Volume 80 — Massachusetts Reports

Indictment on St. 1855, c. 215, § 17, purporting by its caption to have been found “ at the court of common pleas begun and holden at Northampton within and for the county of Hampshire on the third Monday of December in the year one thousand eight hundred and fifty eight; ” and averring that the defendant, “ on the first day of August in the year of our Lord one thousand eight hundred and fifty eight, and on divers other days from that day to the day of the finding of ibis…

Indictment on St. 1855, c. 215, § 17, found at December term 1858 of the court of common pleas in Hampshire, and alleging that the defendant, on the 1st of January 1858, and on divers other days from that day to the day of the finding of this indictment, at Hatfield in said county, “ he not being then and there duly appointed and authorized therefor, was a common seller of intoxicating liquors.” The defendant pleaded in bar, that a complaint against him for being a common…

Indictment on St. 1855, c. 215, § 17, for being a common seller of intoxicating liquors, with additional counts for single unlawful sales, one of which (the fourth) was for a sale on the 22d of August 1858 to Francis Taylor. Trial in the court of common pleas in Hampshire at December term 1858, before Bishop, J., who signed a bill of exceptions, of which the following is the material part: “ The first witness called by the gov ernment was one Murray.

<p>A common seller of intoxicating liquors may be indicted and convicted at the same term, upon two indictments covering successive periods of time, the last of which expired before the finding of either indictment.</p>

Indictment on St. 1855, c. 215, § 17, for an unlawful sale of intoxicating liquor to Patrick Hogan on the 26th of June 1858. The defendant pleaded the general issue. At the trial in the court of common pleas in Hampden at December term 1858, the evidence was that the sale was on said 26th of June.

Complaint to a justice of the peace, containing two counts, for unlawful sales of intoxicating liquors in Westfield, one to Lyman Crawford and the second to William E. Smith. The record of the justice stated that the defendant, being arraigned, pleaded “ that he will not contend with the Commonwealth, but submits to its grace.

<p>Complaint on St. 1855, c. 215, § 24, for unlawfully keeping intoxicating liquors with intent to sell in this commonwealth</p> <p>The complaint was made to the police court of Chicopee, and annexed to it was a certificate that it was received, subscribed and sworn to on the 29th of July 1858, “before said court.</p> <p>“ George S. Taylor, Special Justice.”</p> <p>The warrant issued thereon commanded the officer to summon the defendant to answer to the Commonwealth “on the foregoing complaint this day made,” and concluded thus :</p> <p>“ Witness George S. Taylor, Esquire, special j ustice of said court, at said Chicopee, this twenty ninth day of July, in the year of our Lord one thousand eight hundred and fifty eight.</p> <p>“ George S. Taylor, Special Justice, the standing justice being absent from the town of Chicopee and unable to attend.”</p> <p>The defendant was tried and convicted before the police court on the same day. The record of the proceedings in that court (in which the substance of the complaint was stated and the complaint referred to as on file) was certified like the warrant. The defendant appealed to December term 1858 of the court of common pleas for Hampden, and was there tried before Aiken, J., who signed this bill of exceptions :</p> <p>“ Upon trial the Commonwealth’s witnesses stated that they went to a shop in Chicopee, admitted to have been kept by the defendant, and the defendant was absent, and was not present at any time while they were there ; that they searched the shop and took away various liquors. As tending to show a sale at the defendant’s shop, one of the Commonwealth’s witnesses testified that while at the defendant’s shop upon said occasion, and before the search, an old woman was tending bar (who she was or how she came there, or under what circumstances or by whose authority she was there did not in any manner or at any time appear,) that a man named Harvey Chapman took a bottle off the bar, and put it in a basket he had there, and the woman took a twenty-five cent piece from the same bar at the same time. To this evidence the defendant objected at the proper time. But the court admitted the same; and instructed the jury that if the woman tending bar was there by authority of the defendant, and was authorized by him to sell liquor there, they might consider this evidence as bearing upon the issue; otherwise, they should reject this evidence altogether. There was other evidence tending to show that the liquor found there was kept for sale by the defendant. The jury found the defendant guilty, and he excepts to the foregoing rulings and instructions of the court.”</p> <p>The defendant also moved in arrest of judgment, “ because the complaint is subscribed by the special justice of the police court of the town of Chicopee, without its appearing that there was any or sufficient cause for his acting in the matter.” The judge overruled the motion, and the defendant excepted to this ruling also.</p>

Complaint to the police court of Springfield for an unlawful sale of intoxicating liquor.

<p>Proceedings before a police court, of which there are a standing justice and a special justice, may be certified by the standing justice as “justice ” simply, and are presumed* in the absence of evidence to the contrary, to have been had before him.</p>

<p>Indictment on St. 1855, c. 215, § 17, purporting by its caption to have been found “ at a court of common pleas, begun and holden at Springfield, within and for the county of Hampden, on the first Monday of December in the year of our Lord one thousand eight hundred and fifty eight,” and averring that the defendant, at Westfield, “ on the first day of January now last past, and from thence continually to the day of making this presentment, did, without any authority or license therefor duly had and obtained according to law, presume to be, and during all the time aforesaid was a common seller of intoxicating liquor,”</p> <p>The defendant, being convicted, moved in arrest of judgment, “ because the time during which the defendant is alleged to have been a common seller is not set forth with sufficient definiteness and certainty, and because the day of making the presentment is not set forth.” Aiken, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>Indictment on St. 1855, c. 405, § 1, purporting by its caption to have been found “ at a court of common pleas, begun and holden at Worcester, within and for the county of Worcester, on the second Monday [ninth] of May in the year of our Lord one thousand eight hundred and fifty nine,” and averring that the defendant on the 1st of April 1858, “ and on divers other days and times between that day and the day of finding this indictment, at Worcester in said county, did keep and maintain a certain tenement,” (described) “ used as a house of ill-fame, resorted to for prostitution, lewdness and for illegal gaming, and used for the illegal sale and keeping of intoxicating liquors, said tenement so used as aforesaid being then and there a common nuisance,” &c. Upon the back of the indictment was this memorandum, signed by the clerk: “ Worcester, ss. Court of common pleas, May term A. D. 1859. Returned by grand jury, May 13th 1859, and filed by order of court.”</p> <p>At the trial in that court before Perkins,’ J., the defendant contended “ that there was no sufficient allegation in said indictment of a keeping and maintaining said common nuisance upon more than one day, and that evidence of such keeping could not be introduced to prove a keeping, &c. upon more than one day.” But the court ruled that there was a sufficient allegation of a keeping upon divers days, and allowed evidence of such keeping from the 1st of April 1858 to the second Monday of May 1859.</p> <p>The defendant, being found guilty, alleged exceptions; and also moved in arrest of judgment, “ because the allegations in the indictment of the purposes for which said tenement was kept are not set out with time and place; ” and this motion being overruled, again excepted.</p>

Indictment for keeping and maintaining “ a certain building ” (described) as a nuisance, in violation of St. 1855, c. 405, § 1. At the trial in the court of common pleas in Worcester, at January term 1859, it was proved that the building described in the indictment was a one and a half story building; and that the defendant occupied the whole of the building, and used two rooms on the first floor for the sale of intoxicating liquor.

<p>Indictment on St. 1855, c. 405, § 1. The indictment alleged that the defendant, at Worcester, during a certain time, “ did keep and maintain a certain building, to wit, a certain tenement in Clark’s Block, so called, situated on the corner of Main and Mechanic Streets, in said city of Worcester, said tenement being in the fourth story of said block, and in that part of said block fronting on said Main Street, used as a house of ill fame, resorted to for prostitution, lewdness, and for illegal gaming, and used for the illegal sale and keeping of intoxicating liquors.”</p> <p>A trial was had in the court of common pleas in Worcester, at January term 1859, before Morris, J., who signed this bill of exceptions:</p> <p>“ At the trial a witness was called for the government, who testified that the defendant employed him to take care of a room for him within the time mentioned in the indictment.</p> <p>“ He was then asked to describe the room and the location of it; to which question the defendant objected, for the reason that there was no sufficient description in the indictment of the building, place or tenement intended. The court overruled the objection, and the witness testified, in substance, that it was a room in the fourth story of Clark’s Block; that Clark’s Block was on the corner of Main and Mechanic streets in Worcester ; that said room was in that part of said block fronting on Main Street, and was between twenty five and thirty feet square; that said block fronting on Main Street was about one hundred and fifty feet long, and that there were three or four other rooms on said fourth story fronting on Main Street.</p> <p>“ There was no evidence tending to show that the defendant occupied any other portion of said fourth story except the room described by this witness; and there was no satisfactory evidence that said other portion was occupied by any other person.</p> <p>“ The defendant’s counsel asked the court to rule, that there was a variance between the allegation in the indictment and the proof in this; that the same tenement charged in the indictment was not proved to have been kept by the di fendant.</p> <p>“ The defendant’s counsel also asked the court to rule that, as there were three or four other places or tenement s which would answer the description of the one in the indictment, the tenement intended in the indictment was not sufficiently described so as to identify it from the others.</p> <p>“ The court declined so to rule ; but left it to the jury to find whether the place described in the indictment was occupied by the defendant as therein alleged. To the said rulings and refusals to rule, the defendant, being found guilty, respectfully excepts.”</p> <p>The defendant also moved in arrest of judgment, “ because, he says, the indictment is bad for uncertainty in this; that it alleges the keeping a building and describes only part of a building.” This motion was overruled, and the defendant again excepted.</p>

Indictment on St. 1855, c. 405, § 1. The indictment averred that the defendant, on the 1st of January 1858 and from thence continually to the 2d Monday of August 1858, at Uxbridge, “ did keep and maintain a certain building, to wit, a tenement in a block of buildings called Long Block, in the centre village of said Uxbridge, being the east tenement in said block, and consisting of the basement under the east end of said block and the rooms over said basement, used as a house…

Indictment on St. 1846, c. 244, § 2. The indictment averred that the defendant on the 8th of July 1858 at Milford, “ was a hawker, pedler and petty chapman, and did then and there go from place to place and from dwelling-house to dwelling-house in said town of Milford on foot, exposing to sale goods, wares and merchandise, and did then and there sell certain jewelry, to wit, one gold chain and compass, to one Benjamin B. Congdon.” The defendant, being convicted in the court…

<p>It seems, that the defendant in a criminal case, for the purpose of proving the bias ol an important witness for the Commonwealth, may introduce evidence that such witness, having been previously sued by the defendant in an action of tort, was active in procuring this indictment, and had since proposed to do all he could to stop this prosecution, if the defendant would discontinue his action.</p> <p>An indictment for perjury in testifying before a justice of the peace in the county of Worcester, upon the trial of a complaint for an assault and battery committed upon the defendant by A., B. and C., at G. in that county on a certain day, which avers that the defendant falsely and corruptly swore to certain particulars of an assault and battery upon him by A. and C., at or near the house of C., without showing that the testimony was material, or that the assault was the same charged upon A., B. and C. in the complaint, or that the house of C., or the place of the assault as testified to, was in G., or in the county of Worcester, or within the Commonwealth, is fatally defective, by reason of not showing that the false testimony was material.</p>

Indictment for a nuisance by obstructing a street in Worcester by building a fence thereon. At the trial in the court of common pleas the following facts were proved or admitted: In 1854, Helen F. Haskins, being the owner of a lot of land bounding on said street, was married to Warren Bradlee, having previously, together with him made and recorded an agreement, pursuant to St. 1845, c. 208 that she should hold this land to her separate use and benefit.

Complaint under St. 1855, c. 215, § 17, made to a justice of the peace on the 12th of May 1858, for being a common seller of spirituous and intoxicating liquors. After appeal to the court of common pleas at Worcester, at October term 1858, and conviction there, the defendant moved in arrest of judgment, that the magistrate had no jurisdiction of the offence charged in the complaint. Scmger, J. overruled the motion, and me a fendant alleged exceptions.

<p>Complaint to a justice of the peace for an unlawful sale of intoxicating liquors at Woburn, “on the fourteenth day of December in the year one thousand eight hundred and fifty eight.”</p> <p>The papers transmitted by the justice to the court of common pleas in Middlesex consisted of a complaint and jurat, and a warrant, with this certificate, “ A true copy of complaint and warrant on file,” signed by the justice ; a statement of the proceedings before the justice, certified by him as “ a true copy of judgment on file ; ” and a statement of an appeal and recognizance, followed by this certificate, “ true copy of record,” signed by the justice.</p> <p>The defendant, after conviction in the court of common pleas, moved in arrest of judgment, for these reasons :</p> <p>1st. “ It is not sufficiently set forth in the complaint on what era or when the offence was committed.”</p> <p>2d. “ The record furnished is not certified as a true copy of record, but a true copy of judgment merely.”</p> <p>Bishop, J. overruled the motion, and the defendant alleged exceptions.</p>

Complaint for being a common seller of intoxicating liquors Detween the 1st of November 1858 and the 22d of January 1859, the date of the complaint. The defendant was convicted Defore the police court of Cambridge, and appealed.

Complaint for an unlawful sale of intoxicating liquor “ to a certain person whose name is to the complainant unknown.” Trial in Middlesex at October term 1858, before Aiken, J., who signed this bill of exceptions : “ A witness, not the complainant, was introduced, who testified to a sale made to him before the date of the complaint He was asked by the district attorney, if he knew the complainant ; he answered that he knew him by sight, but had never spoken with him.

<p>In this court, the defendant produced what purported to be the papers filed in the court of common pleas by the justice of the peace; and contended that the record of his judgment (which was on a separate paper) did not sufficiently refer to the complaint and warrant. But as the copies certified to this court by the clerk of the court of common pleas were in due form,</p> <p>The Court overruled the exceptions.</p>

<p>Upon the trial of an indictment for being a common seller of intoxicating liquors, the judg ruled that the following evidence was competent, and submitted it to the jury with proper instructions: The government called three witnesses, who stated that they called for “Medford” and strong beer at the defendant’s grocery store, and obtained what tasted and looked like small beer; that they would not swear it was intoxicating liquor, and that it did not intoxicate them. Two of the witnesses swore that it was not paid for by them or to their knowledge, and there was no evidence of any express agreement on their part to pay for the same. Held, that the defendant had no ground of exception.</p>

Complaint for being a common seller of intoxicating liquors, in violation of St. 1855, c. 215, § 17.

Indictment on St. 1855, c. 215, § 17, for a sale of liquors to Averill, on the 28th of March 1858.

Indictment on St. 1855, c. 215, §§ 15,17, for being a common seller and for unlawful single sales of intoxicating liquors. Plea, that (by virtue of the St. of 1858, c. 457, § 2,) justices of the peace, commissioned to try criminal cases, have exclusive jurisdiction of these offences; and that this defendant had been brought before one of said justices, and arraigned upon a complaint in due form for the same offence.

Indictment on St. 1855, c. 405, § 1, for keeping and maintaining, at Charlestown, at a certain time, without having any license, appointment or authority to keep for sale or to sell intoxicating liquors, “ a certain common nuisance, to wit, a tenement at the corner of Front Street and Warren Avenue in said Charlestown, then and there used for the illegal sale and illegal keeping of intoxicating liquors, to the great injury and common nuisance ” &c. At the trial in the court…

<p>Complaint on an ordinance passed by the city council of Lowell in 1854, which provides that “ no owner or person having the care of any sheep, swine, horses, mules, oxen, cows or other grazing animals, shall permit or suffer the same to go at large or stop to feed on any street, lane, alley, common, square or other public place within the city,” under a penalty of not exceeding twenty dollars.</p> <p>The complaint averred that the defendant, alleged in one Count to be the owner, and in the other to be the person having the care of two cows, on the 24th of May 1856 “ did permit and suffer the same to stop and feed in certain public streets in said Lowell, called Broadway and School Streets.”</p> <p>The defendant, being convicted in the police court of Lowell on the 27th of May 1856, appealed to the court of common pleas; and after being convicted again in that court at October term 1858, moved in arrest of judgment, “ because there is no offence in said complaint alleged, known to the laws of this commonwealth, or to the ordinances of the city of Lowell, fully and plainly, substantially and formally described to him.”. Aiken, J. overruled the motion, and the defendant alleged exceptions.</p>

Indictment for burning the bam and stable of Israel Hildreth Trial in the court of common pleas in Middlesex at October term 1858, before Aiken, J., to whose rulings the defendant alleged exceptions, the substance of which is stated in the opinion.

<p>Indictment against Emery E. Cobb and Sarah Howard, for adultery with each other on the 1st of May 1857, she being a married woman, and not the wife of the defendant. Trial and conviction in the court of common pleas in Middlesex, at October term 1858, before Aiken, J., who signed this bill of exceptions:</p> <p>“ The government introduced a witness, whose testimony tended to prove that in the month of May 1857 Cobb stated to the witness that he and Howard were living together as man and wife ; also that in the month of May 1858 Howard also admitted to the same witness substantially the same matter. It was admitted, on the trial, that Howard was a married woman, as alleged in the indictment. There was other evidence in the case, tending to show that the defendants lived together in the same house with other persons during a portion of the year 1857. The court ruled that the above evidence was competent in the case; whether it was to be believed, and what weight was to be given to it, was for the jury.</p> <p>“ The defendants requested the court to instruct the jury that, as the indictment charged a single act of adultery, as committed on a particular day, they must be satisfied that the defendants committed the, crime on some particular'day or occasion; and that it would not be sufficient for them to be satisfied, from the admissions of the parties, that they committed the crime at some time, without being able in any way to designate that time. The court declined so to instruct the jury, and instructed them that if the evidence satisfied them beyond a reasonable doubt that the crime was committed at any time while the defendants were so living together, they might be convicted, though the particular time or occasion could not be ascertained more definitely. The defendants, feeling aggrieved by the above rulings, except thereto.”</p>

<p>Indictment for uttering as true a false, forged and counterfeit promissory note, one count of which averred that the defendant, on the 10th of February 1858, at Lowell, “ feloniously had in his custody and possession a certain false, forged and counterfeit promissory note, the said Simonds then and there knowing the same to be false, forged and counterfeit, which said false, forged and counterfeit promissory note is of the tenor following, that is to say: ‘ State of Massachusetts. A. No. 4154. The City Bank will pay two dollars to the bearer on demand. Worcester, December 1,1856. P. Hammond, Cash’r. G. W. Richardson, Pres’t.’ And the said Heman M. Simonds did then and there feloniously utter and publish the same as true, with intent thereby then and there to injure and defraud, he, the said Heman M. Simonds, then and there knowing the said promissory note to be false, forged and counterfeit.”</p> <p>The defendant, being found guilty on this count, moved in arrest of judgment in the court of common pleas in Middlesex at October term 1858, and that motion being overruled by Aiken, J., alleged exceptions.</p>

<p>Indictment on St. 1857, c. 233, which declares that “ if any person, to whom any money, goods or other property, which may be the subject of larceny, shall have been delivered, shall embezzle, or fraudulently convert to his own use, or shall secrete, with intent to embezzle or fraudulently convert to his own use, such money, goods, or property, or any part thereof, he shall be deemed, by so doing, to have committed the crime of simple larceny.” The indictment contained two counts, one for embezzlement, and one for simple larceny.</p> <p>At the trial in the court of common pleas in Middlesex, at October term 1858, before Aiken, J., Amos Stone, called as a witness by the Commonwealth, testified as follows: “ I am treasurer of the Charlestown Five Cent Savings Bank. On the 17th day of October 1857, the defendant came into the bank, and asked to draw his deposit, and presented his deposit book. I took his book, balanced it, and handed it back to him. It was for one hundred and thirty dollars in one item. I then counted out to him two hundred and thirty dollars, and said,</p> <p>‘ There are two hundred and thirty dollars.’ The defendant took the money to the end of the counter, and counted it, and then left the room. Soon after the defendant had left, I discovered that I had paid him one hundred dollars too much. After the close of bank hours I went in search of the defendant, and told him that I had paid him one hundred dollars too much, and asked him to adjust the matter. The defendant asked me how I knew it. He asked me if I could read. I said ‘ Yes.’ He then showed me his book, and said, ‘ What does that say ? ’ I took it, and read in it one hundred and thirty dollars. The defendant then said, ‘ That is what I got.’ He exhibited two fifties, two tens, and a ten dollar gold piece, and said,' That is what I got.’ I then said to him,' Do you say that is all and precisely what I gave you ?’ He replied,' That is what I got.’ I then said to him,‘1 can prove that you got two hundred and thirty dollars.’ He replied, ' That is what I want; if you can prove it, you will get it; otherwise, you wont.’ I intended to pay the defendant the sum of two hundred and thirty dollars and did so pay him. I then supposed that the book called for two hundred and thirty dollars. Books are kept at the bank containing an account with depositors, wherein all sums deposited are credited to them, and all sums paid out are charged to them.”</p> <p>The defendant asked the court to instruct the jury that the above facts did not establish such a delivery or embezzlement as subjected the defendant to a prosecution under the St. of 1857, c. 233, and did not constitute the crime of larceny.</p> <p>The court refused so to instruct the jury; and instructed them " that if the sum of two hundred and thirty dollars was so delivered to the defendant, as testified, and one hundred dollars, parcel of the same, was so delivered by mistake of the treasurer, as testified, and the defendant knew that it was so delivered by mistake, and knew he was not entitled to it, and afterwards the money so delivered by mistake was demanded of him by the treasurer, and the defendant, having such knowledge, did fraudulently, and with a felonious intent to deprive the bank of the money, convert the same to his own use, he would be liable under this indictment.” The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>Indictment for an assault and battery. Trial in the court of common pleas in Middlesex at October term 1858, before Aiken, J., to whose rulings the defendant alleged exceptions, the material part of which is stated in the opinion of the court. The decision was made in January 1860.</p>

<p>Indictment on § 5 of the St. of 1856, c. 302, by which the Malden and Melrose Railroad Company were made a corporafcion, and authorized to construct, maintain and use with horse power only, a railway over such streets and highways of the towns of Melrose and Malden and the city of Charlestown, and at such distances from the sidewalks, as the selectmen of those towns and the mayor and aldermen of said city should by their order fixing the route of said railroad determine, and also on such other land in those towns and city as the corporation should elect, to some convenient point of intersection in Charlestown, to be fixed by the city council, with the railroad of the Middlesex Railroad Company; and to enter upon and use the track of that company in such mode and upon such rates of compensation as should be agreed upon, or, in case of disagreement, determined by commissioners appointed by this court. The fifth section of the act is as follows :</p> <p>“ If any person shall wilfully and maliciously obstruct said corporation in the use of said road or tracks, or passing of the cars or carriages of said corporation thereon, such person, and all who shall be aiding or abetting therein, shall be punished by a fine not exceeding five hundred dollars, or may be imprisoned in the common jail for a period not exceeding six months.”</p> <p>A trial w.as had in the court of common pleas in Middlesex, at February term 1859, before Bishop, J., who signed this bill of exceptions:</p> <p>“ It appeared, from the evidence on the part of the Commonwealth, that the defendant was driving his heavily loaded wagon from Charlestown to Boston, in a public street, with one wheel in the track of the Middlesex Railroad, when one of the cars of the Malden and Melrose Railroad Company came up behind him. The defendant’s team was moving at the usual rate for teams of that class, but at a less rate of speed than the horse cars were in the habit of moving. There was room outside the track for either vehicle to pass the other. When the cars came up, the conductor asked the defendant if he would please to remove his team from the track. The defendant did not, but continued upon it at the same rate of speed several hundred feet, and then turned off. It also appeared from the same testimony that it was usual for those in charge of vehicles like that of the defendant, to drive them with one wheel in the track; and that they could be drawn much more easily in that place than in any other part of the street. There was no evidence that the defendant got upon" the track in the first instance with the intention of obstructing the cars, or that he changed his rate of speed on the approach of the cars, or that he used the street or did any act in any other than the usual manner. There was no other evidence than this, bearing upon the question of malice. As bearing upon the question of intention, the defendant offered to show that it is not the custom for those in charge of vehicles to turn out, when a ear comes up behind them, until it suits their convenience. The evidence was objected to, and ruled out.</p> <p>“ The defendant contended that malice must be shown, and that it could not be inferred from the mere fact that the defendant used a part of the street, the most convenient to him, in the ordinary way, knowing that the car would be obstructed by such use.</p> <p>“ The defendant also prayed for the following instructions :</p> <p>“ 1st. If the jury find that the defendant was using the highway in the ordinary way, they must find for the defendant, without reference to the motive of his act.</p> <p>“ 2d. In the absence of regulations on the subject, the corporation has no right to drive its cars at any particular rate of speed, and the mere slackening of the speed of the car by the defendant, if he was moving at the ordinary and proper rate of speed, was no obstruction, within the meaning of the statute.</p> <p>“3d. There is not sufficient evidence to warrant the jury to find a verdict of guilty.</p> <p>“4th. The right of the horse railroad company to use the highways is subject to the right of the public to use such highways as they had previously done.</p> <p>“ 5th. If the jury find that the defendant went upon the track in the ordinary use of the street, without intending to obstruct the car, and continued on the track, after the car came up behind him, for his own convenience, and because that was the best part of the street to drive on, the defendant is not guilty.</p> <p>“ 6th. In order to establish the crime of obstructing the cars, some act must be shown besides the use of the street in the ordinary way.</p> <p>“7th. The act incorporating the railroad company created no new crime; it merely attached a new penalty.</p> <p>“ 8th. In the absence of regulations as to the rate of, speed and the mode of use of the track, they have no right to any given rate of speed.</p> <p>“ The court declined to give any of the instructions as prayed for; but did instruct the jury that, although the public might drive their vehicles over the tracks of the railroad when the cars were not approaching, the corporation had a prior right to the track; and if the jury should find that the defendant was on the track, and hindered the progress of the car, and was requested to remove from it, and could reasonably have removed, he was bound so to do; and his remaining there, knowing that the car would be thereby obstructed, intending thereby to obstruct it, in the use of the track, was a wilful and malicious obstructing, within the meaning of the statute; that it was not material whether the defendant stopped his vehicle, or whether it continued to move on the track at the ordinary rate for such vehicles ; that no other proof of malice was necessary than that the defendant knowingly and intentionally obstructed the car, although he may have made only the ordinary use of the street.</p> <p>“ To all of these rulings and instructions and refusals to instruct the defendant excepts.”</p>

Complaints to justices of the peace on St. 1855, c. 215, § 15 for unlawful sales of intoxicating liquors.

Indictment on St. 1855, c. 215, § 17, for being a common seller of intoxicating liquors.

Indictment on St. 1855, c. 315, § 17, for being a common seller of intoxicating liquors from the 1st of October 1858 to the 1st of March 1859. At the trial in the court of common pleas in Bristol at March term 1859, the district attorney offered evidence tending to show numerous sales of lager beer, and that it was intoxicating. The defendant offered evidence tending to show that said beer was not lager beer, and that it was not intoxicating.

<p>Complaint on St. 1855, c. 215, § 15, to a justice of the peace, alleging that the defendant, at New Bedford, on the 1st of September 1858, “ and from that day to the day of the date of receiving this complaint, was, without being duly authorized and appointed thereto according to law, a common seller of intoxicating liquors, against the peace of said commonwealth,” &c. At the foot of the complaint was a certificate of the justice that it was received and sworn to before him on the 25th of February 1859.</p> <p>The defendant, after conviction in the court of common pleas in Bristol, at March term 1859, moved in arrest of judgment, because the complaint contained no sufficient allegation of the time or the place of the commission of the offence; and because it did not sufficiently state that the defendant was not duly authorized or appointed to sell. Aiken, J. overruled the motion, and the defendant excepted.</p>

<p>Indictment for dissuading, hindering and preventing Culbert Reynolds from appearing before the police court of New Bed-ford as a witness upon a complaint of Gideon Reynolds against the defendant for an assault upon Daniel Reynolds. The following is a copy of the indictment:</p> <p>“ The jurors for the said commonwealth on their oath present, that heretofore, to wit, on the first day of June in the year of our Lord one thousand eight hundred and fifty eight, George R. Hurlbut, a deputy of the sheriff of the county of Bristol, duly authorized and legally qualified to perform the duties of said office, by virtue of a warrant directed to him, and issued in due course of law by Morrill Robinson, Jr., a justice of the peace within and for the county of Bristol, did summon and give notice to one Culbert Reynolds to appear before the police court of the city of New Bedford, in said county of Bristol, to give evidence oi what he, said Culbert Reynolds, knew relating to the matter of a certain complaint of Gideon Reynolds — charging that Jonathan Reynolds, on the 30th day of May in the yeai of our Lord one thousand eight hundred and fifty eight, in and upon the body of one Daniel Reynolds did make an assault — when and where the said Jonathan Reynolds should be had for trial on said complaint; the matter of said complaint being, on said first day of June in the year aforesaid, within the jurisdiction of the said police court of said city of New Bedford.</p> <p>“ And the jurors aforesaid, upon their oath aforesaid, do further present, that Jonathan Reynolds, of Freetown in the county of Bristol, at Freetown in the county of Bristol, on the second day of June in the year of our Lord one thousand eight hundred and fifty eight, then and there well knowing the premises, and that the said Culbert Reynolds had been summoned and notified as aforesaid, and then and there contriving and intending the due course of justice to obstruct and impede, did wilfully, knowingly, unlawfully and unjustly dissuade, hinder and prevent the said Culbert Reynolds from appearing before said police court of the city of New Bedford, when and where the said Jonathan Reynolds was had for trial on said complaint, as the said Culbert had been then and there notified and summoned, and as the said Culbert Reynolds was then and there required by law to appear and give evidence of what he, the said Culbert Reynolds, knew relating to the matter stated in said complaint, by then and there threatening to cause the said Culbert Reynolds to be arrested and imprisoned if he appeared before said police court as he was then and there summoned, notified and required by law to do ; and that by the threatening of the said Jonathan Reynolds as aforesaid the said Culbert Reynolds was then and there hindered, dissuaded and prevented from appearing, and did not appear, before said police court—i when and where the said Jonathan Reynolds was had for trial before said police court on said complaint—then and there to give evidence before said police court of what he, the said Culbert Reynolds, knew relating to the matter of said complaint; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>After conviction in the court of common pleas in Bristol at March term 1859, the defendant moved in arrest of judgment,</p> <p>“ 1st. Because the indictment does not allege when and where the witness was summoned; nor does it allege when the witness was required to appear before the police court.</p> <p>“ 2d. Because it does not appear in said indictment upon whose behalf the witness was summoned.</p> <p>“ 3d. Because it does not appear in said indictment that the evidence was material, or that there was any hindrance or obstruction of public justice.</p> <p>“ 4th. Because the indictment does not contain the words, it was ‘ to the- manifest obstruction and hindrance of public justice.’ ”</p> <p>Aiken, J. overruled the motion, and the defendant alleged exceptions ; but no counsel appeared to support them before this court.</p>

<p>Indictment for adultery. Trial in the court of common pleas in Bristol, at December term 1858, before Briggs, J., to whose rulings the defendant alleged exceptions, which were submitted without argument, and are stated in the opinion.</p>

<p>A highway may be proved by prescription, even at or near a place where a particular way is shown by a record to have been established.</p> <p>A railroad laid out over and along a highway in such a manner as to obstruct it, without express statute authority or necessary implication, is liable to indictment as a nuisance.</p> <p>The confirmation, by statute, of the illegal location of a railroad in a highway, is no ground for arresting judgment on an indictment for a nuisance by such obstruction, on which the proprietors of the railroad have been convicted before the passage of the statute.</p>

<p>Complaint on St. 1855, c. 215, § 15, for an unlawful sale of intoxicating liquor “ on the thirty first day of May in the year one thousand eight hundred and fifty eight.” The complaint was signed by the complainant’s mark, without any attesting witness; and at the foot of it was the following certificate, signed by the justice to whom the complaint was addressed: “ Norfolk ss. Taken and sworn to this thirty first day of May in the year of our Lord one thousand eight hundred and fifty eight.”</p> <p>The defendant, after conviction in the court of common pleas in Norfolk at December term 1858, moved in arrest of judgment, because the complaint did not sufficiently state the time of the commission of the offence; and because it was not sufficiently signed, attested or certified. Morris, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>Indictment for being a common seller of intoxicating liquor Trial in the court of common pleas in Plymouth at April term 1859, before Bishop, J., who signed this bill of exceptions :</p> <p>“ The evidence tended to show that the liquor sold was new, unfermented cider. The defendant asked the court to instruct the jury that the sale of this liquor was not prohibited by law. The court refused to give such instruction.</p> <p>“ The defendant also moved in arrest of judgment, because the indictment did not specify cider as the kind of intoxicating liquor sold. This motion was overruled by the court. To which several rulings the defendant, being convicted, excepts.” The case was submitted without argument.</p>

<p>Evidence of an assault with a weapon dangerous to life will support a complaint for a simple assault, even if the complaint alleges that it was not committed with a weapon dangerous to life.</p>

<p>Indictments on St. 1855, c. 215, on which the defendants were convicted of being common sellers of intoxicating liquors, at January term 1859 of the court of common pleas in Essex, before Aiken, J., who signed two bills of exceptions, the materia, parts of which were as follows :</p> <p>“ Upon the trial of Boyden, the government introduced evidence tending to show that the defendant was keeper of the Gloucester House, so called, in Gloucester, and also that intoxicating liquor had been sold therein by the defendant and by others; and put upon the stand Samuel Fears, who testified that during the past year he had seen the defendant in said house several times. The attorney for the government then asked said Fears, if he had known of the defendant living at any other house than the Gloucester House during the time alleged in the indictment; which was objected to by the defendant ; but allowed by the court to be put; and the witness answered that he had not.</p> <p>“ The attorney for the government asked another witness, if, in a certain room, in which there had been evidence of a bar, and was called the bar-room in said house, he had seen bottles, which was objected to by the defendant, but allowed by the court to be put and answered.”</p> <p>“ On the trial of Burnham, Samuel Fears testified that he never saw the defendant in any shop, but had seen him in his own house; and in answer to a question of the district attorney, said he had never bought any liquor there. The district attorney then asked the witness, if he ever drank any liquor at the defendant’s house; to which question the defendant objected ; but the court decided that the question might be put, and it was put, and answered by the witness, that he had drank there.</p> <p>“ Another witness was asked by the district attorney, What have you seen the defendant doing in his own house ? the witness having previously testified that he knew the defendant at his boarding house; to which the defendant objected; but the court allowed it to be put, and the witness answered that he had not seen the defendant doing anything; but had seen. him in all the lower rooms.”</p>

Indictment for a burglary in Boston, in “ a certain building there situate, to wit, the shop of Joseph L. Drew, and Joseph L. Drew, the younger of that name;” with a second count for a larceny “ in a building, to wit, the shop ” of the same persons.

<p>Action of contract, commenced in the court of common pleas in Barnstable, at April term 1859, to recover back taxes illegally assessed upon the plaintiff, and by him paid to the defendants’ collector. At the first term, an attorney of this court •entered an appearance for the defendants, and offered to file an affidavit of merits. The plaintiff moved that the appearance be stricken from the docket, and the offer to file an affidavit of merits denied, because the defendants had never authorized any person to enter an appearance or file such an affidavit. The counsel for the defendants, on being inquired of, stated that he appeared by the authority of the selectmen, who, he contended, had the right to appear and act for the town; but admitted that there had been no vote of the town in relation to the defence of the action. Bishop, J. permitted the appearance to stand, and the affidavit of merits to be filed; and to this permission the plaintiff alleged exceptions.</p>

<p>Evidence that a person is reputed to deal illegally in intoxicating liquors is inadmissible to show that such is his occupation.</p> <p>The recitals in a mortgage are competent evidence to prove the consideration of the nota described therein.</p>

<p>4. plaintiff who, in a writ of entry to foreclose a mortgage, instead of simply averring kia seisin to be in mortgage, alleges the making of the mortgage and an assignment thereof by the mortgagee to him, and his consequent seisin in fee, is still bound, in the absence of any rule of court upon the subject, to prove the signatures of the mortgage and assignment upon the trial, although not denied in the plea.</p>

Appeal to the court of common pleas from the clerk’s taxation of a bill of costs.

<p>The mere mental determination of an executor to appropriate property or securities in hia hands as such, to himself as trustee under the will, is not such a setting apart as will cause a loss or depreciation of the trust fund to fall upon the cestui que trust; or entitle the executor to any separate compensation for his services as trustee.</p> <p>In an action against an executor for the balance of a legacy, the amount due is to be stated by making annual rests, adding the interest each year to the principal, and deducting the payments made during the year, and making the residue a new capital.</p>

<p>A resulting trust is not created by implication of law in favor of one who pays part of the purchase money of real estate conveyed to another, unless such payment is made for some specific part or distinct interest in the estate.</p>

<p>Replevin. The plaintiffs, a corporation established by law in Rhode Island, claimed title under a mortgage made by Thomas A. Peirce to them on the 22d of January 1857, in Rhode Island, and duly executed and recorded according to the laws of that state, where the mortgagor resided.</p> <p>The defendant justified as a constable of Pawtucket, under a writ against the mortgagor, on a debt due to another citizen of Rhode Island. The property in controversy was in the possession of a third person in this state at the time of the making of the mortgage, and there remained until the attachment.</p> <p>The mortgage included other property, of which the plaintiffs had taken possession before the attachment, and part of which they sold before the 25th of February 1857, when they made a demand in writing upon the defendant, in which they notified him that the property attached by him had been conveyed to them by said mortgage, (which they at the sqme time exhibited to him,) and which stated “ that the said bank has a large claim against the said Peirce, as security for which the said mortgage was given; that said bank holds claims and demands of its own against said Peirce, amounting to $10,000, on which the said Peirce has paid $4485.57 ; and that the balance of $5514.43 remains due to said bank from said Peirce; ” and demanded payment of said balance within ten days. At the time of the demand, the balance of the mortgage debt, after applying to the payment thereof the proceeds of so much of the property not covered by the mortgage as had then been sold, was $5514.43. The plaintiffs have since sold the remainder of that property, and applied the proceeds of such sales to the further payment of the mortgage debt, and a part of the debt still remains unsatisfied.</p> <p>The parties submitted the case to the decision of the court upon the facts above stated.</p>

<p>A right of way of necessity ceases as soon as the owner of it can have a direct and convenient access over liis own land to the place to which the way leads.</p> <p>A deed of division, which reserves, after the assignment to each devisee, “to the other devisees all the privileges in the above described premises, that they require in the accu pancy of their shares herein described,” gives no greater right than a way of necessity.</p>

Action of contract against Cyrus Butler and Annis A. Lincoln, copartners under the name of the Norton Furnace Company. The declaration contained two counts. The first alleged that the defendants made the following due bill payable to the plaintiff, and owed the plaintiff the amount thereof, with interest thereon: “ Due James B. Lincoln on account forty two 32-100 dollars. $42.32.

Action of contract upon a promissory note, witnessed by Jonathan Slade. Answer, a denial of the signature.

<p>A mortgagee in possession is entitled to be allowed, upon redemption, his necessary expenses for keeping the estate in repair; but not expenditures for convenience or ornament.</p> <p>Upon a bill in equity to redeem land from a mortgage, if the mortgagee does not render e correct account, and the mortgagor makes no tender, neither party is entitled to costs.</p>

<p>After the vacating of proceedings in insolvency, the assignee, if summoned as trustee of the debtor in foreign attachment, is entitled to retain out of the funds in his hands any debts due him from the debtor at the commencement of the insolvency proceedings, and any sums necessarily disbursed by him as assignee for incidental expenses; but nothing for his services as assignee, or for the services rendered to him as assignee by himself and his partner as attorneys at law.</p>

<p>Action of contract upon a promissory note for $463.89, made by the defendant to Emanuel Devoll, and by him indorsed to the plaintiff. Answer, failure of consideration, and baud in obtaining the note, known to and participated in by the plaintiff.</p> <p>At the Mai in the court of common pleas in Bristol, at September term 1858, after the plaintiff had read the note and proved the signatures, the defendant offered to prove the following facts:</p> <p>Emanuel Devoll, the payee, now deceased, conveyed a farm to the defendant, for which the defendant paid partly in money and partly by a note for $1200, and gave Devoll an agreement in writing that, upon being paid the consideration for the farm, and receiving back the note, he would convey the farm to John Devoll and Ivory Tripp, Emanuel Devoll’s son and son in law. Afterwards, on the 15th of July 1851, Emanuel and the plaintiff induced the defendant, who could not read, to sign a deed of the farm to Emanuel, by representations that it was a deed to John Devoll and Ivory Tripp, and would be good for nothing until acknowledged, and by giving up to him the note for $1200, and promising him that, upon the defendant’s acknowledging the deed, he should be repaid the money which he had paid on account of the farm. The defendant, upon discovering that the deed was to Emanuel, refused to acknowledge it; and a magistrate refused to certify the deed, upon an application made by Emanuel on the 13th of August 1851, in the presence of the plaintiff. The defendant afterwards, upon Emanuel representing that the deed was good for nothing, and promising to return to the defendant the deed .and the defendant’s agreement, gave back to Emanuel the note for $1200, and on the 1st of September 1851 paid $400 of it, and gave a note of $800 for the balance. Emanuel did not fulfil his promise to return the deed and agreement; and on the 13th of July 1852 was sued by Battelle upon a claim of $64.86, which he requested the defendant to pay; but the defendant refused to do so, until assured by Emanuel that the deed and agreement were in Battelle’s possession, and should be given up if the defendant would settle this debt; and they went together to Battelle’s office, and the defendant paid this debt, and the $800 note was given up, and for the balance thereof, after deducting the amount of various payments made by the defendant, the note in suit was given. At the time of signing it, the defendant asked for the deed and agreement, and Battelle declared that they were not in his possession, but promised to get them and deliver them to the defendant that afternoon, and the note was signed upon this assurance. The deed and agreement, though repeatedly demanded, were never given up to the defendant. But Devoll had the deed certified by a justice of the peace, the plaintiff being present, and a witness for him, and put it on record ; and afterwards, with the plaintiff’s knowledge, conveyed away the farm; and the defendant brought a writ of entry for the same against the grantee, in which the defence was rested upon the deed above mentioned from the defendant to Devoll, and the defendant recovered a verdict.</p> <p>Briggs, J. ruled that these facts, if proved, would constitute no defence to the action. A verdict was taken for the plaintiff, and the defendant alleged exceptions.</p> <p>This case was argued at Boston in January 1859.</p>

<p>When the additions and improvements upon a court house and jail, necessary for the convenience and accommodation of all courts, officers and persons whose duty requires them to resort there, and for the preservation of the records and public papers of the county, would exceed in expense the amount which the county commissioners are authorized by law to expend, it is their duty to submit to the legislature a statement of the amount required, with evidence of the exigency for such improvements.</p>

<p>Action of tort against the sheriff of Bristol for the act oi his deputy in attaching certain goods on mesne process against Gustavus French, under whom the plaintiff claimed title. Writ dated March 21st 1857.</p> <p>The defendant contended that the conveyance to the plaintiff was fraudulent and void as against the creditors of French; and at the trial in Bristol, at April term 1859, offered in evidence the writ of attachment against French, (which was returnable in June 1857,) with the officer’s return thereon, which stated that he attached the goods on the 17th of March 1857, and on the 28th of said March, by virtue of a warrant of insolvency issued by the judge of insolvency for the county of Bristol, took possession of said goods, and in May following delivered them into the possession of the assignees appointed at a court of insolvency held’ on the return day of the warrant.</p> <p>The defendant’s counsel said that he did not produce the writ from the custody of the clerk, and it appeared that it had never been entered in court, and there was no evidence that it had been returned to court except the return itself; and the plaintiff objected that it was inadmissible in evidence and afforded no justification. But Soar, J. allowed it to be read, and after a verdict for the defendant, reported the case to the full court.</p>

<p>When the facts in a case are undisputed, and the evidence, with all the inferences which a jury can rightly draw from it, does not, as a matter of law, have any tendency to establish a proposition essential to the maintenance of the action, it is the duty of the judge so to instruct the jury.</p> <p>Several cargoes of coal, delivered by their owner upon the wharf of a railroad corporation, were successively carried over their railroad, and at the place of destination unladen, assorted and deposited by the owner’s servants in bins on the land of the corporation, adjoining the owner’s land, and portions carried away and delivered to purchasers by the owner, from time to time, until he became insolvent, when the corporation forbade the taking away of any more coal, without payment of the unpaid freight and wharfage. Bold, that the corporation had a lien upon the coal which remained, for the wharfage and freight of all the cargoes.</p>

<p>An assignment under proceedings in insolvency commenced by the debtor is an alienation of his property, within the meaning of a stipulation in a mutual insurance policy, that “ when any property insured by this company shall be taken possession of by a mortgagee, or in any way be alienated, the policy shall be void; ” and defeats the right of a mortgagee to recover a portion stipulated by the policy to be paid to him in case of loss.</p>

<p>Bill in equity by the former assignees in insolvency of William L. Finney and Henry Finney, under Si. 1838, c. 163, § 18, 'to obtain the allowance in their final account of the sum of $160.44, paid by them to the collector of the town of Plymouth, for taxes assessed to them in due form in 1856 and 1857, upon real estate held by them as assignees, which the commissioner of insolvency had disallowed. Hearing in Plymouth, at May term 1859, before Hoar, J., who reported the following case for the decision of the full court:</p> <p>The plaintiffs were chosen assignees on the 10th of October 1855, and the interest of the insolvents in the real estate assessed was vested in them, as assignees, until the 2d of June 1857, when they were removed, and the defendant Holden was appointed in their place. Possession of a considerable portion of the property thus assessed was recovered by the plaintiffs, as assignees, by judgments of this court in 1856 and 1857.</p> <p>Abiathar Hoxie and others purchased of Holden, assignee, a portion of this land at public auction, and took a deed thereof on the 21st August 1857. The defendants offered to show that, at the auction sale, it was declared by the assignee, that the purchasers would take the land subject to the unpaid taxes for 1856 and 1857. But the judge excluded the evidence.</p> <p>The plaintiffs paid the taxes in question on the 25th of Feb. ruary 1858. The defendants offered to show that they paid them at the request and for the benefit of said Hoxie and others, who purchased a portion of the land described in the valuation of the year 1857, and who gave the plaintiffs a bond of indemnity. But the judge ruled that if the plaintiffs would otherwise have been justified in paying said taxes on real estate, the bond of indemnity could make no difference.</p> <p>The defendants contended that said taxes on real estate were illegal and void, because one sixth part of said taxes was not assessed upon the polls as required by law. But as it was not contended that the plaintiffs were aware that the tax was illegal, when said taxes were paid, the judge ruled that such illegality in the assessment, not known to the plaintiffs, would not bar their right to be allowed the same in their account.</p>

<p>A railroad corporation is entitled to damages for land taken by the laying out of a public highway across its railroad, subject to its use for said road; and for the expense of erecting and maintaining railroad signs and cattle guards at the crossing, and of flooring the same and keeping it in repair; but not for any increased liability from accidents, for the in * creased expense of ringing the bell, or for its liability to be ordered by the county commissioners to build a bridge for the highway over its track.</p> <p>In assessing damages occasioned to a railroad corporation by the location of a highway across its track, supposed benefit by an increase of travel on the railroad cannot be set off.</p>

Petition for a mandamus. The petitioners alleged that by votes of the town of Plymouth in April 1859 they were chosen a committee “ to settle with the overseers of the poor for the past year; and to report to the town at some future meeting the private accounts of the overseers, and all other matters which belong to the accounts between the overseers of the town ; ’’ that in May 1859 it was voted, “ that the books and papers of the town, kept by the overseers of the poor, be…

<p>H. made this agreement with W., a ship owner: “It is understood that said ship is on a voyage to Australia, thence to Calcutta, where she is to load for Boston; and H. agrees to furnish 150 tons of goods from Calcutta, paying a freight of $14.50 per ton. W. also agrees that said ship shall be kept in suitable order for the voyage, and that he will receive said freight on the terms named, the dangers of the sea and fire excepted. Penalty for the nonperformance of this agreement by either party, $2200.” The master, in violation of his orders, did not go to Calcutta, but sailed from Australia for another port. Held, that the contract of W. was absolute, and was broken by the failure of the vessel to be at Calcutta to receive her cargo, even if the master was insane.</p> <p>Held, also, that an offer made by W. at Boston, after hearing of the change of voyage, and eleven days before the day when the vessel ought to have arrived at Calcutta, to obtain for H. the same amount of tonnage in another vessel, was not a substituted performance of the contract, which H. was obliged to accept.</p> <p>Upon the breach of a contract of the owner of a vessel that, it shall be at a foreign port ready to receive goods to be there furnished, in which it is agreed that the penalty for nonperformance by either party shall be $2200, the measure of damages is not the amount named as a penalty, but the difference between the stipulated rate of freight and the current rate at the port at the time when the vessel should have been ready to receive her cargo, and interest upon that sum, to be computed from such a date as would make proper allowance for the time for loading and for ordinary delay.</p>

<p>A testator made the following bequests: “ I leave and bequeath unto my sister S. the sum of $15,000 in trust; unto my sister A., for the benefit of herself and her own children, the sum of $25,000 in trust; unto my sister M., for the benefit of herself and her children, the sum of $15,000 in trust.” He then directed certain legacies to be paid out of a fund named, and added: “ I leave and bequeath the above mentioned fund in whole or in part (as it may cease to be required for the purpose I have allotted to it) in equal parts to each of my sisters, viz: S., A. and her own children, and M. and her children, in trust.” And he appointed a person “my trustee for all and singular the various bequests herein contained.” Held, that A. and M. each took the income of the sum bequeathed in trust for the benefit of herself and her children, for her life, and that the principal, after her death, was to be divided among her children.</p>

Writ of error to reverse a judgment of the superior court of Suffolk at May term 1857, in favor of the defendant in error, in an action on a promissory note, in which the plaintiff in error had been defaulted for failure to file an affidavit of defence. The error assigned was, that the plaintiff in error, at the time of the rendition of the judgment sought to be reversed, was an infant, and that no guardian ad litem was appointed for him in the case.

<p>Action op contract. The parties agreed that the defendant was liable for the debt sued upon, unless it was discharged by a composition deed by which the plaintiffs and other creditors of the defendant, in consideration of twenty per cent, of their respective debts to be paid by him to them within thirty days, agreed to discharge their debts, and that this agreement, upon such payment, should operate as a present discharge. But the defendant, to procure the signatures of some of his creditors, paid them more than twenty per cent, of their claims, without the plaintiff’s knowledge; and the plaintiffs therefore brought this action for the balance of their debt.</p>

<p>An action for deceit in the sale of poisoned grain, whereby the purchaser’s horses are killed, does not survive to his administrator under the Eev. Sts. c. 93, j 7, and St. 1842, c. 89.</p>

<p>An agreement in writing, by which A. appoints B. his “sole agent for the term of three years, for the sale of medicines manufactured by A. and known by the name of * A.’a medicines,’ ” includes all medicines manufactured by A. within that time, and known by his name; and the submission to a jury of the question whether a medicine invented by A., since the making of this contract, and called by him “ A.’s horse linament,” is a new medicine, invented or concocted in good faith, and without any intent to evade the con tract, is erroneous.</p>

Libel by a wife for divorce from bed and board, for gross, wanton and cruel neglect to provide her with suitable maintenance. Trial by jury and verdict for the libellant in, Suffolk, at March term 1858, before Bigelow, J. The respondent excepted to the following rulings: The respondent, being sworn as a witness in his own behalf, was asked by his counsel to state conversations between himself and his wife, while they cohabited together, at which no other person was present.

Action of tort for false and fraudulent representations of the defendant in the sale of certain notes made by. Alfred Pollard, payable to the defendant, and by him indorsed without recourse to the plaintiff. At the trial in the superior court of Suffolk, at May term 1858, it appeared in evidence that an action had been brought by the plaintiff against Pollard on these notes, and decided against the plaintiff.

<p>All the members of a partnership are liable for an injury occasioned by the negligence of one of them, or of servants employed by the partnership, while transacting business of the firm.</p> <p>In an action for a personal injury, the surgeon who attended the plaintiff testified on cross-examination that he should judge the plaintiff to have been a man of intemperate habits, and that injuries such as he had received would be aggravated by intemperance. The plaintiff was then allowed to introduce the testimony of other surgeons as to the nature, severity and ordinary duration of an injury such as the plaintiff had received. Held, that the defendant had no ground of exception.</p>

<p>Bill in equity in behalf of all the creditors of a manufacturing corporation, subject to the Rev. Sts. cc. 38 & 44, against said corporation, its directors and its stockholders, seeking to charge the stockholders on the ground that the capital stock had never been paid in, nor a certificate filed and recorded; and to charge the directors on the ground that the debts of the corporation exceeded its capital stock.</p> <p>The directors and the stockholders demurred to the bill as multifarious, and for other causes.</p>

Appeals from decisions of commissioners of insolvency appointed by the probate court of Suffolk, disallowing claims against the insolvent estate of William O. Moody, deceased, of which the appellee was administrator.

Action of tort for assault and false imprisonment. The defendants justified as constables of the city of Cambridge, under St. 1855, c. 215, § 13. At the trial in the superior court of Suffolk, at March term 1857, before Abbott, J., the plaintiff introduced evidence that, as he was passing through Cambridge upon a wagon, which contained intoxicating liquors, he was arrested without a warrant, and imprisoned in a watchhouse and carried before the police court by the defendants.

<p>It is no evidence of waiver of a by-law of a mutual fire insurance company, requiring the assured, before the delivery of any policy, to pay such premium and give such deposit note as the president and directors shall from time to time determine, that the policy was made out and recorded in the company’s books, pursuant to an agreement between the person to be insured and the president of the company; that the directors had previously voted “ that the premiums on all policies shall be payable within thirty days from the date of said policies, and if not paid within sixty days the policies shall be considered can-celled; ” that, both before and after sixty days from the date of this policy, the president and secretary requested this person to pay the premium, without suggesting any invalidity of the policy; and that, after a loss of the property insured, an assessment was laid to cover it.</p>

<p>A. custom of a particular port, that seamen’s advance wages, due under shipping articles, shall be paid to the shipping agent, to be paid by him to the boarding-house keeper bringing the seamen, for their benefit, is unreasonable, and does not bind the seamen, although known to them at the time of signing the articles; and, if valid, would not be sustained by evidence that the shipping agent paid the wages to the boarding-house keeper, and charged them in account with the owner of the vessel.</p>

<p>Petition to the superior court of Suffolk, under Rev. Sts, c. 24, § 55, for the assessment of damages occasioned by the laying out of Chauncy Place in Boston as a highway. The petition alleged that the petitioners were seised in fee simple of a certain parcel of land situated in said Boston and known as Chauncy Place, and therein described by metes and bounds; that on the 2d of January 1857, after notice, the mayor and aldermen of Boston ordered that said Chauncy Place “ be laid out as a public street or way of the said city; ” that pursuant to said order, “said parcel of land was taken for said street;” and that the mayor and aldermen neglected and refused to make compensation to the petitioners “ for the taking of said land.”</p> <p>At the trial by jury at November term 1857 before Huntington, J., the petitioners offered evidence tending to show that they were formerly the proprietors of a tract of land on Summer Street in Boston, by virtue of a conveyance from Richard and Ann Hollinghead, dated the 17th of December 1680; that in 1808 they erected a church on the farther side of the lot, and opened a passage way or court thereto from Summer Street, being the Chauncy Place; and afterwards sold several lots situated between the church and Summer Street, and granted certain restricted rights of way over said place to the grantees of those lots, and to the owners of estates adjacent to said place on the southerly side thereof. The defendants objected to the admission of the deed of the Hollingheads as evidence of title to any estate except Chauncy Place. But the judge admitted it; and instructed the jury “ that the petitioners were entitled to recover for the diminished market value of the whole estate, including the church building, consequent upon taking of the land, if they should find, upon the evidence in the case, that the market value of the whole estate had been thus diminished.” The jury found a verdict for the petitioners, and the respondents excepted.</p>

<p>Petition filed in September 1857 in the superior court of Suffolk, for a jury to assess damages sustained by reason of changing the grade of Trenton and Meridian Streets in Boston. The acts complained of were done partly in the fall of 1854 and partly in the spring of 1855, and none later than that spring. On the 18th of February 1856 the petitioners presented their petition to the board of aldermen, praying for compensation for damages alleged to be done to their- property; and on the 8th of December following that board determined that the petitioners had not sustained any damage, and refused to award them any compensation.</p> <p>Upon these facts being proved, Allen, C. J. refused to rule that the petitioners were not entitled to recover any damages, by reason of the limitation prescribed in respect to the time of making application for a jury to assess damages ; and instructed the jury “ that the petitioners were entitled to recover a reasonable compensation for all damages sustained by them, by reason of so much of said raising as was done in the spring of 1855, and also for any raising which was done in -"he autumn of 1854, If the same was done continuously, so as to be a part of the same act of raising said street, being commenced in the autumn, suspended in the winter, and completed in the spring of 1855.” The jury found a verdict for the petitioners, and the respondents alleged exceptions.</p>

<p>Petition filed at September term 1857 of the superior court óf Suffolk for a jury to assess damages to the petitioner’s property by reason of a change of grade of South Cedar and Church Streets in Boston.</p> <p>At the trial at May term 1858, it appeared that the board of aldermen authorized the alteration in the grade of the streets on the 26th of August 1852 ; but the petitioner offered to prove the following facts: The work was not done until within a year prior to August 20th 1854, when he petitioned the mayor and aldermen for damages. On the 28th of August they awarded him damages, which he refused to accept. On the 19th of March 1855 he petitioned again, and was awarded increased damages, which he also refused to accept, and arranged with a committee having the matter in charge on the part of the aider-men for a reference to determine the damages; but their term of office expired before the reference was carried out, and the new board refused to refer the matter. On the 8th of May 1856 the petitioner filed a new petition, which on the 11th of August was also refused. Allen, C. J., ruled that upon these facts and offers of proof this petition was not seasonably filed, and directed a verdict for the respondents. The petitioner alleged exceptions.</p>

<p>A watch delivered without objection by a person arrested on a charge of larceny of other properly to the officer arresting him cannot be attached while in the officer’s hands.</p>

Slander. “ And the plaintiff says the defendant publicly, falsely and maliciously accused the plaintiff of the crime of larceny, in words substantially as follows,' He is a thief.’ ” The defendant demurred to the declaration, as stating no legal cause of action, because it contained no allegation that the words “ He is a thief ” were spoken of or concerning the plaintiff, or that they were spoken by the defendant.

<p>A joint and several bond to dissolve an attachment of personal property was conditioned to deliver up the property. “ within thirty days of the time of rendition of judgment in the action, free from expense to the plaintiff, and on demand, after the rendition of judgment; ” and declared it to be the understanding that the surety on the bond “ does not hereby waive any of his rights by virtue of a mortgage ” of the property from the principal, and “ is not to claim payment for said mortgage before the judgment is rendered in the above action.” Held, that the obligors were not required to deliver the property in thirty days after judgment, without a demand, and that the obligee, in order to support an action on the bond, must prove a demand upon one of them and his refusal; and if the mortgage was valid, must also prove an offer to pay the mortgage debt.</p>

<p>Upon the hearing of a writ of habeas corpus in behalf of one imprisoned by order of the house of representatives of Massachusetts, the petitioner cannot give in evidence his written request to the speaker, before his commitment, for a hearing at the bar of the house, and the speaker’s refusal.</p> <p>This court has power to inquire on habeas corpus into the lawfulness of imprisonment by order of the house of representatives of Massachusetts.</p> <p>The house of representatives of Massachusetts has power to compel witnesses to attend and testify before the house or one of its committees.</p> <p>The refusal of a witness, duly notified or summoned, or who has voluntarily appeared, tí attend or testify before the house of representatives of Massachusetts, or a committee of that house, is a contempt of the authority of the house, for which the house may cause him to be arrested and brought before the house.</p> <p>A wilful and unjustifiable refusal of a witness, legally brought before the house of representatives of Massachusetts, to testify before the house or one of its committees, is “ disrespect to the house by contemptuous behavior in its presence,” within the meaning of the Constitution of Massachusetts, c. 1, § 3, art. 10, for which he may be imprisoned by order of the house for a term not exceeding thirty days.</p> <p>It is no ground for the refusal of a witness to produce books or papers, when required by lawful authority, that they are private.</p> <p>A committee of the house of representatives of Massachusetts, invested by the house witli general powers to investigate the affairs of the state liquor agency established by St. 1855, c. 215, and to send for persons and papers, reported to the house that they had notified the state liquor agent, and he had appeared before the committee, but had refused to produce certain books which they asked for. Whereupon said agent, by order of the house, was arrested and brought before the house to answer as for a contempt in such refusal, and was interrogated by the house and asked to produce said books; and, after being heard by counsel, declined to do so, on the ground that he had no books which he had not produced before the committee, except his private books of account, which contained noth ing relating to the matters inquired of. The house thereupon, without further hearing him, passed an order, reciting that he had failed satisfactorily to answer the questions put to him by the house, or to produce the books and papers required of him by a special committee of the house and also by the house, and was therein guilty of a contempt of its authority, and therefore issued a warrant to the sergeant at arms, reciting that he had been brought to the bar of the house to answer as for a contempt in refusing to comply with tlw order of the special committee of the house to produce certain books, and had refused satisfactorily to answer the interrogatories of the house, or to produce the books required of him by the committee and by the house; and reciting the order of the house thereon; and committing him for twenty five days, unless he should sooner signifyhiswillingness to produce the books, and satisfactorily answer the interrogatories. Hddy that the commitment was legal.</p> <p>The commitment of a witness, by order of the house of representatives of Massachusetts, for a term not exceeding thirty days, for contemptuous behavior in its presence, by refusing to produce books and papers which he had been lawfully required to produce, is not invalidated by containing a direction that upon informing the officer having him in custody, of his readiness to produce said books and papers, he shall be brought before the house.</p> <p>The sergeant at arms of the legislature of Massachusetts may lawfully detain in the county-jail, with the permission of the sheriff, a prisoner committed by authority of the house of representatives.</p>

<p>A town is ¡íable for an injury occasioned by a defect in a highway which the town is bound to repair, to an elephant driven over it with due care, if in the opinion of the jury an elephant, at the time and place and under the circumstances of the accident, was an animal which it was reasonably proper to take over a highway kept for the reasonable use of the public.</p>

<p>Action of tort for personal injuries suffered by falling upon the sidewalk on the north side of the defendants’ market house in Boston. Trial before Bigelow, J., who reserved the following case for the directions of the full court.</p> <p>The plaintiff introduced evidence tending to prove the injury, and that it occurred on the sidewalk forming part of Boylston Street, a highway in the city of Boston, and paved by order of the city; that the sidewalk was in a dangerous condition from want of repair and from the quantity of snow and ice which had been unlawfully permitted to accumulate thereon, consisting of snow which had naturally fallen there, ice formed from such snow and rain, and also ice formed from water discharged by the conductor from the roof of the market house, which discharged upon the sidewalk, without any provision to carry the water off, and from water which, for want of sufficient conductors, overflowed the gutters of the market house. The plaintiff contended that the sidewalk was in a bad condition from all these causes, and that for all of them the defendants were hable, and that his injuries were occasioned by one or more of them.</p> <p>The defendants contended that even if the above facts were true, (which they denied,) they were not answerable; and introduced a witness, the superintendent of the building, who testified that all the stalls and cellars forming Boylston Market were leased to various tenants, and that all the rooms in the upper-stories were also let, some of them to tenants at will; that the defendants made all repairs outside of the rooms or stalls, and took care of the roof, gutters and conductors of the building; that the outside passage ways and doors were under then- control, so far as was necessary in order to make repairs; that they employed a man to open and close the doors of the story used as a market, at hours fixed by the tenants; and that the doors of the upper stories were opened and closed by the tenants of them, who kept the keys.</p>

<p>An award under Sts. 1845, c. 191 and 1857, c. 291, of commissioners appointed to determine the terms upon which connecting railroad corporations shall transport each other’s passengers and freight, and perform the business of each other, must be returned into court.</p> <p>It is no objection to an award of commissioners under Sts. 1845, c. 191 and 1857, c. 291, establishing the compensation to be paid by each of two railroad corporations to the other for drawing passengers and freight over its railroad, that the award gives to either corporation different amounts for carrying passengers and freight from the same station upon its road to the junction, where they are to be carried to different stations upon the other road.</p> <p>Commissioners appointed to determine the terms upon which connecting railroad corporations shall transport the passengers and freight and perform, the business of each other cannot, under Sts. 1845, c. 191 and 1857, c. 291, include in their award any time before the filing of the petition for their appointment.</p>

<p>Petition filed in Suffolk on the 15th of June 1857, under St. 1845, c. 191, for the appointment of commissioners to determine the compensation to be paid by the petitioners, for drawing their passengers, merchandise and cars over the respondents’ railroad, from the junction of the two roads at West Cambridge to Boston, after the expiration of an existing contract between the two corporations upon this subject, which would terminate upon the 1st of September 1857.</p> <p>The court, on the 16th of October, accordingly appointed three commissioners “ to determine the rate of compensation to be paid by the said petitioners to the said respondents, for drawing over their road the passengers, merchandise and cars of the said petitioners.” The material parts of the award of the commissioners are sufficiently stated below in the respondents’ objections thereto, except these provisions, to which the second, twelfth and thirteenth objections respectively refer:</p> <p>“ The Lexington and West Cambridge Railroad Company shall have the privilege to elect the time for starting their independent trains, provided the time fixed for running the same shall not be within fifteen minutes of the times of a regular passenger train of the Fitchburg Railroad Company; and so also of the extra special trains.”</p> <p>“ Each of said companies shall be liable to indemnify the other against and hold it harmless from any loss or damage happening through the fraud, gross or blamable negligence or unskilfulness or wilful mismanagement of the other, or its officers or servants; each company to be answerable for and indemnify the other against accidents or damage arising by reason of the insufficiency or defect of its own equipment or of its own railroad or structures.</p> <p>“ The Fitchburg Railroad Company’s trains shall not be required to wait over ten minutes at the junction of the two roads, to connect with the Lexington and West Cambridge Railroad Company’s train, at any time; and, in case of the latter being left, shall be allowed for an independent train, to be taken as soon as it conveniently can be so. And frequent unreasonable want of punctuality in the down trains of the. Lexington and West Cambridge Railroad Conipany in being at the junction shall be' compensated for in damages.”</p> <p>The respondents objected to the acceptance of the award, for various reasons, so many of which as were urged upon the full court were as follows:</p> <p>“ 1st. Because the said commissioners prescribe the time for running the trains of the Lexington and West Cambridge Railroad Company, and thereby exceed the powers conferred upon them by this court.</p> <p>“ 2d. Because said commissioners give to said Lexington and West Cambridge Railroad Company the right to choose at what times the independent and special trains provided for in said award shall be run.</p> <p>“ 3d. Because said commissioners awarded that said Fitch-burg Railroad Company shall have for said Lexington and West Cambridge Railroad Company five extra special independent passenger trains a year, for societies, holidays, schools, companies, &c., and that said Lexington and West Cambridge Railroad Company may elect when said trains shall be run.</p> <p>“ 4th. Because said commissioners have awarded that certain independent trains in said award mentioned, to be hauled by the said Fitchburg Railroad Company, shall stop only at such stations upon the Fitchburg Railroad as the Lexington and West Cambridge Railroad Company may elect.</p> <p>“5th. Because said commissioners have awarded that said Lexington and West Cambridge Railroad Company may elect whether the passengers and merchandise and cars to be hauled shall be hauled by an independent or a connected train.</p> <p>“6th. Because said commissioners have awarded that there should be presumed and taken to be, by connected trains each month, by each kind of ticket or passage, at the end of the month, the same proportion of the whole number as the number of connected trains in the common business of the two companies is to that of the whole number of trains for the month, both independent and connected — the extra special pas senger trains for holidays, societies, &c. not to be included ir making such estimate.</p> <p>“ 7th. Because by the method selected by the commissioners establishing the compensation to be paid, such compensation is made to depend upon the number of passengers and amount of merchandise, instead of upon the service rendered.</p> <p>“ 8th. Because the commissioners have fixed different rates of compensation for hauling the passengers of said Lexington and West Cambridge Railroad, according to the kind of ticket [‘ package ticket’ or ‘ season ticket’] with which said passengers may be provided by said Lexington and West Cambridge Railroad, without reference to any agreement or rule of the Fitchburg Railroad Company.</p> <p>“ 9th. Because the commissioners have awarded that the Fitchburg Railroad Company should haul the merchandise, cars and passengers of the Lexington and West Cambridge Railroad over that part of the Fitchburg Railroad which was formerly the Charlestown Branch Railroad.</p> <p>“ 10th. Because said commissioners have fixed the rates of compensation for hauling the passengers, merchandise and cars of the Lexington and West Cambridge Railroad Company, from the first day of September 1857, which is a period anterior to the time of their appointment.</p> <p>“ 11th. Because said commissioners have fixed no time when said award shall take effect.</p> <p>“ 12th. Because the said commissioners have awarded that each of said companies shall indemnify the other and hold it harmless from all loss happening through the fraud, gross or blamable negligence or unskilfulness of the other.</p> <p>“ 13th. Because said commissioners have awarded that said Fitchburg Railroad shall furnish for the Lexington and West Cambridge Railroad an independent train, in case of delay at any time of over ten minutes in the arrival of the Lexington and West Cambridge Railroad at the junction of the two roads ; and that frequent and unreasonable want of punctuality in the down trains of the Lexington and West Cambridge Railroad shall be compensated for in damages.”</p> <p>At the hearing before Merrick, J., the parties agreed that part of the railroad of the respondents, over which the commissioners awarded that they should draw the passengers, merchandise and cars of the petitioners, was formerly part of the Charlestown Branch Railroad, which was purchased and held by the respondents by virtue of St. 1846, c. 21. And the case was reserved for the consideration of the whole court.</p>

<p>A bequest of income of shares in a corporation to the testator’s widow for life, for her own support and the education of her children, includes a dividend declared thereon after her death, for a period which expired during her life, although the shares still stand in the name of the testator’s estate; and her executor, after demand, may maintain an action for such dividend against the corporation. '</p>

Bill in equity by the widow, children and administrator ot James Bartlett, Jr., son of James Bartlett, to enforce a trust against the other heirs of James Bartlett.

Petition under the Rev. Sts. c. 83, §§ 39-42, for leave to enter and prosecute an appeal from a decree made by the probate court in May 1857, admitting to probate the will of Josiah Dun-ham, deceased, of which the respondents were executors.

<p>The record of the laying out of streets in South Boston was thus: " The selectmen have determined and agreed to lay out the streets through the whole of said tract now called South Boston, according to a plan ” referred to; “ the streets agreed upon and laid out are described as follows: ” Dorchester Street beginning at the southern edge of the tract, and running half across it to a point from which Broadway extended at an angle eastwardly and westwardly; “to the northward of Broadway, and parallel thereto three streets; on the westerly side of Dorchester Street and southward of Broadway are four streets, running parallel to Broadway, all of them commencing at Dorchester Street, and continuing to the turnpike; on the easterly side of Dorchester Street are six streets lying south of and parallel to Broadway; and it is determined that all the above described streets shall be named and called as follows: The street on the northern shore to be called First Street east and west,” &c. “ the street next parallel ” to Broadway “Fourth Street east and west; the street next parallel Fifth Street east and west;” and so on to “Ninth Street east and west.” Upon the plan were two ranges of streets, named Fourth, Fifth, Sixth and Seventh streets, those west of Dorchester Street terminating in it, and those east of Dorchester Street terminating on the west two cross streets east of it; the land between such terminations and Dorchester Street was much higher than the rest of the tract, but was crossed by the intermediate cross street; Eighth Street extended only as far as the street last mentioned, and would not, if extended, have reached Dorchester Street, by reason of a curve in the shore; and Ninth Street was not upon the plan at all. Held, that Fifth Street was laid out only so far as was indicated on the plan.</p>

<p>Actions of contract upon policies of insurance of $8000 and $10,000 upon the ship Fortitude, valued at $18,000. The parties stated the following case :</p> <p>“ On a voyage to Havre, the ship came in collision with the barque Sir Robert Peel, by which both vessels were damaged. The ship subsequently arrived at Havre, where the cargo was delivered, and the freight, amounting to $15,000, paid. An adjustment of general average was made at Havre, in which the ship, in her damaged state, was valued at $6000. She was repaired at an expense of $8000, of which the defendants paid their proportion. Subsequently, being in London, she was libelled by the owners of the Sir Robert Peel in a cause of collision, condemned in damages and costs, and the plaintiff was obliged to pay, on account thereof, and of the expenses of defending the suit, about $10,000, and in these suits seeks to recover the sums so paid.</p> <p>“ The defendants, admitting a liability on account of the loss, insist that the amount should be apportioned on the aggregate value of the ship and freight at Havre, and that, for this purpose, they are not concluded by the valuation in the policy; and that the owner of the ship, as such, and consequently her insurer, is not liable for more than the value of the ship after the collision.</p> <p>“ The court is to determine on what principles and proportions the defendants are liable, and whether the valuation is conclusive, and the ease is to be sent to an assessor, to determine the amount for which the defendants are liable; and, it that shall not exceed the sum already paid on account, the defendants are to have judgment for costs; otherwise, the plaintiff shall take judgment for the balance found due to him, with interest and costs.”</p>

<p>Action against some of the partowners of the brig Boston, with counts in contract and in tort, to recover the value of a cargo of lumber shipped on board of her and embezzled by the master. The case was decided in June 1860, and is shown in the opinion.</p>

Action of contract upon a policy of insurance upon a vessel which, while insured, and on a voyage from Baltimore to Boston, laden with a cargo of coal, went ashore upon Bearse’s Shoal on Cape Cod. She was much injured and filled with water, and at high water her deck was three feet below the surface. The plaintiffs, as soon as they had notice of this, duly abandoned her to the defendants, who declined accepting the abandonment.

<p>In a deed of a parcel of land one hundred and fifteen feet wide, the grantors “ reserved to themselves a common right in a passage way fifteen feet, running east and west through the centre of said parcel, and dividing said parcel into two lots of fifty feet each.” The grantee conveyed to A. the northern lot, “ bounded southerly by a passage way fifteen feet wide; ” and afterwards conveyed to B. the southern lot, “bounded northerly on a pas* sage way fifteen feet wide, together with my right in common in said passage way of fifteen feet;” and B., under an order of court to convey all his estate in the premises, conveyed the southerly lot, bounded “ northerly by ” said “ passage way.” Held, that B. retained no right in the soil of the passage way.</p>

<p>Action of contract upon a recognizance entered into upon the 20th of May 1856, before a master in chancery, by John Angier as principal and Williams as surety, in the sum of $6071.50. The condition of the recognizance was, that, whereas Angier had been arrested in execution upon a judgment recovered against him in the superior court of Suffolk for $3035.75 damages and costs, he should, “ within ninety days, deliver himself up for examination, giving notice to his creditors as in such case is mentioned and provided ” by St. 1855, c. 444, “ and making no default at any time fixed for his examination, and abide the final order of the magistrate thereon.” Trial in Suffolk, before Bigelow, J., who reserved for the decision of the full court the following case:</p> <p>The plaintiff produced the record of the origina, judgment, and the execution issued thereon, both of which corresponded t.o the description in the recognizance ; but the execution contained the usual direction to the officer to collect also twenty five cents for this writ. And the master in chancery, before whom the recognizance was taken, being called as a witness for the plaintiffs, produced and testified to a paper setting forth the proceedings had before him. It appearing that the recognizance set forth in this paper had never been returned into the court from which the execution issued, or into this court, in which the present action was commenced, the defendants objected to the evidence. But the court admitted it.</p> <p>It appeared that on or about the 20th of May the officer who made the arrest returned his execution, with his return indorsed thereon, into court, where it had since remained.</p> <p>The defendants proved that on the last of the ninety days Angier and Williams went to the office of the master, taking said officer with them, for the purpose of complying with the condition of the recognizance; but there ascertained that the master was absent from the Commonwealth, and would not return for a fortnight; that they then went to the office of another master in chancery, but he informed them that as the officer was not.with them, he could take no action in the premises ; that they immediately sent for the officer, and he accompanied them twice to the second master’s office, but did not find him; and that Angier then offered to surrender himself to the officer, but was told that he had no execution and no authority to take him.</p>

<p>T. makes lease by indenture to C. for the term of five years, at a stipulated rent, and “ reserves to himself the right to terminate this lease by giving six months’ notice of intention so to do; ” and “ T. covenants and agrees with C., his executors and administrators, that C., his heirs, executors and administrators shall have the right to occupy and let or use and take the income of the premises for and during the further term of five years from the thirtieth day after the decease of T.; ” “and T. agrees to make suitable provision by will or otherwise that this agreement shall be kept and performed by his legal representatives.’’ Held, that the agreement for the further term was not a present demise, which would constitute an incumbrance upon the estate in the hands of a third person, after the first term had been surrendered by agreement.</p>

<p>A grand jury summoned to attend the court of common pleas, under Rev. Sts. c. 136, § 1, was required, after the transfer of the jurisdiction of that court to the superior court by St. 1859, c. 196, to attend that court for the residue of the year, and return their indictments there.</p> <p>A physician who has not made the subject of mental disease a special study, but who, when his patients have required medical treatment on insanity, has been accustomed to call in the services of a physician who had made this subject a special study, or to recommend the removal of the patient to an hospital for the insane, is not competent to testify as an expert upon a hypothetical case put to him; nor to testify whether a person living in his neighborhood and well known to him, but who had never been his patient, was competent to apply the rules of right and wrong, in a state of circumstances concerning which h* was under high excitement or the influence of an uncontrollable impulse.</p>

<p>The provision of St. 1855, c. 215, § 15, for the taxation and allowance of ten dollars as a fee for the attorney appearing for the Commonwealth, when a fine is imposed under that act, is constitutional.</p> <p>On the -trial of a complaint for being a common seller of intoxicating liquors, the testimony of a witness that he had some liquor in the office of a public house kept by the defend-</p> <p>. ant, but that he did not pay for it, or see the defendant, is competent in corroboration of evidence of sales to another person at the same place.</p> <p>Evidence that a person is in the occupation of selling intoxicating liquor is not sufficient proof of his being a common seller under St. 1855, c. 215, § 17, without proving at least three distinct sales.</p>

<p>Upon the trial of an indictment containing one count for being a common seller of intoxicating liquors, and second, third and fourth counts for single sales, the jury returned a verdict that the defendant was “ not guilty as a common seller,” but “ guilty on two single sales which the court, without consulting the jury or the defendant’s counsel, ordered to be recorded as a verdict of not guilty on the first count, and guilty on the second and third counts; and in this form it was affirmed by the jury. Held, that the verdict did not conform to the finding, and must he set aside.</p>

<p>Indictment on St. 1855, c. 215, alleging in the first count that the defendant, “ without any license, appointment or authority therefor, was a manufacturer of intoxicating liquor for sale; ” in the second count charging him with being a common seller; and in the third and subsequent counts with single sales. Trial in the superior court in Franklin at November term 1859, before Vbse, J.</p> <p>William Burroughs, called by the Commonwealth, testified that he received gin from the defendant at his distillery several times, under the following circumstances : He carried grain to the defendant’s distillery and left it, and told the defendant he wanted him to distil some spirits for him; and he got the spirits from the defendant at the distillery as he wanted it, two gallons for each bushel of grain; and the defendant drew it from a ban-el in the distillery. Samuel Aldrich testified that he earned a bushel of grain to the defendant’s distillery, and the defendant gave him two gallons of gin; and that at another time he carried four bushels and received four gallons of gin; that the defendant" agreed to distil the grain on shares,” and was to give him two gallons of liquor for one bushel of grain, and that he received the gin when be carried the grain. David Johnson testified that he let the defendant have grain to distil “ on shares ; ” that he carried grain and left it, and got liquor as he wanted it, five or six times, a gallon or two at a time; and that it was taken from a barrel containing other liquor. There was no evidence that either of these three persons received liquor distilled from their grain.</p> <p>The defendant requested the court to instruct the jury, " that if they were satisfied, upon this evidence, that it was the bona fide intention of the parties that the grain should be distilled upon shares, the fact that either of them, when the grain was delivered, received from liquor then manufactured his proportional share of the product of his grain, that is, the same amount and kind that he would have received if he had waited for his grain to be distilled, would not constitute the transaction a sale by the defendant.”</p> <p>The court declined so to rule ; and instructed the jury “ that delivering grain by these persons to the defendant under an agreement that he should distil that grain, and return a specific portion of the liquor distilled from it, and retain the rest as a compensation for his services in distilling, and his returning such proportion of the very liquor distilled from that grain, would not constitute a sale, within the meaning of the statute ; but if the jury were satisfied beyond a reasonable doubt that these persons or either of them delivered grain to the defendant, and received back from him, either at the time or subsequently, a quantity of intoxicating liquor, not distilled from that grain, in consideration for the grain so delivered, and intended as payment for the grain, such a transaction would constitute in law a sale, whatever agreement the parties may have made as to distilling the liquor on shares.”</p> <p>Josiah Alexander testified that “ he asked the defendant to let him have a few gallons of gin; that the defendant said he couldn’t sell him any, but would lend him some; and delivered to him three or four gallons, which the witness had drunk; that he understood it was not a purchase, and expected to return to tire defendant the same amount of gin.”</p> <p>The defendant requested the court to rule, “ that if this was a bona fide transaction, and the liquor was actually lent with the intent of both parties that the same quantity of the same kind of liquor should be returned, the transaction would not be a sale.” The court declined so to rule; and instructed the jury, “ that if the defendant delivered liquor to Alexander, to be consumed by him, in consideration of a stipulation by Alexander to return a similar quantity of the same kind of liquor, this would not be in law a loan, though so termed by the parties, but would constitute a sale within the meaning of the statute.”</p> <p>In support of the first count, the Commonwealth introduced evidence tending to show that the defendant had stored some fifty barrels of liquor manufactured by him, at a place about half a mile from his distillery, and that he and his son often went to the place and carried off small quantities of it, one or two barrels at a time. The defendant’s son was not called as a witness, and the district attorney in his argument to the jury commented on the defendant’s failure to call him, as tending to show the defendant’s guilt.</p> <p>The defendant requested the court to instruct the jury that they must find the defendant guilty, if at all, upon the evidence under oath in the case, and not from the absence of any evidence or witness who might have been produced but was not. The court declined so to rule; but instructed them that the omission by the defendant to produce evidence within his reach or control, which might have explained or qualified any of the facts relied upon by the Commonwealth to establish his guilt, was proper for their consideration.</p> <p>The Commonwealth called Charles Osgood, who testified that, during the time covered by the second count, the defendant was indebted to him, and that he told the defendant, while passing the witness’s shop in Northfield, that he wanted two barrels of gin ; that the defendant said he could not sell him any; that a few weeks afterwards a stranger brought to his shop, about dusk at evening, a barrel of gin; and that a few weeks later, about the same hour, another stranger brought another barrel of gin and left it; that he had never ordered gin of any one but the defendant; and that no one claimed the gin, or any pay for it, till since the finding of the indictment, when a stranger came to his store and claimed the gin as his. The defendant proposed to ask the witness what conversation he had with the stranger when he claimed the liquor. The question was objected to and ruled out. The witness also testified on cross-examination, that since the indictment was found he and the defendant had attempted to settle their accounts. The defendant proposed to ask the witness what was said at the time of the attempted settlement, about the two barrels of gin ; but the evidence was objected to, and excluded.</p> <p>The defendant also asked the court to instruct the jury that at least three distinct sales must be proved, to make the defendant liable as a common seller; and that unless the jury were satisfied that three sales had been made they should acquit on the second count. But the court instructed the jury that the offence of being a common seller consisted in being engaged in the unlawful sale of intoxicating liquor as a business, during any part of the time charged in the indictment; that evidence of three distinct sales was sufficient to warrant a conviction ; that if three distinct sales were not proved, still, if they were satisfied beyond a reasonable doubt that the defendant was engaged in the business of selling intoxicating liquor illegally during the time charged, they should find him guilty.</p> <p>The jury returned a verdict of guilty on the first, second and third counts; and the defendant moved in arrest of judgment, 1st. “ Because a count for manufacturing intoxicating liquor for sale, a count for being a common seller of intoxicating liquor, and counts for single sales, are united in the same indictment.” 2d. “ Because the first count does not allege that the defendant was a manufacturer of intoxicating liquors for sale in this commonwealth ; nor that the defendant intended to sell the liquor thus manufactured in this commonwealth.” 3d. “ Because the first count does not sufficiently negative the defendant’s authority to manufacture.” 4th. “ Because the first count does not allege the quantity or kind of liquor manufactured.” The court overruled the motion, and the defendant alleged exceptions to all the rulings, refusals and instructions of the court.</p>

<p>Complaint and search warrant'under St. 1855, c. 215, § 25, for intoxicating liquors unlawfully kept for sale.</p> <p>At November term 1859 of the superior court in Franklin, the proceedings were quashed for informality, and the liquors ordered to be returned to the claimant, who then moved for costs. Vose, J. overruled the motion, and the claimant alleged exceptions.</p>

<p>Indictment for larceny in a “ certain building, called and being a shop,” in Blandford.</p> <p>At the trial in the superior court in Hampden at December term 1859, before Vose, J., David Shurtleff testified that the goods were his, and were stolen from a “ store ” owned and kept by him in Blandford for the sale of goods. The defendant objected that there was a variance, because the goods were alleged in the indictment to be “ of Daniel Shurtleff”; but the court, on inspection of the indictment, overruled the objection, on the ground that the indictment described them as “ of David Shurtleff.”</p> <p>The defendant also objected that the proof of stealing from a “ store ” did not support the allegation of larceny in a “ shop.” But the court instructed the jury that Shurtleff’s evidence, if believed, sustained the allegation of the indictment.</p> <p>Evidence was admitted, against the defendant’s objection, that other goods besides those described in the indictment were stolen at the same time, and afterwards found in the defendant’s possession with those described in the indictment; and said other goods were exhibited to the jury, and taken by them to their room when they retired to make up their verdict, notwithstanding the defendant’s objection.</p> <p>The only direct evidence of the value of the goods did not prove them to be of the value alleged in the indictment; but the goods were exhibited to the jury and taken by them to their room ; and the court instructed the jury, that if they were satisfied, by all the testimony in the case, and from an inspection of the property, that it was of any value, the allegation of value was sustained.</p> <p>The defendant, being found guilty, alleged exceptions to all these rulings and instructions.</p>

<p>A railroad corporation, which has duly located its road across a public highway and acquired a right to construct it there at a certain grade, without any restriction as to the number of tracks or the place where they should be laid, is authorized to lay and maintain as many tracks as are essential to the convenient, transaction of its business; and for that purpose may make any necessary alteration in the surface of the highway.</p>

<p>Indictment found at June term 1859 of the court of common pleas in Middlesex, which was in session on the 1st of July 1859, and was thereafter held by a justice of the superior court, conformably to St. 1859, c. 196, § 55.</p>

Complaint to the justice of the police court of Cambridge, wherein “ Samuel W. Richardson, city marshal of Cambridge in the county of Middlesex, on behalf of the Commonwealth of Massachusetts, on oath complains ” that the defendant sold intoxicating liquor in violation of St. 1855, c. 215, § 15.

<p>it is no ground of arresting judgment in an appellate court, that the defendant was required by the court below, as a condition of his appeal, to give a recognizance not required by law.</p>

<p>On the trial of S. for being a common seller of intoxicating liquors, two sales were proved, and a witness testified that he bought liquor at the same place “ of a man they called S.,” who “looked pretty near like ” the defendant, but whom he would not swear to be the defendant. ¿TeZtf, that tliis was not sufficient evidence of a third sale by the defendant</p>

Indictment on Si. 185-5, c. 405, for keeping a tenement used for the unlawful sale of intoxicating liquors from the 1st of July 1858 “ to the day of the finding of this indictment.” ■ At the trial in the superior court in Middlesex at June term 1859, Kelly, a witness for the Commonwealth, was asked “ whether he knew anything of the sale of liquor from the time first mentioned to the finding of the indictment.” The defendant objected that this time was uncertain, and that the…

<p>Unlawful sales of intoxicating liquor, made by a wife in her husband’s house in his absence, may be given in evidence to charge him for the offence.</p>

<p>Indictment on St. 1855, c. 405, for maintaining a tenement used for the illegal sale of intoxicating liquors and for illegal gaming.</p> <p>At the trial in the superior court in Bristol at September term 1859 before Ames, J., a witness for the government, who had testified that he had twice bought beer of the defendant, was asked by the district attorney, if he had ever heard it called by any other name than beer. The defendant objected, but the court allowed the question to be put, and the witness answered that he had heard it called ale in the street and in the defendant’s tenement.</p> <p>There was evidence tending to show that, in the same tenement, “ persons shook dice on the bar or counter for small articles, such as peanuts, cigars or beer, to be bought of the defendant for their use, and to be paid for by the losing party.” The defendant contended that this was not illegal gaming. But the court ruled that “ it is illegal gaming to play any game of chance or skill, on the issue of which money or property of any value (even if inconsiderable in amount or value,) depends, as, for instance, to play a game or throw dice to decide who should pay for the drinks or the reckoning.” To these rulings the defendant excepted.</p>

<p>One convicted on an indictment for larceny in a building, which duly charges a larceny, but does not sufficiently charge a larceny in a building, may be sentenced for simple lar ceny.</p>

Indictment on Rev. Sts. c. 125, § 16, averring that the defendant, on the 28th of May, 1859, with force and arms, at New Bedford, “ not being then and there armed with a dangerous weapon, in and upon one Rodman S. Sherman feloniously, and with force and violence, an assault did make, with the intent the moneys, goods and chattels of the said Rodman S. Sherman, from the person and against the will of the said Rodman S. Sherman, then and there feloniously and by force and…

<p>Indictment for embezzling property of Allen Mason. At the trial in the court of common pleas in Bristol at June term 1859, the defendant offered to prove declarations and statements of Mason, who had since died, made after the alleged embezzlement and before the trial, tending to show that he was not the sole owner of the property, but that the defendant also had an interest in it. Morris, J. excluded the evidence, and the defendant alleged exceptions.</p>

Scire facias against a surety on a recognizance, which recited that Lysander Borden had been arraigned, tried and convicted before the police court of Fall River on a complaint for being a common seller of intoxicating liquors from a day named “ to the day of exhibiting this complaint,” and was conditioned that he should personally appear at December term 1858 of the court of common pleas in Bristol, “ and answer to said complaint and abide the sentence of the court…

Complaint on St. 1855, c. 215, § 15, for an unlawful sale of intoxicating liquor. In the copies certified by the magistrate, and produced at the trial in the superior court in Plymouth at October term 1859, the complaint had no signature.

<p>Complaint on St. 1855, c. 215, § 15, for unlawful sales of intoxicating liquor to Johanna Klune. At the trial in the superior court in Norfolk, at September term 1859, before Rockwell, J., the person to whom the sales were made testified that her name was Cluin. The defendant objected that there was a variance. But the court ruled that there was no variance, and the defendant, being convicted, alleged exceptions.</p>

<p>Complaint on St. 1855, c. 215, § 24, for keeping intoxicating liquor on the 14th of April 1859 at Roxbury, with intent to sell in this commonwealth, “ without then and there having any license, appointment or authority therefor, first duly had and obtained as required by law in this commonwealth, and without then and there having any legal authority whatever.”</p> <p>After conviction at April term 1859 of the court of common pleas in Norfolk," the defendant moved in arrest of judgment that “the complaint does not negative all the circumstances of exception and modification, as to the right of keeping with intent to sell, (not selling,) contained in the provisions of St. 1855, c. 215.” Aiken, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>Indictment for obtaining money of William R. Huston by false pretences. Trial in the superior court in Norfolk at September term 1859, before Rockwell, J., to whose rulings the defendant alleged exceptions, which are sufficiently stated in the opinion.</p>

<p>Indictment on St. 1855, c. 405, returned at October term 1859 of the superior court in Essex, and containing two counts, the first of which charged the defendant with keeping a tenement from the 1st of January 1858 to the day of finding the indictment, “ used as a house of ill fame,” “ resorted to for prostitution, lewdness and illegal gaming,” and “ used for the illegal sale and illegal keeping of intoxicating liquors.” The second count charged the keeping from the 2d of January 1859 to the day of finding the indictment, of a tenement “ resorted to for illegal gaming,” and “used for the illegal sale and illegal keeping of intoxicating liquors.”</p> <p>At the trial before Brigham, J., the defendant objected to the introduction of any evidence under either of the counts, while both were before the jury; and contended that there was a misjoinder of counts, as they did not allege different and distinct offences, nor were they different modes of charging the same offence, and that the district attorney should be required to elect under which count he would proceed. But the court overruled the objections, and admitted the evidence, and instructed the jury that they might apply it to such count as it was prop erly applicable to, but could not convict upon more than one count.</p> <p>The deféndant objected to the introduction of any evidence of illegal gaming, because the specific mode of illegal gaming was not alleged. But the court admitted such evidence; and instructed the jury that proof of the use of the tenement by the defendants for illegal gaming would warrant a conviction upon the second count.</p> <p>The court, against the defendants’ objection, admitted evidence that sales of intoxicating liquor were made in the tenement in the absence of all the defendants, without any evidence tending to show that the person who made the sales was their agert, except that which was offered to show that they kept the tenement.</p> <p>The district attorney was also permitted, notwithstanding the defendant’s objection, to introduce evidence of acts of illegal gaming, which were not proved before the grand jury.</p> <p>A witness for the Commonwealth testified that in April 1859, he went to the premises in the absence of all the defendants, and by the order of another person, and hung three bells, one in the bar-room on the ground floor, connected with a chamber in the third story of the same building, another in that chamber, connected with the bar-room, and a third in the bar-room, connected with a smaller chamber in the third story. This evidence was objected to, and admitted only for the purpose, as was stated by the court, of showing a connection between these rooms, as parts of the same tenement. It also appeared that a" day or two before this happened, the city marshal went up through the lower room into the chamber, in the presence of some of the defendants, and did not notice any bells. The district attorney was allowed, against the defendants’ objection, to argue to the jury that these bells were placed there for the purpose of an alarm, and of giving notice of the approach of intruders.</p> <p>The defendants were acquitted on the first count and convicted on the second, and excepted to the above rulings, and also to the overruling of a motion in arrest of judgment on the following grounds:</p> <p>1st. “ Because the findings of the jury are repugnant and inconsistent with each other, in that they acquit the defendants of keeping a nuisance from January 1st 1858 to the time of finding the indictment, while they find them guilty of keeping the same nuisance during a part of said time.”</p> <p>2d. “ Because it sets forth no crime described in the statute, in this, that it does not charge that the tenement was a ‘ house of ill fame, resorted to for prostitution and lewdness.’ ”</p> <p>3d. “ Because authority to sell or keep intoxicating liquor is not sufficiently negatived.”</p>

<p>Indictment on St. 1855, c. 405, for a nuisance in keeping a tenement used for the illegal sale of intoxicating liquors.</p> <p>At the trial in the superior court in Essex at October term 1859, before Brigham, J., there was evidence tending to show that the defendant resided in a tenement, such as was described in the indictment, and that a woman called “ Mrs. Hurley,” within the time laid in the indictment made sales of liquor there, both in the presence and in the absence of the defendant, and that the defendant made such sales within the same time, both in her presence and in her absence. The district attorney offered to prove that the woman was the defendant’s wife, as tending to show that he kept the place. The defendant objected; but the court admitted the evidence.</p> <p>The district attorney, to prove that the woman was the defendant’s wife, offered evidence that she had on several occasions been seen occupying the same bed with him on the premises. The defendant objected that this was incompetent evidence to prove her to be his wife, but the court admitted the evidence.</p> <p>The district attorney also offered to prove that the woman had been seen getting dinner in the defendant’s absence, and doing other household duties on the premises. The defendant objected to the evidence of any acts not connected with the charge contained in the indictment; but the court admitted the evidence. The defendant, being convicted, alleged exceptions.</p>

<p>Indictments on St. 1855, c. 215, § 17, for being common sellers of intoxicating liquors. Trials at October term 1859 of the superior court in Essex, before Brigham, J.</p> <p>In the first case the only evidence was that the defendants were partners as grocers at Lynn, during the time covered by the indictment, and that the two defendants and a boy each made a sale of intoxicating liquor at the defendants’ shop. It appeared affirmatively that none of the usual implements of the traffic, tumblers, &c., were seen in the shop by any of the witnesses.</p> <p>In the second case the district attorney proved that the defendant, within the time alleged, made three or more sales of intoxicating liquor at his dwelling-house, within the time alleged in the indictment; and that some of these sales were made to a man who had worked for the defendant, and the others to a friend and companion of the defendant. It appeared that the defendant was a stone mason, and kept no shop or place of business. There was no other evidence tending to show that the defendant earned on the business of selling liquor. Inmates of the defendant’s house and several of his nearest neighbors testified that they had never seen any liquor sold by the defendant, or known of any being on his premises or in his possession.</p> <p>The defendants in each case requested the court to instruct the jury that, unless they were satisfied that the defendants, at some time during the period covered by the indictment, had acquired the character of common sellers, they could not be convicted; that the mere fact that three sales were made during that time, by the defendants or those for whom they were responsible, did not necessarily require the jury to convict the defendants, unless it satisfied the jury that the defendants had acquired such character; that upon the whole evidence it was a question entirely for the jury, and that there was no law which required them or made it their duty to be satisfied that the defendants were common sellers, merely by proof of three sales.</p> <p>The presiding judge declined so to instruct the jury, and instructed them, that if, by the evidence, the minds of the jury were convinced beyond a reasonable doubt that the defendant made three several sales of intoxicating liquor, in violation of law, within the time and at the place alleged in the indictment, there was sufficient evidence under the statute that the defendant was a common seller as alleged; that the minds of the jury thus convinced by sufficient evidence were brought to that condition which, by the law and their oaths, not only authorized, but required, them to find the defendant guilty of being a common seller as alleged, and it was their duty so to do. The defendants, being convicted, alleged exceptions.</p>

<p>Indictment for an assault with intent to commit a rape. At the trial in the superior court in Suffolk at August term 1859, the district attorney introduced evidence of the following facts:</p> <p>The defendant, at midnight, with a light in his hand, entered the room of his daughter, thirteen years of age, and went to her bed, where she was asleep in her night clothes, touched her gently to ascertain whether she was awake, raised the clothes, and examined and applied his hand to her private parts for half an hour, desisting whenever she seemed to start or likely to awake. She then awoke and sat up in bed, put the clothes down, and said she wished he would go away. He asked her to let him have connection with her, and offered her money, but she refused. He then got into the bed with his privote parts exposed, laid one leg over her, and continued urging her to consent to his wishes, and took hold of her hand, and asked her to put it upon his private parts. She utterly refused his request, and told him to get off from her, to get off the bed and go down stairs or she would call her mother. He laid upon the bed for half an hour or more, and then went down stairs to his own bed. He did not take hold of her at all, or use any force, except as above stated. The girl testified further that his private parts did not touch her that night; that he tried to touch her, but did not succeed. The bill of exceptions stated this evidence in greater detail, and added: “ The above is a statement of all the evidence of the acts done by the defendant at the time of the alleged assault.”</p> <p>Russell, J. instructed the jury, among other things, as follows: “ If the jury, from the evidence in the case, are satisfied, beyond a reasonable doubt, that the defendant forcibly, wantonly and indecently committed any violence upon the person of his daughter, against her will, they will convict him of an assault. If they are so satisfied that he committed such violence with intent to ravish her by force and violence, against her will, they will convict of the whole offence charged. If they have a reasonable doubt as to the intent, they may acquit of that part of the charge, and convict of assault, if they are satisfied that an assault was committed.”</p> <p>The jury returned a verdict of guilty of the full charge in the indictment, and the defendant alleged exceptions to these instructions.</p>

<p>Indictment against David R. Brown, Sarah E. Stokes and Lydia Emerson, on St. 1845, c. 27, which provides that “ whoever 'maliciously or without lawful justification, with intent to cause or procure the miscarriage of a woman then pregnant with child, shall administer to her, prescribe for her, or advise or direct her to take or swallow, any poison, drug, medicine or noxious thing, or shall cause or procure her, with like intent, to take or swallow any poison, drag, medicine or noxious thing, and whoever maliciously and without lawful justification shall use any instrument or means whatever with the like intent, and every person with the like intent knowingly aiding and assisting such offender or offenders, shall be deemed guilty of felony, if the woman die in consequence thereof; ” “ and if the woman doth not die in consequence thereof, such offender shall be guilty of a misdemeanor.”</p> <p>The first count averred that Brown, a physician, on the 9th of August 1858, at Boston, upon Susan A'. Webster, a woman pregnant with child, maliciously and without lawful justification used certain instruments, means and weapons to the jurors unknown, by therewith piercing, lacerating and cutting her womb, with intent to cause her to miscarry, and in order to cause the destruction of the life of the child, and thereby gave tier mortal injuries, of which she languished until the 16th of August; that on the 10th of August, at Boston, Brown maliciously and without lawful justification advised, ordered and commanded Stokes and Emerson, spinsters, to administer ergot to said Webster, being then quick and pregnant with child, and provided the ergot for the purpose, knowing that it was danger-pus to life, which ergot she, according to his advice, order and command, took and swallowed into her stomach; and that Brown, “ in so ordering, advising and commanding the said ergot administered to the said Webster, to be by her taken and swallowed into her stomach, it being for her then and there provided by said Brown in manner and form aforesaid, so then and there ordered, advised and commanded the same to be administered, with the intent of him, the said Brown, by means of said ergot being taken and swallowed into the stomach of the said Webster, unlawfully, knowingly, maliciously and without lawful justification, to cause and procure ” her to miscany, “ and in order that he the said Brown might unlawfully, knowingly, maliciously cause the destruction of the life of said child; ” and “that said Webster, by means of said ergot, so ordered, advised and commanded to be administered to said Webster, and so provided by said Brown for said Webster to take and swallow into her stomach, and so then and there swallowed into her stomach, the same then and there thereafter being unlawfully, knowingly, feloniously, maliciously and without lawful justification administered to her by the said Stokes and Emerson, and with the intent of the said Stokes and Emerson by so administering said ergot to the said Webster ” to cause her to miscarry, and in order that Brown, Stokes and Emerson might cause the destruction of the life of the child; and that said Webster, “ by means of said ergot so administered and so provided by said Brown for” her to take and swallow, and so swallow'd into her stomach, the same having been administered to her by Stokes and Emerson, “ in pursuance of the aforesaid order, command and advice of Brown, then and there by him unlawfully, feloniously, wilfully, knowingly, maliciously and without lawful justification given to said Stokes and Emerson,” received mortal injuries, of which she languished until the 16th of August; that Brown afterwards on said 10th of August, maliciously and without lawful justification, violently thrust his hand into her womb, she being then pregnant with child, and the child having been brought into the world, and being attached to her by the umbilical cord, with intent to procure her miscarriage, and in order to cause the destruction of the life of the child, and thereby gave her mortal injuries, of which she languished until the 16th of August; that Stokes and Emerson, at the time of the use of the instruments, and of the thrusting in of the hand, were present, aided and assisted; and that Webster, by means of so being cut, pierced and lacerated with said instruments, weapons arid means to the jurors unknown, and by means of having said ergot administered to her by Stokes and Emerson, and swallowing the same into her stomach, and by means of Brown’s hand being so violently thrust into her womb, miscarried and brought forth a dead child on the 10th of August, and of all said injuries did die on the 16th of August; and that so Brown, Stokes and Emerson, “by the instruments, means and weapons aforesaid, the said ergot, and the hand of the said Brown, all used feloniously, wilfully and maliciously and without lawful justification, on the days and times and with the intents and purposes aforesaid, as aforesaid,” on said 16th of August, at Boston, the said Webster, “ feloniously, wilfully, unlawfully, knowingly, maliciously and without lawful justification, did kill, against the peace of said commonwealth, and contrary to the form of the statutes in such case made and provided.”</p> <p>A second count charged the three defendants with administering ergot to Susan A. Webster, a woman pregnant with child, with intent to procure her miscarriage, and without killing her. Brown was tried separately at March term 1859 of the municipal court of Boston, before Nash, J., and acquitted on the second count. So much of the bill of exceptions as is material to the questions of law applicable to the first count was as follows:</p> <p>The defendant moved the court to quash the indictment for the following reasons : 1st. “ The first count charges the defendant as principal in using instruments, and accessory in administering ergot.” 2d. “ The first count charges the defendant with three distinct offences, to wit, (1.) That he used instruments with intent to procure an abortion. (2.) That he administered ergot for same purpose. (3.) That, after the child was out of the womb, he put in his hand, and thus injured ; which renders the indictment double.” 3d.- “ The indictment is double, as it charges the statutory offence and manslaughter.” 4th. “ There is no offence charged in either count; and the indictment is defective, double, and in law insufficient.”</p> <p>The court overruled the motion, “ on the ground that the first part of said first count contains a sufficient technical charge of the statutory crime by the use of instruments, &c., and of death in consequence thereof; that the rest of the count may be considered matter of aggravation, and not as the statement of substantive crimes, so as to render the count bad for duplicity ; that there is no sufficient technical averment that Brown was accessory before the fact to the administration of the ergot by Stokes and Emerson, because there is no sufficient allegation of the principal felony itself, by administering ergot, in said first count; that there is no allegation, in the latter part of said count, of manslaughter at common law, by thrusting in the hand, &c., after the child had come forth from the body of the mother, sufficiently full and .technical to constitute the setting forth of a separate offence, and thus to render the count double.</p> <p>The evidence for the Commonwealth tended to show that Brown received Webster into his house at her request, and used instruments upon her, for the purpose of procuring an abortion ; and that ergot was administered to her for the same purpose, by Stokes and Emerson, by his direction ; and that, after the child was out of her body, Brown, for the purpose of removing the afterbirth, inserted his hand into the womb, and peeled off the placenta from the interior of the uterus. Some of the evidence tended to show that there was a cut, as by a sharp instrument, near the mouth of and inside the uterus, and other injuries or lacerations near by, which had mortified, and that they were inflicted before delivery, and were an adequate cause, and the cause, of death; also that there were injuries at the top of the uterus, caused by the tearing away of the placenta after delivery, which had mortified, or turned into a gangrene, and were mortal, and an adequate cause of death. Other evidence tended to show that the injuries at the mouth of the uterus might not have been inflicted before delivery, and were not necessarily mortal, nor an adequate cause of death. Brown introduced evidence tending to show that he was a regular physician, and as such received Webster, for the purpose of curing her of the injuries inflicted by a previous attempt of another person to procure miscarriage; and that all that Brown did was done in the regular and due exercise of his profession.</p> <p>It appeared that the defendant’s family, at the time, consisted of himself, his wife, Stokes and Emerson, both of whom were about twenty years old, and two servants; that the defendant was in the habit of receiving patients at his house for medical treatment; and Stokes and Emerson were in the habit of attending upon them under the defendant’s direction, and carrying up meals to patients who were sick there.</p> <p>Among other evidence to show that ergot was administered, the government proposed to show “ that, in the forenoon before the delivery of the child, Stokes came into the kitchen with a bottle containing a certain powder, and put some of it in a cup, and poured hot water on it, and, while performing said act, said to one of the servants,' This is ergot,’ and then went up stairs towards the deceased’s room, carrying the infusion ; and that at other times during said day, and before the delivery, she performed the same act, at the time remarking, ‘ More ergot, Anna.’ ”</p> <p>The court ruled “ that the acts and declarations of others were not admissible against the defendant, unless he and they at the time were acting jointly in carrying out an unlawful design, and were combined, and acting in combination, in the perpetration of some offence, and in pursuance of the original concerted plan or design, and during the pendency of the criminal enterprise, and in its furtherance; that whether the defendant and Stokes and Emerson were so combined, and acting in concert, was primarily a question of fact to be passed upon by the court, preliminary to the introduction of the declaration accompanying the act; but ultimately to be decided by the jury.” And the court, “ for the above purpose, and with the above limitations and conditions, allowed the government, against the objections of the defendant, to introduce evidence tending to show, that from the time Webster came there, up to the delivery, Stokes and Emerson took care of her, and performed for her the chamber work usually done by.the chambermaid; that they acted under the direction of the defendant in administering medicines and carrying up food; that they and the defendant, separately and together, were repeatedly in and out of the chamber of the deceased; that the defendant gave directions to them as to change of food for her ; that the defendant said to them, ‘ Has she had her powders regularly ? ’ that they two were present when the child was born, and Stokes announced it to the defendant when he came in, saying, ‘ Doctor, the child is born; but I have done nothing to her, because the afterbirth has not come; ’ that the defendant knew and was informed of certain things done by said girls for the patient, and did not dissent or object; that, subsequently to said delivery, Stokes said to the defendant, ‘ I have got rid of her brat,’ and described how, and Emerson at the same time remarked to the defendant, ' We’re equal to the Hindoos in that respect;’ that, after the death, he conversed with them about the medicines, and told them that they must not say they gave her opium and calomel, but should say opium and camphor; and Emerson replied," did not give her any powders ; I gave her opium in drops, ergot, pickery and aloes ; ’ to which the defendant’s reply was, ' You must say nothing about the ergot; ’ and that the defendant urged the said girls to leave the house, after the death ; and they left in pursuance thereof.”</p> <p>Whereupon the court decided, “ as matter of fact, on the preliminary question, that there was prima facie evidence that the defendant and Stokes and Emerson were jointly acting in combination and concert, and aiding and assisting each other, in carrying out a common enterprise of procuring an abortion, so as to make the acts and declarations accompanying it, of Stokes and Emerson, done and made in the furtherance of, and during the pendency of, the unlawful enterprise, competent evidence to go to the jury, against the defendant, conditionally; ” and admitted the evidence previously offered; and instructed the jury “that it was a question of fact for the jury to determine, whether the defendant and Emerson and Stokes were acting in concert, and cooperating with each in the common design of procuring the abortion ; that if so, the above acts of mixing said powder, and the declarations accompanying them, ‘ This is ergot,’ ' More ergot, Anna,’ if done and made during the transaction of, in pursuance of, and in carrying out the common design, and before it had been effected, were competent evidence to be weighed by the jury against the defendant; but, if not so co operating, then they were not to be considered by the jury, but were to be rejected from the case, in pursuance of the general principle, that the acts and declaration of one person were not evidence against another.”</p> <p>The physician who made the post mortem examination was called as a witness at the trial, and was permitted by the court, notwithstanding the defendant’s objection, to produce before the jury the uterus and vagina, preserved in spirits, and to point out to the jury the injuries thereto, and lacerations, cuts and gangrene thereon.</p> <p>The court refused to instruct the jury, according to requests of the defendant, “ that should the jury believe that an abortion was produced by the defendant by one of the means set forth in the indictment, and are unable to determine which, they cannot convict; ” or “ that there can be no conviction on the first count, because it does not allege any crime, and because it is uncertain, and describes three distinct offences, two under the statute, and one at common law.”</p> <p>The court instructed the jury “ that no acts of the defendant were covered by the statute, unless done while the woman was pregnant, and with an intent to procure a miscarriage, and before the child had come forth from the body of the mother; that the miscarriage was completed when the child had come forth from the body of the mother, although still attached by the umbilical cord; that it could not be predicated of acts done thereafter, for instance, in removing the placenta, that they were done on a pregnant woman, or with intent to procure a miscar riage, and consequently they were not the criminatory acts covered by the statute ; and that, in order to render the defendant guilty, the woman must have died in consequence of injuries and lacerations inflicted by the defendant before the child came out of the womb ; and that the death must have been the natural, ordinary and necessary consequence of said injuries, cuts and lacerations; and that the defendant was answerable for such injuries and lacerations, and the natural and unavoidable results thereof in the ordinary course of nature.</p> <p>“ That the first count in the indictment contained only a charge of the use of instruments, means and weapons; and that the other allegations therein, as to ergot, and thrusting in the hand, were merely details of matter in aggravation, incidentally connected with the main charge, and n'ot as substantive charges of independent offences, and might be rejected as surplusage; and that, this having been done for the purpose of obviating the objection of duplicity, the case went to them under the evidence solely on the question of the use of instruments ; that if the defendant, at the time and in the manner and form set forth in said first count, maliciously and without lawful justification, upon said Webster, then pregnant with child, used certain instruments (unknown), with the intent to cause and procure her to miscarry, and, in so doing, cut and lacerated her womb as therein set forth, and she died in consequence of and by means of said cuts, lacerations and injuries to her womb, then their verdict should be guilty.</p> <p>“ That if they found that the death was in consequence of the injuries inflicted in removing the placenta after the child had come forth from the body of the mother, a general verdict of guilty should not be rendered on said first count.</p> <p>“ That if the defendant inflicted said cuts and lacerations on the womb then containing the child, with the intent and in the manner alleged, and if the jury believed the medical testimony, that the child must come forth, or the woman die, and also the placenta must be removed, or the woman die, and thus through the neck and mouth of the womb so cut and lacerated, then it was proper for the jury to consider how said cuts and lacerations were naturally, ordinarily, and necessarily affected by such passage of the child and the placenta; and if the jury found the use of the instruments as above explained and set forth in the count, and that the defendant thereby cut, lacerated and injured the womb as set forth and above explained, and that the said Webster died by means of, and in the natural, necessary and ordinary consequence of, and in the ordinary course of nature, by the unavoidable results of said cuts, injuries and lacerations, then their verdict should be guilty on said first count.”</p> <p>The defendant, being found guilty on the first count, alleged exceptions to all the above rulings, refusals and instructions, and also to the overruling of a motion in arrest of judgment for insufficiency of the indictment.</p>

<p>A right of action against a husband for board of his wife after she has justifiably left him is not barred by the fact that the plaintiff and the wife conspired to abduct and conceal a minor child of the defendant in order to compel him to settle a separate maintenance upon his wife.</p> <p>Before the Si. of 1859, c. 230, a wife was not a competent witness to support an action against her husband for her board.</p> <p>The filing by a husband of a libel for divorce for desertion is no evidence of his having neglected to supply his wife with necessaries.</p> <p>In an action against a husband for board of his wife, a judgment in the plaintiff’s favor in a similar action for a previous period, tried upon the general issue, and in which, as is shown by paroi evidence, the plaintiff introduced evidence both that the wife was obliged to leave her home by her husband’s cruelty, and that she lived apart from him with his consent, is conclusive evidence that she was then lawfully living apart from him, but not conclusive that the cause of separation was his cruelty, unless the jury are satisfied by paroi evidence that his cruelty was the ground of the former verdict. And evidence of the acts of cruelty then relied upon is immaterial and inadmissible for the plaintiff.</p>

<p>Action of contract by a mutual fire insurance company, established by Sts. 1847, c. 18, and 1848, c. 312, to recover an assessment or call laid, under the circumstances stated in the opinion, upon a premium note signed by the defendants. Among the by-laws of the company in force in 1854 were these :</p> <p>“ Art. 1. There shall be an annual meeting of this company on the third Monday of January. Seven members shall constitute a quorum.</p> <p>“ Art. 2. Special meetings of this company shall be called whenever the directors may deem it necessary. Notice of all meetings of the company shall be given in two or more newspapers printed in Boston.</p> <p>“ Art. 3. The powers of this company shall be vested in twelve or more directors, who shall elect the necessary officers, fix their compensation and superintend the concerns of the company. Five directors shall constitute a quorum.”</p>

<p>Action of tort against the owners of a mill for flowing the plaintiff’s land by keeping their dam above the height fixed by an award upon a submission of all actions, causes of action and claims of damages of the plaintiff against the defendants by reason of the overflowing of his lands by them.</p> <p>The submission in terms gave the arbitrators “ all the authority to decide upon said actions and causes of action and damages, which a court of law or jury might have in deciding on the same by virtue of the law and statutes of the Commonwealth of Massachusetts, especially the statutes for the support and regulation of mills,” and to assess past damages, and decide on the costs of a complaint then pending by the plaintiff against the defendant under the mill act. The arbitrators awarded to the plaintiff his past damages in gross, and his future annual damages, and the costs of said complaint; and further awarded that it was necessary for the defendants to raise the water in the river across which their dam was erected “ two inches above an iron bolt ” fixed by the arbitrators in a certain mill, “ and to keep up the water to the height aforesaid during the whole year.”</p> <p>At the trial in the court of common pleas in Essex at September term 1857, before Bishop, J., “it appearing upon the opening of this case by the plaintiff’s counsel that the plaintiff claimed damages of the defendants for flowing his land by raising and maintaining a dam upon the river for the purpose of raising water to operate their mills, the counsel for the defendants objected to the progress of the trial, upon the ground that upon the plaintiff’s showing, his remedy, if he had any, was by complaint under the mill acts, and not by action of tort in the nature of trespass on the case, and that therefore the court had no jurisdiction.” But the court ruled that the action was well brought.</p> <p>The defendants also contended that they had a right to keep their dam at the height of two inches above the bolt mentioned in the award, although such dam would raise the water above that mark. But the court ruled that by the true construction of the award it was the water, and not the dam, which could be kept to the height mentioned in the award.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions, which were argued at Boston in January 1859.</p>

<p>Writ of entry to recover land in Lawrence. Trial in Essex at November term 1858 before Dewey, J., who reported the case to the full court. The facts material to the only point decided are stated in their opinion.</p>

<p>Action of contract upon a replevin bond. The breach of the bond was admitted. At a hearing in the court of common pleas in Essex at June term 1859 upon the question of damages the defendant offered evidence of the following facts :</p> <p>The replevin was brought by the principals in this bond and Otis B. Morse, to recover possession of two hundred cords of wood attached upon a writ against Morse. Morse filed a disclaimer of any authority to use his name in the replevin, and judgment was rendered for the defendants for a return of the wood replevied. Morse was the owner of one undivided third of the wood, and the principals in the bond owned the other two thirds. The defendants prayed that execution might issue for the value of Morse’s interest only.</p> <p>But Perkins, J. excluded the evidence, a verdict was taken for the plaintiff, and the defendants alleged exceptions.</p>

<p>Trustee process, returnable at June term 1858 of the court of common pleas in Essex. On the ninth day the trustees filed answers without leave of court, or consent of the plaintiffs. The plaintiffs did not move that the trustees be defaulted, and at a subsequent term the principal defendant was defaulted and the trustees discharged. They thereupon moved for full costs, which the court refused to allow, and they appealed to this court.</p>

Action of contract upon an account annexed, for work and labor for four months, deducting $15.48 received on an order from the defendant.

Action of contract upon a policy of insurance. Trial and verdict for the plaintiff in the court of common pleas in Essex at June term 1859, before Perkins, J., who signed a bill of ex* ceptions, the material parts of which are stated in the opinion.

<p>Action of contract upon a policy of insurance for $3000, made by the defendants, a mutual fire insurance company, “ in its second class ” to the plaintiffs “ on their seminary building and fixtures attached in Bichmondville,” N. Y. On the face of the policy, immediately after the description of the property, were written these words: “ Additional to $9000 insured in other offices and $8000 to be insured in other offices.”</p> <p>The policy was declared by printed clauses on its face to be made “ under the provisions, conditions and limitations of the charter and by-laws of said company,” and subject to their lien on the interest of the assured in the property; and to be “ accepted by the insured, subject at all times to the conditions and regulations of the act of incorporation and by-laws of said company for the time being in force, which conditions and regulations are hereby declared to form a part hereof.”</p> <p>The by-laws contained these provisions: By the fifth article “the property insured by said company shall be divided into four classes,” of which the second “ shall consist of dwelling-houses, barns and their contents in towns and villages, together with other property not deemed by the directors more hazardous ; ” and the fourth, of various mechanics’ shops and manufactories, including “ carpenters’ shops.”</p> <p>“ Art. 6. The application upon which a policy is founded shall be held to be a warranty on the part of the assured, and as absolutely a part of said policy and of the contract of insurance as if it were actually incorporated therein in full.”</p> <p>“ Art. 13. Unless the applicant for insurance shall make a true representation of the property on which he requests insurance, so far as concerns the risk and value thereof, the policy issued thereon shall be void ; and in case the application is made through an agent, the applicant shall be held liable for the representation.”</p> <p>“ Art. 18. In case any other policy of insurance has been or shall be issued, covering the whole or any portion of the property insured by this company in any policy, the policy issued by this company shall be deemed and become void, though such other policy be void also, unless the directors shall have been notified of such other policy and given their consent thereto in writing signed by the president and secretary; and in case of loss or damage of property upon which such double insurance subsists, this company shall be liable to pay only such proportion thereof as the sum insured by this company bears to the whole amount insured thereon; such amount not to exceed two thirds of the actual value of the property at the time of the loss.”</p> <p>The application contained numerous printed questions and written answers, among which were these : 4. What is the distance and direction from each other, and from other buildings within one hundred and fifty feet, and for what purposes are said buildings occupied ? ” Answer. “ See diagram sent you by E. S. Fox, agent, dated 17th November 1853.” “ Make a ground plan on the back of the application.” Answer. “ Please attach the one sent as above.” “ 5. Are there any stores, hotels, mechanic shops or hazardous property of any description in the vicinity, beyond one hundred and fifty feet, so situated as to endanger the property to be insured ? If so state what, and make a plan thereof, with the intervening property, giving all the distances and directions.” Answer. “ Is not.” “ 10. If there is any insurance on the property, state where, to what amount, and at what rate.” The answer to this question gave $9000 in other offices, with the rates, and added: “ $8000 wanted in other companies.” Above the applicant’s signature were printed these provisions: “ And the applicant covenants and agrees with said company that the foregoing is a correct description of the property requested to be insured, so far as regards the condition, situation, value and risk on the same; that neither the building described nor any other within one hundred and fifty feet is used for more hazardous purposes than is herein stated; that the sums proposed to be insured do not exceed two thirds of the actual value thereof exclusive of land;” “ that the company shall not be held liable to pay in case of loss more than such proportional part of the value at the time of the ass; ” “ that he holds himself bound by the act of incorporation and by-laws of said company; ” and “ that the misrepresentatian or suppression of material facts shall destroy his claim for damage or loss.”</p> <p>At the trial in Essex, at November term 1858, before Dewey J,, it appeared that the seminary building was a large structure of the value of about $24,000, erected in the year 1853, and was totally destroyed by fire on the 30th of June 1854, within the term of the policy.</p> <p>The diagram mentioned in the answer to the fourth inter rogatory in the application omitted a structure within fifty feet of the property insured, nearer than any other building disclosed, which was forty five feet long by from twelve to eighteen feet high, made of rough lumber, and was erected before the commencement of the building insured, for the use of the carpenters employed thereon, and was not occupied when the insurance was effected, though carpenter’s work was afterwards done in it.</p> <p>The plaintiffs contended that this was “ a structure of a temporary character only, for the use of the mechanics and those engaged upon the building, which was to be removed upon the completion of the work, and not necessary to. be described in the application, although in point of fact it had not been removed when the fire occurred.” The defendants insisted that the omission to disclose this building or structure in the application avoided the policy, whether it affected the risk or not.</p> <p>The presiding judge instructed the jury “that, if there was upon the premises of the plaintiff, and within fifty feet of the building insured, a carpenter’s shop, adapted and used for that purpose, which shop was shown to belong to a more hazardous class, and one which would have required a greater premium to be paid for insuring the seminary building; and the existence of said shop was not disclosed to the insurers in the answers in the application, but wholly omitted therefrom; such omission would render the policy void.” And, upon the defendants’ prayer for a further instruction, not confined to a carpenter’s shop, the court further instructed the jury, “that, if any structure, of the size which the evidence tended to show the present was, was shown to have existed on the premises, and within fifty feet of the seminary building, which structure, from the materials usually deposited, and the use to which it was devoted,' was such as would thereby have required a larger premium to be paid for insuring the building by the plaintiffs, if its existence had been disclosed to the defendants in the answers to the questions propounded to the plaintiffs in the application, its omission would render the policy void.” The court gave no further instructions on this point.</p> <p>The diagram mentioned in the application was attached to a letter dated November 17th 1853, written to the defendants by Fox, their agent for receiving and forwarding applications and receiving and delivering policies in return, and contained statements as to the nature of this risk, and the rates of insurance by other companies. The plaintiffs claimed the right to put this letter into the case, and to read and comment upon it to the jury. And the presiding judge, against the defendants’ objection, admitted the letter, “ instructing the jury that it was to be taken as a letter containing representations by the plaintiffs only, not as proof of the facts therein stated.”</p> <p>It appeared that at the time of the fire the plaintiffs had $11,000 insurance, other than the defendants’ policy, on the property. The defendants contended that their liability under their eighteenth by-law was to be calculated as if the other insurance had been $17,000, as mentioned in the policy, and should be therefore limited to three twentieths of the amount insured, such amount not to exceed two thirds of the actual value of the property. But the judge instructed tne jury that the defendants’ liability was to be calculated by the amount actually insured by the plaintiffs upon their property; and as that amount was less than two thirds of the value of the property, that the defendants were liable, if at all, for the whole amount"of their policy. The jury returned a verdict for the plaintiff for the full amount, and the defendants alleged exceptions.</p>

<p>A carpenter employed by the day by a railroad corporation to work on the line of their road, and carried on their cars to the place of such work without paying fare, cannot maintain an action against the corporation for injuries occasioned to him while being so carried, by the negligence of the engineer employed by them to manage and run a locomotive engine; or by a hidden defect in an axle, the failure to discover which, if discoverable, was occasioned by the negligence of servants of the corporation whose duty it was to examine and keep in repair the cars, engines and axles.</p> <p>A railroad corporation, exercising reasonable care in providing and using suitable locomotive engines and tenders on tt cir roads, are not liable for an injury occasioned by a defect therein to a workman employed by them, while being carried over their road without paying fare.</p> <p>On the trial of an action against a railroad corporation by a passenger for a personal injury, after several experts called by the plaintiff had testified, upon a statement of the facts and circumstances of the accident, what in their opinion threw the cars from the track, the defendants were permitted to ask a machinist who had been connected for many years with railroads and with the running of cars and engines upon them, and who was in the cars at the time of the accident, and saw all these facts and circumstances, " What in your judgment threw off the car at the time of the accident? ’’ Held, that the plaintiff had no ground of exception.</p>

Action of tort for the obstruction of a right of way over the defendant’s land-in Beverly.

<p>Replevin of a mare. Writ dated September 5th 1856. Trial and verdict for the defendants in the court of common pleas in Essex at March term 1859, before Briggs, J., who signed a bill of exceptions, the material parts of which were as follows:</p> <p>The plaintiff claimed the mare under a mortgage, to be referred to. It was admitted that the mortgage was duly executed by Albert M. Putnam on the 29th of May 1856, and was sufficient to entitle the plaintiff to recover unless the defendants could show a better title.</p> <p>The defendants were livery stable keepers, and took the mare to board in the latter part of February 1856, from Putnam, who then owned her. The board was regularly charged to Putnam, from week to week and month to month, up to the time of the replevin, when there was a balance due. The defendants claimed a lien on the mare for the board due. But the presiding judge ruled that no such lien existed by law.</p> <p>The defendants then testified “that, when the first month’s board was due, they called upon Putnam for payment, who was unable to pay, but said to them: “ The mare is good for her board. You may hold on to her, and when she eats herself up, you can keep her, sell her or do as you please with her.’ And this conversation was repeated from time to time during the following summer, when Putnam was called on for pay.” The defendants also testified “ that Putnam said that they could hold on to the mare; that he should want to use her only to deliver and receive of his customers clothes for his laundry, (which was opposite their stable,) and that she would be in the stable all the rest of the time; and that the mare remained in their stable up to the time of the replevin, and Putnam and his servant used her in their said business when they pleased.”</p> <p>The plaintiff asked the court to rule that, “taking the evidence offered by the defendants to be true, it constituted no defence to the action, and that upon this evidence they had no right to retain possession of the mare as against the plaintiff.” The court declined so to rule, but gave the following instructions : “ If the jury are satisfied from the evidence in the case that, before the mortgage was executed, there was an agreement between Putnam, who was the owner of the mare, and the defendants, that the defendants were to keep and hold on to the mare until her board was paid; and if, when she had eaten herself up, they might keep her or sell her as they pleased ; and the mare was to remain in the possession of the defendants, Putnam having the liberty to use her for himself and his man about his business, as she had been used before; and the mare remained in the possession of the defendants except that she was used as above mentioned ; and she was so held and claimed by the defendants, at the time the mortgage was made to the plaintiff, and so held down to five or six days of the time of the replevin, when the defendants refused to let the mare go out of the stable; the defendants had a right to hold her until her board was paid; and the plaintiff could not hold her under his mortgage, until he paid or tendered to the defendants the amount of their bill for boarding her.”</p>

<p>An assignment without indorsement, in a state whose laws provide that “ every action must be prosecuted in the name of the real party in interest,” of a promissory note, payable there to order, does not bar an action upon it in this commonwealth in the name of the payee.</p> <p>The affidavit of a party filing interrogatories to the opposite party under St. 1852, c. 312, § 61, is not conclusive that they are material.</p>

<p>Action of contract by indorsee against maker of a negotiable promissory note. At the trial in the court of common pleas in Essex at March term 1859 the plaintiff on cross-examination testified that the suit was not conducted for his benefit and at his expense, but in his name for a third person, who in turn testified that he had nothing to do with it. The defendant thereupon moved to dismiss the action; and the plaintiff’s counsel then announced that there might have been some misapprehension, but that the plaintiff now adopted the action as his own. Briggs, J. overruled the motion to dismiss, and permitted the trial to proceed, and it resulted in a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>Action of contract for wages of the plaintiff’s personal labor. Answer, payment of the sum due, which was less than $20, on an execution issued on a judgment recovered by Charles Pray in an action of tort in the nature of trover against this plaintiff, and these defendants as his trustees. Demurrer, because the sum in question was exempt from attachment by trustee process, except for necessaries furnished to the debtor or his family. The court of common pleas overruled the demurrer, and the plaintiff appealed.</p>

<p>Action of contract against a manufacturing corporation upon a promissory note. Joel Bowker was summoned in as a stockholder, pursuant to St. 1851, c. 315, and the question of his liability as such tried in Essex, at November term 1858, before Dewey, J., and reserved by him for the consideration of the full court. Subsequently the death of Bowker was suggested, and the plaintiff moved that his executor be summoned in to defend this action.</p>

<p>Want of notice to one owner of land over which a street is laid out by a city is no ground for issuing an injunction against the completion of the street at the suit of another landowner.</p> <p>A city assessed to an individual, over whose land they had laid out a street so as to compel the removal of his buildings, a certain sum in lieu of all damages for the removal of said buildings. Held, that his remedy, if aggrieved, was by petition for a jury, and not by injunction.</p> <p>A city, which, after laying out a street, unreasonably delays to complete it, is liable to indictment for the neglect, but not to injunction against completing the street.</p>

<p>Action of contract to recover the rent of a shop in Lawrence for one month, from May 31st to June 30th 1856.</p> <p>At the trial in the court of common pleas in Esséx at December term 1858, before Perkins, J., the plaintiffs introduced evidence of a tenancy at will at a monthly rent of twenty five dollars, commencing by actual occupation on the 15th of November 1855. No occupation was shown during the time sued for</p> <p>The defendant relied upon a previous termination of the tenancy by notice; and offered evidence that on the 1st of May 1856 the following notice was handed to Nathaniel White, the plaintiffs’ cashier:</p> <p>“ Lawrence, May 1st, 1856.</p> <p>“ Messrs. White & Kimball. Gentlemen: I hereby give you notice that it is my intention to quit the house and appurtenances which I now hold of you, situate No. 2, Lawrence Street, in said Lawrence, at the expiration of one month from this date.</p> <p>“John Kiley, Tenant.”</p> <p>The plaintiffs objected that this was not notice to them. But as it appeared that there had been negotiations between the parties for a lease of the shop, and that a lease had been drawn up and signed by White, in behalf of the plaintiffs, the judge instructed the jury that if White was the agent of the plaintiffs, for the purpose of receiving such a notice, and received and understood it as such agent, this objection could not be sustained.</p> <p>It appeared that when this notice was handed to White, it was read to him, and he replied that he should hold the defendant on the lease ; but that he made no objection to the form of the notice before this suit was brought. The plaintiffs objected that the notice was inoperative, because it did not expire on a rent day; and the judge ruled that if the monthly term began on the first day of the month, it would end on the last, and so the notice would be bad upon its face, and would be good only in case the jury should find that the term began on the second day of the month.</p> <p>The defendant relied, as evidence of a waiver of this defect, on the plaintiffs’ knowledge through White of the contents of the notice, White’s remark that he would hold the defendant on the lease, the indorsement and subsequent treatment of the notice by the plaintiffs, and the absence of any intimation at any time of any defect in form.</p> <p>The plaintiffs requested the judge to rule that there was no sufficient evidence of a waiver. But the judge submitted that question'to a jury, with instructions “ that, in order to constitute a waiver there must have been an agreement or understanding between the parties, that the notice in question should be treated as terminating on the last day of the month, (if the jury found that the term began on the first day of each month,) and as having been given in season and otherwise good and formal; and the jury must be satisfied that the plaintiffs had consented to waive and make no objection to any informality in the notice, and as to the time of giving it, in reference to the termination of the tenancy before the period for which this action is brought.”</p> <p>The jury returned a verdict for the defendant, and the plain tiffs alleged exceptions.</p>

Action of tort for breaking and entering the plaintiff’s close in Rowley, and cutting and carrying away wood therefrom.

<p>Deeds of “ two and one quarter acres undivided in lot 17; ” “ three and a quarter acres more or less in number 17,” part of “twenty acres and sixty rods in common pasture, lying in common with other proprietors; ” and “ two and a half acres of land” in the southeast division of common pasture “in lot number 17, and is undivided; ” each convey an estate in common in lot number 17.</p>

<p>Writ of entry by the executor of the will of Enoch Mooers, to recover a parcel of land conveyed by him, a short time before his death, to the tenant, in fraud of creditors. Plea, nul disseisin.</p> <p>At the trial in the superior court in Essex at September term 1859, before Morton, J., the demandant put in evidence the will; his own appointment as executor; the inventory returned by him to the probate court, in which the real estate was appraised at $420, including the demanded premises at $350, and the personal property was appraised at $60.34; a list of debts, amounting to $261.07, filed by him in the probate court; his petition to that court, representing “ that the debts against the estate of said deceased, including allowances and supposed charges of administration, amount to $336.07, and that all his personal estate amounts to only $50.34,” and praying that he might be empowered “ to sell so much of the real estate of said deceased as shall be necessary, together with such personal estate, for the payment of said debts, allowances and charges of administration, with incidental charges; ” and an order of the probate court thereon, reciting “ that the foregoing petition being duly considered, and it being made to appear that notice has been given according to order to all persons interested,” and empowering and licensing him “ to sell so much of the real estate of said Enoch Mooers, deceased, as will raise the sum of $410 for payment of just debts against the estate of said deceased, including allowances and charges of administration with incidental charges.” It was admitted that the other real estate included in the inventory had not been sold, and that there was no estate, real or personal, beyond that included in the inventory The tenant objected to the right of the demandant to main tain this action, on the following grounds :</p> <p>1st. “ That the list of debts and the representations by the executor were not competent or sufficient evidence of the candi tian of the estate, and the amount of debts due; that the estate should have been declared insolvent, and the debts proved before a commission, and it then be made to appear that the personal property and the other real estate were insufficient to pay the same,before this action could be maintained; or that other and further proof should be offered in this court of the existence and the amount of said debts; that there Were no debts shown to exist which the executor is now bound in law to pay, and for neglecting to pay which, if he had funds or could raise funds, he could be held upon his bond.”</p> <p>2d. “ That the executor had not been ordered to give and had not given the bond required, where the whole of the real estate is ordered to be sold, a part only being required for the payment of debts.</p> <p>3d. “ That the license did not conform to the petition and notice, and was therefore irregular and void ; that it was in substance a license to sell the whole of the real estate of the testator, which was not prayed for, or set forth in the said petition to be necessary.</p> <p>4th. “ That till he had sold the other real estate belonging to the testator, it could not appear that this estate was required to pay debts, and it could not be determined for what amount judgment should be rendered in this action.”</p> <p>But the judge overruled all these objections, a verdict was taken for the demandant, and the tenant excepted.</p>

<p>Action of tort for breaking and entering a close in Amesbury. Answer, soil and freehold in the defendant’s wife. Trial and verdict for the plaintiff in the superior court in Essex at September term 1859, before Morton, J., who reported the case to this court, under St. 1859, c. 196, § 32. The facts are stated in the opinion.</p>

Action of tort by the assignee in insolvency of Jabez Alexander, for the conversion of a stock of goods of the insolvent.

<p>A fraudulent representation that a person is of good credit, whereby another is induced to sell him merchandise, although made in order to enable him to pay a debt due from him to the person making the representation, is within the statute of frauds, and will not support an action, unless in writing.</p>

<p>Action of contract, praying for relief in equity, to enforce the specific performance of a contract. Writ dated December 14th 1854. Trial in Essex at April term 1859, before Bigelow, J., who reported the following case for the consideration of the full court.</p> <p>John H. Currier and Eli B. Howard, being seised in fee of two adjoining lots of land in Lawrence, agreed to own them in common; and said Howard and the defendant his wife signed this agreement in writing, which was produced by the plaintiff at the trial: “ This certifies that J. H. Currier and Eli B. Howard have agreed to put the fronts of their lotá in common, extending 100 feet from the street, and we consent to the sale of 2000 feet of Currier’s land to J. B. Gates, and acknowledge the receipt of one half the proceeds of said land, and we agree to give Currier a division deed whenever he desires the same. October 8th 1849.” The strip of Currier’s land therein mentioned was sold and conveyed to Gates, and the purchase money divided between Currier and Howard.</p> <p>Eli B. Howard on the 28th of November 1849 conveyed his land to Charles F. Abbott, who on the 10th of December 1851 conveyed it to the defendant. John H. Currier, on the 11th of March 1850, conveyed his undivided half of the land to the plaintiff, and it was verbally agreed between them that the plaintiff should have all the right and interest of his grantor under the agreement of October 8th 1849, and should have the right to demand and receive the division deed under said agreement. Eli B. Howard, Abbott and the defendant all had notice of this verbal agreement, and of another agreement made at the same time between Eli B. Howard and the plaintiff for the erection of a large house upon the Howard lot, which was afterwards erected accordingly, and for which the plaintiff furnished a great part of the work and materials.</p>

<p>In'an action of trespass quare clausum fi'egil, the defence relied upon was a disseisin of the plaintiff’s grantor at the time of his deed; there was evidence that the plaintiff’s grantor, while negotiating with him for the sale, and before the conveyance, went with him upon the land, and every half acre of it, to show it; but the judge refused to instruct the jury that if the plaintiff’s grantor went upon the land with him for the purpose of pointing it out to him, and while upon the land claimed it as his, this would be a sufficient reentry. Held, that the defendant was entitled to a new trial, although the general instructions to the jury upon what would constitute a disseisin and a reentry were correct.</p>

Action of contract on a promissory note for $75, commenced in the police court of Haverhill, the civil jurisdiction of which is limited by Sts. 1852, c. 314, § 1, and 1854, c. 34, § 2, to “ civil actions wherein the debt or damages demanded do not exceed -the sum of one hundred dollars.” The ad damnum in the writ was $150.

<p>fa an action to enforce rights under a promissory note given for the price of intoxicating liquors sold before the passage of the St. of 1852, c. 322, the burden of proving the illegality of the sale is upon the defendant.</p> <p>A mortgage made to secure promissory notes, part of the consideration of which is spirituous liquors sold in violation of law, is wholly void.</p>

<p>Action of contract to recover the price of New England rum. Trial in the court of common pleas in Essex, at March term 1859, before Briggs, J., who signed this bill of exceptions :</p> <p>“ The defendant offered evidence tending to prove that he was not an authorized agent for the sale of liquors; that he purchased these liquors for the purpose of retailing them at his place of business in Lawrence, and that the plaintiffs knew the purpose for which the defendant bought the liquors at the time of the sale. This evidence was admitted, against the objection of the plaintiffs.</p> <p>“ The defendant proposed to prove that he had bought liquors of the plaintiffs, and of one of the members of the plaintiffs’ present firm, before he join’ed this firm, and that the plaintiffs then knew the residence and business of the defendant, and had contitiued to know it to the time of the sale of the liquors sued for, and that the plaintiffs knew that they were used for an illegal purpose. The court ruled that evidence of prior sales by this firm to the defendant might be put in for the purpose named.</p> <p>“ To prove that the plaintiffs were not licensed in Boston, the defendant called the city clerk of Boston with his record of licenses. The plaintiffs insisted that this evidence could not be admitted, as the defendant had given them no notice to produce the original license or licenses; and that, until they had had such notice and refused to comply therewith, the evidence to be derived from records was not admissible.</p> <p>“ The plaintiffs’ counsel in his opening or during the trial in presence of the jury contended that the liquors were sold to be exported out of the Commonwealth; and some evidence was put into the case tending to prove an agreement between the parties that such pretence should be made. The defendant introduced a servant of the Boston and Maine Railroad to prove that the liquors were sent by and carried over the railroad to Lawrence; and the defendant had put in evidence tending to prove that plaintiffs’ clerk marked and sent them to the depot in Boston to be carried to Lawrence. The servant of the corporation testified that the books produced were the regular freight business books of the company; that the entries were in his handwriting; that he had no doubt that they were correct, and that the transactions therein recorded took place, but that he had no personal recollection of the facts so as to specify them. The books were allowed to be read to the jury.</p> <p>“ The defendant offered and the court admitted several bills and receipts from the plaintiffs to the defendant, prior to the sale in question, to be put into the case (it having been first shown that they came from the plaintiffs to the defendant) for the purpose among others of showing that the plaintiffs knew the place of business of the defendant.</p> <p>“ During the cross-examination of the defendant by the plaintiffs’ counsel, the defendant was asked, “ What is your defence to this debt ? ” Answer. “ I don’t know.” “ Have you any objection to paying the debt?” Answer. “ No.” The defendant’s counsel explained to the jury that the defendant had never been unwilling to pay the bill itself; that it had been sued without giving the defendant time to pay it, and that the defendant was unwilling to pay the costs incurred. The plaintiffs’ counsel asked no ruling of the court at any time upon the answer, but claimed in his argument to the jury that the answer was a waiver of all matters of defence. The jury gave a verdict for the defendant.</p> <p>“ To all the above rulings, instructions and refusals the plaintiffs except.”</p>

<p>A written guaranty of “the payments of all powder consigned” to a certain person for sale will not cover a sale to the consignee of the powder remaining unsold upon closing the account between the consignor and himself; and cannot be controlled by evidence of a custom among commission merchants, known to the guarantor, to purchase goods remaining unsold under such circumstances, and to treat such a transaction as a sale to a third person.</p> <p>A guaranty of the payment of goods consigned to a third person for sale is discharged by tile consignor’s taking from the consignee a promissory note payable at a future time for the price of the goods, after it has become due.</p>

<p>Acceptance of a devise estops the devisee to set up a title in opposition to the will, at law, as well as in equity.</p>

<p>A Bona Jide transfer of partnership property to one partner by indenture, in consideration of his assuming the partnership debts, makes it his separate property, and not liable in insolvency to creditors of the partnership, who have not agreed to accept him individually as their debtor, until his separate creditors are paid.</p> <p>A bill of exchange drawn by a partnership and sent to an agent for sale, but sold after notice to the agent and the purchaser that one partner has retired, binds the remaining partner only.</p>

<p>Action op tort. The parties stated the following case “ The town of Randolph duly assumed the duties of the school districts by votes, and purchased a lot of land in that behalf, and erected a school house thereon for the use of the public schools of the town; and while it was in use, an excavation was made in the lot under the authority of the selectmen of the town, by digging into a bank to obtain gravel for the repair of the highways of the town, and to remove the steep bank, and make a regular slope from the neighboring streets up to the school house. While the bank remained, and before the slope was completed, the plaintiff, a child between eleven and twelve years old, who was attending the school as a pupil, being at play with some of her companions near the edge of the bank, casually, by the caving of the bank, fell down the bank a distance of about seven or eight feet. It is admitted that a jury would find that the omission to guard the edge of the bank by a railing was under-the circumstances negligence, and the place was dangerous, and that to this solely, and not to any neglect of the plaintiff, the accident was attributable. The town had mouths before known of the actual state of the place of the injury. The place in question was not within the located limits of any public highway. Persons coming along the street from the westward, and having occasion to go to the school house and the street beyond, had been in the habit of passing on to the school house lot at or near its southwest corner, and so going up to the school house, and returning in the same way. This was done chiefly by school children on foot, but occasionally a vehicle was driven over the lot in the same course, and from the school house. This use had existed about eighteen months when the accident above mentioned occurred. The bank at the southwest corner was originally only a slight elevatian, and had been smoothed down by removing the gravel thence, so that the use above mentioned had become practicable.</p> <p>“ If upon the above facts, and any inferences therefrom which the court consider proper, the court should be of opinion that the plaintiff has a legal cause of action against the town, the defendant shall be defaulted, and the case put to a jury to find what damages the plaintiff' is entitled to recover; otherwise, a judgment shall be entered for the defendant.”</p> <p>This case was argued at Dedham, at October term 1858.</p>

Bill in equity by the executor of the last will of Elizabeth Roberts to obtain a decision upon the construction of said will.

Petition by the Grand Junction Railroad and Depot Company and the Eastern Railroad Company for a writ of certiorari to stay proceedings upon a petition filed by the Fitchburg Railroad Company before the county commissioners for the county of Middlesex for the assessment of damages by the location and construction of a railroad across the railroad of the Fitch-burg Railroad Company.

<p>Replevin of thirteen freight cars of the Vermont and Massachusetts Railroad Company. The case was submitted to the decision of the court upon the following facts:</p> <p>On the 29th of June 1849 the Vermont and Massachusetts Railroad Company “ Voted, That the directors be and they hereby are authorized to execute a mortgage of the road, with all its franchises, to trustees selected by them, for the-purpose of securing the bonds of the corporation to be issued by the board.”</p> <p>On the 11th of July 1849 the directors executed a mortgage for that purpose, which recited this vote, and purported to convey the railroad of the corporation, “ including not only the entire road as located, but the stations, engine houses, shops, woodhouses and other appendages, with all the lands thereto belonging, and intended for the use and accommodation of the said roads, and in any way essential to the same, including also the entire superstructure of the said roads, as they are and as they may be, if repaired or improved, together with all the running machinery, to wit, locomotives, cars of all descriptions, tools and implements of all kinds, and whatever else is used and employed in carrying on and working said roads, with all improvements made upon such property, and all additions made thereto, by adding new locomotives, cars and other things, in-eluding all provisions made for repairs and improvements in any branch of the service,” to John Davis, Robert G. Shaw and Jabez C. Howe, trustees, of whom the plaintiffs were duly appointed successors. This mortgage was recorded in the registries of deeds of the counties and offices of the clerks of the towns through which the railroad passed in this commonwealth</p> <p>On the 25th of April 1850 the legislature of Massachusetts passed this act: “ The proceedings of the Vermont and Massachusetts Railroad Company, whereby they conveyed, agreeably to a vote of the stockholders, passed on the twenty ninth day of June eighteen hundred and forty nine, their said railroad and property in mortgage to John Davis, Robert G. Shaw, and Jabez C. Howe, trustees for the bondholders in said mortgage mentioned, to secure the holders of said bonds the payment of the same, are hereby ratified and confirmed.” St. 1850, c. 233.</p> <p>The bonds, to secure which the mortgage was given, matured on the 1st of July 1855, and are unpaid. But the plaintiffs have never entered or taken possession under their mortgage, except by this replevin.</p> <p>The freight cars replevied were purchased by the corporation in 1853 for use upon their road, and, while in their possession and use, were attached in Middlesex by the defendant as United States marshal, twelve in February 1856 and one on the 10th of March, on a writ from the circuit court of the United States, returnable at May term 1856, in an action of debt, brought by Selden F. White, a citizen of New Hampshire, upon five of these bonds, which was duly returned and entered in court, and is still pending.</p> <p>The plaintiffs made a demand in writing upon the defendant for the amount of their debt after the attachment in February, but not after that in March.</p> <p>This case was argued at Boston in January 1859.</p>

<p>A recognizance under St. 1855, c. 444,5 9, of a debtor, who, upon being arrested on execution, desires to take the poor debtors’ oath and to have a time and place fixed for his examination, may be conditioned not only that he shall appear at the examination, but also that he shall abide the order of the magistrate.</p> <p>A recognizance taken under St. 1855, c. 444, § 9, “ in the sum double the execution hereinafter named,” which sum is afterwards stated therein to be a specific sum with interest from the day of the rendition of the judgment, is void.</p>

Action of tout for the obstruction of light and air in two windows in the plaintiff’s house.

Information, filed at April term 1856 in Middlesex by the attorney general, at the relation of the rector, wardens and vestry of St. Anne’s Church in Lowell, for the establishment and execution of a charity in a church lot in Lowell and the church and parsonage thereon standing, and to recover the price paid by the relators for the church.