massachusetts to hold real estate here, is taxable, under the St. of 1839, c. 139, § 1, and notwithstanding the Rev. Sts. c. 7, § 10, cl. 2, for stock employed in manufactures in a town in this state where it carries on its business.</p>

<p>A policy of insurance was declared upon its face to be “ made and accepted in reference to the survey on file at this office; ” and was afterwards renewed “ upon condition that the application, upon which said policy was originally predicated, shall continue valid and in full force.” The policy had been issued upon an application for insurance headed with the name of another insurance company, and signed by the president of that company, who delivered the application to this company, and procured the original policy and the renewal of it; but there was no other evidence that the application was made with the authority or knowledge of the assured. Held, that the assured was not bound by the statements in the application, as to the precautions to be taken against fire; nor by representations made by such president, at the time of procuring the renewal, as to the amount of other insurance.</p> <p>The breach of a warranty on the face of a policy of insurance, not alleged in the answer, nor relied upon at the trial, cannot be taken advantage of at the argument before the full court upon the report of the presiding judge.</p>

<p>Action of tort for the conversion of one hundred and fifty cords of wood. The answer denied the plaintiff’s property and the conversion; and alleged that the wood was the property of one Benson, and was attached by the defendant, being a deputy sheriff, as Benson’s property, at the suit of Richard D. Rawson; and was also taken by the defendant as the agent and by the direction of Rawson, who was the owner thereof or had a lien thereon for the price.” Trial before Metcalf, J., who signed this bill of exceptions :</p> <p>“ It appeared that on the 30th of October 1857 Rawson, being the owner of a tract of woodland situate in Douglas in this county, conveyed all the wood thereon standing to Benson by a bill of sale, which stipulated that Benson should have until the 1st of April 1859 to clear the wood and timber from the above described lot. Benson gave therefor his promissory note payable on demand, with interest, for the sum of $400.</p> <p>“ The plaintiff offered to show that on the 17th of November 1857 Benson mortgaged said wood, which was then standing and growing on the land, to the plaintiff, to secure a preexisting debt. Evidence was offered by him that the mortgage was lost, and he then offered a writing certified by the register of deeds for the county of Worcester to be a true copy of the mortgage. It appeared from said copy, and also by the testimony of the plaintiff, that there was a subscribing witness to the mortgage; and also that the same had never been recorded in any town clerk’s office. The plaintiff and Benson were both residents in Connecticut.</p> <p>“ The defendant objected that the copy was not admissible in evidence without first calling the subscribing witness ; and further that the certificate of the register of deeds was no evidence of the copy, as the town clerk’s office was the proper place to record the same, and that the plaintiff could not claim title under said mortgage, or give the same in evidence without said record. But the presiding judge admitted the copy in evidence, and ruled that the plaintiff was entitled to hold under the same.</p> <p>“ The plaintiff further offered evidence to show that on the 16th of July 1858 Benson sold to him said wood, and hauler! twenty cords of it off the lot for him, and delivered to him on Ráwson’s lot about one hundred cords thereof which then remained thereon; and that the defendant afterwards, to wit, on the 2d of September 1858, attached the same as the property of Benson at a suit instituted by Rawson on said note. The plaintiff testified that at time of his purchase he knew that the property was bought of Rawson, and supposed it was not paid for.</p> <p>“ The defendant offered to show that before he took possession of said wood Benson had become insolvent; that he had never paid for the same; that the same had always remained on the land of Rawson; and that he took possession of the same as the agent of Rawson by his direction to assert his vendor’s lien thereon. But the presiding judge rejected the evidence.</p> <p>“ The jury found for the plaintiff. To which rulings the defendant respectfully excepts.”</p> <p>The arguments upon the points not decided are omitted.</p>

<p>Action of contract against the indorser of a promissory note, made at Boston by Henry S. Downs. Trial in the court of common pleas, at December term 1858, before Mellen, C. J., who ruled that the evidence did not show sufficient diligence in the holders of the note in demanding payment of the maker, and ordered a verdict for the defendant. The plaintiffs alleged exceptions. The facts are sufficiently stated in the opinion.</p>

<p>A warranty deed from a mortgagee, who has entered upon the land for breach of condition of the mortgage, passes his title, and, though unaccompanied by a transfer or assignment of the mortgage notes, enables his grantee to maintain a writ of entry to foreclose the mortgage, and, on producing and filing the notes, to have a conditional judgment.</p>

<p>A release by A. of all demands against B., reciting a settlement “ between A. on the one side and B. and C. on the other,” has no legitimate tendency to prove that there was a joint interest or partnership between B. and C. in the same business during that time.</p> <p>In an action by a mother against two sons for money paid to their use, one of the defendants contended that the money was paid to the sole use of the other; and testified that he asked his mother to give him a note for the amount which he feared he should have to pay for his brother, and she offered to give him a mortgage of part of her farm. Held, that evidence of her having in former years paid money for him, and given him the use of the farm, was incompetent to contradict his testimony.</p> <p>Evidence that the maker of a note put property into the hands of the first indorser has no tendency to show that the latter signed the note for the accommodation of the maker alone, and not of the maker and the second indorser jointly.</p> <p>An exception to the admission of incompetent evidence is not cured by an instruction to the jury that it is immaterial.</p> <p>Evidence that two persons were jointly interested in the buying and selling of horses is irrelevant to the issue of their interest in buying and selling cattle; and a statement relating to it, made on cross-examination, cannot be contradicted.</p>

The reason assigned by the judge for licensing a sale of the whole estate was, that “ by the sale of a part thereof, the residue would be greatly injured.” The appellant was the wife of Charles A. Harrington, who was Monroe’s residuary devisee and legatee, and who certified in writing his consent to the petition for leave to sell.

<p>Action of contract for the breach of an agreement in writing, by which the defendant, for a valuable consideration, promised to withdraw an action commenced by him against a constable for attaching certain of his property, (which he claimed to be exempted from all attachment,) in a former action brought by the plaintiff against the defendant. The breach relied on was, that the defendant did not withdraw his action, but entered it in court.</p> <p>The plaintiff claimed damages for costs and expenses which, he alleged, he was liable to pay the constable, to whom he had given a bond of indemnity. It did not appear that the constable had ever made a demand on the plaintiff to pay him any costs or expenses,in consequence of the entry of the action in court, or that the plaintiff had paid him anything on account of the same; but it appeared that the constable had been put to costs and expenses, amounting in the whole to the sum of about forty dollars, on account of said entry, which he claimed of the plaintiff, and for the payment of which the bond had been given.</p> <p>Upon this case, in the court of common pleas, at December term 1858, Mellen, C. J. instructed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

Replevin of a family carriage. At the trial in the court of common pleas, before Mellen, C. J., the plaintiff claimed title to the carriage under a mortgage thereof from Nathaniel T. Bent, dated May 1st 1856, and recorded on the 5th of November 1856.

<p>Action of tort for breach of promise of marriage. The answer denied the promise. Trial in the court of common pleas at December term 1858, before Mellen, C. J., who signed this bill of exceptions :</p> <p>“ The plaintiff, to prove the promise, offered to show by one Thomas Aldrich, that said Aldrich was at the office of P. P. Todd, then and now one of the defendant’s attorneys, about the time of the date of the writ, and soon after the defendant had been married; that the defendant and Robert Furgerson came into the office, and the defendant told said Todd, in the presence and hearing of said Aldrich, that he wanted to see him on private business, and they (said Todd, the defendant and Furgerson) went out of the office, closed the door, and stood outside and near one of the office windows which was closed; that said Aldrich was sitting down by the window and inside of the office to do some writing, and, while there, heard the defendant veil said Todd, his counsel, that he had some real estate in Mcndon, which he wanted to convey to said Furgerson, and that he was afraid a girl would sue him for breach of a promise of marriage.</p> <p>“ To the admission of which the defendant’s counsel objected, on the ground that the communication thus made to said Todd, his counsel, was a privileged communication, to which said Aldrich, being in the office under such circumstances, could not by law testify. But the presiding judge admitted the testimony. The jury found a verdict for the plaintiff. To which admission the defendant excepts.”</p>

Action of contract by a deputy sheriff upon an agreement of the defendant to indemnify him in selling certain personal property on execution against John C. Murphy.

<p>A witness who had been for many years a photographer, and previously “ a teacher of the branches usually taught in select schools," including handwriting, was permitted to state his opinion whether certain words on a paper shown him were written before or after the paper was folded. Held, that the admission of this evidence was no ground of exception.</p> <p>A disputed signature cannot be used in cross-examination of a witness to test his accuracy as to another signature.</p> <p>The rejection of a plan, offered in evidence after ail the testimony on both sides is closed, is within the discretion of the presiding judge, and not subject to exception.</p>

Action of tort against a deputy sheriff for attaching property of the plaintiffs on a writ against a third party. At the trial in the court of common pleas at December term 1858, the plaintiffs called several witnesses for the purpose of impeaching the character for truth and veracity of Reuben G. Holmes, a material witness for the defendant.

<p>Action of contract for goods sold and delivered. Trial in the court of common pleas at March term 1859, before Sanger, J., who signed this bill of exceptions :</p> <p>“ The goods in question were stock to be used for the manufacture of wheels. Portions of the stock were brought into court by the defendant as samples of the goods received. There was no question but that the goods had been received and kept by the defendant. The defence was, that they were not of the kind ordered or value charged.</p> <p>“ At the trial the following question was put in the direct examination of the defendant, who was on the stand as a witness : ‘ What was such stock as the samples worth per set, for wheels, at the time of delivery ? ’ This question was objected to by the plaintiffs’ counsel, because the rule of damages and the proper subject of inquiry should be the market value or price at the time the articles were delivered. The objection was sustained by the court, and the defendant’s counsel was not allowed to put the question in that form. He then varied the question, and put it in the following form, ‘ What was the market value of that kind of stock for wheels at that time ? ’ And the question was answered by the witness. The jury found for the plaintiff. To this ruling of the court the defendant excepted.”</p>

<p>The description of a promissory note, in a sealed guaranty, as annexed thereto, and the omission to mention in the guaranty that the note is attested, and bears indorsements of payments of interest, will not exempt the güarantor from the payment of a note corresponding in all other particulars with the description in the guaranty.</p> <p>A- guaranty of a promissory note, expressly “ waiving all right to demand and notice,” cannot be contradicted by oral evidence of a contemporaneous agreement to collect the n jte iron the principal debtor, and of loches in pursuing him.</p>

<p>The statute of limitations is no bar to an action on a debt contracted forty years age in another state, without proof that the defendant has ever been in this commonwealth.</p>

Action of contract, commenced in April 1858. The declaration contained three counts, the first of which alleged that the defendant owed the plaintiff $571.48 for money paid by the plaintiff for the defendant and at his request, and interest thereon; and the second, that the defendant owed the plaintiff $571.48, being seven eighths of the amount paid by the plaintiff at the defendant’s request for rebuilding and repairing a dam in Pepperell, in which the plaintiff and…

Bastardy process. The complainant, who was- an infant, prosecuted the suit by her father as her next friend. At the trial in the court of common pleas at December term 1858, before Mellen, C. J., the justice of the peace before whom the proceedings were instituted identified a paper, entitled “ the voluntary accusation and examination of Harriet F. Sayles,” as the complaint sworn to by her before him; and testified that he examined the complainant.

<p>Action by the treasurer of the city of Worcester, on the St. of 1843, c. 98, § 3, to recover of Goulding (who was alleged to have fraudulently transferred certain shares in the Providence and Worcester Railroad Corporation for the purpose of avoiding taxation) half of the par value of said shares, one moiety to the use of the city, and the other moiety “ for the use of the person or persons furnishing the necessary evidence in the case.”</p> <p>After the defendant had answered, denying the allegations of the declaration, Welcome Farnum presented a petition to the court, in which he represented “ that previously to the commencement of the action he furnished to the assessors of the city of Worcester, by whose direction said action was brought, and to said George W. Wheeler, treasurer, the necessary evi dence that said conveyance was so made by said Goulding as aforesaid; that the petitioner is informed and believes that the said city of Worcester and said Goulding have settled or are about to settle the said action, without any regard to the rights of the petitioner, and so that the whole proceeds of said action shall be or have been recovered by the city of Worcester; ” and moved that he might be admitted as a party to prosecute said action in the name of the city of Worcester or the treasurer thereof; and offered to file a bond of indemnity to the city against costs.</p> <p>The plaintiff and defendant objected to the filing or allowance of the petition, and afterwards agreed that a nonsuit might be entered in the action; and at August term 1859 of the superior court, Wilkinson, J. declined to hear evidence of the truth of the facts stated in the petition, and ordered it to be dismissed, on the ground that, as a matter of law, the petitioner was not entitled to appear, even if the facts were true. The petitioner alleged exceptions.</p>

Action of contract by the treasurer of the State Lunatic Hospital at Worcester, to recover the expenses of the support of a pauper from the 1st of June 1854 to the 1st of March 1857. Trial in the superior court before Wilkinson, J., to whose rulings the defendants alleged exceptions.

<p>Appeal by both parties from the acceptance by the superior court of the verdict of a sheriff’s jury empanelled to assess the damages occasioned to the petitioners by taking their land for the purpose of widening and altering a portion of the highway called Main Street, leading through the village of Fitchburg. The certificate of the sheriff stated the following rulings :</p> <p>1. “ At the time this petition was filed, the petitioners presented another petition, in which they set forth that the respondents altered the grade of a highway adjoining their land; that they were aggrieved at the determination of the selectmen on the question of damages thereby; and prayed for a jury to ascertain the same. The county commissioners ordered that both cases should be heard by the same jury, and the jury were summoned to try both cases. After the jury were assembled, and before they were empanelled, the respondents objected to proceeding further, because it was improper for the same jury to hear and determine both cases. But the jury were empanelled in compliance with the order of the commissioners, and both cases tried before the same jury, against the objection of the respondents.</p> <p>2. “ A witness, called by the petitioners, was permitted, against the objections of the respondents, to testify that he had offered the petitioners one dollar a foot for a portion of the land in question. After the testimony had been so given, and after the sheriff had been requested to note the respondents’ exceptions thereto, the counsel for the petitioners stated that, to save a contest about it, he would withdraw the testimony. The sheriff did not, however, instruct the jury to exclude this testimony ; nor was he requested to do so by the petitioners.</p> <p>3. “ One of the petitioners was permitted, against the objection of the respondents, to testify that he had been offered one dollar a foot for all said estate ; and also to give his opinion of the value of the estate.</p> <p>4. “ A witness, called by the respondents, testified that in his opinion the market value of the estate was enhanced by the alleged taking of a part of it for a higlrway. He was then asked by the respondents to state the grounds and reasons upon which his opinion was founded. The sheriff ruled, that the grounds and reasons upon which such opinion was founded were inadmissible as testimony, and did not permit the question to be answered.</p> <p>“ Another witness, offered by the respondents, gave in testimony a like opinion; and was asked to state the facts on which his opinion was founded. But the sheriff ruled, that the facts upon which such opinion was founded were not material to the issue ; and did not allow them to be given as evidence.</p> <p>5. “ After the adjudication by the county commissioners, and previously to the hearing before the jury, the town had laid out all the land, taken from the petitioners, for a sidewalk, and paved it with brick for the accommodation of foot travel. The respondents offered evidence tending to show the effect upon the petitioners’ adjoining estate, in case the land taken was wrought and prepared for the accommodation and convenience of foot travel. But the sheriff ruled, that it was not competent to show what effect would be produced on the market value of the estate by putting the land taken to any specific purpose for which a highway may be used, or by preparing or appropriating it to accommodate any particular class of travel; and declined to permit the testimony to be given.'</p> <p>6. “ The respondents called Thomas Billings, one of the special commissioners of the county of Worcester, who testified that he lived in Lunenburg, and had seen the land in controversy a number of times, and that as such commissioner he had been called upon to assess damages for land taken for highways. He was then asked this question: ‘ From your knowledge of the land of the petitioners, what would be the effect of the taking of the land for the widening of the street, to be used for the purposes of a highway ? ’ And his answer was • ‘ It would be beneficial.’ The petitioners objected to the witness being called, as against public policy; he being one of the board (though not having acted in this case) from whose decision the appeal was taken ; also that he had not been shown to be competent to give an opinion as asked; and also that the question was incompetent. The objection of the petitioners .was overruled, and the testimony admitted.</p> <p>7. “ At the request of the counsel for the petitioners, the sheriff gave the following instructions to the jury: That the jury are to estimate as a subject for damages the value of the land taken ; the loss of its use to the rest of the estate, whether to build upon or to use in connection with the buildings, or to enable the owners to make use of their land in the future, or to enhance the value of the land in the sale; and that the value of the land taken, to build permanent brick and stone buildings in the future, is an element of damage to be considered.</p> <p>8. “ That the jury are confined, in their estimate, to the state of things existing at the time of the alteration; that the jury are not to take into consideration anything done, or that might thereafter be done, by any other person or corporation ; and that at the time of the alteration of the way the right of the petitioners vested in their damages as the facts then stood.</p> <p>9. “ That the damages for the taking of the land can only be offset by the benefits, (if any,) from the widening of the road as a highway; that the jury are to take into consideration no benefits to the petitioners, that are not peculiar to them, and not shared by them in common with the rest of the public who are abutters upon the same street, and whose land has not been taken for the alteration.</p> <p>10. “ That the fact that at the time of the location there was a lease of a portion of the premises, which was afterwards surrendered, and all claim to damages released to the petitioners, as appears on the back of the lease, and by the paper filed during the trial, cannot in any way affect the claim for damages.”</p> <p>“ The respondents also desired instructions to be given to the jury as follows, which I declined to present, to wit:</p> <p>“ First. That the direct effect upon the market value of the adjoining estate of the petitioners, occasioned by the taking of a portion of it for the purposes of a highway, and the probable uses and purposes to which the land taken may be lawfully put by the town, either for a sidewalk or the convenience of carriages, and whether such uses be injurious or beneficial to the estate, are proper matters for the jury to consider in deciding the question of damages ; and</p> <p>“ Second. That the benefits to the estate of the petitioners., occasioned by the taking of a part of it for a public highway, should not be excluded by the jury in their consideration of the question of damages, simply because such benefits are shared by some other abutters on the same highway.”</p>

Action of conteact, commenced on the 29th of March 1859, by a minor son of Martin Bemis, suing by E. J. Whittemore, his guardian, against the administratrix of the estate of Lewis Bemis deceased. The parties submitted the case to the decision of the court upon the following facts: Lewis Bemis was appointed the plaintiff’s guardian in March 1848, and continued in that trust until his death in November 1856.

Action op contract against the sureties on a bond given by Lewis Bemis as guardian of Joshua E. Bemis and Pamela K. Bemis. The case was submitted to the court upon an agreed statement of facts, and argued by P. C. Bacon, for the plaintiff, and G. Devens, Jr. & W. T. Harlow, for the defendants. After a consultation of all the judges at Boston in June 1860, the opinion of the court was drawn up by

<p>The provision of the St. of 1856, c. 284, § 5, that if any judge of insolvency “ shall, from sickness, absence or other cause, be unable to perform the duties required of him in any case arising within his jurisdiction,” such duties shall be performed by the judge of the adjoining county, therein specified, does not extend to the case of a vacancy in the office of judge of insolvency in the county where the case is pending.</p> <p>Proceedings in insolvency, commenced before a judge who has no jurisdiction, will be set aside on a bill in equity, filed under the St. of 1838, c. 163, § 18, more than a year after</p>

<p>Under the St. of 1857, c. 141, $ 17, no person can be arrested on mesne process, if the affidavit of the creditor “ that he believes the defendant has property not exempt from being taken on execution,” omits to add “ which he does not intend to apply to the payment of the plaintiff’s claim,” or to state not only that the creditor believes, but that he “ has reason to believe, the defendant has property,” &c.</p>

<p>On the trial of a writ of entry, under St. 1844, c. 107, against husband and wife, to assert the title of a creditor of the husband to property alleged to have been conveyed to the wife in fraud of his creditors, declarations of the husband, made after the conveyance, are inadmissible against the wife to prove such fraud.</p>

<p>Action of contract against Weld, McGregory and Stevens, as joint and several makers of this promissory note :</p> <p>“ Sturbridge, Feb. 24, 1857. $1,000. With interest after</p> <p>date, I promise to pay to the order of John W. Draper, on demand, ten hundred dollars, value received.</p> <p>“ Salem T. Weld,</p> <p>“ Ebenezer McGregory.” Signed on the back “ M. R. Stevens.”</p> <p>No service was made on Weld,-he being out of the Commonwealth. McGregory was defaulted. Stevens answered that he signed the note as a guarantor only; and that after such signature, and after the note was by its terms payable, the plaintiff agreed with McGregory, for a valuable consideration, to extend the payment of the note till the 1st of January 1858, by means whereof Stevens was discharged from any liability thereon. Trial in the court of common pleas at March term 1859, before Sanger, J, who signed this bill of exceptions :</p> <p>“ It was not controverted that Weld and McGregory were original promisors. But Stevens contended that he was not liable in that form; but that he signed the note some days after the plaintiff had paid the money on it to Weld, and after the plaintiff had accepted the same and agreed to hold it as a valid note against Weld and McGregory ; and that, if liable at all, he was liable as a guarantor.</p> <p>“ The plaintiff testified that the note was handed to him on or about the 4th of March 1857, and not later than the 6th of March, by Weld; that the names of McGregory and of Stevens were then upon the note ; that he then paid the money to Weld and took the note into his possession, and had held it ever since; that he never had the note in his possession till that day; and that on that day he saw Stevens in the village of Fiskdale in Sturbridge, where the money was paid and where Weld resided. Stevens then resided at Newton, and McGregory at Longmeadow.</p> <p>“ The defendant Stevens testified that he was at Fiskdale only once in the spring of 1857, which was on the 17th of March ; that he was then in the hotel at Fiskdale, and saw the plaintiff and Weld talking together in the street, and saw the plaintiff hand Weld a paper; that Weld came into the hotel, and brought with him the note in suit; and that he signed the note at that time, at the request of Weld. He also testified, the plaintiff’s counsel objecting, that when Weld came into the hotel, Weld said to him that the plaintiff had lent him the money on this note some time before, and that the plaintiff said or had agreed he would let it lie a while longer if Stevens would indorse the note, and that he (Stevens) thinking that Weld and McGregory were good for a thousand dollars for that length of time, signed the note, and did not expect to hear from it again. The defendant’s counsel contended that what Weld told Stevens was admissible for the purpose of showing that the defendant put his name on the note with an authority to fill up the blank with a guaranty only.</p> <p>“ There was evidence tending to show that McGregory and Stevens were sureties; and the defendant was permitted to introduce evidence to prove that the plaintiff, in the month oi August 1857, made an agreement with McGregory, for a valuable consideration paid him by McGregory, to give him time till the first of January 1858 for the payment of the note.</p> <p>“ The defendant contended and asked the judge to rule, the plaintiff’s counsel objecting, that the giving of time to McGregory, if proved, would constitute a good defence to the note on the part of Stevens; and the judge did so rule, and instructed the jury that if they believed that an agreement was made between the plaintiff and McGregory, for a valuable consideration, to extend the time for the payment of the note till the first of January, as testified of by McGregory, that would constitute a valid defence, and would prevent the plaintiff from recovering against Stevens.</p> <p>“ The jury, on retiring, were requested by the judge to pass upon two questions, and to be prepared to answer them when-they came in : first, whether Stevens put his name upon the note before it was delivered to the plaintiff, and before the money was paid by the plaintiff to Weld; and second, whether an agreement was made between the plaintiff and McGregory upon a valuable consideration to give time to McGregory upon the note. The jury found a verdict for the defendant, and also found against the plaintiff on both the questions submitted to them. To which rulings and instructions the' plaintiff excepts.”</p>

<p>Action of contract for the support of a pauper, a widow, alleged by the plaintiffs and denied by the defendants to have had a settlement in Wilbraham. Trial in the court of common pleas, at March term 1859, before Mellen, C. J., who signed this bill of exceptions:</p> <p>“ The plaintiffs having proved, by an agreed statement of facts, that the father of the pauper’s husband (from whom he had a derivative settlement unless he had gained one in his own right) had a settlement in Wilbraham, and that the husband of the pauper resided and paid taxes in the town of Chicopee, after he was twenty one years old, in the years 1832,1833,1835,1836, 1837, 1838, 1839, 1840, 1841, 1842 and 1843, and that he was not taxed there in the year 1834, rested.</p> <p>“ There being then no evidence in the case tending to show whether the husband resided in Chicopee in 1834, the defendants contended and asked the court to rule, that it appearing that the husband resided and paid taxes in Chicopee in 1832 and 1833 and from 1835 to 1843 inclusive, the legal presumption would be that such residence, so commenced in 1832 and 1833, was continued; and that, as the case then stood, the presumption of law upon the facts would be that the husband gained a settlement in Chicopee, and that the burden was still upon the plaintiffs, in establishing the fact that the pauper had, at the time the supplies were furnished, a settlement in Wilbraham, to prove that the husband so removed from Chicopee at some time between 1832 and 1843 as to interrupt the continuity of resilience for ten years together, called for by the Rev. Sts. c. 45, § 1, cl. 12.</p> <p>“ The court declined so to rule ; and ruled, that although the law presumed that a residence once acquired was continued, yet, the plaintiffs having proved that there was once a settlement in Wilbraham, the burden of proof was now upon the defendants to establish ten years’ continuous residence in some othei town; that the defendants must prove affirmatively that the husband’s residence was in Chicopee the whole ten years, and that there was not such removal, without the intention to return, as would interrupt his residence; and that if the husband went away from Chicopee, during the ten years, without a fixed, affirmative and definite purpose a.t all events to return to Chicopee as his home, he would lose his residence, though he should afterwards return without having established a domicil elsewhere. To these rulings and refusals to rule the defendants except.”</p>

<p>Action upon a judgment of the court of common pleas of the State of New Hampshire.</p> <p>At the trial in this court, the plaintiff produced a certified copy of that judgment, by which it appeared that the defendant was described in the original writ in that action as of Worcester in this county and commonwealth; that the deputy sheriff who served the writ returned thereon that he had summoned the defendant “ by giving him in hand a summons in the form prescribed by law; ” and that judgment was rendered at the return term by default. No attachment of the defendant’s property was made, and he had never been an inhabitant of New Hampshire.</p> <p>The defendant then proposed to introduce evidence “ that no summons had ever been given to him, as stated in the return of the officer, and that he never had notice nor knowledge of the commencement nor pendency of the said suit against him.” But Metcalf, J., being of opinion that the return of the officer was conclusive upon these points, rejected the evidence, and directed a verdict for the plaintiff, and reserved the case for the consideration of the full court.</p>

<p>A foreign bill of exchange or promissory note, payable at sight, is entitled to grace, by tixs general law merchant, unless the contrary is shown to be the law of the place where it is to be paid; and must therefore be presented for payment.</p> <p>A notary cannot present a bill or note for payment by deputy, unless authorized bv statute or usage of the place where the presentment is made.</p>

<p>No action lies against a city Tor the injury occasioned to land bounding on a public street from the accumulation of water on the surface of the street, which the city has neglected to drain.</p> <p>The remedy of an owner of land, for injury done to his land by the city by making an excavation in a public street, and thus turning the water accumulated thereon into a private drain running through his land, is by petition under the Rev. Sts. c. 25, § 6, and not by action of tort.</p>

Action of contract to recover the price of a horse sold and delivered to the defendant by the plaintiff. Answer, that the plaintiff warranted the horse to be sound at the time of the sale; that the horse proved to be unsound, and was returned to the plaintiff. The plaintiff did not receive the horse back, but declined to do so.

<p>Action of contract against Benjamin Walker and Comfort M. Walker, to recover for services rendered by the plaintiffs as attorneys at law in defending Comfort on a criminal charge. Trial in the court of common pleas at December term 1859, before Mellen, C. J., who signed this bill of, exceptions :</p> <p>“ Stone, one of the plaintiffs, testified at the trial, that the defendants came to see him to obtain his services in said case, and that the defendant Benjamin Walker said to him, at the time, £ We want you to go to Southbridge, and take care of this case ; they are abusing Comfort, and I mean to stand by him ; I mean to assist him.’ The said plaintiff further testified that he gave credit to both the defendants ; that he knew Benjamin Walker ; that he knew he was the uncle of Comfort M. Walker; that he was a responsible man; and that he did not know Comfort M. Walker.</p> <p>“ The evidence introduced by the plaintiffs and the defendants, as to what took place at the interview testified to by Stone, was conflicting; but it was not contended that any other interview took place between the parties with reference to the matter, except the one already mentioned.</p> <p>“ Benjamin Walker alone defended this action; first, on the ground that he never engaged the services of the plaintiffs at all; and secondly, that if he ever promised payment, it was a collateral undertaking to pay the debt of a third party, and was therefore void, not being in writing.</p> <p>" The court instructed the jury, that as the services which were to be rendered were for the benefit of Comfort M. Walker, they must find that there was an original express promise on the part of the defendant Benjamin Walker to pay for the services; but that no precise form of words was necessary in which to make such a promise. The jury found a verdict for the defendants. The plaintiffs except.”</p>