Volume 81 — Massachusetts Reports

<p>No action lies against a person for removing, with as little injury as possible, a fence separating a highway from a navigable creek at a place over which he has a right to pass, although he does so for the purpose of filling up the creek, and thus committing a nuisance.</p> <p>The owner of a wharf cannot maintain an action for illegally filling up public navigable waters, and thereby cutting off all access to the wharf.</p>

<p>The right of action for the obstruction of a watercourse, through which the plaintiff has a right of drainage, is not affected by the construction, at the same time, of a new drain through land of which the defendant owns the fee, to land not owned by him, although the plaintiff's land is thereby as effectually drained.</p> <p>A witness testified that he never knew of the existence of a watercourse, and being asked, on cross-examination, whether he did not sign a petition to have this watercourse reopened, answered that he did, but that he did not read its contents, and was told at the time, by the person presenting it, that it was a petition for a new drain, ffeld, that, the person who presented it having testified that he explained the contents to him, the petition was admissible in evidence to contradict the witness.</p>

<p>A man having a settlement within the Commonwealth cannot acquire a settlement in a town by residence and paying taxes, or by having and living upon a freehold, if his wife is committed to the State Lunatic Hospital upon his complaint, or with his knowledge, and remains there at the expense of any town, or of the Commonwealth, without his paying for her support, during part of the time necessary to give him a settlement.</p>

<p>Action of contract to recover for the support of Catharine Pfeifer, wife of Peter S. Pfeifer, at the State Lunatic Hospital at Worcester from the 11th of November 1856 to the 20th of September 1858. The case was submitted to the decision of the court upon these facts :</p> <p>The husband and wife were natives of Prance, came to this country in 1848, and were married here in 1850. In October 1853 he purchased for $ 1500 land in WorceS' ter, with a dwelling-house thereon, in which he has lived with his family ever since. He was naturalized, being then more than twenty one years of age, on the 11th of November 1853, since which he has been a citizen of Massachusetts. Neither he nor his wife has a settlement in any town or city in this Commonwealth, unless, upon the facts agreed, he acquired one in the city of Worcester on the 11th of November 1856, according to the fourth mode of the Rev. Sts. c. 45, § 2. The wife was duly committed to the hospital by the judge of probate, with the knowledge of the husband, on the application of Henry Sargent, on the 13th of September 1855, and has since remained there. No payment has ever been made to the hospital for her support. Her expenses from the date of her commitment to the 11th of November 1856 were charged to the Commonwealth, which refused payment thereof.</p>

<p>Action of tort against a railroad corporation and their conductor for ejecting the plaintiff" from their cars.</p> <p>At the trial in the court of common pleas in Middlesex at December term 1858, before Sanger, J., the evidence tended to show that the plaintiff bought at Cordaville a passenger’s ticket to Brighton, and also a return ticket from Brighton to Cordaville; that he went to Brighton on the tram, and thence to Boston; that in the afternoon of the same day he entered the defendants’ cars at Boston as a passenger, intending to go to Cordaville, and took his seat; that before the train reached Brighton the conductor, in the due course of his duty, in taking the tick ets of the passengers and collecting their fares, came to the plaintiff, who up to this time had conducted himself properly, and asked him for his ticket; that the plaintiff handed him the return ticket which he had purchased as above stated, and the conductor said that it was not good. The testimony of what followed" was conflicting. The plaintiff contended that the evidence showed that when the conductor objected to the ticket, the plaintiff offered to pay his fare, either from Boston to Brighton, or the whole distance from Boston to Cordaville, before the bell was rung to stop the cars, or any attempt was made to eject him from them; that he made the'same offer after the bell was rung, and before he was ejected, but that the conductor refused to receive the fare, and forcibly ejected him. The defendants contended that the evidence showed that the conductor demanded the fare either from Boston to Brighton, or, if the plaintiff’ pre ferred so to pay, from Boston to Cordaville; that the plaintiff at first refused to pay anything; that upon his persisting in his refusal to pay the fare, the conductor rang the bell and stopped the cars; that after the bell had been rung for stopping the cars, and before and after the cars were stopped, the plaintiff offered to pay the demanded fare, but the conductor refused to receive it, and forcibly ejected the plaintiff from the car and put him down on the railroad track. It appeared that the train had been stopped only for the purpose of ejecting the plaintiff; that the conductor gave the signal for the cars to start, and proceeded in his duty of collecting the fares, and the cars started on; that the plaintiff went to the rear car and got upon it; that the conductor was immediately informed that the plaintiff had got into that car, and at once went to it, and although the plaintiff, before any attempt was made to stop the cars a second time, offered to pay whatever fare the conductor should demand, the conductor refused to receive it, stopped the cars and forcibly ejected the plaintiff a second time.</p> <p>The defendants offered to show that, by the regulations of the corporation, conductors were to eject persons who refused to pay their fare, and, after such ejection, were not to accept their fare at that time, if offered after the cars had been stopped. But the judge rejected the evidence.</p> <p>The judge instructed the jury that as there was no question but that the plaintiff was obliged to pay his fare from Boston to Brighton, the conductor, after demanding the fare, and waiting a reasonable time for the plaintiff to pay, had a right, on the plaintiff’s refusal to pay, to ring the bell to stop the cars for the purpose of ejecting him; that after the bell was thus rung any offer or tender of the fare, not accepted by the conductor, was made too late; and that, notwithstanding such offer or tender of fare, the conductor had a right to stop the cars and eject the plaintiff therefrom, using no more force than was necessary for the purpose.</p> <p>In regard to the second ejection, the jury were instructed that the agents of the corporation might, using only such force as was necessary, eject from their cars any passenger who wrongly retused to pay his fare, which was properly demandable and wMch had been demanded in a proper manner; that after so ejecting him they could stay by, if they pleased, and prevent him from entering the cars again at that time and place; that the passenger thus properly ejected was not thereby forever incapacitated from riding in the cars of the corporation, but might, if he conducted himself properly and paid his fare or tendered it seasonably, ride in a subsequent train on another day, or on the same day; or if the ejection was near a station, and if, after the ejection, for any reason, the train, having reached that station, was delayed there until the passenger came up, he might enter the cars there, and be carried, if he conducted himself properly ; and so, if after the ejection the cars should move on and for any reason become stationary, and the ejected passenger should overtake them and enter them without objection, he might continue therein if he conducted himself properly, and paid his fare, or seasonably offered to pay it; that it might be difficult to fix the point of time as a matter of fact, how soon after the ejection the ejected passenger might re-enter the cars with the right and privilege of ordinary passengers; but it would be when the transaction of the ejection was completely terminated; that when that ended, a new state of things began, and it was for the jury to find upon all the proof whether the transaction of the ejection was terminated before the plaintiff re-entered the cars; that unless it was so terminated, the plaintiff could not recover any damages for the second ejection, if they should find the first ejection to have been lawfully made; and if it was so terminated, (and the burden of proof was upon the plaintiff to establish the fact by a preponderance of the proof,) and the plaintiff entered the cars without objection, although without any express permission, and although it was immediately after the ejection, and on the same train, and not at any station or customary stopping place, he was rightfully there, and, conducting himself properly, and paying his fare, or seasonably offering to pay his fare, he had a right to be carried, and could recover damages for his ejection.</p> <p>The jury found the first ejection justifiable, the second unjustifiable, and rendered a verdict for the plaintiff for § 150. The defendants alleged exceptions.</p>

<p>An agreement by B. to pay A. certain prices for stone “ to answer on a note” previously made by A. to B., imposes no obligation on A, to deliver the stone instead of paying the amount of the note in money; and if he elects to deliver stone, he must deliver it at B.’s residence or place of business.</p>

<p>Action of tort for breaking and entering the plaintiff’s close in Marlborough. Trial in the court of common pleas in Middlesex at September term 1858, before Perkins, J., when a verdict was returned for the plaintiff, and the defendants alleged exceptions. The point decided appears in the opinion.</p>

<p>The officer’s return on a levy of execution upon real estate is conclusive evidence of the competency of the appraisers, against the tenant and all claiming under him by title acquired since the attachment on mesne process.</p> <p>The officer’s return on a levy of execution upon real estate need not show that the appraisers resided within the county or the Commonwealth.</p>

<p>A separate sale on execution of the right to redeem from a mortgage one of two parcels of land included therein, although situated in different counties, passes no title, and will not support a hill in equity to redeem the land so sold from the mortgage.</p>

<p>tinder the provisions of the Rev. Sts. c. 101, § 19, for allowing to the tenant in a writ of entry compensation for improvements made by him upon the premises, he cannot claim interest on sums expended by him in improvements, nor sums paid for taxes on the premises, nor for any improvements beyond the limits of the premises demanded.</p> <p>It an assessor, appointed under the Rev. Sts. c. 101, to determine the value of improvements made by the tenant in a writ of entry upon the demanded premises, states in his report that the tenant many years before built and paid for a fence upon the premises, but does not state that it is now of any value, the tenant cannot be allowed the amount of the payment for the fence.</p>

Action op tort by the assignee in insolvency of Herbert Trull to recover goods transferred by him to the defendants. Trial and verdict for the defendants in the court of common pleas in Middlesex at March term 1859, before Perkins, J., to whose rulings the plaintiff alleged exceptions, the material part of which is stated in the opinion.

<p>The St, of 1865, c. 11, § 1, which requires that “whenever the city of Charlestown sitan pave any public street in said city in the manner required by law, or shall cover the same with good gravel,” each owner of land “adjoining any such street” shall cause the sidewalk in front of his house to be paved with brick or flagstone, within twenty days after being required by any of the surveyors of highways, does not oblige the abutters to pave the sidewalk until the city has paved or gravelled the whole street, or section of a street, ordered by the mayor and aldermen to be so prepared and improved.</p>

<p>Taxes assessed by a city for “ roads and bridges ” are highway taxes^and, under the Rev. Sts. c. 7, § 27, one sixth thereof must be assessed on polls, although it makes the poll tax on each person more than one dollar and fifty cents; or the whole assessment will be void.</p>

Complaint under the Rev. Sts. c. 116, for maintaining a water mill and dam across Wright’s Brook in Concord, and thereby flowing land of the complainants; upon which a warrant was issued for a sheriff’s jury to assess damages. See 7 Gray, 186. Before the empanelling of the jury, the respondent objected that thirteen jurors had been summoned instead of twelve.

<p>Defects in proceedings after the issne of a warrant in a bastardy process are cured by the respondent’s subsequently appearing before the magistrate who issued it, and giving bond, without objection, for his appearance at the court of common pleas.</p>

<p>A complaint under the bastardy act may be made and tried in the county in which the child is begotten and the respondent resides, although the complainant resides and the child is born in another county.</p> <p>A paper entitled the “voluntary complaint, examination and accusation” of a certain woman, charging a man with being the father of a child likely to be born a bastard, and stating when and where the child was begotten, sworn to by the complainant, is a sufficient complaint, examination and accusation under the bastardy act.</p> <p>At the trial of a bastardy process, the complaint made before the magistrate is admissible in evidence.</p> <p>At the trial of a bastardy process, evidence that the complainant, during her travail, charged the respondent with being the father of the child, is admissible.</p> <p>At the trial of a bastardy process, an instruction by the judge to the jury, that the respondent is a competent witness in the case, and that the fact that he has not testified and denied the complainant’s statement may be regarded by the jury as corroborative of the complainant’s testimony, is no ground of exception.</p>

Action of tort for breaking and entering the plaintiff’s close, commenced in the police court of the city of Lowell. The ad damnum in the writ was one hundred dollars. The police court gave judgment for the plaintiff for two dollars and costs.

<p>A person employed to work upon a house by a builder who has made a written contract with the owner to build the house has a lien upon the house and land under 8t. 1866, c. 481, § 1, for his own labor.</p> <p>The provision of Si. 1861, c. 343, § 2, requiring a statement of account to be recorded in the registry of deeds by a person claiming a mechanic’s lien, is repealed by Si. 1865, c. 431, § 2, requiring such a statement to be filed in the town clerk’s office.</p> <p>Under the Rev. Sts. c. 117, §§ 30, 81, and St. 1855, c. 431, a mechanic need not wait sixty days after a debt becomes due to him for labor on a house, before commencing proceedings to enforce a lien thereon.</p>

<p>Leave may be granted by the probate court to bring an action upon a probate bond, without notice to the obligors of the application for such leave, or previously summoning the principal obligor to render an account and ordering distribution thereon.</p> <p>It is no objection to the maintenance of an action on the probate bond of an executor or administrator with the will annexed, for the benefit of legatees, that some of those claiming to be legatees are not entitled under the will.</p>

<p>A matter not in terms included in a written award rendered upon an oral submission may be shown by paroi evidence not to have been in fact brought to the notice of the arbitrators or considered by them. .</p>

Action of tort. The declaration contained two counts; one for forcibly entering the plaintiff’s close in Woburn, and taking and carrying away his dog and destroying it, and converting it to the defendant’s own use; and the second count differing only in not alleging a breach of the plaintiff’s close.

<p>The delivery, at the same time with a deed of land, of an earlier sealed agreement by the grantee to purchase the land subject to a reservation of the wood, which has been previously sold to a third person with the right to remove it, operates as a license to that person to enter and cut the wood, although the deed is a warranty deed, without any such reservation.</p>

<p>A grantee of land, whose grant was fraudulent as against the grantor’s creditors, took from a prior mortgagee a deed of quitclaim of all his interest in the premises, containing this clause: “ Which said mortgage is hereby cancelled and discharged, the said” grantor 41 having recently conveyed his interest in the premises to” the grantee. Held, that this deed constituted an assignment, and not a merger, of the mortgage, as against said grantor’s creditors.</p>

Action of tort against a deputy of the sheriff of Middlesex, for breaking and entering the plaintiff’s stable, attaching the horses and carriages therein on mesne process against the plaintiff, and keeping possession of the same from the 24th to the 28th of January 1857. The defendant justified under his writ, which was admitted to be in proper form.

<p>One summoned as trustee in foreign attachment in a police court disclosed funds, and was discharged by a judgment in favor of an intervening claimant. The plaintiff appealed to the court of common pleas, where the trustee was charged. Beld, that the trustee was entitled to costs in the court of common pleas, and might set off the amount thereof lipoma scire facias on the judgment against him.</p>

Action of contract upon two recognizances, entered into by Bickford, a poor debtor arrested on execution, as principal, and by the other defendant as surety, before a master in chancery; one on the 5th of June 1857, for the debtor’s appearance for examination before the master on the 9th of June at two o’clock in the afternoon; and the other on the 16th of June, for his appearance on that day at the same hour.

<p>A constable is not justified, without a warrant or previous demand, in forcibly entering a shop at midnight preceding the Lord’s day, and arresting the owner and other persons there engaged in the unlawful sale of intoxicating liquors and in gaming, although ho uses no more force than is necessary to arrest them.</p>

<p>If a wife leaves her husband’s house because of his violence and cruelty, and from reasonable apprehension of her safety, he is liable for her board; and also for the board of their child whom she takes with her, if, knowing where the child is, he makes no attempt to reclaim it; and he is not discharged from such liability by bis wife’s subsequent return to his house.</p> <p>If a husband, on the trial of an action against him for the board of his wife and child who have left his house, omits to call as a witness another child who has remained with him, and could testify to material facts, such omission is a circumstance to be considered by the jury.</p>

<p>Action of contract against manufacturers in Lowell, to recover for the services of the plaintiff’s minor son. At the trial in the court of common pleas in Middlesex at December term 1858, before Scmger, J., the plaintiff put in evidence the defendants’ answers on oath to interrogatories propounded to them by the plaintiff, in which they admitted that they had employed the plaintiff’s son from the 14th of April to the 24th of November 1857, and agreed to pay the son therefor sixty cents a day; and rested his case.</p> <p>The defendants offered to prove that it was customary, in all the manufacturing establishments in Lowell, to pay their employees monthly. They did not offer to prove, by direct testimony, that the plaintiff knew of tins custom ; but contended that they could satisfy the jury on the evidence in the case that he did know of it; and it was so argued to the jury. This testimony was objected to by the plaintiff, but the court admitted it.</p> <p>The plaintiff’s son, being called as a witness by the defendants, testified that he left the place in New Hampshire v, here Ms father had put him at work, and went to work for the defendants in Lowell on the 14th of April, without Ms father’s knowledge or consent; that his father was at work at Lowell, and saw and conversed with him there on the 18th of April; that on the 25th of April he told his father, when the defendants were not present, that they wished him to work for them for one year; that his father objected to his leaving his former place; but then and once afterwards told him, if he remained with the defendants, to tell them that they must make a bargain with the plaintiff, and that he would not be bound by any bargain made by them with Ms son, nor by any payments made to the latter; but that he never communicated any part of either conversation to them; that he never told his father that the defendants had paid him, nor did his father lmow it, to his knowledge; that his father, at his request, during the time he worked for the defendants, gave Mm some small sums of money to pay for board and clothes ; that he did not pay to his father any part of the money which he received from the defendants, nor did his father ask him for it; that his father had never consented to his receiving Ms wages from the defendants, or to waive his right thereto, nor given him Ms time, nor allowed him to contract or labor for himself; that he did not board with his father, but that his father frequently came upon Sundays to the place where he boarded. There was also evidence that the son paid for his board and clothes, beyond the small sums received from Ms father, with the money which he received from the defendants; that the father made no offer to pay his board, and did not object to Ms boarding where he did ; and that the father was once in the defendants’ shop in conversation with his son, when at work, but on this point there was conflicting evidence. The defendants were allowed, against the plaintiff’s objection, to show that they had paid to the son his wages. There was no direct testimony that the plaintiff knew that the wages had been so paid; but the defendants contended, upon the evidence, that he knew it, and this matter was in dispute between the parties.</p> <p>The plaintiff asked the court to rule that there was no evidence in the case that the plaintiff had emancipated his son, or given him his time, during the period that he worked for the defendants, or waived his right to recover for his son’s services, either generally or in this particular case. But the court declined so to rule, and left the question whether the father had emancipated his son, or given him his time, or waived the right to recover for his services, to the jury, under instructions to which no exceptions were taken by the plaintiff</p> <p>The plaintiff asked the court to rule that the law would not raise a presumption that the father had given his son his time, or had waived his right to recover for his son’s services, against the positive declaration of the father to the contrary, made in good faith at the time the services were rendered. But the judge said that the question whether the declaration and conduct of the father were in good faith was for the jury; and instructed the jury that it was for them to find, from all the evidence in the case, whether the father had emancipated his son, or given him fils time during the period he had worked for the defendants, or waived his right to recover for his services, and that they must find for the plaintiff unless they were so satisfied, the burden of so satisfying them being on the defendants. The jury found a verdict for the defendants, and the plaintiff alleged exceptions.</p>

<p>In an action upon a promissory note, alleged in the declaration to have been destroyed, an answer putting in issue the making of the note, and alleging that, if made, it was for an illegal consideration, admits the destruction of the note ; and the admission at the trial of incompetent evidence of its destruction affords no ground of exception.</p>

Action of contract upon a promissory note. Answer, that the note was given on an exchange of horses between the defendant and the plaintiffs’ agent; that the plaintiffs’ horse, at the time of the exchange, was represented by said agent to be sound, and in good health and condition, and that, relying upon the truth of that representation, the defendant gave his own horse and the note in suit in exchange for the plaintiffs’ horse ; that the plaintiffs’ horse was unsound and in…

Action of contract by a married woman, without joining her husband, against the administrator of Josiah Richardson, to recover for services rendered to Richardson from the 24th of January, when the St. of 1855, c. 304, took effect, to the time of his death in November 1855.

<p>The omission to state, in a petition for the benefit of the insolvent laws, that the petitioner’s residence or place of business is within the county, does not invalidate the certificate of discharge afterwards granted, if the jurisdiction appears in the warrant issued upon the petition, and in the certificate of discharge.</p>

<p>Action of tort for breaking and entering the plaintiffs close in Cambridge. Answer, 1st. A public way over the close; 2d. A way over the same, which defendant had a right to use; that the plaintiff obstructed such way; and that the defendant removed such obstructions, and repaired the way so that he might use it.</p> <p>At the trial in the court of common pleas in Middlesex at June term 1859, before Mellen, C. J., there was evidence tending to prove the following facts:</p> <p>In the last century a canal was dug from Charles River through the marshes northwardly to high land; and a proprietors’ way extended from the head of the canal across Marsh Lane, but there was no evidence that this had been laid out by any public authority. The canal generally flowed to within from thirty to fifty feet of Marsh Lane. No use had been made of the canal of late years, and the proprietors’ way had ceased to be used below Marsh Lane, for any purpose except as a way to the marshes.</p> <p>In 1803 William Winthrop was the owner of the land on the west side of the proprietors’ way and the canal, and also of land on the east side of the canal and a part of the proprietors’ way; and James Winthrop owned the land on the east side of the rest of the proprietors’ way as far as Marsh Lane. On the 16th of November 1803 William Winthrop conveyed to James Winthrop a- parcel of land which “bounds easterly on a proprietors’ way, then runs along the westerly side of the canal; ” and in 1821 James Winthrop conveyed a part of this land to the plaintiff, bounded “ northeasterly on Marsh Lane formerly so called, southeasterly by a proprietors’ way to the northwestern corner of the canal.” On the same 16th of November 1803 James Winthrop conveyed to William Winthrop his land on the east side of the proprietors’ way, bounded “ westerly partly on a street formerly called Crooked Lane, and partly on a proprietors’ way; ” which came by mesne conveyances to one Dillingham, who now owns it. William Winthrop died in 1825, seised of the rest of the land on the east side of the proprietors’ way and the canal, which remained unimproved, except that his heirs sold the crops of grass growing thereon, with the right to carry off the same over the proprietors’ way, until 1856, when they conveyed to the defendant.</p> <p>The marshes between Marsh Lane and Charles River, on each side of the canal, were Open and unenclosed, until about forty five years ago, when they were enclosed by a fence on the line of Marsh Lane, and have been ever since. About the same time a rail fence with bars was built across the proprietors’ way on the line of Marsh Lane, which remained until 1825, when the plaintiff built a board fence across it, leaving a large gate at the head of the way for teams, which was generally locked or otherwise fastened. In 1849 Marsh Lane was raised and the proprietors’ way repaired by the city of Cambridge on the plaintiff’s petition, wherein he alleged that it was a private way, which he had the right to use. In 1856 the plaintiff substituted a small gate for foot passengers in place of the large one.</p> <p>In the fall of 1856 the defendant cut down the fence across this way, and passed over that part of it which ran between the lands of the plaintiff and Dillingham to the marshes, for the purpose of carting gravel to raise and improve that part of the way near the head of the canal, and carted a thousand loads or more of gravel upon his marsh.</p> <p>The defendant requested the court to instruct the jury as follows : 1st. If there was a public way, or a proprietors’ way, over the place of the alleged trespass, non-user thereof would not have the effect to discontinue it. 2d. If the proprietors of adjoining lands once had a right to the use of this way for all purposes, and afterwards they had no occasion to and did not use it, except to cart away hay, they would not by such non-user lose the right to use the way for other purposes. 3d. A public right cannot be reduced or limited to a private right by mere non-user. 4th. If there was once a public way over the premises, the plaintiff could not, by merely enclosing it with fences, deprive the public of the right to use it. 5th. The plaintiff is estopped bj his deed to deny that there is a public or proprietors’ way over the premises. 6th. The recital in the deed to the plaintiff is evidence that there was a public or proprietors’ way over the premises. 7th. If there was such a way, the adjoining proprietors had a right to use it for all purposes. 8th. One proprietor could not, by any use of the way, deprive an adjoining proprietor of his use of the same. 9th. The plaintiff’s petition to the city of Cambridge is inconsistent with, and conclusive evidence against, his claim to the premises. 10th. If the fee of the way was in William Winthrop in 1803, it remained in him in 1821, when James Winthrop conveyed to the plaintiff, even if James Winthrop had previously enclosed the way, with the land sold by him to the plaintiff; for James Winthrop had not been a disseisor for twenty years, and the plaintiff could not tack his disseisin to his own.</p> <p>The presiding judge gave the first, third, sixth and seventh instructions requested; refused the second and eighth ; as to the ninth, instructed the jury that the plaintiff’s claim of a right of way was inconsistent with, but not conclusive proof against, his ownership of the premises; gave the tenth instruction, except as to the plaintiff’s tacking his own disseisin to that of James Winthrop; and further instructed the jury that the deeds of William Winthrop to James Winthrop, of James Winthrop to William Winthrop, and of James Winthrop to the plaintiff amounted to covenants on the part of the grantors, and a con tract or assent on the part of the grantees, that there was at the time of those deeds a proprietors’ way over these premises ; that if the way was a public way by dedication, it would not be lost by ceasing to be used for forty years as such, but that the enclosing by the plaintiff of the premises by bars and gates, keeping a continuous and exclusive occupation thereof against the public for more than forty years, would discontinue a public way; that the plaintiff’s possession would be a disseisin of all persons, except such as had rights there, provided his occupation was exclusive ; that if the fee had been in the heirs of William Winthrop, or in strangers, and the plaintiff had enclosed the same, and claimed title to it with the knowledge of the owners, he would acquire a fee in the same by disseisin, although during the same time the heirs of Winthrop retained or acquired a right to carry off their hay from their marshes over the same premises.</p> <p>During the trial the plaintiff asked a witness the cost of carting off the gravel, claiming this as an item of damages. The defendant objected to the evidence, unless the plaintiff proved that the gravel was an injury. But the court admitted the question to be answered, as the gravel was laid on land enclosed and in occupation of the plaintiff for raising grass and other purposes, and the grass was very near the plaintiff’s house.</p> <p>The jury found a verdict for the plaintiff; and further found, in answer to questions from the court, that there was not a public way over the premises at the time of the alleged trespass, and that there was a private right of way over them for the sole purpose of carrying off hay from the adjacent marshes. The defendant alleged exceptions.</p>

<p>Action of contract by a counsellor at law to recover for professional services. At the trial in .the court of common pleas in Middlesex at March term 1859, the plaintiff introduced evi • denue of the following facts:</p> <p>In the spring of 1857, a bill concerning the Central Bridge Corporation and the city of Lowell was pending in the legislature, which was afterwards passed as the St. of 1857, c. 205. The bill was defeated at one stage; and while a reconsideration was pending, the plaintiff, at the request of the mayor, and of the city solicitor, acting by direction of the mayor, who considered the passage of the act important to the city, had interviews with members of the legislature, and suggested to them facts and arguments in favor of the bill. Proceedings had been previously instituted, which were not yet determined, by the Central Bridge Corporation, to recover damages against the city for taking their bridge for a town way, upon which a sheriff’s jury had been ordered by the county commissioners, and did not return a verdict until after the performance of the services sued for. See Central Bridge v. Lowell, post, 106.</p> <p>On the 9th of December 1856 the city council had voted that the petition of the Central Bridge Corporation for a jury be ‘‘referred to the mayor, with power to employ such counsel as may be deemed expedient”</p> <p>By the city charter, “ the mayor of the city shall be the chief executive officer of said corporation,” and “ shall be vigilant and active at all times in causing the laws for the government of said city to be duly executed and put in force, shall inspect the conduct of all subordinate officers in the government thereof, and, as far as in his power, cause all negligence, carelessness and violation of duty to be duly prosecuted and punished.” St. 1838, e. 128, § 6. The material provisions of the city ordinances are copied in the margin.*</p> <p>Perkins, J. ruled that this evidence was not sufficient to warrant the jury in finding that either the mayor or the city solicitor was authorized to employ the plaintiff to perform the services for which he claimed compensation in this action. A verdict was taken for the defendant, and the plaintiff alleged exceptions.</p>

<p>Upon the taking for a public highway, by the right of eminent domain, of a franchise to build and maintain a bridge, the proprietors are not entitled to compensation for the value of the bridge as a structure, but for the loss of their franchise only.</p> <p>A bridge built under a franchise to build it and to take tolls thereon for seventy years, or until the tolls shall amount to a sum sufficient to reimburse the entire cost of building and maintaining it, with nine per cent, interest, becomes, upon the determination of the franchise, the property of the public, and the owners of the franchise are not entitled to compensation for the value of the bridge as a structure.</p> <p>The acceptance by the mayor and aldermen and the common council of the city of Lowell, of a statute which is required to be accepted by the city of Lowell, is a legal acceptance by the city.</p> <p>By the St of 1824, c. 110, the Central Bridge Corporation were incorporated, and authorized to build a bridge across the Merrimack River between the towns of Dracut and Chelmsford; and directed, when it should have been built, to make a return into the office of the secretary of the Commonwealth of the actual expense of building it, and at the expiration of eighteen years another return of the amount of their receipts, expenditures and dividends; and were granted certain tolls for seventy years: provided, nevertheless, that the legislature, at the expiration of eighteen years, might regulate the tolls anew; and that whenever the receipts of tolls and income should have equalled the expense of building, repairing and sustaining the bridge, with nine per cent, interest, the bridge should revert to the Commonwealth for public use; or whenever the inhabitants of the towns at each end of the bridge should remunerate the proprietors for the expense of the bridge, deducting what might have been received for toll, it might be opened free of toll. By the St. of 1843, c. 50, the proprietors were authorized to reconstruct their bridge, and directed to make a return into the office of the secretary of the Commonwealth of the actual expenses incidental to such reconstruction, and were authorized by that act, as amended by St. 1845, c. 31, to raise for this purpose a sum not exceeding $ 14,000; and it was declared that the sum of $ 10,000, u being a portion of the cost of the original bridge, not yet reimbursed and repaid to said proprietors under said original act,” together with the sum expended in and about the reconstruction thereof, should thereafter constitute their capital stock; the tolls were regulated anew; with provisos like those in the original act: and this act was to take effect on acceptance within thirty days by the proprietors, and by the city of Lowell, of which that part of Chelmsford at one end of the bridge had become part. Held,</p> <p>(1.) That the of 1843, when so accepted, constituted a contract between the proprietors of the bridge and the city; and that the St. of 1857, c. 205, repealing so much of the St. of 1843, as declared that the sum of $ 10,000 of the original cost of the bridge had not been reimbursed and repaid to the proprietors, was unconstitutional and void.</p> <p>'2.) That after the acceptance of the Sts. of 1843 and 1845, the rights of the bridge corporation were to be regulated thereby; and that in estimating the amount necessary to reimburse them, the account should be taken with annual rests, computing the gross amount of tolls received in each year, deducting the necessary charges and expenses, and thus ascertaining the net annual income; and that if this income was more than sufficient to pay nine per cent, upon the capital of the preceding year, the surplus, although actually paid out in dividends, was to be deducted from that capital, and the balance would form the capital for tb* following year.</p> <p>(3.) That in determining the amount of capital not reimbursed, all moneys were to be allowed which had been expended by the bridge corporation, since the St of 1843, in the conduct of their business and affairs, the payment of their debts and performance of their contracts, compensation to their directors and other officers, the prosecution and defence of suits at law, the representation of their rights and interests before the legislature, and for insurance against fire.</p> <p>(4.) That upon the trial of a petition by the bridge corporation to recover damages for ths subsequent laying out of their bridge by the city as a public highway under the right of eminent domain, their compensation must be estimated in the same manner; and that evidence that a less sum than $ 10,000 remained unpaid at the time of the passage of the St of 1843 was inadmissible.</p> <p>(5.) That the petitioners might show that a double charge of an item in their account books was made by mistake.</p> <p>(6.) That evidence that the petitioners had made certain lands and their occupants free of toll, and allowed other persons to pass over the bridge at half toll, was inadmissible to charge the petitioners with fraud, and to make them account for the amount of tolls which they might have received.</p> <p>(7.) That evidence that it was not the custom in other corporations to pay salaries to their directors was incompetent.</p> <p>(8.) That the provisions of the statutes, requiring the petitioners to make returns into the office of the secretary of the Commonwealth, were directory only, and the failure to make such returns could not be given in evidence against them.</p> <p>An order laying out as a public highway the bridge of a bridge corporation does not include by implication their toll-house lying without the limits of the highway.</p> <p>The answer filed in behalf of a city, signed by its mayor and solicitor, in a suit in equity brought against it by a bridge corporation, is admissible in evidence against the city on the trial of a subsequent petition by the bridge corporation for the assessment of damages for laying out their bridge for a public highway.</p> <p>A judgment which is not shown to have been extended on the records may be proved by the entries on the docket of the court which rendered it.</p> <p>Upon the trial of a petition by a corporation for the assessment of damages for taking their franchise for a public highway, after they have put their records in evidence, their votes from those records may be read in evidence against them.</p> <p>Pending a petition for the assessment of damages for taking a franchise for a public highway, the-parties agreed upon an accountant to examine a number of books and vouchers, covering a considerable period, and that his computations and calculations might be exhibited as evidence to the jury on the hearing by either party, subject to legal exception, except as not being original evidence, and that the expenses thereof should be taxed like other costs. Held, that this evidence was admissible at a second trial liad in consequence of the verdict rendered upon the first trial having been set aside for erroneous rulings in matter of law.</p>

<p>Writ of entry, dated May 26th 1857, by the trustees of the Quincy Loan Fund Association, to foreclose two mortgages of land in Cambridge, made, one in June and the other in December 1854, by the defendant to two of the plaintiffs, and to a third person who had since resigned his trust and released his title to the plaintiffs, the considerations named in which were respectively the payment of $ 1,989.50 and $ 600, and the condition of which was thus: “ Provided, nevertheless, that if the said Samuel Bigelow, his executors, administrators or assigns, shall pay unto the said grantees, their successors in said trust, or assigns, or to the proper officers of said association, the sum ” of $ 29.50 by the first mortgage, and $ 9 by the second, “ per month, until the termination of said association, and also all fines which may be charged to him pursuant to the articles of said association, and shall keep all other covenants, promises and agreements made with the said grantees, according to the tenor of a bond of even date herewith, signed by said Samuel Bigelow,, to said grantees, and shall fulfil all the obligations of said bond, and shall meantime keep the buildings standing on the land aforesaid insured against fire in a sum not less than ” the amount of the consideration, “ for the benefit of said mortgagees, their successors in said trust and assigns, at such insurance office as they shall approve, and also pay all taxes levied or assessed upon the said premises, and shall indemnify said grantees and said association and its members from any loss, cost, damage, expense or delay, by reason of the nonfulfilment of any of the conditions hereof or of said bond, then this deed, as also said bond, shall be absolutely void to all intents and purposes.”</p> <p>The condition of each bond was that, if the defendant, his heirs, executors or administrators, should pay to the parties named in the condition of the mortgage the monthly sum therein named, on the first Wednesday of every month, “ until the termination of said association, whereof said obligor is a member, and also all fines which shall be charged to him, pursuant to the articles of said association, during said period, and also shall keep or cause to be kept all other covenants, promises and agreements entered into by him as member of said association and subscriber for,” in one bond, “ten,” in the other, “ tliree shares thereof, according to the true intent and meaning of said articles, then this obligation shall be void, but otherwise shall remain in full force and virtue.”</p> <p>The articles of association were similar to those of the Merrimack Mutual Loan Fund Association, the material parts of which are printed in 13 Gray, 158-162, note, except that the sixteenth article (corresponding to article 13 of that association) was entitled “ Bidding for ■ Loans,” and used the term “ subscribe for,” instead of “ purchase,” additional shares; and that the time of “ Termination of the Association ” was defined in the thirty-third article (corresponding to article 30 of the Merrimack Association) as “ whenever it shall appear by the books of the association that there is sufficient money on hand and due the association to pay, on each share which has not been redeemed by the association, to the holder thereof, the sum of five hundred dollars, over and above all debts and liabilities of the association,” &c.</p> <p>The twentieth article (like article 17 of that association) relating to “ Redemption of Mortgaged Premises,” was as follows: n When any mortgagor to this association shall desire to redeem his premises from the mortgage upon them, he shall give seven days’ notice to the secretary before the next meeting of the board of directors. The secretary shall lay the matter before them, and they shall decide the amount to be paid by the mortgagor. In case this sum is agreed to by the mortgagor, he shall pay the said amount and receive a discharge and release of the mortgaged premises, and all the papers and documents connected therewith.” This article was amended, in October 1855, according to the provisions of the articles, by the addition of the following: “ And whenever the monthly dues which may be due on any shares which have been redeemed by the association shall amount to the sum for which the same were redeemed, and said dues having been paid, together with the monthly interest and all fines and other charges against said shares, the mortgage and bond given as security for the payment of said dues shall be considered satisfied and be discharged.”</p> <p>The question for what amount conditional judgment should be entered was submitted to the decision oí the court upon the following facts: The defendant on the 2d of May 1854 purchased ten shares of the association, and subscribed the articles; and in October and December purchased three shares from other members of the association; and paid his monthly dues, fines and interest, according to the articles of association, until the 7th of January 1857. At different times in 1854, at meetings of the association duly called, he bid for the redemption of his thirteen shares at about $300 discount a share, and these shares were duly struck off to him, and the amount of the shares, deducting the discount, paid to him, amounting in all to the sum of $2,589.50, being the sum of the considerations named in the two mortgages. On the 21st of January 1857 the defendant gave notice in writing to the association of his desire to redeem his land from his mortgages, and of his intention to withdraw from the association on the 4th of February 1857, stating hi« willingness to pay to the association the amount due to them from him, and asking for a true statement of his account. The- directors rendered him an account, in which they charged him with the amount of the sums paid to him by way of loan as above stated, with the monthly dues payable on the 4th of February 1857, and with “ interest and profit to February 4th 1857, as per rule when mortgages are discharged,” including in this item the sum of $235.07 in addition to interest on the amount of the loans; and credited him with the entrance fees, monthly dues and interest paid by him, without allowing him interest on such payments; and thus showed a balance due to the association on the 4th of February 1857 of $ 1,829.57. The defendant refused to pay more than $ 1,517.75, which was the sum due if interest on such payments, the entrance fees, and the above sum of $ 235.07 were to be deducted.</p>

<p>Writ of entry, dated February 24th 1859, to foreclose a mortgage of land in Malden. The parties stated the following case for the judgment of the court.</p> <p>The mortgage sued upon was made to Nathan French, and duly recorded, on the 11th of October 1855, and afterwards duly assigned to the plaintiff, and was in the common form, beginning, “ Know all men by these presents, that I, Daniel Gould, of Malden,” and in his name alone throughout until the last clause, which was in these words: “ In witness whereof I, the said Daniel Gould, and A. J. Gould, my wife, in token of her release of all right and title of or to dower in the granted premises, have hereunto set our hands and seals this eleventh day of October in the year of our Lord eighteen hundred and fifty five</p> <p>“ Daniel Gould. [Seal.]</p> <p>Alice Julia, Gould. [Seal.] ”</p> <p>The land was owned and occupied by Gould as a homestead until his death on the 26th of March 1856, and by his widow and children ever since, and was exempted by the St. of 1855, c. 238, from sale or levy on execution, to the value of $ 800.</p> <p>Alice J. Gould, his widow, was duly appointed administratrix of his estate; and on the 6th of November 1857 made an agreement in writing with French, that during the spring of 1858 she would apply to the judge of probate for leave to sell this land, and that, if such leave should be granted, she would then sell it, so that the amount of the mortgage should be settled and paid. On the 13th of April 1858 she was licensed by the judge of probate to sell all her husband’s real estate for the payment of his debts; and on the 24th of August 1858, in pursuance of such license, sold and conveyed all his right and title in the demanded premises to the defendant, “ subject to all and every incumbrance existing thereon.”</p> <p>On the 6th of September 1858 she applied to the judge of probate for an assignment to her of a homestead out of said premises, and such homestead was decreed to her by the judge on the 9th of November following.</p>

<p>The St. of 1855, c. 470, § 2, having provided that sales of spirituous and intoxicating liquors by the state agent to town and city agents “ shall be made for cash, and at a price not exceeding an advance of five per centum upon the actual cost,” liquors so sold must be paid for on delivery, and no action lies by the state agent to recover of the town the price of liquors not so paid, although the town has received the value there* f; and in such an action, evidence of a custom among merchants to sell such goods for cash payable within thirty days is inadmissible.</p>

<p>The grant of a mill carries by implication the right to use the watercourse furnishing power to the. mill, and the raceway thereof, to the extent of the grantor’s rights.</p> <p>Simultaneous conveyances were made of two mills, each referring to the same plan, upon which was marked a way leading to one of the mills, which was not then laid out, and a canal leading across that way to the other mill. Held, that the rights of both owners were equal; that if the canal had been dug as laid out, the way must be carried over it by a bridge to be built at the expense of the owner of the way in such a manner as not to interfere with the use of the canal; but that if the canal was carried under the way by means of a penstock, the owner of the canal had not a right to substitute for the penstock an open canal.</p>

<p>If an assignment of dower is made in a right of fishing in a stream within the ebb and flow of the tide, without specifying the days on which the widow may fish, yet one of the heirs, who afterwards negotiates with her for the purchase of her share, though without agreeing upon any price, and with her consent uses it, is estopped to deny her right in the fishery, and is liable to her for the value of her share.</p>

<p>Under the St. of 1820, c. 67, § 4, which enacts that the inhabitants of Charlestown “ shall be prohibited and restricted from setting or continuing any net, seine or other fishing implement in ” Little River or certain other streams, “ only while actually dragging or drawing for fish,” provided that this shall not deprive them of the right of setting and having one stationary net or seine in Little River between noon and midnight on any day on which they are allowed by law to fish there, an inhabitant of Charlestown cannot between midnight and noon set a standing net across the whole width of Little River, and keep it there while he is dragging another net to and fro, although it is impossible to fish with a standing net in any other manner.</p> <p>The inhabitants of Somerville are subject to the restrictions imposed by the Sts. of 1788, c. 68, and 1820, c. 67, upon the inhabitants of Charlestown, of which Somerville was formerly part.</p>

<p>‘A fishwarden who takes a net set unlawfully across a river, and keeps it for fourteen days without instituting legal proceedings as required by the Rev. Sts. c. 118, § 21, become*» a trespasser ab initia, and liable to an action by the owner of the net for its value.</p>

<p>A.ction of tort for assault and battery. Trial and verdict for the plaintiff in the superior court in Middlesex, at September term 1859, before Fose, J., who signed this bill of exceptions :</p> <p>“ There was evidence tending to prove that the plaintiff was an operative in one of the mills in Lowell, and the defendant had charge of the section of the room where the plaintiff worked; that the plaintiff, while the defendant was near her work, in consequence of some words or act on his part, indignantly spit in his face; that the defendant communicated this fact to the principal overseer of the room, and asked what he should do with her; that the overseer told him, if the girl did not obey him, to put her out of the room; that the defendant then approached the plaintiff, and ordered her to leave the room; that the plaintiff said she would not go; that the defendant seized or struck her, and she ran from him; that the defendant followed her, striking or pushing her, seized her again, and drew or dragged her out of the room; that about sixty females were employed in this room; and that it was made the duty of the overseers to maintain good order and discipline in their rooms, and to discharge and eject operatives who are disorderly or unruly.</p> <p>“ The court ruled, and charged the jury, that if the plaintiff had been disorderly, and had committed any act affecting the discipline ana good order of the room, or the success of the work carried on in the room, or creating disturbance in the room, the defendant had a right, under the direction of the overseer, to order her out, and, on her refusal to go, to use a sufficient and proper force to eject her from the premises; and if during the process of ejecting her from the room he used unnecessary and improper force and violence towards her, he thereby became a trespasser ab initia, and would be liable for all his acts.</p> <p>“ The defendant did not object to this part of the charge at the time it was given, and asked for no instructions as to the extent of the liability of the defendant on account of any excessive force used by him. The defendant, feeling aggrieved by the above ruling, excepts thereto.”</p>

<p>In an action against a deputy sheriff for the conversion of chattels, alleged in the declaration to be the property of the plaintiff, the answer denied such property, and alleged property in a third person, and an attachment by the defendant on mesne process against him. The plaintiff proved a previous sale by that person, which the defendant introduced evidence to show was fraudulent against his creditors. Held, that the defendant had the burden of proving that the sale was fraudulent.</p>

<p>The acceptance of a negotiable promissory note for a pre-existing debt is only presumptive evidence of payment, and does not necessarily discharge sureties for the original debt.</p> <p>A creditor who takes a negotiable promissory note, payable at a future time, cannot sue upon his original debt before the note becomes due.</p> <p>Taking a negotiable promissory note, payable in terms at the same time as, and, adding the days of grace, three days later than, the time stipulated in a bond with sureties for the payment of the debt, discharges the sureties.</p>

<p>Action of contract upon this promissory note, made and indorsed by the defendants : “ $ 670.81. New Lebanon, 20th June 1857. Six months after date we promise to pay to the order of ourselves six hundred and seventy dollars and eighty one cents, value received, at Bank of America, N. Y. Tilden & Co.”</p> <p>The parties stated the following case, upon which the superior court in Middlesex gave judgment for the defendants, and the plaintiffs appealed.</p> <p>The defendants, a firm at New Lebanon in the State of New York, made and indorsed the note, and delivered it to Frederick S. Bogue as their agent, to be discounted for them at the legal rate of interest. Bogue took the note, with two other notes of the defendants, to R. G. Hutchins in the city of New York to be sold, and the latter delivered them to Alonzo Hutchins, a note and bill broker in New York, to be sold for Bogue. R. G. Hutchins, when he handed the notes to Alonzo, informed him that Bogue owned the notes and wanted to raise a certain sum of money upon them that day. Alonzo hypothecated or pledged the notes for that sum (which he received) to Green & Sewall, brokers in New York, with the understanding that Alonzo should negotiate and sell the notes, and appropriate the proceeds towards the payment of that sum. Bogue afterwards, on the same day, informed Alonzo that he owned the notes ; that they were delivered to him by the defendants in return for merchandise sold by him to them, and requested Alonzo to sell them for the best price he could. Alonzo accordingly sold them to Shaw & Co., drug brokers in New York, at a deduction greater than the legal rate of interest established by the statutes of that State, and Hutchins appropriated a part of the proceeds towards the payment of the money borrowed of Green & Sewall, and handed the balance to Bogue, who never paid any part of it to the defendants, and they never received any consideration for the notes. / Shaw & Co. negotiated and sold the note in suit at its full face, for merchandise, to the plaintiffs, citizens of this Commonwealth, who were at that time ignorant of the purposes for which the note was made, and took it in good faith, and sent the note before its maturity to the Bank of North America in the city of New York for collection; and it was never paid, and was duly protested.</p> <p>At the time of the making of this note, the legal interest of money in the State of New York was at the rate of seven dollars a year upon one hundred; and the statutes of that state provided that all bonds, notes, assurances, conveyances, and all other contracts or securities whatsoever, (except bottomry and respondentia bonds and contracts,) and all deposits of goods or other things whatsoever, whereupon or whereby there should be reserved or taken any greater sum or greater value, for the loan or forbearance of any money, goods or other things in action than at the rate of seven dollars upon one hundred dollars for one year, and after that rate for a greater or less sum, or for a longer or shorter time, should be void.</p> <p>If the court shall be of opinion that the action can be maintained, judgment is to be rendered for the plaintiffs for the principal of the note, with interest at such rate as the court shall determine; otherwise, for the defendants.</p>

Replevin of goods, stated in the officer’s return and in the appraisers’ certificate upon the writ to have been appraised at $ 325.20. The replevin bond was in the sum of $ 325. The defendant, before filing an affidavit of merits, moved to dismiss the action, because the bond was not in double the ' amount of the appraised value of the goods.

Indictment on St. 1845, c. 27, averring that the defendant, on the 23d of January 1859 at Lowell in the county of Middlesex, “… Held: by then and there forcing and thrusting the instrument aforesaid into the body and womb of one Elmira Callahan, the said Elmira Callahan then and there being pregnant with child, with intent thereby then and there to cause and procure the said Elmira Callahan prematurely to bring forth from her body the said child, with which she was…

<p>An indictment on St. 1855, c. 177, for fraudulently conveying real estate, without giving notice of an incumbrance, does not describe the real estate conveyed with sufficient certainty by describing it as u a certain parcel of real estate situated in Salem in the county of Essex.”</p> <p>Its seems, that an indictment for fraudulently conveying u a certain parcel of real estate by a certain deed of warranty ” is not sustained by proof of a conveyance of all the defendant’s “ right, title and interest in certain real estate, subject to one mortgage,” with covenants of warranty, except against that mortgage.</p>

Writ of error to reverse the judgment of a justice of the peace in Middlesex against the plaintiff in error upon a complaint which alleged that he on the 27th of August 1859 at Wayland “ did keep a dog, which said dog was not then registered, numbered, described and licensed, according to the provisions of” the St. of 1859, c. 225.

<p>Erasures and interlineations in an indictment, though without any note or certificate to show when or by whom they were made, afford no ground of arresting judgment.</p>

<p>The St. of 1856, c. 222, which prohibits the sale of adulterated milk, knowing or having reason to believe it to be adulterated, is not repealed by the St. of 1859, c. 206.</p> <p>A complaint on St. 1856, c. 222, for selling adulterated milk, cannot be sustained without allegation and proof that the defendant knew, or had reason to believe, that the milk was adulterated.</p> <p>A complaint on St. 1859, c. 206, § 4, for selling adulterated milk, must allege that the defendant was engaged in the business of selling milk.</p>

Indictment for breaking and entering the shop of James A. Pine in the night time, with intent to steal; and for larceny of the property of Pine, “ in a building, to wit, the shop of Pine,” on the 26th of October 1858. .

<p>The affidavits required by the rule of this court to verify a petition to establish exceptions which have been disallowed by the judge presiding at the trial are not evidence of the truth of the exceptions.</p> <p>Upon a petition to establish exceptions, this court will appoint a commissioner to take the depositions of witnesses produced by either party.</p> <p>Upon a petition to establish the truth of several exceptions stated in one bill, which has been disallowed by the presiding judge, the party excepting, upon proving one of his exceptions, may waive the others, and argue the one proved.</p> <p>On the trial of an indictment for setting fire to a barn in the night time, it appeared that a watchdog was at the time of the fire shut up in a dwelling-house eight rods from the barn, and did not bark until after the fire had been set and many people had approached the house; that the defendants had been previously and until within six days of the fire inmates of the house, and in the habit of petting and feeding the dog; but there was no evidence that any person passed the house, about the time the fire was set, and the barn was accessible by boats from other directions. Meld, that evidence that the dog usually barked when strangers passed the house and was quiet when inmates of the house passed, was not admissible for the purpose of showing that the person who set the fire was or had been an inmate of the house; nor in connection with or corroboration of evidence that one of the defendants had previously said, while declaring the intention of the defendants to set fire to the barn, that they must do it soon after leaving the place, before the dog forgot them.</p>

<p>The omission to state in the record that the defendant was arraigned upon a complaint made to a police court is no ground of arresting judgment after conviction in the superior court on appeal.</p>

<p>The court of common pleas had authority to appoint a special commissioner to take the recognizance in vacation of a man convicted upon an indictment and committed to prison under an order to recognize with sureties to prosecute exceptions in this court.</p> <p>The authority of the commissioner to take a recognizance i,s sufficiently alleged therein by a recital that it was taken before “ J. S., special commissioner appointed for that purpose by the justices of the court of common pleas,” and that the principal had been convicted upon an indictment, and had excepted to the rulings of the court, and a condition that he should prosecute his exceptions in this court, and abide the order of the court thereon; and in a writ of scire facias thereon by the recital that the recognizance was taken “before J. S., a commissioner specially appointed for that purpose.”</p> <p>£n scire facias upon a recognizance, an allegation that the recognizance “was duly cer tided and returned to the supreme judicial court, as by record thereof appears,” is a sufficient allegation that it was made of record in this court.</p>

<p>The provision of the Rev. Sts. c. 38, §§ 3, 4, requiring the choice of officers of a manufacturing corporation to be made annually at such time and place as the by-laws shall appoint, is not applicable to the first choice of officers of a joint stock company established by voluntary association under St. 1861, c. 133; and officers chosen at the first meeting of such an association may sign the certificate required by St. 1851, c. 133, $ 4.</p> <p>The certificate required by St. 1851, c. 133, § 4, may be filed in the office of the pecistary of the Commonwealth before any part of the capital stock is paid in.</p> <p>The giving of a bond by the treasurer of a manufacturing corporation is not a condition precedent to the organization of the corporation or to their right to sue.</p> <p>In an action for the conversion of personal property, an answer alleging that the defendant had property of a like kind in his possession, but is ignorant whether any portion £>f it was the property claimed, is a conclusive admission of possession, upon proof that the property therein mentioned is the property claimed; and the use of such averment as an admission of possession against the defendant does not render other allegations in the answer evidence in his favor.</p> <p>In an action ft* the conversion of merchandise, the plaintiff introduced evidence that ha wrote and sent to the defendant a letter demanding it, and received an answer which had been lost, and of the contents of which no evidence wa#s given; that he called at the defendant’s store and told his principal clerk that he wished to get the merchandise; that the clerk said the defendant was not in, and had advanced on the property all it was worth; that the plaintiff told the clerk that he wished to see the defendant, and after-wards repeatedly called at his store at such times as the clerk said he would probably be in, but could never find him. Held, that the defendant had no ground of exception to the refusal of the court to order a nonsuit, or to instruct the jury that the evidence was not sufficient to warrant them in finding a conversion of the property by the defendant.</p>

Action of contract upon a promissory note of the defendants, signed by their treasurer, dated June 22d 1857, and payable in four months. The declaration was in the form given in the practice act of 1852, c. 312.

<p>Action of contract against a stockholder in the Franklin Mills, a corporation duly established in New Hampshire by the laws of that state, to enforce a personal liability for debts of the corporation, under the Rev. Sts. of N. H. c. 146, § 3, and the N. H. Sts. of 1846, c. 321, §§ 1, 2, and 1856, c. 1852. The defendant demurred, because no liability existed from himself to the plaintiff in this commonwealth; and because, if such liability existed, it could not be enforced in this action. The parties agreed that it should be taken as part of the record, that by a statute of New Hampshire, passed on the 27th of June 1857, it was enacted that “ all legal proceedings hereafter commenced against any individual stockholder in any corporation in this state for the collection of a debt against said corporation shall be by a bill in chancery and not otherwise.”</p>

Action of contract to recover freight on twenty-five hundred bushels of wheat, carried by the plaintiffs, and consigned to the defendants by certain bills of lading, by which the plaintiffs were bound to deliver the same to the defendants at the plaintiffs’ depot in Boston, on the defendants paying freight at the agreed price of twenty cents per bushel.

<p>Replevin of ten chests of indigo, sold while in bond at the custom-house, by the plaintiff to the defendants through a broker, at ninety cents per pound on a credit of six months, and delivered under circumstances detailed in a statement of facts, upon which the case was submitted to the superior court, and on appeal, to this court, and which appears in the opinion.</p>

Replevin of thirty one cases of indigo, claimed by the plaintiff on the ground that he had made sale of them to Eaton, BOU & Candler on conditions which had not been complied with. Answer, that the indigo was not the property of the plaintiff, but of Eaton, Hill Sc Candler, who had consigned it to the defendants, and that the defendants had a lien thereon for advances.

Petition under St. 1855, c. 231, to enforce a lien on the ship Orpheus, for materials furnished by the petitioners to the respondents, who had contracted to build the ship for Wm. F. Weld & Co. The petitioners never filed the certificate required by St. 1855, c. 231, § 2, but before the vessel was finished they attached her upon a process issued on this petition.

Action of contract upon a charter party of the barque Franklin, for three months’ hire of the vessel from the 1st of November 1854.

Action of contract to recover $ 4000 on a policy of insurance, dated February 11th 1858, by which the defendants caused the plaintiffs “to be insured, lost or not lost, fifteen thousand dollars, on property on board vessel or vessels, steamboat oi steamboats, or land carriage, at and from ports or places to ports or places ; all sums at risk under this policy to be indorsed hereupon and valued at the sum indorsed; ” and the defendants “confessing themselves paid the…

<p>It seems, that the husband of the sister of a person whose life is insured, and who pays the premiums of insurance as agent of that person, has a sufficient interest to maintain an action to recover the whole amount insured on a policy made payable to him, although the policy contains a condition that “ policies obtained by or made payable to creditors, or persons not belonging to the family of the person whose life is insured, are subject to proof of interest, and the company will pay upon such policies no greater sum than the amount or value of such interest.”</p> <p>W ant of insurable interest in the plaintiff cannot be set up in defence of an action on a policy of life insurance, if the answer does not specify it, but denies liability on other grounds.</p> <p>In a policy of life insurance made in Boston, and in the application for insurance, referred to and made part of the policy, the assured was described as residing at Valparaiso. The policy contained a printed permission to the insured to visit certain foreign countries, among which South America was not included. An indorsement on the policy gave permission to the insured to reside at Valparaiso upon the payment of a sum not named, leaving a blank for the amount. Held, that the assured had the right to reside in Valparaiso without further permission or payment; and that a sum paid by the payee of the policy and agent of the insured, without authority from him 01 knowledge of the provisions of the policy, for permission for his principal to reside at Valparaiso for one year, did not vary the contract, and might be recovered back from the insurers.</p> <p>In an action on a policy of insurance, the declaration need not set out conditions subsequent.</p>

<p>The members of a mutual marine insurance company, incorporated and doing business in Boston before the passage of Si. 1851, c. 281, signed an agreement “ to pay the said company on demand the sums set opposite their respective names, or such parts thereof as may from time to time be called in for the use of the said company, the same to be payable either in money or promissory notes.” The objects of the agreement were stated in it thus: “ Whereas for the purpose of enabling the corporation to increase its business, and in order to give greater security to the holders of its policies, the directors have considered it expedient to obtain a subscription of not less than two hundred thousand dollars, to be paid in stock notes in advance of premiums, payable in twelve months from their date, and in such sums and at such times as may be decided upon by the directors. It is not proposed to make any assessment on this subscription at this time, nor unless the business of the office should require it, but retain it as a guaranty fund, on which, with its other assets, insurance could be based. It is proposed however to allow any subscriber the privilege of giving stock notes from time to time on account of his subscription, to be paid him in premiums, and all such sums so paid shall be in full, to the extent paid, of all liability on account of this subscription.” Held, that the agreement created a contingent liability only upon the part of the subscribers; that the corporation stipulated by implication to issue policies to the subscribers and thereby to enable them to discharge tb°’\* liability on these subscriptions; and that its inability, in consequence of insolvency go perform its part of the agreement, absolved the subscribers from liability thereon, either to the corporation or its creditors.</p>

<p>Action of contract by a foreign insurance company, established in Canada, against citizens of Alabama, upon a premium note given on the 10th of January 1855 for a policy of insurance delivered in this commonwealth upon a vessel then in'Maine, afterwards registered in Alabama, and which during the continuance of the policy sailed between Mobile and Boston. At the time of making the contract and note, the capital stock of the plaintiffs did not amount to one hundred thousand dollars paid in and invested, exclusive of debts and stockholders’ obligations ; and they had not duly appointed a general agent in this commonwealth, upon whom process against them might be served. The case was submitted to the judgment of the court upon the above facts.</p>

<p>Notice to an indorser of the dishonor of a promissory note may be addressed to him by mail at the town of his actual residence at the time, though not the place of his domicil.</p> <p>If, on the trial of an action against the indorser of a promissory note, the evidence is conflicting, and the judge gives instructions, which are not excepted to, as to what constitutes due diligence, and the duty of the holder, not knowing the residence of the indorser to make inquiry and of whom, his refusal to instruct the jury as to the effect of parts of that evidence is no ground of exception.</p>

<p>Action of contract upon the following order, signed by the defendant and three other parties, and accepted by Edmund Swett:</p> <p>“ $ 3479.73. Boston, March 29th 1851. On or before the first day of November next, pay to the order of Willard Sears, executor, three thousand four hundred and seventy nine dollars and seventy three cents, in good merchantable lumber, delivered at Boston, .at the current market price, value received, and charge the same to the account of Yours, &c.”</p> <p>Trial before Merrick, J., who reported the following case for the judgment of the full court: Before the date of this order, the defendant, upon the advice and recommendation of the plaintiff, purchased three drafts, upon which the three other signers of this order were drawers, acceptors and indorsers, and afterwards indorsed these drafts to the plaintiff in payment for a mortgage transferred to him. When two of the drafts had matured and been dishonored, they were put in suit, and the defendant arrested. On the 29th of March 1851, and before judgment in those suits, it was agreed between the plaintiff and the parties liable on the drafts, that the three drafts should be given up to the parties thereon, the defendant discharged from arrest, the actions entered “ neither party,” and the plaintiff should receive, instead of the drafts, and for costs and expenses of those suits, the order now declared on; all of which was done.</p> <p>The lumber was never delivered or tendered upon this order, nor has the plaintiff received anything upon it. The defendant requested the plaintiff to give him notice of the dishonor of the order by mail at- his residence in Maine.</p> <p>The jury found specially that the notice of the nonpayment of the order was sent by the plaintiff to the defendant on the 1st of November 1851, by mail, addressed to his residence in Maine, but was not received by him; and that the defendant, after the dishonor of the order and nondelivery of the lumber according to its terms, and knowing that the order had not been paid, and that the lumber had not been delivered, promised the plaintiff that lumber, as described in the order, should thereafter be delivered to him in payment thereof.</p>

<p>Action of contract on this guaranty, dated October 6th 1851, signed by the defendant and addressed to the plaintiff: “ I will be responsible for what goods John H. Stacy may order of you, to the amount of two hundred dollars.”</p> <p>At the trial in the superior court of Suffolk, at May term 1858, Allen, C. J. directed a verdict for the defendant, and the plaintiff alleged exceptions. The facts are stated in the opinion of the court.</p>

<p>Action of contract on a guaranty of two promissory notes of Abel B. Crosby, dated April 11th 1853, and payable to the plaintiff or order in four years. The guaranty was on the margin of each note, signed by the defendant, and in these words: “ January 8th 1856. Having purchased the land mortgaged to secure this note, I hereby guaranty the trac and punctual payment of the same.”</p> <p>At the trial in the superior court of Suffolk at November term 1858, the plaintiff proved the signatures of the note and guaranty, and rested his case.</p> <p>The defendant contended that the plaintiff must allege and prove notice to the defendant, before the commencement of the action, of nonpayment of the notes, and also some consideration for the guaranty.</p> <p>But Allen, C. J. instructed the jury, that if they were satisfied from the written guaranty that the defendant had purchased the land mortgaged to secure the payment of the notes, and that the payment of the notes was part of the consideration of the purchase, then there was evidence of sufficient consideration to support the action; and also that, if such were the facts, no notice whatever was necessary to have been given by the plaintiff to the defendant before commencing the action; but if there was no such consideration for the defendant’s promise, the verdict should be for the defendant. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Appeals by the assignees of the Boston Steam Engine Company, and of Otis Tufts, from orders of the judge of insolvency, allowing the plaintiff’s claims against the estates of both. The cases were tried together before Merrick, J., and by him reported for the determination of the full court, in substance as follows :</p> <p>Before the passage, on the 3d of May 1855, of the St. of 1855, c. 290, authorizing the issue of special stock by manufacturing corporations, the Boston Steam Engine Company were organized and doing business as a manufacturing corporation, of which Tufts was the president, the owner of about three quarters of the stock, and the only stockholder who was possessed of considerable property. After the passage of that statute, their officers, contemplating obtaining additional capital by the issue of a special stock, had a negotiation with the plaintiff which resulted in the acceptance of a proposition made by him, and reduced to writing thus: “ Stephen G. Allen’s proposition. 1st. To take $10,000 new stock at eight per cent. 2d. To lend us $30,000, and perhaps $40,000, for three years, taking new stock as his security, at ten per cent, interest. 3d. To give us the privilege of paying up this $ 30,000 any time before the 1st of January 1856, if we can get the stock taken up, but first to offer it to him to take, if he chooses. 4th. To give us part notes for the $ 30,000 or $ 40,000, which notes shall be paid at maturity, and interest to be allowed, making them to us the same as cash.” At that time the plaintiff held notes of the corporation for borrowed money to a certain amount, and after-wards, and before the issue of the special stock, lent them a fur-. ther amount.</p> <p>In June 1855 the treasurer of the corporation told the plaintiff that the above arrangement could not be carried out in that form, as he had learnt that the special stock could not be originally issued to him by the corporation as collateral security; but, what would be the same thing in effect, the corporation would issue to him the $ 40,000 stock absolutely, redeemable in five years, and give him a separate agreement to redeem $ 30,000 thereof in three years, and that Tufts would be individually liable. To this modification the plaintiff assented, and on or about the 28th of July 1855 a computation was made of the sums due to the plaintiff, then amounting to nearly $32,000, and of the balance to make up $ 40,000, as cash on the 16th of June 1855. On the 4th of August 1855 the plaintiff gave up to the corporation their notes, and gave them his notes for the balance, signed a subscription book for four hundred shares of special stock, and received from the corporation certificates of special stock to the amount of $ 40,000, all dated June 16th 1855, for which he receipted in the certificate book of special stock as of that date. The plaintiff contended that the St. of 1855, c. 290, was unconstitutional, and that the meeting at which the corporation voted to issue this stock was not duly called, upon grounds not now material to be stated.</p> <p>These certificates were in the usual form of certificates of general stock of manufacturing corporations, with the addition of the following words stamped crosswise on their face in red ink : “ Special stock. $ 100 per share, subject to redemption at par after five years, and entitled to a fixed halfyearly dividend of four per cent.”</p> <p>At the same time the following agreement was executed and delivered between the parties: “ Memorandum of agreement made this twenty-eighth day of July A. D. 1855, between the Boston Steam Engine Company, of Boston, county of Suffolk, and Commonwealth of Massachusetts, and Stephen G. Allen, of Somerville, county of Middlesex, and commonwealth aforesaid, xvitnesseth, that whereas the said company voted on the thirtieth day of June last, at a meeting regularly called for that purpose, to increase their capital stock in the sum of one hundred thousand dollars ; said increase being special stock, and redeemable at par in five years, and entitled to a fixed halfyearly dividend of four per cent.; and whereas said company have solicited said Allen to subscribe towards said special stock, and in accordance with their solicitations he has subscribed towards the same, to the amount of forty thousand dollars, thirty thousand of which is subscribed with the understanding that the same shall be redeemed in three years from the date of said stock, instead of five years, as aforesaid. Now therefore, in consideration of the premises, the said company agree that they will redeem the said amount of thirty thousand dollars of special stock in three years from the date thereof. . Witness our hands and seals the day and year before written. Stephen G. Allen. [seal.]</p> <p>“ Approved, L. A. Bigelow, Treas. , , ,</p> <p>11 Otis Tufts, President. Boston Steam Engine Co.”</p> <p>In the fall of 1855, the plaintiff becoming uneasy as to his security, Tufts made and delivered to him this guaranty, and at the same time received from him one dollar as a consideration therefor: “ In consideration of the payment of one dollar paid to me by S. G. Allen of Somerville, I hereby guaranty the payment to him of the thirty thousand dollars of special stock mentioned in an agreement between him and the Boston Steam Engine Company, dated July 28th 1855, the said sum being a part of the forty thousand dollars mentioned in said agreement. Boston, 20th November 1855. Otis Tufts.”</p> <p>The plaintiff on the 1st of October 1855 received from the corporation in cash a dividend on the special stock, and after-wards received for the amount of two other such dividends promissory notes of the corporation, indorsed by Tufts, payment of which was duly demanded at maturity and refused, and notice thereof given to Tufts.</p> <p>On the 26th of September 1856 the corporation and Tufts filed petitions for the benefit of the insolvent laws, upon each of which a warrant was issued, and due notice of its issue published th'e next day.</p> <p>On the 23d of October 1858, the treasurer of the corporation being then absent in Europe, the plaintiff handed to Tufts a written demand on the corporation for the execution of their agreement.</p>

<p>Action of contract to recover damages for noncompliance tvith the following order:</p> <p>“ September 24th 1850. Messrs. Benedict & Warren, Salem, Mass. Gentlemen: Please give Mr. D. A. Neale, president of the Eastern Railroad Company, stock in the Salem Gas Light Company, at par, to the amount of seven thousand dollars, and place the same to my account. Yours respectfully,</p> <p>“ Leonard Fuller.”</p> <p>The parties waived trial by jury, and the case was heard by Hoar, J., who gave judgment for the plaintiffs, subject to the opinion of the full court on the following case :</p> <p>“ It was not satisfactorily proved that there was any promise made by the defendants to accept an order to be drawn upon them by Fuller, before the order mentioned in the declaration was drawn by Fuller, and presented to them for acceptance.</p> <p>’ “ This order was presented to the defendants within a few days after its date, and they then said it was good, and made an oral promise to accept and pay it. At the time the order was so presented, there was a contract between Fuller and the defendants, by which Fuller had agreed to furnish to the defendants fourteen thousand feet of iron pipe for the price of S 6,670, payable by the defendants in the stock of the Salem Gas Light Company, at par, under which contract pipe had been delivered to the amount of $ 3,355.65 when the order was presented.</p> <p>“ Between the 23d and 29th of October 1850 the order was again presented by the plaintiffs to the defendants, and an oral promise was then again made by the defendants to accept and pay the same. At that time there had been delivered by Fuller to the defendants in pipes, furnished under- the contract before named, and in other articles, to the amount, in the whole, of S 6,391.48, and the plaintiffs had paid to Fuller substantially the whole consideration for which the order was given to them by Fuller at its date.</p> <p>“ On the 3d of December 1850 there had been delivered to the defendants by Fuller, under the contract and otherwise, iron pipe and other articles to the amount of $ 7,654.36. Some of the iron pipe, so delivered, was not perfect, according to the contract, but was received and used by the defendants without knowledge of its imperfections. Such imperfections were dis-, covered between the 15tli of December 1850 and the 1st of February 1851, and a claim was made by the defendants on Fuller for compensation for damages caused by such imperfections; and such imperfections continued to be discovered during the spring of 1851, and like claim to be made.</p> <p>“ About the 1st of February 1851 the defendants and Fuller settled an account, in which the defendants were credited bv Fuller with the seventy shares of stock for which the order was given By Fuller to the plaintiffs, and with five more shares of the stock, which the defendants then delivered to Fuller; and the defendants gave Fuller a note for $ 100, the balance appearing by said account to be due to Fuller, which note was afterward paid by them. There was no allowance made in said account for any defects in pipe, or damages caused thereby.</p> <p>“ There was no evidence of any demand for the stock before the day of the date of the writ, and the stock on that day was worth $ 100 a share, and the same was then demanded.”</p>

<p>A declaration by F. C., on an account stated, may be supported by evidence of an account rendered by the defendants to C. & Co., and evidence that F. C. did business under the name of C. & Co.</p> <p>An instruction to the jury that the presumption of a partnership from the use of a name such as is commonly used where a partnership exists is slight and easily rebutted affords no ground of exception.</p>

<p>If a partner buys a chattel for his private use, and agrees to pay for it in goods to be delivered by his firm on the order of the seller, and the firm is changed by the addition of a new member, but continues the business of the old firm in the old place, and subsequently the goods are delivered according to the agreement, the firm cannot maintain an action for the price of the goods, though the other members of the firm were ignorant of the agreement.</p>

Bill in equity against one partner by his copartners for a dissolution of the partnership and a settlement of accounts.

<p>Action of contract. The parties submitted to the judgment of the court the following case:</p> <p>An indenture was made on the 22d of September 1854 between the plaintiff of the first part and the lelen-latits under the , name of Nourse & Co. of the second part, by which (lie plaintiff assigns to the defendants all his right in certain tellers patent obtained by him for an improvement in strawculters foi all the United States, with some exceptions, to be held by the lefendants to the full end of the term for which I he letters patent were granted; and the defendants agree to pay the plaintiff a certain premium on ;aeh machine made or sold by them-, „ud “further warrant and agree that the amount of premiums to be. paid said Gale as aforesaid shall not be less than two thousand dollars for each and every year during the term of this agreement ; and this agreement shall continue in full force during the whole term of said letters patent; provided, however, that the said Nourse & Co. and their legal representatives may at any time hereafter, after the expiration of one year from the date hereof, upon six months’ notice thereof to said Gale or his legal representatives, cancel, annul and terminate the same, upon reconveying to said Gale or to his legal representatives all the right, title and interest in said letters patent which are by this conveyance vested in said Nourse & Co., such reconveyance to be delivered to said Gale or his authorized agent, or to be recorded in the patent office by said Nourse & Co., which act of recording shall be deemed a valid delivery thereof, and thereupon all further liabilities, rights and obligations under this agreement shall cease, except as to the premiums already due or owing at the time of such delivery.”</p> <p>On the 7th of September 1857 the defendants, having given six months’ notice and duly executed a reconveyance, can-celled the agreement. All claims against the defendants up to the 22d of September 1856 have been duly adjusted and paid. The premiums on all machines made or sold from the 22d of September 1856 to the 22d of March 1857, amounting to $636, were recovered of the defendants in an action commenced on the 25th of October 1857 by the plaintiff, who did not thereby intend to waive his claim to whatever additional sum might become due under the warranty in the indenture. No machines have been made or sold by the defendants, except those on which premiums have been paid as aforesaid. The plaintiff claims to recover the sum of $1,281.48, with interest from March 22d 1858, which would be the amount due from the defendants from September 22d 1856 to September 7th 1857 at the rate of $ 2,000 a year after deducting the $636 paid as aforesaid.</p>

<p>Action of contract to recover back the purchase money paid for a patent right. Trial and verdict for the plaintiff in the superior court of Suffolk at January term 1859, before Huntington, J., to whose rulings the defendants alleged exceptions. The case is stated in the opinion.</p>

<p>The declarations made to his own family by one of the parties to a contract, immediately before and after making the contract, not in the presence of the other party, are not competent evidence against that party of the terms of the contract.</p> <p>If one hires a horse to go to a certain place and drives him beyond that place, it is a conversion of the horse, and the hirer is liable for all damages subsequently occurring, although arising from the fault of the horse.</p> <p>If, after a conversion of property, an injury occurs to it and the owner then receives it back and sends in his bill for the repairs and use, which is not paid, it is still a question for the jury, whether under all the circumstances the tort has been waived.</p> <p>The rule of damages for the conversion of a horse and carriage, which have been returned to the owner and received by him, is their market value at the time of the conversion, less their market value at the time of the return.</p>

Action of contract on an account annexed to recover the price of ale and intoxicating liquors, and of the barrels and vessels containing them, sold to the defendant.

<p>The first of these actions was of contract upon the covenant of quiet enjoyment in a lease; and the second, a writ of review of an action brought upon the Rev. Sts. c. 104, in the justices’ court of the city of Boston.</p> <p>At the trial in the superior court of Suffolk at May term 1858, these facts appeared: Healy had a written lease of the premises from one Garrett for five years from the 1st of April 1854, in which the lessee covenanted not to assign the lease or lease the premises or any part thereof. In September 1857 Garrett conveyed the premises, subject to this lease, to Trant. On the 11th of October Healy paid Trant the rent for the last quarter of 1857. About the 1st of October, Healy leased the premises to one Dowdieau, who underlet to one Eckles, and the latter kept a bar and sold intoxicating liquors without license, and also kept a house of ill fame. In the latter part of October 1857, Trant entered and took possession of the premises. Healy subsequently regained possession, and on the 4th of November 1857 Trant commenced the action upon the Rev. Sts. c. 104, now sought to be reviewed, and obtained judgment and was put in possession on the 20th of November, and has had possession since. There was some evidence tending to show that Healy had knowledge of the unlawful use to which the premises were put by the undertenant; but there was no evidence of any notice given by Trant to him of the unlawful use of the premises or of any request to him to stop such use.</p> <p>Healy requested the court to rule that “where, under St. 1855, c. 405, § 3, the charge is, not that the person holding the lease has set up a nuisance6, but that an undertenant has done so, though the lease of that undertenant may be thereby avoided, yet the lease of the original tenant is not avoided, unless it be shown that such nuisance was established and existed through his agency, either by direct participation in the establishment, or by allowing its continuance after notice and knowledge.”</p> <p>But Morton, J. declined so to rule; and instructed the jurj that if Healy by himself or through his undertenants used the premises or any part of them as a house of ill fame, or for the illegal sale of intoxicating liquors, the lease was thereby avoided; and if the defendant, immediately after, or while such nuisance continued, entered upon the premises for the purpose of avoiding the lease, he was justified in so doing, and might maintain the action on the Rev. Sts. c. 104, and Healy could not recover in the other action. The jury returned verdicts for Trant, and Healy alleged exceptions.</p>

<p>A sublessee who, upon the assignment by his lessor of his lease, has requested the assignee to permit him to continue in possession of the premises, and, on receiving such permission, has continued to hold the premises and paid rent, is estopped afterwards to deny the assignee’s title.</p>

<p>Action on the Rev. Sts. c. 104. At the trial in the superior court of Suffolk at January term 1858, before Nash, J., there was evidence of the following facts:</p> <p>In August 1856 the plaintiff leased the premises to the defendant at a yearly rent of $ 260, payable on the 20th of each month, which was paid till the 20th of December 1856. On the 6th of January 1857 the plaintiff gave the defendant notice in writing that if he continued to occupy the premises after the 6th of February next, his rent would be raised to seven dollars per week, payable weekly.</p> <p>On the 20th of January 1857, the plaintiff caused a notice to quit on the 20th of February to be served on the defendant, by leaving it in the hands of the defendant’s wife ; she at the time being in the premises leased, and the defendant being away from the house, but not out of town, and living at home.</p> <p>This process was commenced on the 21st of February 1857. On the same day the plaintiff brought an action for use and occupation from the 20th of December 1856 to the 20th of February 1857, and on the 21st of March a second action for use and occupation from the 21st of February to the 21st of March. The plaintiff became insolvent about the 1st of May, and his assignee in insolvency sued for rent and occupation from the 20th of March to the 1st of May, at which time the plaintiff’s title to the premises determined. These suits the defendant settled by paying rent for the entire time. The plaintiff’s assignee took upon himself the prosecution of said suits, but did not take upon himself the prosecution of the present action until the trial, when, on the defendant’s objecting that the action should not proceed in the plaintiff’s name, but in that of his assignee, leave was granted to the assignee to come in and prosecute, if necessary.</p> <p>The defendant requested the court to instruct the jury that the defendant’s tenancy, after the receipt of the notice of January 6th, was not a tenancy at will, but under the terms of that notice ; that the presumption was that he afterwards occupied under those terms, and the plaintiff was estopped to deny that the tenancy thenceforth was upon those terms; that there was no sufficient service of the notice to quit; and that the receipt of rent for use and occupation of the premises, for a time during which the defendant’s tenancy was claimed to have been determined by the notice, at the same rate, and for the same monthly term, was evidence of a waiver of the notice, and a continuance of the tenancy.</p> <p>But the court instructed the jury, that the service of the notice of January 6th did not terminate the old tenancy, and create a new tenancy according to the terms thereof, unless assented to or agreed to by the defendant; that it amounted at most to but a proposition on the plaintiff’s part, and did not become a contract of tenancy until assented to by the defendant ; that the mere continued occupation by the defendant after the service of that notice was not an assent to, or an acceptance of, said proposition; that there was no such presumption from defendant’s occupation, and no such estoppel against the plaintiff as contended for; that the service of the notice to quit was sufficient; and that the present suit, having been commenced in due form, and on a legal cause of action, for the possession of certain premises, was not waived, released or discharged by the other actions above mentioned for the rent of the same premises. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action on the Rev. Sts. c. 104. Writ dated June 13th 1856. The exceptions taken by the defendant at the first trial were sustained. 12 Gray, 206.</p> <p>At the second trial in the superior court of Suffolk at January term 1859, the plaintiff gave in evidence a mortgage from Michael Mitchell and John Connell to Lyman Mitchell in 1850; assignments thereof from Lyman Mitchell to Mary Burroughs, and from her to Francis C. Head in 1851; a certificate of Head’s entry to foreclose in 1853; and a deed from Head to the plaintiff in 1855. The defendant gave in evidence a mortgage from Edward Kehoe to John Connell in 1853; a mortgage from Kehoe to John McGee in 1854 ; assignments from Connell and McGee, and a deed from Kehoe to the defendant, in 1855. All these were duly recorded.</p> <p>The plaintiff also introduced evidence tending to show that Head and the plaintiff were in possession of the premises, receiving rents for five years previously, and in the summer of 1855 the plaintiff repaired the buildingsj fastened up the houses, and put up notices to let, and that the defendant in the fall of 1855 took possession peaceably without the knowledge of the plaintiff.</p> <p>Nash, J. instructed the jury, “ that if Head and his assignee, the plaintiff, with good title, were in possession of the premises by their agents and tenants, and the plaintiff cleared out the tenants and shut the buildings up, with notice to let, and whilst they were so unoccupied the defendant, without title, though under bona fide claim of title, made a peaceable entry, such entry would be unlawful; and if subsequently the defendant held possession by force against the plaintiff and without title, such holding of the possession by force would be unlawful and the defendant liable, and that the mortgagee’s assignee in possession, after entry to foreclose, could maintain the process, if, before the expiration of the three years the defendant made a peaceable entry and unlawfully held the possession by force.” The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>The St. of 1845, c. 208, §§ 8, 6, does not forbid the conveyance of real estate by a husband to his wife through the intervention of a third party.</p> <p>A., the owner of a house and land, permitted M., his son in law, to occupy them, and while M. was in possession executed a deed to him of the premises, which was not recorded, and the delivery of which was in dispute. Held, that if the deed was not delivered, yet declarations and acts of A. and M., tending to show that they both believed the premises had been effectually conveyed to M., and that they both treated them as belonging to him, were competent evidence from which a jury might infer a disseisin of A. by M.; although since the execution of the deed A. paid taxes and obtained insurance in his own name on the premises, and with the consent of M. and his wife conveyed a strip of the land to the city for the improvement of the sidewalk.</p>

<p>A debt contracted by a married woman, for the accommodation of another person, without consideration received by her, will not be enforced in equity against her separate estate, unless made a charge upon it by an express instrument.</p>

<p>Action of contract against the administrator of the estate of William P. Prescott to recover money paid for the support since his death, of Lucy A. Prescott, his wife, at the McLeai Asylum for the Insane, to which she was admitted in September 1854, when the following obligation was signed by her husband as principal, and the plaintiff as surety:</p> <p>“ In consideration of Mrs. Lucy A. Prescott being admitted a patient into the McLean Asylum for the Insane at our request, we, the undersigned, promise the Massachusetts General Hospital to pay the treasurer thereof at said asylnm, quarterly on the first days of January, April, July and October, with interest after said days respectively, the rate of board determined by the trustees of said hospital, and stated in the order of admission hereunto affixed,” namely, four dollars a week; “to provide or pay for all requisite clothing and other things necessary or proper for the health and comfort of said patient; to remove said patient when discharged; to reimburse funeral expenses in case of death; and if removed uncured, against the advice and consent of the superintendent, before the expiration of three calendar months, to pay board for thirteen weeks.”</p> <p>The case was submitted to the judgment of the court upon facts agreed by the parties, which are stated in the opinion.</p>

<p>Action of contract on a bond in the sum of $200, dated January 22d 1856, the condition of which was that whereas the plaintiff, as a deputy sheriff, by virtue of a writ or process issued in favor of the defendant against C. B. Jones, had on the 5th of January 1856 attached a horse, wagon and harness as the property of Jones, and held them for sale on execution, the defendant should “ well and truly indemnify and save harmless the said White of and from all suits, damages and costs whatever whereto he may be liable or obliged by law to pay to any person or persons by reason of the said attachment, or any further intermeddling of the said White by virtue of said process.”</p> <p>In the superior court of Suffolk at May term 1858 a breach of the bond was admitted, and upon the assessment of damages by Morton, J. the following facts appeared: This defendant brought an action against Jones in which White served the writ and attached the horse mentioned in the bond. Asa P. Cleverly and Caleb S. Cleverly brought an action against White, claiming the horse as their property, which action French undertook to defend; but the Cleverlys obtained judgment and execution for $ 200 damages and $ 136.07 costs. White immediately and repeatedly requested French to satisfy the judgment, but he neglected and refused so to do; and White was arrested on the execution, carried before a magistrate, and gave sureties for his appearance within ninety days. White subsequently made an agreement with the Cleverlys, by which for the expressed consideration of $ 350, being the amount of the execution with interest and costs, he conveyed to them certain land and assigned to them the bond; and this action was brought for theii benefit, and the execution was returned satisfied. The land was in fact so incumbered that in the opinion of the judge the conveyance was of no pecuniary value. The judge assessed the actual damages sustained by the plaintiff in mental mortification, loss of time and trouble and of money, independent] y of the value of the land, at $40. The defendant contended that execution should issue for $40 only. But the judge ordered judgment for $ 214, being the penalty of the bond, and interest from the time of demand; and that execution issue for that amount. The defendant alleged exceptions.</p>

<p>Action of contract, praying relief in equity, against the executors and trustees under the will of Zachariah Stevens, and against John Stevens his son. The declaration alleged that the .material parts of the will were as follows:</p> <p>x give and devise to my children, Samuel, John, Joseph L., Edward L., and Mary C., wife of John G. Brooks, share and share alike, all the residue of my estate, real and personal, for the use of them, their heirs and assigns, respectively forever.</p> <p>“ I however give and devise the share of said Mary C. to my executors, to be held by them on this trust; that they shall hold the same during her life, and either let her real estate or sell and convey the same, and put out on interest the proceeds thereof, and her share of my personal estate; and shall pay her for her sole use on her sole receipt the income thereof annually, or oftener, and also any part of the principal, if necessary for the comfort, support and education of herself or children; and, after her decease, pay the same to her heirs at law, or convey to them her share of real estate unsold, for their use forever.”</p> <p>The declaration also alleged that the testator by a codicil gave and devised to his executors the share given by the will to his son John, “ to be held by my executors on the trust that they shall dispose of, hold, manage and pay, for his benefit, and the benefit of his heirs,, said share and the income thereof, under the same restrictions and with the same limitations I have within directed and appointed respecting the share I have given to my daughter Mary C.; ” and that John, after the probate, assigned to the plaintiffs, by instrument under seal, all hia interest in the will and codicil and in all estate, real and personal, acquired thereby.</p> <p>The defendants demurred, upon the ground that John had no power to make the assignment.</p>

Action of contract against the trustees under the will of Stephen J. Bowles, the father of the female plaintiff, tc recover interest upon a legacy.

<p>A testator by his will bequeathed an annuity “ to my sister Honorine Degrand of Aix in France;” and by a codicil, which revoked all the bequests in his will, bequeathed an annuity to “ Delphine Degrand of Aix.” He had a sister Honorine Degrand who lived in Aix. He had formerly had a sister Delphine, who never lived in Aix, and had been dead many years to his knowledge; and he knew no person of that name living in Aix. Held, that Honorine was entitled to the annuity.</p>

<p>If a debtor ia absent from and resides out of the Commonwealth, retaining no dwellinghonse or boarding-place here, though intending to return at some future indefinite time, he has no domicil here, and the time of his absence is to be deducted from the period of limitation of actions against him, under the Rev. Sts. c. 120, § 9.</p>

<p>Action of contract upon an account annexed. In the justices’ court for the county of Suffolk the case was referred to an auditor, who made a report in favor of the plaintiff; and judgment was rendered for him.</p> <p>The defendant appealed to the superior court of Suffolk, and there objected to the acceptance and use of the auditor’s report, because it was indefinite, uncertain and insufficient. The plaintiff then moved that the report be recommitted to the auditor to restate the account and make report thereof, to meet the defendant’s objection. ' The court ordered the report to be recommitted, and this order was entered on the docket, but no new rule was taken out. The auditor afterwards, without notice to either party, or further hearing of evidence, returned an amended report, finding the same amount due from the defendant to the plaintiff, and stating in detail the items and amounts allowed and disallowed. To this report the defendant objected, “because the auditor had no authority to make such or any amended report; and because no notice was ever given to the defendant, nor any hearing allowed to him by the auditor, before making up and filing the amended report.” But Nash, J., on the facts appearing of record and on those not disputed, decided as a matter of fact that the report was recommitted to amend matter of form, and admitted it in evidence. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>In this commonwealth, a copy of a record of a court, attested by the clerk, though not under the seal of the court, is competent evidence.</p>

<p>Writ of error to reverse a judgment by default of the justices’ court of the county of Suffolk in favor of the defendant in error in an action brought by him against the plaintiff in error, for the want of legal service of the writ upon which the judgment was rendered." The officer’s return upon that writ was thus: “ By virtue hereof I have attached one piano-forte as the property of the within named H. G. Jones, and summoned him to appear and answer at court by leaving the summons of this writ at his last and usual place of abode known to me as such in said Boston.” Plea, in nullo est erratum.</p>

<p>Action of contract against the acceptor of a bill of exchange drawn by Douglass & Co. at Chicago, Illinois, on the 15th of March 1856, and payable in ninety days. Answer, that the drawing and acceptance were procured by fraud and fraudulent representations, and that the plaintiff took the bill with notice thereof.</p> <p>At the trial in the superior court of Suffolk at September term 1858, before Nash, J., there was evidence tending to show that the bill was discounted in Chicago by a person pretending to be an agent of the Arlington Bank of Washington, D. C., who paid Douglass & Co., for whose accommodation it was drawn and accepted, in uncurrent and worthless bills; and on the 1st of June 1856 came into the hands of J. W. Webb & Co., bankers in Washington, (whether with or without notice of the fraud was in dispute upon the evidence,) and by them transferred to the plaintiff.</p> <p>Douglass, one of the drawers of the bill, testified that on- the 25th of March 1856 he had a conversation in Washington with Webb and the plaintiff about the bill, and put an advertisement in the Washington Union, a newspaper published in Washington, and also in two Chicago newspapers, wherein all persons were cautioned against purchasing or receiving the bill, But copies of these advertisements, though called for, were not produced at the trial. And there was no evidence whether the advertisement was in the daily, weekly, or other issue of the Washington Union, or that that newspaper was taken by Kellogg, or habitually read by him, or taken at any place to which Kellogg resorted, or by Webb & Co.</p> <p>The plaintiff introduced evidence tending to show that in March 1856 he was a citizen of Clinton in this state, and went to Washington to fulfil a government contract to supply bricks for the Washington Aqueduct; that till the first part of May he went back and forth between Washington and Clinton ; that from the middle of May he casually did business with Webb & Co. as bankers merely; removed his family to Washington in June; purchased the bill before maturity, without notice, for a valuable consideration; in October or November became a member of the firm of Webb & Co.; and never read or heard of the advertisement. The defendant contended that upon the evidence in the case the plaintiff had notice of the fraud in the inception of the bill; but neither counsel in argument, nor the judge in charging the jury, referred to the advertisement. Neither party excepted to the charge, or asked for further instructions.</p> <p>After the jury had been out several hours, they were brought into court, and being asked whether further instructions or recapitulation of the evidence would assist them in coming to an agreement, the foreman said that in the minds of some of the jurors question had arisen as to the effect of the advertisement in the newspaper, whether the plaintiff was bound by it. Whereupon the judge instructed the jury “ that the mere advertisement in the Washington newspaper amounted to nothing as notice to the plaintiff of the fraud in the origin of the draft; that there was no evidence in the case that the advertisement was brought home, or which would legitimately authorize the inference that the advertisement was brought home, to the knowledge of the plaintiff; and that the advertisement could not be considered by them as notice tr the plaintiff, unless it was proved by other and direct evidence that the advertisement was read or known to the plaintiff.”</p> <p>The counsel for the defendant then asked the judge to instruct the jury, on whom was the burden of proof, to show whether the plaintiff had notice of the manner of obtaining the defendant’s acceptance. But the judge declined, and directed the jury to retire. The counsel for the defendant, however, stated that he wished, before the jury retired, to submit to the judge certain prayers for instructions to the jury, modifying ana adding to those already, given to the jury on the subject of the advertisements. The.judge, thinking it advisable at that stage of the case to avoid anything that might possibly operate as a reargument by each side in the hearing of the jury, declined to withdraw the direction already given to the jury to retire; but stated to the counsel for the defendant that he would hear him, and bring the jury in again if proper. The jury then went out. The counsel for the defendant then asked the court to instruct the jury, “ that from the fact that said advertisement was published in the city of Washington, where the plaintiff resided and had his usual place of business, and from the facts proved in relation to the character of the plaintiff’s business, the jury had a right to conclude that the plaintiff read said advertisement.” But the judge declined to have the jury brought bade. The verdict was for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of contract, with a count in tort, brought under St. 1841, c. 124, § 3, by the assignee of Atherton & Walker, insolvent debtors, under proceedings in insolvency commenced on the 6th of September 1858, to recover the value of a check as having been transferred by Atherton & Walker to the defendant in fraud of the insolvent laws.</p> <p>At the trial in the superior court of Suffolk at January term 1859, the plaintiff introduced evidence tending to show that Atherton & Walker had in 1852 borrowed S 1,100 from the defendant, and given their promissory note therefor, on which interest had been paid up to February 1856, and payment of the principal of which had been repeatedly demanded by the defendant; that on the 14th of June 1856 Atherton & Walker, being insolvent in fact and as they and the defendant had reasonable cause to believe, and intending to give a preference, in order to raise money to pay their note, gave to Sand, Craft & Co. their note on six months, secured by a mortgage of their entire stock in trade, and Sand, Craft & Co. gave them their check of the same date for $ 1,200 on the Traders’ Bank payable to bearer, and Atherton & Walker immediately gave it to the defendant in payment of their note to him, on which $1,125 were then due, and received from him $ 75 in money; that the 14th being Saturday, the check was presented and paid on the next Monday at the bank, where Sands, Craft & Co. had a deposit larger than the amount of the check, both at the date of the check and the time of its payment; and that the check was paid, taken and treated by the several parties as and for money, in the ordinary course of business.</p> <p>Nash, J. instructed the jury that if “the respective parties considered and treated the loan of the check and the payment of the note thereby as a money transaction, and the check as money, such as loans and payments are ordinarily understood and accomplished among merchants and business men, then the plaintiff was not entitled to maintain this action, notwithstanding Atherton & Walker, at the time of such payment of the note by the check, were insolvent, and had not reasonable cause to believe themselves solvent, and intended to give a preference to the defendant, a pre-existing creditor, and the defendant at the same time had reasonable cause to believe them insolvent.” A verdict was taken for the defendant, and the plaintiff alleged exceptions to this instruction, and to rulings previously made but not now material to be stated.</p>

<p>The indorsee of a draft purporting to be drawn against a consignment of merchandise described in a warehouse receipt and certificate annexed, by which the drawer declared a lien on the merchandise in favor of the holder of the draft, reserving however to the consignee the right to sell the merchandise when received, holding the proceeds instead in trust for the holder of the draft, may maintain a bill in equity to enforce the trust against the consignee and his pledgee.</p> <p>The laws of the State of Michigan provided that all corporations whose charters expired by their own limitation should continue to be bodies corporate for three years, for the purpose of prosecuting and defending suits by or against them, and that any suit pending in favor of a corporation at the time of its dissolution should not be thereby abated, but might be prosecuted by the trustees on whom its estate should have devolved, in its or their name, under the direction of the court in which the suit might be pending Shortly before the end of the three years next after the expiration of its charter, a corporation established by the laws of Michigan sold and assigned to an individual all its property and claims, upon his giving bond to pay its debts and do certain other things. Held, that a suit commenced in this state before the expiration of the charter might be prosecuted to judgment after the end of the three years, in the name of the corporation, by the assignee.</p> <p>A, in Detroit, drew a draft on B, in Boston, purporting to be drawn against certain flour described in a receipt and certificate annexed, by which A acknowledged possession of the flour, and engaged to hold it subject to the sole order of B, and to ship it consigned to B by the first opportunity, and certified that he had drawn the draft against the flour and that the receipt and certificate should remain attached to the draft, and be evidence of a lien on the flour in favor of the holders of the draft, reserving to the consignee, however, the right to sell the flour upon receipt of it, holding the proceeds instead in trust for the holders of the draft. A indorsed the draft to O, and B accepted it. Beldf that a special property in the flour vested in 0, and that C, by giving notice to B, before he had otherwise disposed of the flour or the proceeds of the sale of it if sold, could hold him liable in equity for the amount of the draft.</p> <p>At common law, and under the St. of 1845, c. 193, a consignee had no power to pledge goods consigned to him for sale; and a lien previously created upon such goods by the consign- or, with the knowledge of the consignee, would follow them into the hands of an innocent party to whom the consignee had fraudulently pledged them for advances to himself.</p>

<p>Appeal from the decision of commissioners upon the insolvent estate of Thomas J. Lobdell, deceased, of which the defendants were administrators.</p> <p>The material facts, as appearing by the report of an auditor, upon which the case was submitted to the judgment of the court, were as follows: Lobdell was a broker in Boston, and was employed by the plaintiff to buy stocks for him, with his own money, and bought for the plaintiff a number of shares of the Cheshire Railroad Corporation. On the 1st of July 1853 the parties settled an account, and found a balance due to Lobdell of $ 7,450, for which the plaintiff gave him a promissory note, as security for payment of which Lobdell acknowledged that he then held one hundred and forty nine of these shares. Lobdell died in October 1853, and his administrators soon after called upon the plaintiff for a settlement, who did not deny his indebtment, but asked for all the time possible. It did not appear that the plaintiff ever demanded his stock or offered to pay his note. At the time of Lobdell’s death, he had no shares of this stock standing in his own name, and none in the plaintiff’s; but owned or held two or three thousand such shares which he had pledged; and he at any time during his life, and the defendants after his death, could have procured for the plaintiff his shares or an equal number, if he had demanded the same and paid the amount of his note. Before Lobdell’s death the shares had fallen in value, so that those which he held for the plaintiff would not, if sold, have produced enough to pay his note, and they afterwards fell still more.</p> <p>The plaintiff contended that Lobdell had no right to pledge the shares, and, having done so illegally, was responsible for their value at the times when they were assigned to him or purchased by him. The plaintiff admitted that if this claim could not be sustained, he was indebted to Lobdell’s estate. The auditor was of opinion “ that he has no right to charge the estate of Lobdell with the value of the shares at the time they were purchased. The mere fact that Lobdell pledged shares belonging to the plaintiff for his own debts does not make him responsible for the value of that stock at any particular time. He had a lien on them, because the plaintiff was constantly , indebted to him for money lent on these shares, and the plaintiff had no right to demand an assignment of them without paying or tendering the amount for which they were held; and any change in the market value in the mean time could not ' be chargeable to Lobdell. This would be obviously true, if Lobdell had held the shares in his own name as security. Assuming that he had no legal right to pledge them, yet, as it appears that he during his life, and his administrators after his decease, had the power to replace the stocks; that the plaintiñ never paid or offered to pay the amount due thereon, and never demanded the stock; and this act of Lobdell, if unlawful, was, as to the plaintiff, a wrong without an injury, for which he can claim no redress, because he has suffered no loss thereby.”</p>

<p>Action of tort, by the assignees in insolvency, under proceedings commenced in February 1855, of George T. Small-wood and James C. Morton, copartners under the name of Smallwood & Morton, for the conversion of three promissory notes.</p> <p>At the trial before Shaw, C. J., it was agreed that in October 1854 Smallwood & Morton executed an assignment to the defendant of all the property of their firm for the payment of debts, which was never executed by all their creditors nor by the defendant; that the defendant took possession of the property of Smallwood & Morton at their factory, a large portion being unfinished furniture, and advanced to finish the furniture and make it marketable a large sum of money, and also merchandise, sold a portion of the property so finished, and received therefor the promissory notes sued for and some cash; but that the whole amount received by the defendant was not sufficient to reimburse him for his advances; and that the plaintiff demanded the notes from the defendant, who refused to deliver them till reimbursed for his advances.</p> <p>There was evidence tending to show that about the time the assignment was executed by Smallwood & Morton, (but whether before or after was not fixed,) and before the defendant took possession of the property, or furnished any materials or money to complete the unfinished portions, it was verbally agreed between Smallwood and the defendant, without the assent or knowledge of Morton, as an agreement independent of the assignment, that the defendant should take possession of said property, complete it, furnish money and materials for that purpose, and have a claim on the property and proceeds for reimbursement.</p> <p>The defendant contended that he took possession of the property, not under the assignment, (which he admitted to be invalid,) but under the independent verbal agreement above mentioned; and offered in evidence certain conversations between Smallwood and the defendant, and between Smallwood and his brother, in regard to that agreement, in which it was talked over by Smallwood and fully recognized. “ But, inasmuch as these conversations took place after the assignment had been executed by the parties who did execute it, and after the time the said independent verbal agreement was alleged to have been made, and before the petition in insolvency was filed,” the chief justice excluded the evidence.</p> <p>The chief justice instructed the jury that the alleged assignment was void as against creditors and assignees in insolvency; and that if the jury should be of opinion that the defendant took the property, not under the assignment, but under an independent verbal agreement, yet that “ such a separate and collateral express agreement by insolvent debtors, manufacturers, to deliver exclusive possession of the stock, tools and unfinished manufactured goods, in contemplation of insolvency, to a party, under an agreement that he would take exclusive possession, advance money and goods to carry on the business, so far at least as to finish the unfinished goods, and have a lien or mortgage thereon, for the whole of such advances, as against creditors; considering that it would be an immediate hypothecation of their whole estate, for future, contingent and unlimited time, and to an unlimited amount; was substantially a violation of the insolvent laws, and void against creditors.”</p> <p>The jury returned a verdict for the plaintiffs, and the chief justice reported the case to the full court, for the consideration of the correctness of these rulings and instructions.</p>

against the estate of Perry & Mayo, insolvent debtors, of which the defendants were assignees, consisting of a correct statement of the debts due to them from Perry & Mayo, less so much of the proceeds of wood and coal sold by them under a claim of pledge or lien for their whole debt, as was not recovered of them by the assignees in an action of tort for the conversion of the wood and coal, reported in 6 Gray, 100. The case is stated in the opinion.

<p>The mortgagee of personal property has an implied irrevocable license, after foreclosure, to enter in a peaceable and reasonable manner upon the premises of the mortgagor to take away the goods mortgaged, even if the mortgagor was but a tenant in common of the premises; at least, if the mortgagor has purchased with notice of the mortgage his cotenant’s interest in the mortgaged property. And if the premises are a dwelling-house, the door being open and no objection being made, the mortgagee has a right to enter and take the mortgaged property away, without previous notice.</p>

<p>Action of tort for obstructing the light and air of ancient windows in the plaintiffs’ building; for obstructing a passage way appurtenant to the plaintiffs’ estate, by erecting a post in and building over it; for obstructing and preventing the accustomed opening of the ancient shutter of another window in the plaintiffs’ building; and for obstructing the plaintiffs’ use of the passage way as a place to deposit boxes and merchandise, and over which to receive light and air into the plaintiffs’ building, and hoist merchandise into their windows.</p> <p>Pending the action one of the plaintiffs died, having devised his title to third persons. At the trial the following facts were agreed:</p> <p>The plaintiffs and the defendant owned adjoining estates, appurtenant to each of which was a right of passage over the way in question, which passed in part over the land of each. Before the acts complained of, the passage way ran between the buildings of the parties, (which had always been used as warehouses,) and was entirely open and uncovered, except that at the entrance of the way on the defendant’s land stood an iron gate opening in the middle into two parts, secured when shut by a padlock and a bolt fastening one side to the ground, with two horizontal bars and eight or ten perpendicular bars in each part, of which the one nearest each building turned at the lower end in a cup set in a short bar of iron, five and a half inches long, and fastened to the building, and at the top passed through a horizontal stationary bar running across from building to building.</p> <p>In 1852 the defendant removed this gate; erected a similar gate in its place, of which, however, the part next his building cannot be taken off; and, at about the spot where it had been attached to the plaintiffs’ building, erected an iron post, let into the ground, and supported by a stone rising about an inch higher than the previous position of the short bar; and erected a building across that portion of the passage way of which he owned the fee, about an inch above the stationary iron bar of the old gate.</p> <p>In the plaintiffs’ building were windows which had been there thirty years, overlooking the passage way, with ancient shutters swinging over it, which, after the erection of the defendant’s building, swung back in a recess left for the purpose, except one, which was prevented by the wall of his building from swinging back farther than at right angles with the window.</p> <p>Bigelow, J. reserved the case, by consent of parties, for the consideration of the full court, to be referred to an assessor after the determination of the following questions of law:</p> <p>1st. Whether the surviving plaintiff could maintain the action.</p> <p>2d. Whether an action would lie for obstructing the light and air of the ancient windows.</p> <p>- 3d. Whether the passage way had been obstructed by the post or the building erected by the defendant.</p> <p>4th. Whether there was any right of action for the obstruction of the swing of the shutters.</p> <p>5th. Whether, if it could be proved that the plaintiffs for more than twenty years had used the passage way for the purpose of depositing boxes or merchandise therein, or of hoisting merchandise into the windows of his warehouse, or had been accustomed to take in articles over the old gate, he had acquired any rights which would enable him to maintain the action</p> <p>This case was argued at March term 1859.</p>

<p>A bequest of a fund in trust to accumulate for a fixed period of more than twenty one years, and then to be paid to the testator’s then next of kin, is void for remoteness.</p> <p>A testator directed his executors to pay a certain sum to a trust company, to be held by it for the term of fifty years after his death, in trust to invest the principal and interest from time to time, in order that the same might accumulate for the benefit of his heirs; subject however to a provision that sums (not exceeding in any event six per cent upon the original capital) might be paid to any of his children or grandchildren who should become poor and in necessitous circumstances; and upon the further trust, at the end of the fifty years to pay the whole principal sum with its" accumulations to those who would be entitled to his estate if he should then die intestate; provided that any attempt by any child or grandchild to alienate his share or right should forfeit the same to the remaining issue of the testator; and further directed that if the trust company should refuse to receive the fund on the above terms and conditions, his executors should place the same with the company on terms, conditions and agreements as near to the above as they could obtain, keeping in view his principal objects in making this bequest. The trust company being supposed to be authorized by its charter to take deposits only for a life in being, the executors deposited the fund with it upon a policy by which the interest was to be accumulated until otherwise directed, and, with the principal, payable to them upon the death of one of the testator’s sons, with the understanding on the part of the executors and the company that upon his death within the fifty years, a like policy should be taken out on another life, and so on till the end of the fifty years, and the fund should then be distributed according to the will. Held, that the bequest was void for remoteness, and that the residuary legatees were entitled to the fund.</p>

<p>A warrant issued by order of the senate of the United States for the arrest of a witness for contempt in refusing to appear before a committee of the senate, and addressed only to the sergeant at arms of the senate, cannot be served by deputy in this commonwealth.</p>

Complaint to a justice of the peace on St. 1855, c. 215, § 15, for an unlawful sale of intoxicating liquor to Charles McCarty.

<p>Allowing a witness who has testified on the trial of an indictment for unlawful sales 01 intoxicating liquors that he had bought beer of the defendant, to be asked, for the purpose of showing that it was intoxicating, whether he had bought, or drank beer bought, of other persons, is no ground of exception.</p>

Complaint on St. 1855, c. 215, § 15, for two sales of intoxicating liquors “in violation of the provisions of an act, approved on the twentieth day of April in the year of our Lord one thousand eight hundred and fifty five, entitled 1 an act concerning the manufacture and sale of spiritous and intoxicating liquors.’ ” The first count concluded “ against the form,” and the second “ against the forms of the statute in such case made and provided.” The defendant, having been…

<p>Indictment on St. 1855, c. 215, § 15, for a single sale of intoxicating liquor to William Ruggles on the 1st of June 1859, and a like sale to Edward A. Waterhouse on the 1st of August 1859. At the trial in the superior court in Bristol, the evidence was as follows:</p> <p>“ Ruggles, upon examination in chief, testified that in June 1859 the defendant sold him intoxicating liquor. Upon cross-examination, the witness testified that he was tvholly unable to recollect any particular sale, or in any way to distinguish any one sale made during the month named from any other; but that he testified that the defendant had made a sale to him, upon a general recollection that during that month he was frequently there, and he had no doubt that the defendant often sold him intoxicating liquor during the month named. Water-house testified substantially in the same manner as to a sale made to him in the month of August 1859.”</p> <p>Upon this evidence the defendant contended that the jury could not' legally convict, because there was no evidence of any particular sale either in June or August, or at any time, to either of the persons named in the indictment. Morton, J. declined so to instruct the jury; and instructed them that if upon the evidence they were satisfied beyond a reasonable doubt that the defendant had, in or about the months named, made a sale of intoxicating liquor to each of the persons named in the indictment, they would be authorized to render a verdict of guilty. The jury returned a verdict of guilty, and the judge reported the case for the decision of this court.</p>

<p>• At the trial in the superior court in Bristol, Whaley testified that the defendant made a "sale of intoxicating liquor to him in August 1859; and the district attorney informed the court that he should rely on that sale only. On cross examination, Whaley testified that before the justice of the peace he had testified to three sales by the defendant to him in June, July and August, 1859; and he now testified to the same three sales.</p> <p>Upon this evidence the defendant contended that he could not be convicted, unless the jury were satisfied beyond a reasonable doubt for which sale he had been convicted before the justice, and found him guilty of the same sale. Morton, J. instructed the jury that if they were satisfied that the defendant made a sale to Whaley in August, they would be authorized to find him guilty, and they did so. The judge reported the case to this court, which, in accordance with Commonwealth v. Hogan, 11 Gray, 315, and Commonwealth v. Burke, 14 Gray, 81 gave Judgment on the verdict.</p>

<p>Actions of contract by the payees of promissory notes, made by Parmelee as principal and the other defendants as sureties. Writs dated April 4,1855. The declaration in the first case was for the principal of a note for $350, payable “ on the first day of April 1855 and interest annually,” and for one year’s interest on another note payable “ on the first of April 1856 and interest annually.” The declaration in the second case was for the principal of a note for $300, payable “ on the first of April 1855 and interest annually,” and for one year’s interest on another note, dated March 8, 1853, and payable “ on the first day of April 1856, and interest annually.”</p> <p>Answers, that the notes were given in payment for a farm and wood-land sold by the plaintiffs to Parmelee, and that Parmelee was induced to make the purchase by false and fraudulent representations of the, plaintiffs as to the quantity and quality of the land.</p> <p>At the trial in the court of common pleas in Berkshire at October term 1856, the defendants introduced evidence tending to show that Parmelee was induced to purchase the real estate by the statements of the plaintiff that the wood-land contained fifty acres, when in fact it contained but about thirty nine acres, and his misstatements of the amount of wood growing thereon, and as to the boundaries thereof, by showing boundaries which embraced lands of others, and by his statement that the farm contained one hundred acres certainly, and upon admeasurement would be found to contain one hundred and twenty five acres, and that its capacity for production and keeping of stock was much greater than it actually was. The defendants contended, as matter of law, that if the plaintiffs made these statements, knowing them to be false, or made them as of their own knowledge, not knowing whether they were true or false, and they proved to be false, and Parmelee was induced by the statements to purchase the premises, and was injured, recoupment for the damages might be made in this action.</p> <p>Briggs, J. instructed the jury as follows: “ If the plaintiff pointed out to the defendant woodland, claiming to own it, when he knew he did not own it, or falsely and knowingly misstated the number of acres of woodland, or the number of acres in the home farm, or if he fraudulently stated the number of acres of land to be many more than there were, when he did not know how much land there was, or if he falsely and knowingly misrepresented the amount of wood standing on the woodland, or falsely and knowingly misrepresented the quantity of land in the home farm, and its capacity to produce grain, and the number of cattle it would keep through the year, and. the defendant, relying upon these false representations, entered into the contract with the plaintiff for the land, and took a deed of the same, the jury may deduct from the amount of the notes declared on in these suits, which were given as part of the consideration of the land, any damages which he may have sustained, by reason of the false and fraudulent representations of the plaintiff.”</p> <p>The judge also instructed the jury, that the burden of proving these misrepresentations was upon the defendants, and added: “ In civil cases, the party having the burden of proof must sustain his case by a balance of testimony, or by such preponderating evidence as would reasonably satisfy the jury of the truth of his allegation. The supreme court of this Commonwealth had recently, in a case before them, substantially laid down this general rule. In the same case they had also said there were some civil actions, in which, from the nature of the case, and of the facts to be proved, it would seem that the same strictness and amount of evidence should be required as in criminal cases depending upon the same facts. It appeared to him this was one of those cases. Here the defendants alleged that the plaintiffs had made false representations, knowing them to be false, for the purpose of deceiving and defrauding one of them, which if true would amount to a criminal offence in the plaintiffs, and the same amount of evidence should be required to sustain the charge as would be required if the plaintiffs were on trial under an indictment charging the same offence, that is, for having deceived and cheated the defendant Parmelee, by these same false and fraudulent representations. If the charge made was thus proved to the satisfaction of the jury, they should so declare it by their verdict; but if their minds, after carefully investigating the facts, were left in reasonable doubt, the charge was not made out, and their verdict should be otherwise.”</p> <p>The jury returned verdicts for the plaintiffs, and the defendants alleged exceptions, which were argued and decided at September term 1857.</p>

<p>An action for money had and received may be maintained by a town against its treasurei to recover money received by him as treasurer, and not accounted for in his annual settlements with the town.</p> <p>A demand by an agent, appointed by a town to settle a claim against one of its officers, is a sufficient demand before commencing an action against him in behalf of the town.</p> <p>In an action brought by a town against its treasurer to recover sums not included in his account, he may show other errors in the account tending to balance the omission, without pleading them in his answer or in set-off.</p> <p>A town treasurer and collector is not accountable to the town for the amount of taxes illegally assessed, and which he has not received.</p> <p>In an action by a town against its treasurer for money had and received, after the counsel for the town has offered to allow him to prove any sums paid by him and not credited on the books of the town, evidence of such a payment by him before the bringing of the action cannot be rejected because not specified in his answer.</p>

<p>Action of contract against the late sheriff of Berkshire for the refusal of his deputy to pay over money collected by the deputy upon warrants alleged to have been committed to him in due form of law from the plaintiffs’ collector of taxes for 1853, and for the deputy’s neglect to serve such warrants. The answer admitted that the taxes were legally assessed, but denied, among other things, that they were legally collected, or that any warrants for their collection were ever committed to the deputy.</p> <p>At the trial in the court of common pleas in Berkshire, before Bishop, J., the following facts were proved or admitted : At the annual town meeting of Williamstown in 1853, a collector of taxes was chosen, and refused to accept that office. Thomas Sabin was legally chosen and sworn as constable, and thereby became collector, and gave bond according to law, and signed as constable and collector, and delivered to the defendant’s deputy, in his official capacity, warrants for the collection of taxes legally assessed upon certain persons, who were alleged therein to have been delinquent in paying the same, but reciting no cause for issuing them. The town passed no vote giving tax collectors the powers of town treasurers when acting as collectors of taxes. The defendant’s deputy collected a portion of such taxes, and made return accordingly.</p> <p>The plaintiffs offered evidence that the persons named in the warrants had, after the assessment of the taxes upon them, removed out of the precinct of the collector, without paying their taxes, and were out of the precinct when the deputy received the warrants and Collected the taxes. But the evidence was objected to and excluded.</p> <p>The plaintiffs contended that their allegation that the war rants were committed to the deputy sheriff had not been denied, and was in law admitted. But the judge was of opinion that the answer put in issue the validity of the warrants ; and instructed the jury that the warrants committed to the deputy sheriff were not in due form of law and were void, and that the action could not be maintained. The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions, which were argued at the last term in Berkshire.</p>

<p>Recovery of a judgment by husband and wife in an action on a debt to the wife is not such a reduction to possession by the husband as to authorize the set-off of another judgment recovered by the defendant against the husband alone.</p>

Action of contract on a promissory note'. Answer, that it was made on the Lord’s day, and therefore void.

<p>(Vhere two or more deeds are made simultaneously and so connected with each other that they may be regarded as one transaction, they will be held' to take effect in such order of priority and succession as shall best carry out the intention and secure the rights of all the parties.</p> <p>The owner of real estate executed and delivered two mortgages of it on the same day, one of which was declared to be subject to the payment of $ 2,000 secured by the other, and was conditioned for the payment of $1,100 in 1851; and the other was conditioned for the payment of notes for $ 2,000, which the mortgagee had signed as surety for the mortgagor, payable in 1852 and 1863, and which were held by the first mortgagee. Held, that the second mortgagee did not take a seisin prior to the first.</p>

<p>Under the Rev. Sts. c. 128, § 1, perjury may be committed by testifying falsely at a bearing before a board of fence-viewers under c. 19, § 6, and c. 43, § 28, after being sworn by a justice of the peace, according to c. 85, § 36.</p>

<p>The owner of land, who has made a verbal contract for the sale of standing wood to be cut and severed from the freehold by the purchaser may at any time revoke the license which he thereby gives to the purchaser to enter on his land to cut and carry away the wood, so far as it relates to any wood not cut at the time of the revocation.</p>

<p>A purchaser from a female infant, with the concurrence and sanction of her husband, of trees growing on her land, for their full value, which is paid through him to her, and who has not been repaid or tendered the price, but has cut and sold the trees without notice of any disaffirmance of the sale, is not liable in tort for their value.</p>

<p>An action of tort before a police court or justice of the peace is the proper form of suing for the penalty of ten dollars, provided by St. 1854, c. 23, for the refusal of a railroad corporation to check the baggage of a passenger delivered to it for transportation.</p> <p>After the attorney general has appeared in the court of common pleas and authorized the further prosecution of an action, there pending on appeal, commenced in the name of the Commonwealth in a police court, to recover a penalty, the defendant cannot object that the suit was instituted and prosecuted in the police court without the authority or knowledge of any public prosecutor.</p> <p>A disinterested counsellor at law, appointed by the court of common pleas for the purpose, may conduct the trial of a suit in behalf of the Commonwealth in that court, although the district attorney remains in court throughout the trial.</p> <p>A railroad corporation which in fact receives the baggage of a passenger upon a train on which it is not bound to take it, to be transported over a portion of the road for which he has purchased a ticket, is subject, upon refusing to check the baggage, to the penalty provided in St. 1854, c. 23.</p>

<p>The hirer of a horse at a livery stable is liable for a want of reasonable care and skill in driving him; and, unless he is manifestly incapable of using such care and skill, it is immaterial whether the keeper of the stable expected or had reason to expect that he would or would not be careless or unskilful.</p>

<p>A widow who has joined with her husband in a mortgage of her separate estate to secure his debt, which she has paid since his decease for the purpose of exonerating her estate, may prove the amount before commissioners of insolvency upon his estate.</p> <p>A creditor may prove his debt against the estate of his deceased debtor before commissioners of insolvency, without first surrendering a mortgage of the separate estate of the debtor’s wife, which he holds as security for the debt.</p>

<p>This court has not jurisdiction in equity to make a decree against a defendant personally, who never has been an inhabitant of the Commonwealth, or served with process here.</p> <p>This court has jurisdiction in equity under Sts. 1851, c. 206, and 1858, c. 34, of a bill ags’nstthe mortgagee of real estate in the Commonwealth, whose mortgage has not been foreclosed, and who in fraud of his creditors has transferred the promissory note secured by the mortgage to a person out of the jurisdiction, to compel the payment of a debt of the mortgagee out of the mortgaged premises.</p>

Petition in equity to this court, under St. 1838, c. 163, § 18, by a creditor of Daniel Strong of Springfield, to set aside proceedings in insolvency under a warrant issued by the judge of probate and insolvency for the county of Hampden, upon a petition of Strong for the benefit of the insolvent laws, which was received by the judge and the warrant issued by him at Boston in the county of Suffolk; for which reason, before the return of the warrant at the first meeting of…

<p>If the grantee of part of an estate subject to a mortgage, which has in fact been assigned by the mortgagee by an unrecorded assignment, afterwards takes a quitclaim deed of the whole estate from the mortgagee, he acquires a valid title to the part which he previously held as against the mortgagee, but no sufficient title to the residue to defeat a writ of entry by the assignee to foreclose the mortgage.</p> <p>An assignee of a mortgage may maintain a writ of entry for foreclosure by recording his assignment after suit brought and before the trial, if his title as against the defendant does not depend upon the time of the record.</p>

<p>ft superintendent of alien passengers, accompanied by a police officer for the purpose o enforcing obedience to his orders, went upon a vessel arriving with alien passengers or board, and demanded head money on these passengers, under color of his office but without lawful authority; told the master that if he did not comply with the demand he could not land his passengers; and gave him a receipt in behalf of the Commonwealth for the head money, which by arrangement between him and the master was actually paid after the landing of the passengers. The vessel could not have been entered at the custom-house without a certificate from the superintendent that the head money had been paid, or a satisfactory arrangement made with him for its payment. Held, that the payment was by compulsion, and that the owner of the vessel might maintain an action to recover it back from the superintendent while remaining in his hands, whatever was the contract as to head money between him and his passengers. The money having been deposited in a bank by the superintendent in his official capacity and not mingled with his own property, and he having died pending the action, no creditor having required that it should be included in his general assets, and it having been paid over bv his administrator to the Commonwealth upon receiving a bond of indemnity, Held, further, that the representation of his estate as insolvent, and the appointment of commissioners of insolvency by the probate court, did not oblige the plaintiff to prove his claim before the commissioners, or prevent his prosecuting his action to judgment against the administrator.</p> <p>An assignment of one partner’s estate under the insolvent laws does not prevent all the partners from maintaining an action previously commenced on a debt due to the pari> nership.</p>

<p>Indictment for burning a barn, which purported by its caption to have been found “ at the superior court begun and holden at Lenox within and for the county of Berkshire on the first Monday of July in the year one thousand eight hundred and sixty; ” charged the defendant with setting fire to and burning at Becket, on the 29th of February, in the night time, “ a certain barn then and there in said Becket situate, and then belonging to one Calvin Geer; ” and was signed “ A true bill. C. Cleveland, foreman.”</p> <p>At the trial in the superior court, William E. Austin testified that the defendant said he believed Geer burned his own barn to make money, and his father believed so too. Upon cross-examination the defendant asked this witness: “ Have you heard other people say that Geer burned his own barn, or they believed that Geer had burned his own barn ? ” To this question the district attorney objected, and Rockwell, J. ruled it to be inadmissible. On the next day, before the testimony in the case was all in, the district attorney offered to waive his objection to this question, and to allow the witness to be recalled and answer it; but the counsel for the defendant did not accept the offer.</p> <p>The defendant, being convicted, alleged exceptions to the exclusion of the evidence, and to the overruling of a motion in arrest of judgment on the following grounds :</p> <p>1st. Because the indictment did not allege that the barn was" of any value, nor was the same proved to be of any value whatsoever ; 2d." Nor that the barn was not within the curtilage of a dwelling-house or other building, the burning whereof would be punished by imprisonment in the state prison for life, nor that it was a building other than is mentioned in the Gen. Sts c. 161, § 2, or in the Rev. Sts. c. 126, § 3; 3d. Nor that the barn was the real estate or property of Calvin Geer, or of any other person or persons whatsoever; 4th. Because the indictment purported to have been found at the superior court holden on the first Monday in July 1860, whereas it was in fact found at an adjourned term of that court holden on the 9th of July 1860; 5th. Because it was not signed by the foreman of the grand jury, who appeared by the records of the court to have been Cyrus Cleveland.</p>

<p>Bastardy process, entered in the court of common pleas at February term 1859. At October term 1859 of the superior court, (to which the case had been transferred under St. 1859, c. 196,) Putnam, J. dismissed the case for want of jurisdiction, and the complainant alleged exceptions, the substance of which is stated in the opinion.</p>

<p>The refusal of a judge to require the plaintiff to elect upon which of two counts in slander, alleged to be for the same causq of action, he will proceed, is no ground of exception.</p> <p>Evidence of the moral or intellectual character of a person in whose hearing and to whose understanding slanderous words are spoken is immaterial upon the question of damages in an action for the slander.</p> <p>The damages in an action of slander cannot be mitigated by evidence of a provocation given by the plaintiff to the defendant on the evening before the speaking of the slanderous words.</p>

<p>If surveyors of highways, without the previous approbation in writing of the selectmen, cause a watercourse occasioned by the wash of the highway to be conducted by the side of the highway and within its limits, in such a manner as to incommode an abutter in the use of his estate, the only remedy is under the Rev. Sts. c. 25, §§ 6, 6.</p> <p>Selectmen are duly chosen surveyors of highways by a vote of a town “ that there be three surveyors of highways for the present year; that they be authorized to contract with persons for keeping the roads in town in repair for the year, and to draw their orders upon the treasurer for the amount of their contracts; the selectmen being said overseers.”</p> <p>It seems, that the offices of selectmen and surveyors of highways are not incompatible.</p> <p>The want of other selectmen does not affect the power of the selectmen of a town, upon being chosen surveyors of highways also, to discharge the duties of surveyors.</p> <p>An action for an injury occasioned to land of an abutter by the construction, by surveyors of highways, of a watercourse in the highway, cannot be supported by evidence that the work was wantonly and improperly done.</p>

<p>A foreign corporation having a demand against a citizen of this State, on which an action can be maintained here, may take a mortgage of his real estate to secure such demand, and, in case of breach of condition, foreclose the same by action.</p> <p>Production of a promissory note signed by husband and wife, with a mortgage to secure it, signed by her and in which he joins to signify his assent, and proof of breach of the condition, are sufficient prima facie evidence to support a writ of entry to foreclose the mortgage, without proving that she owned the land in her own right.</p> <p>The nephew of one who had mortgaged land to a corporation, whose charter provided that it should make no loan to any of its agents or officers on any security whatever, testified that his uncle, before and at the time of making the mortgage, was actuary of the corporation, had an office as such, and had no other business. Held, that this testimony, if not shown to be the best evidence which could be had, was insufficient to defeat the right of the corporation to maintain an action on the mortgage.</p>

<p>Proof of corporate acts and copies of the certificates filed in compliance with law in the office of the secretary of the Commonwealth and in that of the town clerk are competent evidence, in an action against a corporation, to prove its organization, after notice given to the corporation to produce its book of records and a failure to produce it.</p> <p>A corporation is estopped to set up in defence of an action the falseness of a certificate of their organization filed by them as a compliance with the requirements of a statute.</p> <p>A corporation organized under St. 1851, c. 133, which has assumed liabilities and held itself out as a corporation, cannot avail itself of its omission to publish the certificate of its organization required by § 4, or of its adoption of the name of another corporation or company in violation of § 6, to defeat an action against it by a creditor.</p>

Action of contract to recover expenses incurred in the support of James Newbury, his wife and four minor children as paup its, who were alleged to have a settlement in Lenox, derived from his father, Isaac Newbury.

<p>Petition for partition of real estate under Rev. Sts. c. 103. At the trial in the superior court before Putnam, J., a verdict was returned for the petitioners, and the respondent alleged exceptions, the material part of which is stated in the opinion.</p>

Sts. c. 103, to make partition of an estate consisting of several farms and a large tract of woodland. Dewey, J. affirmed the judgment, and the respondents alleged exceptions, which are stated in the opinion.

<p>A devise by a father to his unmarried daughter, who has always lived with him, of “ the right to reside in and use and occupy, as heretofore accustomed, my present dwelling-house, as long as she remains unmarried,” gives her, while unmarried, a right to the sole and exclusive use and occupation of the house, if the size, construction and arrangement of the house are such that the occupation of any part of it by other tenants would be incompatible with the use and occupation to which she had been accustomed in the lifetime of the testator.</p> <p>A bill in equity cannot be maintained by a tenant in common against his cotenants for partition of a house and land.</p>

<p>Appeal from a decree of the court of probate, refusing to grant a petition for the removal of the appellee from the office of administrator of Stephen Stevens, for leave to bring a suit upon his official bond, and that he might be required to settle his account in that court. '</p>

<p>If the plaintiff, in an action of tort for breaking and entering his close, counts on a trespass committed on divers days between two dates, and gives evidence of a single act of trespass committed at another time, he cannot be permitted also to prove a trespass within the time alleged.</p>

<p>Action of tort for the conversion of a horse. Answer, denial of the plaintiff’s property and of the conversion.</p> <p>At the trial in the superior court, the plaintiff testified that in January 1859 he obtained the horse in dispute (which was a cream-colored horse) by exchange with one Dyer, who had obtained him by exchange from Roswell Hubbard; and that the defendant took him from his possession in Pittsfield, although forbidden by the plaintiff so to do.</p> <p>The defendant introduced evidence that in October 1858 John W. Carver, being then the owner of the horse, gave the defendant, in order to secure a debt which he owed the defendant, a mortgage of “ one cream-colored with silver mane and tail, which I bought of Frank Dowley; ” that five or six weeks before the taking sued for, Carver verbally directed the defendant to take the horse under his mortgage, and that he might call on Frank Hubbard in Otis, where the horse was; that the defendant called there accordingly, but could not find the horse, and that the first time he saw the horse afterwards was on the plaintiff’s farm in Pittsfield, when he reclaimed him “ by virtue of his mortgage and by said order of said Carver.”</p> <p>The defendant offered the evidence of Carver to prove “ that he (Carver) bought a cream-colored horse with silver mane and tail, of Frank Dowley, and made said mortgage to the defendant, intending to mortgage said horse to the defendant, and that he was not aware of any ambiguity in the mortgage until some time after the defendant reclaimed the other horse.” Putnam, J. ruled “ that the mortgage was not subject to explanation by testimony, and that the mortgage had no tendency to prove the mortgage of a horse any more than the mortgage of a bull, and that he should so charge the jury;” and afterwards instructed the jury “that the plaintiff, having taken this horse for a valuable consideration, from a person claiming the ownership, his title would avail in this action as against the defendant, unless the defendant could show a better title or claim ; that the paper, which parties supposed to be a mortgage, gave the defendant no title; and that if the jury found that the possession was taken by the defendant after the time when the plaintiff had so purchased the horse by virtue of this order from Carver to take possession for the purpose of foreclosure, under what the parties thus supposed to be a mortgage, these circumstances alone would not give the defendant any right to the horse as against the plaintiff in this case.” The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of tort for false representations, that a promissory note of Ingalls & Clark, delivered by the defendant to the plaintiff, in part payment for a yoke of oxen, was a good, due and unpaid note.'</p> <p>At the trial in the superior court before Putnam, J., the plain- • tiff was allowed to introduce oral evidence of such representation against the defendant’s objection to their admissibility, because not in writing.</p> <p>The only evidence offered by the plaintiff to prove the note had been paid at the time when the defendant said it had not, and that the defendant’s representations were false, was the record-jof a judgment of the court of common pleas, rendered before the commencement of this suit, in an action brought by the plaintiff against the makers of the note, to enforce payment of it, in which they pleaded payment of the note by one of them to the payee, and obtained a verdict and judgment. It was not contended that the payee was requested to take upon himself the prosecution of that suit, or that the plaintiff had ever offered to return the note to him ; but evidence was introduced tending to show that he had notice of the pendency of that suit, was summoned and testified as a witness, was informed beforehand of the defence set up, and requested to have his proofs ready at the trial that the note had not been paid to him as pleaded. The defendant objected to the admission of this judgment for any purpose. But, the judge ruled that, if he had notice of the suit, and was requested to have his proofs at the trial, and had reasonable time and opportunity to do so, then the judgment would be conclusive evidence that the note had been paid to him as then pleaded, and he could not now be permitted to prove that the payment was not made on the note, but on account of other demands.</p> <p>The jury were instructed that if the representations were as to the quality of the note, and not as to the character of the makers, they need not be in writing; that they must be satisfied that the representations made were intended and understood to mean that this was a subsisting unpaid note, and were false, and the plaintiff was deceived by them and took the note, relying wholly or in part upon their truth.</p> <p>The defendant introduced evidence that, at the time of his transfer of the note to the plaintiff, one of the makers was of no ability to pay, and the other was largely in debt and in failing circumstances; and contended that if the jury found for the plaintiff, the rule of damages would be the fair value of a note against such makers. But the judge ruled that the jury need not take into consideration the solvency or insolvency of the makers at that time, and what would be the result upon an equal distribution of their assets; that if they were satisfied that the makers, or either of them, had property sufficient to pay this note, by attachment of which it could be secured, then the plaintiff was entitled to receive the amount of the note and interest; but if they had not sufficient property for that purpose, then the plaintiff was entitled to only such part of the note as they should find the makers would have been able to pay; and if they should find that the makers were wholly worthless at the time in question, then the plaintiff had suffered no damage by the representation that it was unpaid. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of tout for the conversion of forty eight and one half cords of wood. At the trial in the superior court it was agreed that the defendants purchased the wood of a deputy sheriff, who sold it on execution against S. L. Arnold 8c Co. as their property, when it was in fact the property of the plaintiff. The defendants contended that the plaintiff’s remedy was against the officer, and not against them. But Putnam, J. ruled otherwise. The jury returned a verdict for the plaintiff and the defendants alleged exceptions.</p>

<p>Action of tort by a deputy of the sheriff of Berkshire foi the conversion of a large quantity of plate glass — which the plaintiff had attached on mesne process in favor of George C. Hubbell, and, considering it to come within the provisions of the Rev. Sts. c. 90, § 33, did not retain possession of it, but deposited a copy of the writ and of the return of his attachment in the town clerk’s office — against other creditors of the same debtor, who subsequently caused it to be attached in like manner by Pease, another deputy of the same sheriff, who took a receipt for it from an agent of the debtor, but did not otherwise inter-meddle with or remove it. At the trial in the superior court, Putnam, J. ruled that the above facts, if proved, constituted a conversion, the jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>Ií a deputy sheriff, who, on receiving a writ for service, has "been authorized by the plain* tiff to settle the suit by receiving an order on a particular person, receives the amount of the claim in money of the defendant, and does not pay it to the plaintiff, nor serve the writ, the sheriff is answerable for his default.</p>

<p>Action of tort by the mortgagee of a horse for its convex sion by the defendant, a deputy sheriff.</p> <p>At the trial in the superior court, before Putnam, J., the plaintiff put into the case the writ and papers in an action by Charles S. Benjamin against Alonzo A. Jordan, the plaintiff’s son, the officer’s return in which showed that the defendant had attached and sold the horse upon the writ. The plaintiff was permitted, against the defendant’s objection, to prove that that attachment was dissolved by his neglect to keep possession of the horse.</p> <p>The plaintiff, before commencing this action, made no statement in writing or demand of payment of the amount due upon his mortgage. The judge instructed the jury that none was necessary, if the attachment was dissolved before the horse was finally taken and sold by the defendant.</p> <p>The plaintiff then introduced the mortgage, dated January 29th 1859, under which he claimed title to the horse; and called Alonzo A. Jordan, who testified that he made the mortgage of the horse to his father, the plaintiff, and gave it to the town clerk to be recorded, without any knowledge of the mortgagee at that time, but that more than a year before he had agreed with his father to execute a mortgage of the horse to him, to secure a loan of money then made by his father to him, and that the mortgage was made in pursuance of that agreement.</p> <p>The town clerk testified that when the mortgage was handed to him by Alonzo A. Jordan for record, he at once minuted upon the back of it, in the usual form, the fact of his so receiving it and the date; that on the 1st or 2d of February 1859 he assisted the defendant in making an examination of the records of the town and of the book of mortgages, and they found no record of the mortgage, and he told the defendant none had been left with him; but that after the defendant had gone he found the mortgage in his private drawer. The defendant contended that this evidence did not show a legal delivery or record of the mortgage, valid against his attachment. But the judge instructed the jury that it was not material whether the mortgage had ever been duly recorded or not, and that the facts proved concerning the agreement to make a mortgage, and the subsequent making and delivery of it to the town clerk, amounted to a valid delivery of it to the mortgagee.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Bill in equity by the administrator of the maker of a promissory note and of a mortgage of real estate to secure it, against an indorser of the note and assignee of the mortgage, to compel the cancelling of the note and mortgage, the surrender of possession of the land, and for an account and further relief. Trial before Dewey, J., who made a report thereof to the full court, the substance of which is stated in the opinion.</p>

<p>A mortgage to secure the mortgagee from all liability that he may incur by reason of his becoming surety or indorser on the notes of the mortgagor does not secure notes given to the mortgagee for money lent by him to the mortgagor, and as evidence of such loan.</p>

<p>Action of tort by the assignee in insolvency of Heman D. Burghardt, for the conversion of four water-wheels, with the shafts, coupEngs and other machinery connected with them. At the trial in the superior court the plaintiff introduced evidence of the foUowing facts:</p> <p>In 1854 Burghardt contracted with John E. Potter, who then owned certain real estate in Barrington, tt furnish the waterwheels and machinery, and to set them up in wheel-pits to be prepared by Potter on the premises, for the sum of $ 3,500, of which $ 500 was paid at once, and the balance was to be paid on the completion of the work, in notes secured by a mortgage of the property, or by a mechanic’s lien.</p> <p>In the latter part of 1854, Burghardt, in pursuance of this contract, constructed the wheels in question, which were made of cast iron and placed in pairs upon cast iron shafts, and set them up in penstocks and a flume, the frame of which rested on a stone foundation built by Potter in all respects like the foundation of a building. The wheels were intended for the purpose of driving a paper-mill on the premises; they were outside of the paper-mill building, but the mill could not be used without them.</p> <p>In January 1855, before the completion of the wheels and fixtures, the mill was destroyed by fire; Potter failed and abandoned the work; and Burghardt never fulfilled his contract and never received any payment or security, except the $ 500 paid at the time of making the contract; never delivered the wheels, except in so far as setting them up as above described amounted to a delivery ; never offered to return the money which he had received, and never called On Potter for any payment.</p> <p>When the contract was made the premises were subject to certain mortgages, which were afterwards assigned to the defendants, who had previously had notice that Burghardt claimed to own the wheels and machinery, and who, a year after the fire, took possession of the premises, which were in the condition in which the fire had left them, to foreclose the mortgages, and afterwards purchased the equity of redemption.</p> <p>Upon this evidence, Putnam, J. ruled that the wheels having been placed on the premises after the execution of the mortgages, the action could not be maintained. The plaintiff then offered to show that, by the agreement between Burghardt and Potter, the wheels were to remain the property of the former until completed and payment for them secured by mortgage; but the judge ruled that, even if that were proved, the plaintiff could not maintain his action, and directed a verdict for the defendants, which was returned, and the plaintiff alleged exceptions.</p>

<p>Fraud practised by a mortgagee upon his mortgagor, in obtaining the mortgage, cannot be set up by one claiming und jr a quitclaim deed from the mortgagor, in defence of an action by an assignee of the mortgagee to foreclose the mortgage, even if the assignee took the mortgage with notice of the fraud.</p>

<p>Action of contract on a promissory note for $250. The defendant in his answer admitted the making of the note, and alleged that it was without consideration; and also filed a declaration in set-off for a like amount for a horse, cow and yearling sold to the plaintiff.</p> <p>At the trial in the superior court there was evidence of the following facts: On the 22d of April 1857 the plaintiff and defendant made a contract in writing, by which the defendant agreed to sell to the plaintiff several parcels of land, and the horse, cow and yearling, to give up immediate possession of all the property, and to delivef the deed of the land on ot before the 1st of October following; and the plaintiff agreed to pay to the defendant $ 500 on the delivery of the deed, and the further sum of $ 2,300 on or before the 10th of April 1858. At the time of making this contract the plaintiff, at the defendant’s request; lent him $ 250, for which he took the note in suit, both parties expecting that the defendant would accept this note in part payment of the sum to be paid to him by the plaintiff" on receiving the deed, though there was no express agreement to this effect. The plaintiff entered into immediate possession of the property described in the agreement, and continued in possession of it till about the 1st of March 1858, when he restored the possession of the land to the defendant, having previously sold the horse and cow, and retaining the yearling at the time of the trial. The defendant never delivered any deed of the land to the plaintiff.</p> <p>Upon this evidence, Putnam, J. ruled that the defendant could not set off the value of the horse, cow and yearling against the note declared on, and directed a verdict for the plaintiff for the amount of the note, which was returned, and the defendant alleged exceptions.</p>

<p>A sold to B certain real and personal estate at a fixed price, for part of which B gave eight promissory notes to A, secured by a mortgage of the real estate. An agreement was indorsed upon the written contract of sale that the sale of some of the personalty should be so far conditional that if B should neglect or refuse to pay, or cause to be paid, any of the eight notes, with interest for three months after the same should become due, the sale should become void. Held, that this was a sale upon a condition subsequent, and, being for an entire sum, amounted to an agreement that B should have all the property for a certain price, if paid punctually, but if not so paid should have less property for the same price; and that after three months’ default of payment on any of the notes, A might repossess himself of the personal property embraced in the indorsed agreement, and recover the whole amount of the purchase money from B.</p>

<p>Trustee process, served upon the trustee on the 9th oí June 1858. The trustee in his answer disclosed that at February term 1858 of the court of common pleas the principal defendant obtained two judgments against him, one for about eighty three dollars and costs, and the other for about eighty dollars and costs; and that the principal defendant held a written promise, dated March 1st 1848, of the trustee and three other persons, in consideration of a release of dower by her to. the trustee, “ to pay Mary Cooper, at her residence in Lenox, forty five dollars annually so long as the said Mary Cooper shall live, and at that rate for any part of a year.” Putnam, J. discharged the trustee, and the plaintiff alleged exceptions.</p>

<p>If one charged as trustee in foreign attachment becomes insolvent after demand made upon him on execution and the suing out of scire facias, and his assignees in insolvency come in and defend, judgment cannot be rendered against them.</p>

<p>Action of tort against husband and wife for the conversion “to their own use” of property of the plaintiff’s intestate; with a count in contract, alleged to be for the same cause of action, and averring that the defendants owed a certain sum of money to the intestate in his lifetime, and to the plaintiff as his administrator. Demurrer on the grounds stated in the opinion, which was sustained by Dewey, J., and the plaintiff alleged exceptions.</p>

<p>Two persons in partnership as attorneys at law were employed to commence and prosecute a suit, and pending the action dissolved partnership, one of them undertak ing to manage the case, and in fact afterwards conducting the trial, ffeld, that an action for all the services rendered might be maintained by the two jointly.</p>

<p>If a defendant makes two defences to the same claim, one of which is sufficient and is sustained by the verdict, it is immaterial whether the others have been correctly or incorrectly determined.</p> <p>In an action to recover a debt, under an answer alleging payment generally, payment by the hand of an agent may be proved.</p>

Action of contract to recover “ ninety seven dollars and fifty cents for drawing fifteen thousand feet of hemlock lumber from Blandford, Massachusetts, to Suffield in the State of Connecticut, by the plaintiff for the defendant.” At the trial in the superior court before Putnam, J., the plaintiff’s counsel, in opening the case to the jury, stated that a contract was made between the parties for the transporting by the plaintiff of this quantity of boards from Blandford to…

<p>Action of contract against the administratrix of the estate of Russell B. Wolcott, commenced by John W. Howland, and prosecuted by the present plaintiff as his assignee in insolvency. Trial in the superior court before Rockwell, J., to whose rulings the defendant alleged exceptions, which are stated in the opinion.</p>

<p>Action of contract, commenced in the police court of Pitts-field, and carried to the superior court on appeal. The defendant filed with his answer a declaration m set-off.</p> <p>At the trial in the superior court, before Putnam, J., the plaintiff testified that he made a contract with the defendant, which included, among other things, an agreement of the plaintiff to harrow ten acres of rye, and that he did harrow the rye according to his agreement; and, on cross-examination, that it was harrowed in a good and husbandlike manner. The defendant offered evidence tending to show that the plaintiff’s harrowing was not well done, nor done in a good and husbandlike manner; and on this point only. After the defendant had fully replied to the plaintiff’s case, the judge allowed the plaintiff (the defendant objecting) to introduce evidence upon the same point to rebut the defendant’s evidence, and refused to allow the defendant to introduce further evidence in reply to this last evidence of the plaintiff.</p> <p>The defendant offered a witness to prove the testimony of a witness who had testified at the trial in the police court to a material point, and had since deceased. But as the witness offered for this purpose, in answer to questions by the judge, stated that he could not give the language of the deceased witness substantially as spoken at the former trial, nor give his language substantially as spoken at the former trial upon any particular point or subject matter, the judge ruled that his testimony was not competent to prove the testimony of the deceased witness.</p> <p>The defendant’s declaration in set off contained this item: “ September 15th. Injury done to a piece of rye by yourself and steers, which you agreed to pay. $ 10.” The defendant offered to prove that the plaintiff agreed to pay for all damages. But the judge ruled that the evidence was not admissible, unless the defendant could show that the plaintiff agreed to pay a specific sum for such damages, and, the defendant having failed to prove such an agreement, instructed the jury to disallow this item.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of contract. Trial in the superior court before Putnam, J., to whose rulings the defendants alleged exceptions, which are stated in the. opinion.</p>

<p>A debt resulting from the neglect of an attorney at law to pay over to his client money which he has collected for him is not a debt contracted while acting in a fiduciary capacity, and as such excepted from being discharged by a certificate under the United States bankrupt act of 1811.</p> <p>A judgment obtained before the institution of proceedings under the United States bankrupt act of 1841 upon a debt which would not be barred by a certificate of discharge under such proceedings is barred by such a certificate.</p>

<p>A debtor who has directed payments made by him to his creditor to be applied to the satisfaction of an illegal claim cannot afterwards require them to be otherwise appropriated.</p>

<p>Action of contract on an agreement to perform an award. Answer, in the nature of a plea puis darrein continuance, a judgment of this court declaring the award void. Trial and verdict for the defendant in the superior court at February term 1860 before Putnam, J., to whose rulings the plaintiff alleged exceptions, the substance of which is stated in the opinion.</p>

<p>Action of tort against the sheriff of Berkshire for the default of one of his deputies in not safely keeping and restoring to the plaintiff a quantity of hay attached on mesne process, but not taken on execution, in a suit against the plaintiff. Trial and verdict for the plaintiff in the superior court before Putnam, J., to whose rulings the defendant alleged exceptions. The case is stated in the opinion.</p>

Action of contract by Clapp, Carpenter and Leavitt against the administrators of Erastus Rice, to recover contribution towards payment of a judgment and execution recovered by the Franklin County Bank against the plaintiffs on a promissory note of the Troy and Greenfield Railroad Company, payable to Wendell T. Davis, their treasurer, on the back of which was the name of “ W. T. Davis, treasurer,” followed in succession by those of Clapp, Carpenter, Rice and Leavitt See Clapp…

<p>Action of contract upon a promissory note. Answer, want of consideration, fraud, duress, and that the note was given in consideration of the compounding of a felony.</p> <p>At the trial in the superior court, before Vose, J., it appeared upon the cross-examination of Lucius Nims, one of the defendants, that he was a surety upon the note in suit; that the action was commenced upon his express request to the plaintiffs counsel that it should be brought and Woodward’s property attached for his benefit, because Woodward had failed to secure him in accordance with a promise made at the time of his becoming surety on the note; and that Woodward had fulfilled his promise since the commencement of the action. There was no evidence that Nims ever countermanded his request, or informed the plaintiffs counsel of Woodward’s fulfilment of his promise. The plaintiff requested the court to instruct the jury that, under these circumstances, Nims was estopped to set up the defences stated in the answer; but the court refused so to rule.</p> <p>The defendants introduced evidence tending to show that the consideration of the note in suit was, in whole or in part, an agreement by the plaintiff that a prosecution for felony, instituted against Woodward by Sarah C. Bigelow, should be dropped; and that the prosecution was in fact discontinued a few days after the note was given, as appeared by the record of the magistrate before whom it had been instituted.</p> <p>The plaintiff then offered to prove that, before the discontinuance of that prosecution, the district attorney had been applied to by the magistrate for advice, and had advised him that all the evidence which could be produced by the government was not sufficient to sustain the charge of felony. But the court rejected the evidence.</p> <p>The jury returned a verdict for the defendants, and the plaintiff alleged exceptions.</p>

<p>Action of contract, with a count in tort, for false representations alleged to have been made to the defendant concerning the pecuniary ability and credit of the Keystone Insurance Company, of which the defendant was an agent, in order to enable him to receive a commission or compensation out of the premium, and by which the plaintiffs were induced to effect an insurance on their property with the company and suffered a loss which they were unable to collect.</p> <p>At the trial in the superior court, Vose, J. instructed the jury that, to maintain this action, the representations declared or must appear to have been in writing.</p> <p>The plaintiffs requested the judge to rule, “ that if the defendant made express warranty, and in consideration thereof the plaintiffs entered into insurance and suffered loss, the consideration is sufficient; or that if, as the plaintiffs have alleged, the defendant was to receive pay from the insurance company in the form of a commission upon the premium received, and, in order to enable himself to procure this commission, the defendant made the undertaking as alleged in the declaration, this benefit to himself, so to be derived, is sufficient consideration.”</p> <p>The judge did not so rule; but instructed the jury, “ that if the defendant, during the negotiation for this policy, in consideration of a compensation to be derived from the plaintiffs insuring in this company, made in writing any untrue representation or affirmation as to the pecuniary condition and credit of this company, for the purpose of assuring the plaintiffs of the truth of the fact represented and inducing them to insure in this company, and such representation was received by the plaintiffs as an assurance of the truth of the fact asserted by the defendant, and was relied upon by the plaintiffs, then the defendant is liable, and it is immaterial whether he knew if the representations were true or otherwise.” The verdict was for the defendant, and the plaintiffs alleged exceptions.</p>

Writ of entry by the assignee in insolvency of John Mowry to recover land conveyed by him to his brother, the tenant, on the 4th of April 1857, by a deed which the demandant alleged was made in fraud of creditors and of the insolvent laws.

<p>Petitions for writs of certiorari to quash the proceedings of the respondents in dismissing petitions for laying out a highway. The respondents filed a general demurrer in each case, and the question arising thereon was reserved by Dewey, J. for the determination of the full court, in whose opinion the case is stated.</p>

<p>Complaint against a common seller of intoxicating liquors, made and sworn to before Wendell T. Davis as justice of the peace for the county of Franklin, who as such issued a warrant thereon, directing the officers to whom it was addressed to bring the defendant “ before some trial justice in said county of Franklin,” and, upon her being brought before him, proceeded as a trial justice to try and convict her. She appealed to the superior court, and after trial and conviction there, moved in arrest of judgment: 1st, because the complaint was made to, and the warrant issued by, a trial justice in his capacity of justice of the peace, instead of himself as trial justice, or some other justice of the peace; 2d, because the name of the court or justice before whom the warrant was returned was not specified in the warrant as required by St. 1859, c. 236, § 1. Russell, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>Writ of entry to foreclose a mortgage. At the trial in the superior court before Lord, J., the plaintiff’s counsel fully-opened his case to the jury; called four witnesses, who were sworn generally in the case; proceeded to examine them, in the first instance, to the court, for the purpose, as he said, of showing the existence and loss of the mortgage deed, and of thus laying the foundation for the introduction of secondary evidence of its contents; and stated that he should further examine the same witnesses as a part of such secondary evidence. The witnesses were all cross-examined by the defendant’s counsel, and questions were put to them by the judge, who, after hearing the testimony, refused to admit secondary evidence of the execution and contents of the mortgage; and, on the plaintiff's request and to enable him to procure additional evidence, postponed the further hearing of the case for four days, but did not discharge the jury. At the end of the time granted, the plaintiff introduced additional evidence; but the judge did not change his ruling. The plaintiff proposed to become nonsuit, claiming to do so as a matter of right; but the judge refused to permit it, a verdict was taken for the defendant, and the plaintiff alleged exceptions.</p>

<p>A highway running eastwardly forked into two branches, one passing north and the other south of a blacksmith’s shop, and both then entering nearly at right angles into another highway. The blacksmith’s shop and the fences on the south side of the southern branch and on the north side of the northern branch of the first highway had stood for more than twenty years. Held, that by virtue of the Eev. Sts. c. 24, § 61, in the absence of other evidence of the limits of this highway, the fences and shop must be deemed its boundaries, and the triangle of land between its branches, except the shop, part of the highway; and that the owner of the shop might maintain an action against any one unlawfully obstructing the access to his shop by depositing lumber on this land.</p> <p>A deed of a mill and mill-dam. “ with all the rights, privileges and appurtenances thereto pertaining, as mill-yard, timber, stone, iron, stream or streams, including a lot of laud lying on the north side of the river, and bounded on the west by the highway,” does not convey any land west of the highway, or any right to deposit logs within the limits of the highway; and cannot be shown to have that effect by evidence that the owner oí the mill has been accustomed so to deposit logs for more than twenty years.</p>

<p>In an action against a town for an injury from a defect in a highway, the plaintiff testified that he knew of the defect some weeks before he received the injury, and had driven his horse over it, checking him to a walk beoanse he did not think it safe to pass at a faster gait; that when he sustained the injury he was driving a quick, highspirited horse, accustomed to start quickly as any highspirited horse is; that he approached the defect on descending ground, going at a trot; that the defect was plainly visible for some distance before reaching it; and that as he approached he did not think of it, but his thoughts were engaged with his professional business. Held, that this evidence would not warrant a jury to find that the plaintiff was in the exercise of due care.</p> <p>In an action against a town for an injury received from a defect in a highway, after several physicians have testified that, in their opinion, the plaintiff ought to have kept quiet after receiving the injury, instead of pursuing his professional labors, (as there was evidence that he had,) and that if he had kept quiet the effect of the injury would have been less severe, the plaintiff may prove that he had been advised by a practising physician of good standing, whom he had consulted after receiving the injury, and who had died before the trial, to continue his professional labors to a moderate extent.</p>

<p>Action of contract for breach of promise of marriage. The answer denied the promise. At the trial in the superior court the plaintiff testified that mutual promises of marriage were made between the parties on the 7th of August 1858, and that they then agreed that the marriage should take place in the November following; that shortly after, in preparation for the marriage, she bought a velvet cloak, a small quantity of crockery-ware, and some cloth which she made up into various articles of bed clothing; and that she visited a furniture shop, and examined and learned the prices of various articles of furriiture. This evidence was admitted without objection.</p> <p>The defendant afterwards contended and asked the court to instruct the jury that these acts of preparation were not to be regarded as evidence tending to prove the promise of marriage, but were admissible merely in proof of damages, if the contract and its breach was otherwise proved. But Rockwell, J. deelined so to rule; and instructed the jury that they might regard these acts, not only upon the question of damages, but also as tending to prove her assent to a mutual promise of marriage ; and that the burden of proof was upon her to show a mutual promise and engagement of marriage, which there was other evidence tending to show. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of tort for breaking and entering the plaintiff’s close and digging up and carrying away a house. Answer, that the house was the personal property of the defendant Estey.</p> <p>At the trial in the superior court before Rockwell, J. there was evidence that the close was in 1850 owned by Ira Haskell; that he, while in possession of the land, assented to the erection of a house thereon by Warren Gibbs, and agreed that Gibbs should hold the house as personal property ; and that this assent was given and agreement made after the cellar had deen dug, the cellar wall and underpinning stone laid, the frame of the house erected, and while the work of building was still going on. The judge ruled that such assent and agreement, to be effective, must have been before or at the time when the frame of the house was erected.</p> <p>The judge rejected evidence, offered by the defendants, of the declarations of Solomon Gibbs, Haskell’s grantee and the plaintiff’s grantor, while in possession of the land, that he neither owned nor claimed the house.</p> <p>There was evidence that Estey bought the house of Warren Gibbs as personal property, and afterwards bought the equity of redemption of the land at a sale on execution against Solomon Gibbs; that he subsequently released to Solomon the rights acquired by this purchase, and remarked to him, at the time of delivering the release, that he should abandon his claim to the house, as he had been advised by counsel that he could not hold it. The judge instructed the jury that if, at the time of delivering such release, Estey verbally relinquished his claim to the house, neither he, nor any one claiming under him, could afterwards legally assert any title to it, by virtue of any previous title to it as personal property.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>A. conveyance of an equity of redemption by a mortgagor to a mortgagee, without the payment of any new consideration and with intent to delay or defeat creditors, can* not be regarded as a voluntary conveyance, and therefore void against creditors of the mortgagor, if the amount of the debt secured by the mortgage is equal to the whole value of the land.</p> <p>Evidence of a transfer of personal property with fraudulent intent on the part of both parties to hinder and delay the creditors of the vendor is not admissible for the purpose of impeaching a conveyance between the same parties of an equity of redemption of mortgaged land, made three months previously, apparently valid and not shown to have been in any way connected with the subsequent transaction.</p>

<p>A bill in equity, under the Rev. Sts. c. 70, § 16, against the widow and children of a deceased person, by a creditor whose right of action accrued after the expiration of the term of limitation of actions against his executor, which alleges that his personal property was insufficient to pay his debts, that his whole estate was more than sufficient to pay the plaintiff’s claim, that by his will he gave to his widow all his personal property, subject to the payment of his debts, and all his real estate for life, and to his children the remainder of his real estate, and charged all his estate, real and personal, with the payment of his debts, including the plaintiff’s claim, and that the devisees assented to and adopted the provisions of the will, is not bad on demurrer for not showing that more than one person is liable for the debt, or for not showing that either of the defendants is so liable, or for not stating the amount of personal property bequeathed and its pro portion to the real estate.</p>