Volume 82 — Massachusetts Reports

<p>In this commonwealth, the technical definition of murder remains the same under St 1858, c. 154, as the common law definition as previously recognized by the courts.</p> <p>Under St 1858, c. 154, murder committed with extreme atrocity or cruelty is murder in the first degree, although the atrocity or cruelty is not alleged or proved to have been premeditated.</p> <p>Evidence that a man enticed a girl under eight years of age out of a house, and immediately ravished her, thereby inflicting severe wounds upon her person, and as a part of the same transaction, and for the purpose of concealing that crime and escaping punishment therefor, inflicted numerous severe blows upon her head and face and threw her into a river, and by these means caused her death, is sufficient evidence of murder committed with extreme atrocity and cruelty to warrant a jury in finding him guilty of murder in the first degree under St 1858, e. 154, even if the only means of death alleged in the indictment are blows upon the head and face, and drowning.</p> <p>On an indictment for murder, containing several counts in legal form, varying only in the statement of the means of death, if the jury find the defendant guilty of murder in the form set out in either count, they need not return a separate verdict on each count, but may find him guilty generally.</p> <p>An indictment for murder by bruises and wounds of a person described throughout as Augustine, except in alleging that of said bruises and wounds “ the said Augustina died,” is not bad after verdict.</p> <p>An indictment alleging murder in the same form as at common law will support a verdict of guilty of murder in the first degree under St. 1858, c. 154.</p> <p>An indictment for murder, which, after describing the mode of the commission of the crime, introduces the legal conclusion by the words “ and so the jurors ” say, is not bad for argumentativeness.</p> <p>An indictment for a murder at Chicopee is not bad for describing it at “ Chickopee.” Interlineations in an indictment, and the use of the abbreviation “ sd” for “ said,” are no ground for arresting judgment.</p> <p>In an indictment for murder the person murdered may be described by the name by which he is commonly called and known, although differing from his name of baptism.</p>

<p>An indictment on St. 1855, c. 405, which alleges that the defendant at a certain time and place kept and maintained “ a certain building, place and tenement, to wit, a room in a dwelling-house,” used for the purposes prohibited by that statute, “ whereby, and by force of the statute in such case made and provided, the said building, place and tenement, then and there kept and maintained by the defendant and then and there used as aforesaid was then and there a common nuisance,” sufficiently alleges the place where the building was situated, and that the room was a common nuisance.</p>

<p>Upon the trial of an indictment for maintaining a building used for the illegal keeping and illegal sale of intoxicating liquors, the Commonwealth, after introducing evidence that a room occupied by the defendant was fitted with the common appliances for the sale of liquors, and that persons drank ale there, may prove that persons have been seen on the defendant’s premises and leaving them in a state of intoxication.</p> <p>Proof that the defendant maintained a building used for the illegal keeping and illegal sale of intoxicating liquors, for any substantial period of time, if only one day, will support an indictment for maintaining it during a year.</p>

<p>Indictment on St. 1855, c. 215, for being a common seller of intoxicating liquors from the 1st of December 1859 to the 21st of May 1860; with a second and third counts for single sales to Chauncey R. Shaw on the 3d of January and the 1st of February 1860. At the trial in the superior court before Vose, J., the Commonwealth offered much evidence tending to prove that the defendant kept a shop, and that in said shop was kept a large quantity of various kinds of liquors, and that a pump, and liquor measures; and large numbers of casks were seen there at different times. And the judge, against the defendant’s objection, allowed a witness to testify that during the period named in the first count he had frequently seen people go in and out of the defendant’s shop, at all hours of the day and evening, and carry in and out jugs and demijohns, and gin and beer barrels; and that the defendant’s name was on the shop.</p> <p>The district attorney proposed to prove by Shaw that he had purchased liquor of the defendant prior to the 1st of December 1860, for the purpose of sustaining the second and third counts. The defendant objected to any such evidence, and to any proof of sales made by the defendant prior to that time ; but the judge overruled the objection, and Shaw testified to purchasing liquor of the defendant twice during the summer and fall of 1859. After the defendant’s counsel had closed his argument, the district attorney, without objection, entered a nolle prosequi on the first count. In charging the jury, the judge instructed them, under objection from the defendant, that the district attorney having abandoned the first count, charging the defendant with being a common seller, the prosecution was to be regarded as one for single sales alone, and that they might convict the defendant on the second and third counts, if they were satisfied that he had made two specific and distinct sales to Shaw at any time since the liquor law took effect in 1855.</p> <p>Before the Commonwealth introduced any evidence, the defendant objected to the proof of such facts as would be competent to establish the guilt of the defendant for maintaining a common nuisance under the St. of 1855, c. 405, by having used certain premises for the illegal sale and keeping of intoxicating liquors; but the judge ruled that the government might prove such facts, although the evidence might also show that the defendant had been guilty of a violation of the nuisance act. The defendant contended that if the evidence on the part of the government proved any offence, it was under the St. of 1855, c. 405, and that therefore this indictment could not be sustained; but the judge declined so to rule, and instructed the jury that they would be authorized to convict the defendant if they were satisfied that the allegations in the second and third counts of the indictment, or either of them, were proved.</p> <p>The defendant contended that the grand jury did not indict the defendant for the two above named sales to Shaw. The court instructed the jury that if they were satisfied that the defendant made two specific sales to Shaw in the summer and fall of 1859, and that there was no evidence that any other sales were made by the defendant to Shaw, and that Shaw was a witness before the grand jury, the jury would be authorized in presuming that the grand jury intended to charge the defendant with the sales testified to by Shaw, though stated in the indictment to have been made at a different time from that stated by Shaw. The defendant requested the court to instruct the jury that though they would be authorized, if they were satisfied of the foregoing facts, to find that the grand jury intended to charge the defendant with said sales, it would be competent for them to find that the grand jury did not so intend. But the court declined so to instruct the jury, or to instruct them otherwise than as above stated.</p>

Indictment for being a common seller of intoxicating liquors.

<p>Indictment against “ Mrs. Patrick Whalen ” as a common seller of intoxicating liquors. Trial and conviction in the superior court before Vose, J., who signed this bill of exceptions :</p> <p>“ The same questions are reserved in this case as are set forth in the bill of exceptions in the case against Patrick Whalen.</p> <p>“ To prove a sale of intoxicating liquor, a witness for the Commonwealth testified that he had several times drank liquor in the room described, which was delivered to him by Mrs. Whalen, but he had never paid her for it; that he got it in pursuance of an arrangement or understanding between the witness and Patrick Whalen, the defendant’s husband, that the witness might obtain liquor whenever he might want it, and they would settle at a subsequent time; and that he told the defendant he would make it right with her.</p> <p>“ The defendant’s counsel contended that this tended to prove a sale by the husband and not by the wife, and that if she only delivered the liquor in execution of the contract of the husband, she was not liable. But the court instructed the jury that if they believed that the liquor was in fact delivered by the wife, and that it was the intention or understanding of the parties at the time of delivery that the witness should pay either Whalen or his wife, in pursuance of the foregoing arrangement with the husband, although the agreement for sale was made with the husband alone, she would be liable under the statute, as the agent of the husband.</p> <p>“ There was evidence from some of the witnesses of sales at different times of what the witnesses called beer or ale; but none of the witnesses could say whether it was in fact ale, strong beer or small beer.</p> <p>“ After the jury had been out several hours, they came into court, and in reply to an inquiry by the court, the foreman said there was no prospect of an agreement; that there was but one juror who refused to agree ; and the foreman asked the court whether a juror had a right to set aside the provisions of the statute against the sale of ale because the city government had permitted persons to sell it.</p> <p>“ The court instructed the jury that they could not disregard any of the provisions of the law which made illegal not only the sale of ardent spirits, but also of ale, strong beer, lager beer, cider and wine.</p> <p>“ The court further instructed the jury that it was very desirable that these cases should be terminated; that both the rights of the defendant and the public interest required it; and that, while no juror should render a verdict against his convictions, it was a fact for any dissenting juror’s consideration that the rest of the panel differed from him.</p> <p>“ To the foregoing rulings and instructions the defendant excepts.”</p>

<p>Exceptions cannot be sustained to the admission in evidence of the declarations of a defendant charged with unlawfully selling intoxicating liquors, that he owned the land, leased the building, and kept the establishment in which it is contended that he committed the offence, if the bill of exceptions does not show whether there was or was not other testimony tending to connect him with the acts charged.</p>

<p>Indictment on St. 1855, c. 215, for being a common seller and for unlawful single sales of intoxicating liquors.</p> <p>At the trial in the superior court, Vose, J., against the defendant’s objection, allowed the district attorney to put the following questions to a witness : “ Does the defendant keep a bar ? ” Ans. “ He does.” “ What is the defendant’s business ? ” Ans. “ The defendant is the proprietor of a public house.” “ Was there any name on or behind the bar; and if so, what name ? ” Ans. “ The name of B. O. Norton was in cut letters behind the bar.”</p> <p>There was other evidence in the case, describing the bar, and tending to show that within and upon the bar were bottles, jugs, and demijohns containing intoxicating liquor; also tumblers, and a tin drainer for tumblers, sugar-bowl and toddy stick; and that the defendant had made as many as three sales of intoxicating liquors within the time alleged in the indictment. The defendant being convicted, alleged exceptions.</p>

<p>A defendant who has been tried on two counts in an indictment before a jury, who have disagreed, may be put on trial on another count of the same indictment, before the same jury, at the same term of court.</p>

Indictment on St. 1855, c. 215, for unlawfully selling intoxicating liquors. At the trial in the superior court, a witness called in behalf of the Commonwealth, on being asked whether he was a Catholic, answered that he had no religion.

<p>After judgment for the plaintiff for damages and costs in a suit in equity for the obstruction of a way, the defendant cannot upon his own motion have the case referred to a master to ascertain the limits of the plaintiff’s right of way.</p>

<p>Petition for a writ of certiorari to quash the proceedings of the respondents in locating anew by metes and bounds three highways in Westfield, and in adjudicating that the inhabitants of Westfield had acquired by prescription and long user a right to a fordway in that town, and defining it by monuments. The case is stated in the opinion.</p>

<p>On a petition to the county commissioners for the abatement of a tax on the ground of overvaluation by the assessors, the relative value of property subject to taxation is to be ascertained, not by comparison with any particular piece of property assessed to another person, but by comparison with the whole property subject to taxation in the town; and. the exclusion of testimony of persons acquainted with the general value of property in the town, that the valuation complained of is not excessive or disproportionate, and is not excessive or disproportionate in comparison with the valuation of other specific parcels of property in the same town, is not necessarily erroneous.</p> <p>A decision by county commissioners, on a petition for the abatement of a tax assessed upon the property of a manufacturing corporation, that the price for which the stock sold in the market was a conclusive test of the value of the company’s real estate and machinery for the purposes of taxation, the corporation owning no other property and owing no debts, is an error for which a writ of certiorari will issue.</p>

<p>While a petition to the court of common pleas under St. 1859, c. 249, § 3, by the keeper of a jail, dissatisfied with the amount of the salary allowed him by the county commissioners, is pending, payment of the sum so allowed will not be enforced by mandamus.</p>

<p>A complaint cannot be maintained on the mill act to recover damages occasioned to an unimproved or unappropriated mill site.</p>

<p>Upon a complaint on the mill act, damages may be recovered for flooding a well and the cellar of a house on the complainant’s land.</p> <p>Upon a complaint on the mill act, damages cannot be recovered for injuries to land which is not itself overflowed, but is rendered less valuable for building purposes by noxious and offensive smells proceeding from the adjacent lands when the water caused by the dam to overflow them is occasionally drawn off.</p>

<p>Action of tort for breaking and entering the plaintiff’s close in Southwick, described as situated on the North Sodom Mountain, and being lots No. 29 and 30, originally set out to James Smith and John Campbell. Trial in the superior court before Rockwell, J., to whose rulings and instructions the defendants alleged exceptions, the substance of which is stated in the opinion.</p>

<p>Action of contract on the covenant against incumbrances in a deed made by the defendant to the plaintiff on the 27th of March 1847.</p> <p>At the trial in the superior court before Rockwell, J., the plaintiff gave in evidence a warranty deed of the premises, dated the 20th of September 1845, from Wells Lathrop, in which his wife did not join, to John Howard, whose title after-wards vested by mesne conveyances in the defendant; the deed declared on; and a deed dated January 26, 1859, from Mr. and Mrs. Lathrop to the plaintiff, releasing her right of dower.</p> <p>The plaintiff was called as a witness in his own behalf, and asked what sum he paid for the release of Mrs. Lathrop’s right of dower. The defendant objected to this inquiry for any other purpose than to limit the measure of damages; but the objection was overruled, and the question allowed to be answered. The plaintiff also introduced evidence of the value of the land without the buildings in January 1859.</p> <p>The defendant offered evidence that since the deed of Lathrop to Howard the land had been greatly increased in value by improvements made by the plaintiff and others, independently of the buildings. But the judge excluded the evidence; refused to instruct the jury, that, “in estimating the value of Mrs. Lathrop’s dower, the estate was to be taken at its value when owned by Mr. Lathrop, with the increased value by natural means only; ” and instructed them that the plaintiff, if entitled to recover at all, was entitled to recover the sum which he had paid to procure the release of Mrs. Lathrop’s right of dower, if in their judgment it was reasonably and fairly paid. A verdict was returned for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of contract brought by the administrator of the estate of Charles Stearns, (which was insolvent,) to recover the amount of a policy obtained by him on his life, payable to himself, his executors, administrators and assigns, which had been paid by the insurers to the defendant, under circumstances agreed by the parties, and stated in the opinion.</p>

<p>Action of contract by a deputy sheriff upon a receipt taken for goods attached by him. Trial in the superior court before Rockwell, J., to whose rulings the defendant excepted. The case is stated in the opinion.</p>

Action of tort for the conversion of a horse of the plaintiff.

<p>A. delivered a chattel to B. under an agreement that it shouldhelongtoB.,that B. need not pay for it until he sold it, and should then pay a certain price for it; and B. redelivered the chattel to A. for sale. Held, that, in the absence of fraud, the title had passed to B. even as against attaching creditors of A.</p>

<p>Action of contract on a promissory note for $ 145.25. Answer, want of consideration. At the trial in the superior court it appeared that the defendant gave the note for the purchase of a meeting-house in Monson, which he bought by auction on the 31 st of May 1859, and received a bill of sale from the plaintiffs as a committee of the proprietors of the meetinghouse ; that he never returned the bill of sale; but never took or attempted to take possession of the building; and within a week after his purchase sold his title to Cyrus Day, in consideration of the payment of ten dollars and of Day’s agreement to defend him against this note. Rockwell, J. directed a nonsuit, and the plaintiff alleged exceptions, the substance of which is stated in the opinion.</p>

<p>Action of contract on a guaranty by which the defendant requested the plaintiff to supply Franklin Barker and H. H. Shumway, partners, under the name of Barker & Shumway, with certain books, not exceeding one hundred copies at a time; agreed “ to become responsible, to pay for the same, provided said Barker & Shumway shall fail to pay; ” and waived all notice, either of amount furnished, or of default in payment. Trial in the superior court before Rockwell, J., to whose rulings the plaintiff alleged exceptions. The case is stated in the opinion.</p>

<p>A release, not under seal, of one partner, by a creditor of the partnership, in consideration of a payment of part of the debt, though out of the funds of the partnership, is no discharge of the residue.</p>

<p>If an agreement between two railroad corporations provides that what is reasonable and necessary to be done by one of them, at the expense of the other, pursuant to certain contracts between them, and what is a reasonable expense for doing it, shall be determined by the superintendent of the first corporation and another person named; and afterwards, and before the time for making the determination, the office of such superintendent is abolished by the corporation, and the duties of superintendent assigned to its president; he is the proper person to join in the determination, and it is for the jury to determine who is in fact discharging the duties of superintendent at the time of the determination. And an agreement between such president and an agent of the other corporation, that the latter may be present at the hearing and may make objections to any item of such expense is immaterial, and its admission in evidence no ground of exception.</p> <p>In an action upon a guaranty of payment of all money to be found due from one corporation to another by persons named in a written agreement, the failure of the second corporation to do a certain thing which it had agreed to do before the determination of that amount is no ground of defence, if the persons named in the agreement have proceeded to make the determination with the assent of both corporations.</p>

<p>A railroad corporation, which,under an agreement between itself and other railroad corporations whose railroads forma connecting line, settles and pays accounts monthly with that corporation only whose road adjoins its own, including therein the amounts due to the corporations whose roads lie beyond, is not liable as trustee in foreign attachment of that corporation for a sum so found due to it, and for which it is in turn liable to the other corporations under the agreement.</p>

Action of tort on St. 1840, c. 85, to recover the value of a building and the machinery, tools, patterns and lumber therein, and also of a board fence, all belonging to the plaintiff, and alleged in the declaration to have been destroyed by fire from a locomotive engine of the defendants.

Action of contract on an agreement of the defendant, in consideration of the sum of $ 155.75 to him paid by the plaintiff, to obtain from William P. Tenney and deliver up to the plaintiff to be cancelled two promissory notes owing from him to Tenney, and amounting to § 371.62; with a count for money had and received.

<p>If a promissory note, which, before delivery, is deposited by the maker to he delivered to the payee only upon the happening of a certain contingency, is delivered to the payee without the knowledge or consent of the maker and without the happening of the contingency, and is by him transferred for value before maturity to a person, who takes it without notice of the special circumstances under which it came into the possession ' of the payee, such innocent holder for value may enforce payment of the note against the maker.</p>

<p>Action of contract by an indorsee upon this promissory-note : “ $ 300, Huntington, Mass. 15th July 1858. Four months after date I promise to pay to the order of Bartlett & Williams three hundred dollars, payable at Agawam Bank, Springfield, value received. A. Copeland, Ag’t.”</p> <p>At the trial in the superior court, it appeared that the defendants, as copartners under the name of Robbins & Winship, were dealers in furniture at Hartford in the State of Connecticut; that about the 1st of January 1857 they became the owners of an establishment for the manufacture of bedsteads at Huntington, consisting of a mill or shop, with the machinery, tools, lumber and other property, at which from twelve to twenty workmen were employed, and the business was conducted by Alfred Copeland under the name of “ A. Copeland, Ag’t.”</p> <p>One of the payees testified “ that the consideration of the note was goods delivered by the firm of Bartlett & Williams to the workmen in said manufactory upon the order or authority of said A. Copeland as agent in said establishment; that the account accrued and was settled by said agent, early in 1857, by a note similar to the one in suit, which, not being paid at maturity, was renewed from time to time, it having been understood and agreed between them that the same should be so renewed and extended, if it should be desired; that the note in suit was the last renewal thereof, and had never been paid; that a previous account due to Bartlett & Williams for goods furnished in the same manner had been settled with them by A. Copeland as agent in February 1857, by a note similar to the one in suit, which was not paid at maturity; that the witness went to Hartford, presented the note to Robbins & Winship and asked them to pay it or give their note for it; that they objected to doing so ; that the witness asked them if they repudiated Copeland’s transactions; that they replied they did not, but they desired that the Huntington business should take care of itself and pay its own bills, they wished to keep it' separate from the business of Robbins & Winship at Hartford, that there was ten thousand dollars’ worth of property at Huntington and he might go and secure himself there ; that the witness replied that he preferred to have their note, and, if they would give it to him, he would extend it for them, if it should not be convenient for them to pay it at maturity; that they accordingly gave him their note and took up the other, and subsequently paid the note which they so gave him; that after the death of A. Copeland the witness sent to Robbins Sc Winship by mail a statement of account then due Bartlett Sc Williams for what had been furnished to A. Copeland, agent, including two or three items of interest or discount for the renewal of the notes, as hereinbefore stated; and that subsequently this account was settled and paid in full by a son of Alfred Copeland, acting as agent or attorney of Robbins Sc Winship, after the decease of his father.” Several witnesses testified to statements of the defendants that they would settle, or were responsible for, all claims for anything that went into their business at Huntington. Upon this testimony, and other evidence not material to the decision, Rockwell, J. ruled that the plaintiff could not recover, and directed a verdict for the defendants. The plaintiff alleged exceptions.</p>

Action of contract against the defendant as maker of a promissory note for ninety six dollars, signed by N. R. Washburn, payable to the plaintiff or order, and bearing on its back the signature of the plaintiff, followed by that of the defendant.

<p>Habeas corpus, upon the return of which at April term of this court in this county, it appeared that the petitioner was a citizen of Connecticut; that he was requested to attend as a witness in a case which stood for trial in this court at Worcester, and came into the Commonwealth and to Worcester, where the court was in session, solely for that purpose; that on reaching the court house he learned that the case would not be reached until the next week, and immediately went to the railroad station to take the cars to return home, and while in the cars was arrested on a civil process by the respondent, a deputy sheriff, and sued out this writ to try the legality of his arrest; that he had not been summoned as a witness, and had not a writ of protection. Hoar, J. reserved the question of law upon these facts for the determination of the full court, to whom it w;as submitted at April term in Hampden.</p>

<p>Complaint on St. 1855, c. 215, § 24, to the police court of Milford. In the copy of the record attested by the clerk of that court, the complaint did not appear to have been certified by him, but by another person as clerk pro tempore of that court. The defendant, after conviction in the superior court, moved in arrest of judgment, because the record did not show the existence of any of the contingencies in which the appointment of a clerk pro tempore was authorized by St. 1857, c. 264. Allen, C. J. overruled the motion, and the defendant alleged exceptions.</p>

<p>An administrator who, before the death of his intestate, contracted with him for the purchase of certain real estate at a price agreed upon, took a bond for a conveyance upon payment of the purchase money, and caused it to be recorded, entered into possession, and made from time to time payments on account of interest and principal of the purchase money, has included in his inventory of the estate of the deceased the amount of the agreed price and interest remaining unpaid, and to whom the heirs are ready to convey on payment thereof, is bound to charge himself with such amount in his administration account.</p>

<p>Appeal from a decree of the probate court, disallowing an instrument written on seven leaves of paper and offered for probate as the last will of Susan S. Edwards, At the hearing in this court, Hoar, J. was of opinion that the decree should be affirmed, but reported the case for the decision of the full court, in whose opinion it is stated.</p>

<p>A residuary bequest by a widow, “ to be equally divided between the heirs of my late husband and the heirs of my brothers and sisters,” gives one half to the heirs of her husband, and the other half to the heirs of her brothers and sisters, the division to be made in each case not per capita but by right of representation.</p> <p>Under a will bequeathing a sum of money to infants, “ to be kept in the hands of a trustee and paid over to the legatees upon their reaching the age of twenty years,” and appointing no trustee, the executor is bound to act as such trustee.</p>

<p>The St. of 1855, c. 304, § 1, providing that the real and personal property of “ any woman who may hereafter be married in this commonwealth,” and its rents, issues and profits, shall remain her sole and separate property, applies to the case of a woman who, with her husband, have their domicil in this commonwealth at the time of their marriage, although the marriage is solemnized in another state; and satisfies a condition in a will, giving property to her upon condition that it shall not be sold, transferred or improved until the principal and income are secured to her sole use and benefit.</p>

<p>A husband who has entered into an agreement with his wife for a separation, and given a bond to a third person to secure the performance by him of the award of arbitrators appointed to determine “ what allowance shall be made and paid by him to his wife by way of alimony for her support and maintenance during the existence of the coverture between them,” which has since been fixed by their award at a certain sum payable quarterly, to be disposed of by the wife for the maintenance of herself and her daughters, “ or otherwise as if she were a feme sole,” cannot, after the death of his wife, maintain a bill in equity to restrain the obligee in the bond or his representatives from prosecuting a suit at law to recover arrears of such allowance, without alleging that she made no disposition of her property by will, and that no person has any legal or equitable claim upon her property.</p>

<p>Action of contract by the administrator of the estate of Silas Comstock, late of Burrillville in the state of Rhode Island, against Willard Holbrook, of Uxbridge in this county, upon a judgment rendered by the circuit court of the United States for the district of Rhode Island at November term 1859. In 1840 Silas Comstock recovered judgment in that court against the defendant, who had been duly served with process in Rhode Island, and appeared, in an action of debt upon a bond executed by the defendant to secure the payment by him to his wife, upon a mutual agreement between them to live apart, of such sum by way of allowance as should be awarded by certain arbitrators. See Holbrook v. Comstock, ante, 109. Upon that judgment execution issued for the amounts then due, which was returned satisfied; and in 1859 a writ of scire facias was sued out upon that judgment, for the instalments of said allowance, which had become due since 1840. The only return of service of the writ of scire facias on the defendant, or of notice to him of its pendency, was an affidavit of the marshal of that court that he had read the writ in the presence and hearing of the defendant, and delivered to him a true and attested copy of it, at his place of abode in Uxbridge. Judgment was given for the plaintiff upon the scire facias, and upon this judgment the present action was brought. The defendant contended that the judgment or award of damages on the scire facias was invalid for want of due notice to him; and that question was submitted to the decision of this court upon the case above stated.</p>

<p>Action of contract commenced against Reuben S. Denny and Granville Parker. Parker was not served with process, and the plaintiffs discontinued as to him. The declaration contained a count on a judgment recovered in Virginia on certain promissory notes, and another count on the notes themselves.</p> <p>The case was submitted to the decision of the superior court upon the following statement of facts : The defendants, before and at the time of making the notes, were engaged as copartners in business in the State of Virginia, of which the plaintiffs and Parker were inhabitants, but in which Denny never resided. After the dissolution of the copartnership, the plaintiffs, with knowledge of the dissolution, brought an action and recovered judgment in Virginia upon the notes against both defendants. In that action, service was made upon Parker, but no property was attached, and no service made upon Denny, or notice given to him, except by publication in a newspaper under an order of the court. The superior court gave judgment for the plaintiffs on the second count, and Denny appealed.</p>

<p>Action of tort for injuries to a culvert and railroad track of the plaintiffs by the defendants’ neglect in constructing and keeping in repair a reservoir of water on a stream above the culvert. Answer to the jurisdiction, that the reservoir, culvert, water, stream, and the portion of the track injured were all in Orange in the county of Franklin. The plaintiffs demurred to the answer, and the question of law was reserved by Hoar, J. for the determination of the full court.</p>

<p>An action commenced before a justice of the peace, containing counts for several causes of action, of some of which he has jurisdiction, and of others not, cannot, after his judgment for the plaintiff on the first, and for the defendant on the others, and the defendant’s appeal, be dismissed by the superior court for want of jurisdiction.</p>

<p>Replevin. Answer in abatement, that the writ was not served by an officer qualified to serve civil process. The question thus raised was submitted upon an agreed statement of facts to the superior court, which gave judgment for the defendant, and the plaintiff appealed.</p>

Replevin of a horse, wagon and harness. Answer, 1st, not guilty; 2d, a denial of “ said plaintiff’s title to the said property or his right to possession as alleged; ” 3d, title in the defendants under a mortgage. At the trial in the court of common pleas, it appeared that the plaintiff, holding a second mortgage of the property, tendered to the defendants on the day of the date of the writ the amount due on their mortgage.

<p>Replevin of a horse. Trial and verdict for the defendant in the superior court before Wilkinson, J., to whose rulings the plaintiff alleged exceptions, which are stated in the opinion.</p>

Action of contract or tort, alleging both to be for one and the same cause of action, and containing a single count, averring that on the 1st of July 1859 the plaintiff, being the owner of a flock of twenty sheep and lambs, kept in the town of Holden, suffered loss by reason of the worrying, maiming and killing his said sheep or lambs by dog or dogs, to the amount of fifty dollars; and, within thirty days after such loss came to his knowledge, presented his claim for said…

<p>Bill in equity, alleging that the plaintiff as a stockholder in a manufacturing corporation, the stockholders of which were individually liable for its debts, had paid a debt due from the corporation; that the defendants were the only solvent stockholders of the corporation within the jurisdiction of the court, although there were other stockholders, some of whom were insolvent and the rest not within the jurisdiction; and that the defendants were liable to contribute and pay to the plaintiff toward the amount paid by him, in such proportion as the number of shares held by them and him bore to the debt paid by him.</p> <p>The defendants demurred, upon the ground that they were liable to contribute only such sums as would be their proportion, upon apportioning the amount, paid by the plaintiff, pro rata as to shares among all the stockholders of the corporation.</p>

<p>The St. of 1851, c. 315, § 3, does not authorize the levy of an execution, issued on a judgment recovered against a manufacturing corporation, on the property of an officer of the corporation, unless, if he is also a stockholder, he has been summoned and his liability established, or, if he is not a stockholder, some stockholder has been summoned and the liability of stockholders established, in the action in which such judgment was recovered.</p>

<p>If upon the arrival at the place of their destination of goods delivered to a railroad corpo ration for transportation, the agent of the owner of the. goods, in the presence of the station master of the corporation, removes a portion of them from the'car in which they have been transported, saying that he will come again for the rest, and some of the rest are afterwards lost from the car or from the freight-house of the corporation, it is a question for the jury, in an action by the owner of the goods against the corporation for the loss, whether the delivery to the plaintiff’s agent of the portion of the goods taken by him from the car was intended by the parties for a delivery of the whole or only of the portion taken.</p> <p>The liability of a railroad coloration as common carriers for goods delivered to them for transportation ceases when the goods have been taken from the car in which they have been transported to the place of destination, and stored in a freight-house of the corporation; and the corporation are thereafter liable only as warehousemen.</p> <p>In an action against a railroad corporation to recover the value of goods received by them for transportation and lost, if there is any question whether the loss occurred while the liability of the defendants was that of common carriers or while it was that of ware-housemen only, this question must be determined by the jury; and if the jury, on returning a verdict, in answer to an inquiry of the presiding judge, state that this question was not considered, a new trial must be ordered.</p> <p>It is no part of the duty of a warehouseman to make inquiry for, or go in pursuit of, property intrusted to his keeping, after he has once ceased to have possession of it.</p>

<p>A creditor of an insolvent debtor, who has proved his claim in insolvency, has no right in his own name to contest the claims of other creditors.</p>

<p>The contract of one who places his name, waiving demand and notice, on the back of a promissory note, while in the hands of an indorsee for value, at the request of such indorsee, for a consideration .moving solely from him, and without any request, express or implied, of the first indorser, is not that of a second indorser, but of a guarantor; and if, after the commencement of proceedings in insolvency against the first indorser, he pays the note, he cannot set off the amount in an action by the assignee in insolvency upon a debt due from him to the insolvent.</p>

<p>The liability of a principal to iudemnify his surety for any payment which the latter may be compelled to make for the former takes effect from the time when the surety agrees to become responsible for the debt of his principal, and not from the time when a payment is made; and is “ a debt contracted” at the former time, within the exception in the homestead act of 1856, c. 238, § 3.</p>

<p>Bill in equity by the assignee in insolvency of Warren Parmenter, under proceedings commenced on the 4th of June 1857, to redeem land occupied by Parmenter and his family as a homestead from 1847 until the 13th of October 1857, subject to two mortgages, in the first of which, dated October 1st 1855, to secure payment of the sum of $ 1256, his wife released all her rights of homestead, and in the second of which, dated November 10th 1856, she did not. The question whether the plaintiff could redeem without paying the amount due on the second mortgage was reserved by Hoar, J. for the determination of the full court.</p>

Writ of entry to foreclose a mortgage made by William Robinson, Jr., to the plaintiff, on the 4th of August 1855, to secure a promissory note of the same date for $4047.83, on demand with interest, of two parcels of land; the first described as “ my homestead farm, situated in the southerly part of Barre, about three miles from the common, containing about two hundred and twenty five acres;” and the second as “one other tract of land, lying in the southeasterly part of said…

<p>Under the Rev. Sts. c. 107, § 29, a second mortgagee may maintain a writ of entry for foreclosure against the first mortgagee, who has taken possession of the premises for the like purpose, and has also obtained a conveyance of the equity of redemption from the mortgagor.</p>

<p>Upon the hearing before an auditor appointed to state the amount due, on a writ of entry to foreclose a mortgage, which was made at the same time with a deed from the mortgagee to the mortgagor, containing a covenant against all incumbrances except a previous mortgage, and a general covenant of warranty, the plaintiff cannot charge the defendant with a sum since paid in discharge of that mortgage, by proof of an oral agreement between them at the time of making their conveyances that the defendant should assume the payment thereof, and of a mistake of the scrivener in drawing the deeds.</p>

<p>Action op contract upon a bond executed on the 1st of April 1857, to the plaintiff and Aaron P. Small, since deceased, in the sum of three thousand dollars, the condition of which was that the defendants should save the obligees harmless from, and, within six months, cause to be assigned to them, a mortgage held by Deane Towne upon lot No. 44 on Union Hill in Worcester, which had been conveyed to the obligees by Larkin Smith, free from all incumbrances except a mortgage of $ 1700 to Jonathan Webb.</p> <p>At the trial in this court, without a jury, which was waived by the parties, the defendants admitted the execution of the bond, and that the Towne mortgage had not been assigned to the plaintiff. Hoar, J. ordered judgment for the penalty of the bond, and to this order the defendants alleged exceptions.</p> <p>The case was then referred by agreement of parties to an assessor, the substance of whose report is stated in the opinion, and for the amount of damages found by whom execution was awarded, and the defendants alleged exceptions.</p>

<p>Proof of an oral agreement made between the grantor and grantee, after the delivery of a deed containing covenants of warranty against all incumbrances, concerning the removal of certain existing incumbrances, is not incompetent as tending to contradict the deed.</p> <p>At the trial of an action on a promissory note, there was evidence that the plaintiff had signed and delivered certain deeds of land, which the presiding judge erroneously ruled to be void, in consideration for other lands purchased by him of a third party with covenants of warranty against all incumbrances; that these lands were at the time subject to a mortgage, which the grantor undertook to get discharged, but which had not been discharged at the time of the trial; and that the plaintiff subsequently agreed orally to take the note in suit, instead of the discharge of this mortgage. The presiding judge refused to instruct the jury that there was no evidence in the case, other than the note itself, tending to show a consideration for it; and instructed them that if the note was given and accepted in satisfaction or partial satisfaction of the claim for damages on the covenant against incumbrances in the deed to the plaintiff, he might recover, fletó\ that the defendant had no ground of exception.</p> <p>A deed by a tenant in common of a certain number of acres in a tract of land described as undivided, in which his share equals a larger number of acres, is a valid conveyance of the specified proportion of the whole tract.</p>

Replevin of a yoke of oxen. Trial and verdict for the plaintiff in the superior court before Allen, C. J., to whose rulings the defendant alleged exceptions, the substance of which is stated in the opinion.

<p>Action of contract. Trial and verdict for the plaintiff in this court before Hoar, J. The defendants alleged exceptions, the substance of which is stated in the opinion.</p>

<p>In an action by a foreign mutual insurance company to recover assessments upon a deposit note, if the answer denies that the plaintiffs’ agent deposited with the treasurer of the Commonwealth a copy of their charter, as required by the Rev. Sts. c. 31, § 41, before the execution of the policy which was the consideration of the note, the burden is upon the company to prove a compliance with the statute, and is not sustained by a certificate of the treasurer that such a copy was deposited with him in a certain year, without showing that it was before the day of the date of the note.</p>

<p>The inhabitants of a county cannot maintain an action of contract against a creditor, who has had his debtor arrested on mesne process and kept in close confinement in the county jail, for board furnished to the debtor by the jailer upon his claiming support as a pauper, if the creditor, after a demand upon him by the jailer to pay for such board, has not requested the county or the jailer to detain the debtor in prison, or to furnish him with board, nor promised to pay for the debtor’s support.</p>

<p>A recognizance, taken by the justice of a police court from a debtor arrested on execution and carried before him pursuant to St. 1857, c. 141, the condition of which requires the debtor to surrender himself for examination in court, instead of before the justice, is void.</p>

<p>Under St. 1857, c. 141, a return of non est inventus upon an execution will not support a writ of scire facias against the sureties in a bail bond, given by the defendant upon his arrest on mesne process in the same action, unless the certificate required by § 3 was annexed to the execution.</p>

<p>Action of contract for the support of William M. Chickering, a pauper.</p> <p>At the trial in the superior court before Lord, J. the plaintiffs introduced evidence tending to show that Harvey Chickering, the pauper’s father, was the legitimate son of Nathaniel Chickering and Ruth Richardson, (who, as was agreed, were married in Connecticut on the 22d of February 1804,) and</p> <p>that Nathaniel gained a settlement in the defendant town under the St. of 1793.</p> <p>The defendants, to prove that Harvey was born before the marriage of his parents, and was therefore illegitimate, called a witness who testified that, in the fall of 1803, in company with her aunt, Mrs. Blair, she made a visit to a relation who lived near the house in which Ruth Richardson was then living, and while there saw Harvey Chickering, then an infant two or three weeks old; that she remembered the date from the fact that Mrs. Blair’s only daughter, named Susanna, was with them and was about a year old, and that this daughter was born in September 1802, and died on the 12th of December 1803 ; and that she had been kept in remembrance of the date of Susanna’s death by constant intercourse with her family since and by frequent reference to the family record. The Blair family was not related to the Richardson or the Chickering family.</p> <p>The defendants then offered, as evidence that Susanna died on the 12th of December 1803, a large ornamented sheet of parchment, bearing the inscription “ family record,” on which were entered the dates of the birth and marriage of Susanna Blair’s parents, the dates of the birth and death of Susanna, and of the births, marriages and death of two sons born subsequently of the same parents. One of these sons, forty seven years old, testified that, ever since his earliest recollection, his father had kept this parchment framed and hanging in a conspicuous place in his dwelling-house, and had handed it down to him ; that during all this time the same entries had been on it; and that his father and mother were dead. And there was evidence that the entries of the births and deaths upon the parchment were made, all at one time, by direction of Susanna’s father, more than forty years before the trial; that the record of the marriages of his children had been added, from time to time, as they occurred; and that he and his son kept and exhibited the parchment as a true statement of the events recorded on it.</p> <p>The defendants also offered to prove that an ancient gravestone in the burial-ground of the Blair family bore the name Susanna, and had inscribed on it December 12th 1803 as the date of her death.</p> <p>The evidence offered by the defendants was excluded; the jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

<p>A private way, duly established under 8t. 1786, c. 67, § 1, for the use of one or more individuals of a town or proprietors therein, is not discontinued by the unity in one person of title to and possession of all the land through which it is located.</p> <p>In the location of a private way laid out by the selectmen and accepted by the town, a description of it as “ a bridle road ” does not confine the right of way to a particular class of animals or special mode of use.</p> <p>A quitclaim deed, securing to the grantor a right to use a way over the land granted for a certain purpose, and with a covenant of warranty against all persons claiming by or under the grantor, does not estop him to use the way for other purposes, if it had previously been legally laid out by the selectmen and accepted by the town as a private way.</p>

<p>Action of tort for injuries sustained by the female plaintiff in a highway, which the defendants were bound to keep in repair.</p> <p>At the trial in the superior court before Russell, J., it appeared that on the 18th of July 1858 Mrs. Brooks was driving along the way a horse attached to a vehicle, in which she and another person were sitting; that at the top of a hill the horse began to run, and after he had run some forty rods the wheel of the carriage struck against a rock projecting above the ground near the travelled part of the way between the ditches on each side of it, and Mrs. Brooks was thrown out and injured.</p> <p>The plaintiffs claimed that the way, where the horse began to run, was so soft and uneven as to be defective, and that this condition of the way frightened the horse and was the cause of his running; and they also relied upon the narrowness of the way, the depth of the gutters near the sides of it, and the projecting rock, on which the wheel struck, as defects; all of which the defendants deified, and much evidence on these points was introduced by both parties.</p> <p>The plaintiffs called a witness, who testified that he made some measurements of the way in April 1859; and the presiding judge, against the defendants’ objection, permitted this witness to state the width of the way between the ditches and the width of the travelled part of the way on the 1st of April 1859. The plaintiffs afterwards offered evidence tending to show that between that time and the time of the injury there had been no change in these dimensions.</p> <p>The defendants offered evidence tending to show that Mrs. Brooks was able to guide the horse during his running, and would have passed safely down the hill, but that her companion, who was an insane woman, became excited when the horse began to run, seized and obtained control of the reins, and, in spite of her remonstrances, turned the horse out of the travelled part of the way.</p> <p>The judge, at the defendants’ request, instructed the jury as follows : “ The law is well settled, that if the negligence of a third person occasioned the injury, the town is not liable. If then the horse started to run away, from a cause for which the defendants were not at fault, and if a person in the vehicle, not possessing competent skill or intelligence to drive, obtained the control of the reins and turned the vehicle out of the travelled path on to the rock under the excitement of fear, and such turning caused or contributed to the accident, then the plaintiffs cannot recover.”</p> <p>The judge, against the defendants’ objection, further instructed the jury thus: “ But if the original cause of the accident was the fact that the horse was frightened and caused to run by a defect in the road, for which the town was liable, and the horse was a proper horse for a prudent person to drive, and properly driven, then the mere want of prudent management on the part of Mrs. Brooks or her companion, after the horse began to run, or the mere fact that she imprudently seized the reins and turned the horse from the road, would not exonerate the defendants. All that is required in such circumstances is such a degree of care and prudence as the situation of the party would naturally or probably admit, and due allowance is to be made for the natural alarm caused by such an accident. If through the fault of the town in having a defective highway, these parties were placed in an exciting and alarming situation, then the law only requires such care as is natural in such a situation.”</p> <p>The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

<p>An award of referees that the owner of a mill-dam shall pay to the owner of land flowed by his dam one hundred dollars a year as long as the dam is kept at its present height, “ and no more, unless by so doing he pays damage, if any is done by increasing the height,” is no bar to a complaint under the mill act to recover damages occasioned by raising the height of the dam, prosecuted in the name of a person to whom such owner of the land flowed has since the award and the raising of the dam conveyed it, reserving to himself the right to collect the annual damages awarded, and “ the right to take all necessary and proper legal measures to collect, either in his own name or in the name of the owner of the estate hereby conveyed, all such damage as shall be caused to said estate by means of said dam, kept at any height up to the present height of said dam; the owner of the estate having the right to recover to his own use all the damage which shall be occasioned to said estate by so much of the height of said dam as shall be above its present height.”</p>

<p>Upon the death of the complainant pending proceedings under the mill act, the administrator of his estate may be admitted to prosecute the complaint, and to recover such damages as he might have recovered.</p> <p>On a complaint under the mill act, a release of damages from a former owner for raising the dam to a less height, or a misdescription of the land in the complaint, must he pleaded and tried in court before the issuing of a warrant, and cannot be given in evidence in mitigation of damages at the trial before a sheriffs jury.</p>

<p>A parish obtained a subscription to build a meeting-house, to be repaid out of the proceeds of the sales of pews, and appointed five persons a building committee, who accepted the trust, and built the meeting-house, and one of them was appointed treasurer and kept accounts of the business of the committee. Before the building was completed, two of the committee ceased to act, and the business was assumed and carried on by the three other members. The cost of the building exceeded the amount subscribed, and the committee were left in debt for the excess, and by agreement with the subscribers and the parish, and for their own indemnity, had the management of the unsold pews, and paid or settled with the subscribers. One of the acting members of the committee paid a certain sum to the treasurer, to be applied towards paying a debt of the committee. The treasurer afterwards received from the sales and rents of pews and other sources an amount sufficient, after discharging all expenses of the business of the committee, to repay this sum and interest. Neither the third active member of the committee nor the parish made any claim to the surplus. Held, that the member of the committee who paid this sum might maintain a bill in equity against the treasurer;but must make the parish and the three other members of the committee parties to the bill.</p>

<p>County commissioners laid out a road and ordered a town to build it. A man agreed with the town to build the road in accordance with the order and to the acceptance of the commissioners, for a specified price. The commissioners refused to accept the road as completed by him, and, after he had sued the town, ordered additional work to be done upon it, for which the town was obliged to pay. Held, that he could not be permitted to show that their refusal was unreasonable; but that if he left the road without fraud or wilful default, believing it to be completed as required by his agreement, he was entitled to recover from the town the fair value to the town of his labor and materials; and that such value would be the price agreed, less the amount paid by the defendants for the additional work ordered by the commissioners.</p>

<p>The implied promise of the promisee to hold and appropriate the funds subscribed, in conformity with the terms and objects of the subscription, is a sufficient legal consideration for the promise of a subscriber to a fund for the endowment of a corporation created for charitable purposes.</p> <p>The corporators named in a charter from the legislature, establishing a charitable corporation at Amherst, elected twelve associates, and organized themselves as a corporation. A year afterwards the charter was amended by the legislature so as to permit the location of the corporation either at Amherst or such other place as the corporation should select; and a meeting of the original corporators was called, at which they elected twelve associates, retaining some and leaving out others of those elected before, reorganized the corporation, and located it at Worcester, where its business was afterwards carried on. Held, that the power of the corporators to organize was not exhausted by their first organization, but that for real or supposed errors therein they might reorganize; that if the associates originally elected acquiesced, the reorganization was valid; that the corporation as reorganized might maintain actions on agreements to subscribe certain sums for its endowment, payable to the treasurer of the, corporation, describing the institution as “ to be located at Amherst, as provided by the charter, or in some other suitable place, subject to the action of its legal trustees, with the consent of the general court,” whether signed before or after the second organization and the location at Worcester; and that a condition of such agreements, that no subscription should be binding unless the sum of twenty thousand dollars should be subscribed before a certain date, was complied with by subscriptions to that amount, either in the same form, or “ towards its two hundred thousand dollars endowment, provided it is to be located at Worcester,” although the sum last named had not been obtained.</p>

<p>A. contracted in writing to furnish materials and build a house for B. for a certain sum, to be paid by B. After A. had entered upon the performance of his contract, C. agreed to pay him according to his contract with B. if he would go on and finish the house. Held, that C. was liable to A. for all work done and materials furnished after C.’s undertaking, although A. had previously commenced proceedings against B. to enforce a claim for a mechanic’s lien on the house for labor and materials. Held, also, that after C. had introduced evidence of the proceedings to enforce this lien, as tending to show that A. believed that his claim was against B. alone, A. might introduce evidence that at the time of making that claim he spoke to his counsel in those proceedings about his claim on C. Held, further, that C. could not introduce evidence that he was a person of large property and in good credit, without other evidence that these facts were known to A.</p>

<p>In an action for the breach of a contract in writing, by which the defendant agreed to cover the roof of the plaintiff’s building, and to warrant the same to stand well and resist the water and make a tight roof for the term of five years, and in default thereof to make the same satisfactory to the plaintiff, the plaintiff can recover no damages for injury to the interior of his building or to articles stored there, caused by water leaking through the roof constructed by the defendant; but only the cost of having the roof put into a satisfactory condition.</p>

<p>The parties to a written contract for the sale of a quantity of standing timber, to be cut and delivered within a certain time at a certain place and paid for in six months after delivery, agreed afterwards in writing to postpone the time for cutting and delivering the timber, except a portion already at the place of delivery, and an additional portion already cut and to be delivered on request; and these portions were afterwards delivered. ScM, that the original contract was thereby severed, and that after six months from such delivery an action might be maintained on the original contract for the price of both these portions.</p>

<p>A written order for the payment of a certain sum out of his wages, drawn, for a sufficient consideration, by a workman, employed under a subsisting engagement for a certain time, upon his employer, and by the latter “ accepted, payable when earned,” applies to wages earned under a new engagement entered into by the workman immediately upon the expiration of the first for lower wages with the same employer; and is not defeated by a subsequent assignment to another person of the wages to be earned under the new engagement.</p>

<p>Action of toet for the conversion of a quantity of corn, cabbages and potatoes, attached by the defendant as a deputy sheriff on mesne process against the plaintiff.</p> <p>At the trial in the superior court, there was evidence tending to show that the corn, cabbages and potatoes were raised by the plaintiff in a field occupied by him in Southborough; and, when attached by the defendant, were ripe and fit to be harvested, but had not yet been severed from the soil. The plaintiff testified that, at the time of the attachment, he had but few provisions in his house for the use of his family, which consisted of seven persons; and that he had planted and raised these vegetables for their use, intending to sell any surplus which they might not need. Allen, C. J. instructed the jury that if the vegetables attached by the defendant were produced, designed and intended by the plaintiff to be used as provisions for his family, so much of them as would not exceed in value the amount remaining after deducting from fifty dollars the value of the provisions which the plaintiff had in his house was exempt from attachment. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of tort against a deputy sheriff for refusing to serve a writ of replevin, sued out by the plaintiff against George Spring, to recover possession of a diamond pin with gold settings.</p> <p>At the trial in the superior court, it appeared that, when the officer was asked to serve the writ of replevin, Spring was wearing the pin as a personal ornament in the bosom of his shirt, with his coat buttoned over it so as to conceal, it from sight, and threatened resistance if the officer should attempt to take it from him. Lord, J. ruled that these facts did not excuse the officer, and he alleged exceptions.</p>

<p>Indictment for a conspiracy, alleging that the defendants on the 21st of August 1858, with force and arms, at Melrose, in the county of Middlesex, “ being persons of an evil disposition, and maliciously contriving, devising and intending one Joseph E. Westgate to cheat and defraud, and then and there maliciously contriving, devising and intending to obtain from the said Westgate a large sum of money, to wit, the sum of three hundred dollars, of the moneys of the said West-gate, by means of false pretences, did then and there unlawfully combine, conspire, confederate and agree together, knowingly, designedly and by false pretences and representations to the said Westgate, to obtain from the said Westgate the sum of. three hundred dollars of the moneys of the said Westgate; and in pursuance of said unlawful combination and conspiracy,” the indictment proceeded to aver, the defendants then and there made to Westgate certain false and fraudulent representations, which were fully set forth.</p> <p>The defendants, being convicted in the superior court, moved in arrest of judgment, because no offence was duly set forth in the indictment. Morton, J. overruled the motion, and the defendants alleged exceptions.</p>

<p>Upon an indictment under the St. of 1845, c. 27, for maliciously, and with intent to pro. cure an abortion, causing a woman to take any medicine, it is not necessary to allege or prove the name of the medicine, or that it was noxious.</p>

<p>On the trial of a complaint against the owner of cattle for an assault and battery in taking them from a person driving them along the highway, who had found them going at large there without a keeper, the testimony of that person that he was a field-driver of the town, and as such was taking them to the town pound, and had acted as such for many years, is competent and sufficient to prove that he was a field-driver; and his subsequent demand of illegal fees is immaterial.</p>

<p>Indictment for suffering a highway to be out of repair “ so as to be inconvenient and dangerous to the lives and safety of the citizens of the Commonwealth then and there passing,” &c.</p> <p>At the trial in the superior court in Bristol before Vose, J., the Commonwealth introduced evidence tending to show that during the time covered in the indictment the way, by want of proper grading, surface covering and drainage, was very muddy and miry and inconvenient for travellers. And for the purpose of charging the defendants with the liability of keeping it in repair, evidence was introduced that the way was within the limits of the town; that it had been used as a public way for more than thirty years, and was used as such during the time named in the indictment, and since; that it was known in the town by the name of Dean Street, most of the witnesses testifying that they lived on the street, and one of them that he had resided there for more than twenty seven years; and that the road was used for teams between Taunton and neighboring towns.</p> <p>The defendants offered no evidence; and requested the judge to instruct the jury “ that the Commonwealth must show, not only that the road was inconvenient, but also that it was so unsafe that travellers using ordinary care could not pursue their ordinary business upon the road with reasonable facility, taking into consideration the season of the year and the nature of the soil over which the road was built; and that the evidence offered by the government was insufficient to show that the town was liable to keep the road in repair.”</p> <p>The judge declined to give the instructions prayed for; and instructed the jury “that the evidence would warrant them in presuming, in the absence of all other evidence, that this road had been opened for public use, and had bean adopted and accepted by the town as a public highway; that, as to the condition of the road, the Commonwealth must satisfy them that the road was unsafe or inconvenient for those travelling upon it and using ordinary care; that, in determining whether it was either unsafe or inconvenient, the jury would take into' consideration its location, and the extent and kind of travel usually passing over it; that whether a road was safe or inconvenient depended very much upon the facts and circumstances of each case, and proof of slight inconveniences would not be sufficient; and that the jury must be satisfied, having reference to the nature and amount of the public travel upon the road, that there was a substantial inconvenience in the use of the road, burdensome to the traveller, as compared with other similar ordinary roads, and growing out of causes which could be removed by the town by a reasonable expenditure of money.” The jury returned a verdict of guilty, and the defendants alleged exceptions.</p>

<p>The statutes of the Commonwealth have not superseded the remedy by indictment at common law for a nuisance in carrying on an unlawful and offensive trade and manufacture.</p> <p>An indictment for a nuisance at common law sufficiently describes the nuisance, and is not bad for duplicity, which alleges that the defendants at a certain day and place set up and maintained certain buildings, and on that day and on divers others between that day and the day of the finding of the indictment used and employed therein large quantities of acid, guano, tar, oil, bone and dead bodies and other noxious and offensive substances in the manufacture of acids, colors, chemicals and chemical products, by means whereof divers noxious and offensive smokes, gases, smells and stenches were emitted, so that the air was filled and impregnated therewith, and rendered corrupt and unwholesome, to the great damage and common nuisance of all persons then and there being.</p>

Complaint for maliciously breaking glass in a building, the property of Nathan S. Hoard. At the trial in the superior court in Bristol, before Vose, J., the only evidence of the ownership of the building was the testimony of one witness, who occupied it, that she hired it “ of.

<p>Complaint for being a lewd, wanton and lascivious person on the 1st of August 1860, “ and from that day to the day of the date of receiving this complaint.” The complaint bore no date, except in the certificate of a justice of the peace, after the signature of the complainant, that it was “ received and sworn to on the twenty-ninth day of August in the year of our Lord eighteen hundred and sixty.”</p> <p>At the trial in the superior court in Bristol, Vose, J. admitted evidence of lewd speeches and conduct on different days between the 1st and the 29th of August, and refused to confine the proof to the 1st of August or any other single day. The defendant was convicted, and alleged exceptions.</p>

<p>A complaint containing two counts for different offences, the first of which distinctly describes the complainant, the defendant, and the place, and the second as “ said complainant,” “ said J. S.,” and the. “ town and county aforesaid,” will support a verdict of guilty on the second count, although the defendant is acquitted on the first count.</p>

<p>On a trial on appeal from the judgment of a trial justice, a witness for the Commonwealth, who testifies on cross-examination that he cannot swear that he has not been threatened in relation to his testimony on this trial, and that the trial justice has intimated to him that all proceedings against him for a breach of his recognizance would be stayed if he would now testify against the defendant, may be asked by the district attorney on reexamination as to the particulars of a conversation between them, for the purpose of proving that the district attorney assured the witness before calling him that no prosecution should be urged against him for a default on his recognizance.</p>

<p>Complaint for larceny of “ copper coin of the value of two dollars and seventy five cents,” of the goods and chattels of Elisha Brown and Charles Goodrich and in their possession. The defendant, after conviction in the superior court in Suffolk, moved in arrest of judgment. Rockwell, J. overruled the motion, and he alleged exceptions.</p>

<p>Indictment, found at August term 1860 of the superior court in Suffolk, alleging that the defendant at Boston on the 20th of May 1860 on Frederick J. Fatal “ an assault did make with a flat iron and a slung shot, and him the said Fatal then and there did beat, bruise, wound and evil treat, and other injuries to him the said Fatal did then and there commit, to his great damage, and against the law, peace and dignity of said commonwealth.”</p> <p>The defendant, being found guilty, moved in arrest of judgment, for the following reasons: “ 1st. Because the indictment is defective in setting forth that an assault and battery was committed May 20th 1860, when in fact all our laws have been re-enacted and went into operation June 1st 1860. 2d. Because this indictment does not set forth what law of this commonwealth has been violated, and there is no existing general statute to punish any simple assault and battery. 3d. Because the judges of the superior court are creatures of the general statutes, and have no common law jurisdiction, except it is given by the general court of this commonwealth, and that limited to state practice.” Brigham, J. overruled the motion, and the defendant appealed.</p>

<p>The erection or continuance of a public nuisance may be restrained upon an information in equity by the attorney general or other law officer of the Commonwealth, either ex officio or upon the relation of a private person</p> <p>The testimony of the superintendent and a director of an incorporated turnpike company and of one other person, to the effect that a horse railroad track about to be constructed under an agreement with the turnpike company, on the side of the turnpike road, leaving unobstructed the travelled road of such width as the turnpike company is required by its charter to maintain, will be an obstruction to the public travel and a public nuisance, is not sufficient to overcome the presumption that the turnpike company, being charged by law with maintaining their road in a fit condition for public travel, will not permit acts which will interfere with and obstruct it; nor warrant a court of equity in restraining by injunction the laying of the track.</p> <p>The construction of a track for a horse railroad over a turnpike road, under an agreement with the turnpike company, by a corporation, whose charter contains a restriction making it “ void so far as relates to the right to construct the said road in any town until the act has been accepted by the selectmen,” will not be restrained by injunction as a nuisance in a town traversed by the turnpike road, merely because the selectmen of the town have not accepted the charter.</p>

<p>A statute authorizing county commissioners to lay out as a public highway a bridge originally established by the legislature over a navigable stream, and used as a public way for two hundred years, during which period the legislature has from time to time imposed upon various towns the expense of keeping the bridge in repair, and releasing from their obligation some of the towns upon which the duty and expense of maintaining it has been imposed by previous statutes, is constitutional; and leaves it the duty of the towns not released to maintain the bridge until the exercise by the county commissioners of the authority conferred upon them, even after their refusal, upon petition, to lay out the bridge as a public highway.</p> <p>The St. of 1860, c. 95, releasing the towns of Lexington and West Cambridge from the obligation of contributing to the expense of maintaining the Great Bridge between Cambridge and Brighton, and of repairing and tending the draw, imposed upon them by earlier statutes, is constitutional; and imposes upon Cambridge and Brighton the whole duty and expense of maintaining, repairing and tending the bridge and draw, until the county commissioners lay out the bridge as a public highway.</p> <p>The resolve of May 4th 1781, “ that the towns of Cambridge and Lexington be at the whole expense of repairing said bridge, until the grants made said towns by the general court be wholly expended,” did not release those towns from the obligation to repair the bridge after the expenditure of the fund granted.</p>

<p>Action of tort for slander, in saying of the plaintiff and two others, “ They went to Barnstable and perjured themselves; I have it in black and white.” Trial and verdict for the plaintiff in the court of common pleas in Barnstable at April term 1859, before Bishop, J., to whose rulings the defendant alleged exceptions, the substance of which is stated in the opinion.</p>

<p>Action of contract brought by the plaintiff as treasurer of the town of Harwich on a bond made to him by the defendant Jonathan Eldridge as principal, and by the other defendants as sureties; and submitted to the judgment of the court upon the following facts:</p> <p>In 1857 the assessors of Harwich assessed a tax, amounting to $ 2572.82, and delivered a list and warrant for the collection of it to the defendant Eldridge, who was collector of taxes for the town; and thereupon the bond in suit was executed, the condition of which was, that Eldridge should levy and collect the tax according to the warrant, and pay to the county treasurer $> 200 by the 1st of the following December, to the town treasurer $ 1500 on or before the same day, and $ 872.82 by the 15th of the following January, and should otherwise discharge the duties of collector of taxes for said town.</p> <p>The assessors afterwards discovered that the assessment was illegal, because the overlay was too large; and, solely to correct that error, reassessed the tax, reducing the amount of it to $ 2490.01; and, without the knowledge of the defendants, altered the bond accordingly, by changing the sum named as the gross amount to be collected from $2572.82 to $2490.01, and the second sum to be paid to the town treasurer from $ 872.82 to $790.01. No new list or warrant was ever delivered to the defendant Eldridge after this change in the assessment, and he proceeded to collect the tax.</p> <p>This action was brought to recover an alleged balance remaining in the hands of Eldridge as collector of taxes, and the bond was declared on in its altered condition.</p>

<p>The regularity of the proceedings of county commissioners upon a petition for a jury to assess damages occasioned by the laying out of a town way, of the acts of the sheriff in summoning and impanelling the jury, of the hearing before them, the return of their verdict to the court of common pleas, and its acceptance and affirmance by that court, cannot after such acceptance and affirmance, without exception taken at the time, be disputed and contested by persons who have entered into a recognizance to pay all costs which might arise in such proceedings.</p> <p>Under the Rev. Sts. c. 24, § 38, parties who have entered into a recognizance to pay the costs of proceedings upon a petition to county commissioners for a jury to assess damages occasioned by the laying out of a town way, if the verdict shall be adverse to the petitioner, are liable for costs if the amount of damages allowed to the petitioner by the selectmen of the town is not increased by the verdict of the jury.</p> <p>A notice, ordered by the county commissioners to parties who have entered into a recognizance for the costs of the proceedings upon an application for a jury to assess damages sustained by the laying out of a town way, to show cause why a warrant of distress should not issue, and served by copy as directed, is sufficient, although the copies served are not attested by any officer.</p>

Bill in equity, filed on the 1st of May 1860 by ten taxpayers of Dennis, residing in the pretended school district numbered 13,… Held: at which Howes Chapman was chosen treasurer of the district, and it was voted to sell the two schoolhouses belonging to the two former districts numbered 13 and 14, and to raise a further sum of $375, to be assessed on the inhabitants of the new district in October 1860; that pursuant to this vote said treasurer proceeded to sell the…

Bastardy process. At the trial in the superior court in Bristol before Vose, J., the complainant testified to two acts of intercourse between herself and the respondent, one on the 29th of May 1859, and one in July following, and that these were the only ones which they ever had together; and it was admitted that her child was born on the 12th of February 1860.

<p>A field-driver, who takes oxen going at large in a public highway without a keeper, with the intention of driving them to the town pound, and, before driving them to the pound, drives them into his own yard, goes a third of a mile to find the owner, and, having found him,says to him, “ I have taken two of your oxen and put them in my yard, and if you don’t come after them, I shall drive them to the pound,” is not liable to the owner for a conversion of the cattle.</p>

<p>If an administrator, who has been licensed to sell more of the real estate of his intestate than is necessary for the payment of debts, and has given a special bond as required by the Rev. Sts. c. 71. § 6, to account for the surplus proceeds, is also guardian of the heirs at law of his intestate, who are all minors, and expends such surplus proceeds for the maintenance of his wards, it is his duty, in his administration account, to charge himself with such proceeds and credit himself with the sums expended for his wards as paid to himself as guardian; and if he neglects to render such account of the surplus proceeds in the probate court, he and his sureties on the special bond are liable in an action thereon for such surplus proceeds, deducting so much thereof as may be allowed to him in the settlement of his guardianship account in the probate court, as properly expended for the maintenance of his wards; and if he has rendered no account as guardian, an opportunity will be afforded to him to do so after judgment for the penalty of the bond.</p> <p>Under the Bev. Sts. c. 70, § 10, an action may be brought in this court upon a special bond given under c. 71, § 6, by an administrator, licensed to sell more real estate than is necessary for the payment of debts, to account for the proceeds.</p> <p>Upon a special bond given under the Bev. Sts. c. 71, § 6, by an administrator licensed to sell more real estate than is necessary for the payment of debts, to account for the surplus proceeds, an action will lie after neglect for an unreasonable time to render such an account in the probate court, although he has not been cited to do so.</p>

<p>Action of tort against a deputy sheriff for the conversion of two cows and a horse attached by him on mesne process against the plaintiff’s husband on a debt due in May 1858. The parties submitted the case to the judgment of the court upon the following facts:</p> <p>The plaintiff and her husband on the 1st of January 1856 were married in Rhode Island, where they resided, and the plaintiff afterwards bought two cows and a horse with money collected by her on notes due her at the time of the marriage, and which never came into her husband’s hands or possession. The plaintiff and her husband continued to live together as man and wife in Rhode Island until the 1st of April 1857, when they removed to Attleborough in this commonwealth, bringing the cows and horse with them, and have since lived together here. In September 1857, at Attleborough, she exchanged the horse, paying ten dollars in the exchange, for another, which was the horse attached by the defendant. In the spring of 1857 she bought another cow in Attleborough, which, with one of those brought from Rhode Island, were the two cows attached by the defendant. All of the property was bought by the plaintiff alone, and with money belonging to herself alone, and which she never allowed her husband to have in his possession or control.</p>

Action of contract for thirty dollars as money lent to the defendant on the 29th of July 1856.

<p>Action op contract for the price of a steam-engine and machinery. The defendants were all defaulted, except James W. Horton.</p> <p>At the trial in this court, the plaintiffs offered evidence tending to show that the defendant Charles Horton contracted in writing with them to construct a steam-engine and machinery for a mill in Seekonk, representing it to be his property, (there being no evidence whether the other defendants knew of this representation,) and that they accordingly constructed and delivered the same and set them up in the mill; and that the title to the land on which the mill was built was not in Charles Horton, but by a deed, dated, executed and acknowledged before the making of the contract, though not recorded till afterwards, had been conveyed to the other defendants named in the writ. One of the plaintiffs testified that while they were putting in the engine he was at the mill and saw James W. Horton there, and heard him say that the engine was satisfactory, or words to that effect; and that on another day soon after, at the mill, he told the witness that when the mill was built (which was proved to have been a short time before the engine was put in) he was one of the partners in the concern, but afterwards sold out to his brothers. Hoar, J. instructed the jury that this evidence did not maintain the action against James W. Horton; and after a verdict for him, reported the case for the decision of the full court.</p>

<p>A policy of insurance against fire, containing a provision that it shall cease and he of no force or effect if the premises insured shall be appropriated, applied or used for the purpose of carrying on or exercising any trade, or of keeping or storing any article, denominated hazardous or extra-hazardous in the terms and conditions annexed to the policy, in which, among other things, “ sailmakers ” are denominated hazardous, and “ confectionery and confectionery manufacturers ” extra-hazardous, is rendered void by a hiring of a portion of the building insured for a sail-loft, and carrying in a sailmaker’s stock and tools, although without commencing work, and by the keeping of a small quantity of confectionery in glass jars on a counter or shelf in a room occupied as a barber’s shop in the building insured.</p> <p>A policy of insurance against fire, effected by a. mortgagor out of possession, which by its terms is to cease and be of no effect if the premises insured shall be used for certain specified purposes, may be rendered void by the use of them for such purposes by a lessee of the mortgagee in possession.</p>

<p>In an action brought by the defendant in replevin against the officer who served the writ, for taking an informal bond, by reason of which the replevin was dismissed on the defendant’s motion, the officer may show in mitigation of damages that the property replevied was, at the time of the service of the replevin, and has since remained the property and in possession of the plaintiff in replevin.</p>

<p>At the trial of an action by a mortgagee of personal property (whose mortgage provided that the mortgagor might retain possession until default, but that upon any attachment by any other creditor of the mortgagor the mortgagee might take immediate possession) against an officer attaching it as the property of the mortgagor, such attachment was admitted, but there was no evidence that the mortgagee had taken possession. The judge declined to rule that the plaintiff had shown no sufficient right to the mortgaged property to maintain the action, and submitted the case to the jury under other instructions not excepted to. Held, that the defendant had no ground of exception.</p>

Action of tort for the obstruction of a way. Trial and verdict for the plaintiff in the superior court before Morton, J., who made a report of the case, the material part of which is stated in the opinion.

<p>A trespass committed under a claim of right is not a casual and involuntary trespass, upon tendering sufficient amends for which the trespasser, if afterwards sued, may recover costs under the Rev. Sts. c. 105, § 12.</p>

Appeals from taxations of costs in actions at law. In the first case, the trial was had in the court of common pleas at September term 1858, and exceptions entered and argued in this court at October term 1858, and overruled and judgment entered for the plaintiff at November term 1859; the clerk, in taxing the plaintiff’s costs in this court, included term fees for each term while the case was under advisement; and his taxation was affirmed on appeal by Merrick, J. In the…

<p>In an action of tort against a town for a penalty imposed by statute for neglecting to choose three fishwardens at the annual meeting, a declaration which sets out the whole statute, and alleges that at the annual meeting in a certain year the town neglected to choose three fishwardens, as by the statute it was required to do, need not further allege that it was the duty of the town to make choice of any particular number of fish-wardens, or that the statute is still in full force and unrepealed, nor conclude against the form of the statute.</p> <p>It is no defence to an action for a penalty imposed by statute upon a town for neglect at its annual meeting to choose certain officers, that the old officers would by law hold over until the election of new ones, or that such officers were in fact chosen at a special meeting, called for the purpose, shortly after the annual one.</p>

<p>The St. of 1856, c. 50, empowering the mayor and aldermen of any city, and the selectmen of any town, lying upon the tide waters of the Commonwealth, to license any person to construct fish weirs in such waters within its limits, provided such weirs shall cause no obstruction to navigation nor encroach on the rights of others, does not affect the fisheries in Taunton Great River, regulated by St. 1855, c. 401.</p>

<p>Action of contract to recover back taxes paid under protest for the years 1855 and 1856, submitted to the judgment of the court upon facts agreed, which are stated in the opinion.</p>

<p>Action of contract to recover for the support of a family of paupers, alleged to have derived a settlement in Middleborough through Ezra Reynolds. The case was submitted to the superior court on an agreed statement of facts, the substance of which is stated in the opinion. Vose, J. ordered judgment for the plaintiffs, and the defendants appealed.</p>

Action of tort. Writ dated August 31st 1858. The declaration alleged “that the said city of New Bedford, as a municipal corporation, and in its capacity as such corporation, being legally authorized and required by law so to do, had purchased and provided divers fire engines, hose carriages and other apparatus connected'therewith, for the extinguishment of public fires, and that on the first day of December last past such fire engines, hose carriages and apparatus were owned…

<p>It is no defence to an action by a town which has been obliged to pay damages for an injury occasioned by an obstruction in a highway, against the person who placed the obstruction there, that the negligence of the town in not removing the obstruction contributed to the injury.</p> <p>A town which has voluntarily paid damages for an injury occasioned by an obstruction in the highway, for which the town was liable, may recover the same of a person who placed the obstruction there, if the amount paid was reasonable and the town gave him notice of the claim before payment.</p>

<p>Writ of entry to recover an undivided part of land in Swansey, devised to the demandant during widowhood by her late husband Francis Moore.</p> <p>At the trial in the superior court before Russell, J. the following facts were admitted:</p> <p>Hannah Martin, under whom both parties claimed, died seised of the land in question in September 1816; and by her will, made in June 1812, devised it to her daughter Elizabeth Diman, “ during the term of her natural life, and after her decease to her children, with liberty to devise the same at her discretion ; but if she should decease without any such bequest or devise, then my will is, that all her children inherit the same, share and share alike, to them, their heirs and assigns forever.” Elizabeth Diman, at the time of her mother’s death, was married for the second time. She had by her first marriage one son, Thomas Moore, who died about six months before the testatrix, leaving four children, of whom two at the time of the trial still survived; one had died intestate and without issue ; and the fourth, Francis Moore, the demandant’s husband and devisee, had died in 1851. By her second husband, who died in 1822, Elizabeth had six other children, of whom five were living at the time of the trial, and one had died intestate and without issue in 1822, before his father. Elizabeth died in February 1855, intestate, having inx1826, together with her five surviving children, conveyed the land in question to Charles Collins, whose title the tenant had.</p> <p>The tenant requested the judge to instruct the jury as follows: “ That the will of Hannah Martin gave to Elizabeth Diman the lots of land in question in fee simple: That the power to Elizabeth, contained in the will of Hannah Martin, was well executed by her deed to Charles Collins: That if Elizabeth had only a life estate, the remainder to her children did not vest until the death of the testatrix or of the tenant for life; that the remainder was only to go to the class of children of Elizabeth at the time of her death, or of the death of the testatrix; and that Thomas Moore, from whom the demandant claimed title, having died before either of these dates, the demandant was not entitled to recover: That the Revised Statutes, c. 62, § 24, do not apply to this case, and give the representatives of a deceased child of said Elizabeth, who died before either of said dates, a right to the share of their ancestor, had he lived: That the remainder, if any, vested in a class of persons, and that those only who comprised that class at the death of the testatrix could take.”</p> <p>But the judge instructed the jury, “ that upon the facts shown the demandant was entitled to recover one undivided twenty-first part of the lots in question; and, against the tenant’s objection, that she could recover in this form of action.” The jury returned a verdict for the demandant accordingly, and the tenant alleged exceptions.</p> <p>After the verdict was rendered the parties agreed that the deceased child of Elizabeth by her second marriage died after his father, and that if the demandant could recover at all the verdict should be amended accordingly by adding one undivided one-hundred-and-forty-seventh part.</p>

<p>Under the- Bev. Sts. c. 59, § 11, and c. 62, § 24, a residuary devise of real estate to “my nephew A. and my niece B. and their heirs and assigns forever ” is of an estate in common and not in joint tenancy; and if one of the devisees dies before the testator, his or her moiety descends to the testator’s heirs at law.</p>

<p>Action of tort for breaking and entering the plaintiff’s close in North Attleborough, and carrying away stones and grass. Writ dated August 11th 1857. Answer, soil and freehold in the defendant.</p> <p>At the trial in the court of common pleas in Bristol at September term 1858, before Briggs, J., the plaintiff put in evidence a deed to himself from Samuel Guild, the former owner of the premises, dated February 3d 1853; and there rested his case.</p> <p>The defendant gave in evidence a deed, dated September 25th 1839, from Samuel Guild to Harrison Holmes, in trust for the Methodist Church and Society of North Attleborough, the material parts of which were as follows :</p> <p>“ Know all men by these presents, that Samuel Guild of Attleborough, County of Bristol and Commonwealth of Massachusetts, yeoman, in consideration of love and good will for and towards the Methodist Church and Society of North Attleborough, which love and good will I do hereby acknowledge, do hereby give, grant and convey unto Harrison Holmes, of the town, county and commonwealth aforesaid, trader, in trust for the use and benefit of said church and society, their heirs and assigns, in trust for the use of the members of the Methodist Episcopal Church usually attending religious worship in that part of the town of Attleborough in the county of Bristol, called and known by the name of North Attleborough, under the conditions and restrictions hereafter written, to wit, a certain lot of land situated in said North Attleborough,” described by metes and bounds: “ To have and to hold the aforegranted premises to the said Harrison Holmes, in trust as aforesaid forever, upon the following conditions and restrictions : Whereas a building is to be erected or placed upon said premises, to be used by the members of said church as a place of worship, a part of which building is also to be made into a tenement, to be occupied as a family residence, and whereas many of the members of said church are fully persuaded in the practicability of the immediate abolition of slavery in the United States of America, and hold it a solemn duty to do all that lies in their power lawfully to promote said object, and whereas said premises and building being principally purchased and procured by the anti slavery members of said church, the same are to be wholly under their control and direction, and in no case whatever are any such members of said church as are not believers in and practisers of the doctrines of antislavery to take any part or have any power of controlling the use of said premises and building or in any way disposing of the same, but the same shall be and remain forever under the control and direction of such members of said church as are embraced with the feelings and opinions of the Antislavery Society for the immediate abolition of slavery in the United States, and further that in no case is the general conference of the Methodist Episcopal Church to have any right in said premises and building or take any control or direction of the same, and that said trustees shall not permit any other than antislavery members of the church first named to direct them in the use and disposition of said land and building, and said trustees shall at all times be under their control and direction in the appropriation and disposition of said land and building, and conform to such control and direction. And I do covenant with the said grantees, their heirs and assigns, that I am lawfully seised of said premises ; that the same are free from all incumbrances; that I have good right to give and convey the same as aforesaid; and that I will warrant and defend said premises to the grantees, their heirs and assigns, against the lawful claims and demands of all persons, so long as the same shall be used and improved upon the conditions and under the restrictions above written and no longer.”</p> <p>The defendant also gave in evidence a deed, dated October 5th 1840, from Harrison Holmes, “ by virtue of the unanimous vote of the Methodist Episcopal Church in that part of said Attleborough called North Attleborough, for that purpose duly passed and recorded upon their book of church records, and in consideration of one dollar paid by said Episcopal Church,” conveying the land to the grantor and six others, “ trustees of said church, duly chosen, and to their successors in said office and their assigns, in trust for the use of the members of said church usually attending religious worship in said North Attleborough, upon the conditions and under the restrictions hereafter written; ” habendum “ in trust as aforesaid forever, upon and under the following conditions and restrictions : Whereas a building has been erected and placed upon said premises, to be used by the members of said church as a place of worship, a part of which building is also made into a tenement to be occupied as a family residence, the trustees aforesaid are to hold said premises, with all the privileges and appurtenances thereunto belonging, for the use of said church as aforesaid, subject to the rules and discipline of the Methodist Episcopal Church in the United States of America, and such as are made for the government of the same: Provided however that if at any time hereafter the general conference of the Methodist Episcopal Church in the United States should be divided, none but the members of said church in said North Attleborough who are believers in the doctrines of antislavery shall have the control of the aforesaid premises, or to have any vote in the disposition of the same: Provided also that the said trustees may at any time at their discretion open said building to persons who may from time to time call on them, or a majority of them, wishing to deliver lecture or lectures upon the doctrines and principles of antislavery in the United States, when said building is not otherwise engaged or in use by said church: Provided also that the said trustees shall have the care of said premises under the control and direction of said church, conforming in all things to said rules and discipline, and such as are made by the Methodist Episcopal Church in the United States for the general government of said church.”</p> <p>It appeared that the grantees in this deed, including Holmes, were the sole trustees of that church from the date of this deed to the dissolution of the church and society in 1844; that these trustees before the date of this deed incurred a debt of about one thousand dollars in building their meeting-house on the land, and after that date gave their note for that amount, secured by a mortgage of the meeting-house and land, to Joseph Smith; and on the 17th of August 1843, in discharge of that debt, all the trustees except Holmes executed a quitclaim deed of the meeting-house and land to Smith, who entered upon the land, and by himself and his lessee (who during the last year was the defendant) remained in quiet occupation of the premises until the 10th of January 1849, when he conveyed them to the defendant, who converted the meeting-house into a hall for lectures and dancing, and in 1855 removed it from the land, and the building was never afterwards used as a meetinghouse by any church or society.</p> <p>The plaintiff proved that the general conference of the Methodist Episcopal Church, as early as the 5th of October 1840, upon the application of the church in North Attleborough, sent to it a minister, who, according to the usage and discipline of that church, appointed Holmes and the other six grantees named in the deed of that date as trustees of the church and society. Holmes testified that, before borrowing the money of Smith, the church put itself under the control and direction of the general conference, according to the discipline of the Methodist Episcopal Church ; and that the trustees, when about giving the mortgage, applied to Guild to give a new deed without the condition that it should not be under the direction of the conference, but Guild declined. The plaintiff contended that these facts proved a breach of the condition of the deed from Guild to Holmes, “ that in no case is the general conference of the Methodist Episcopal Church to have any right in said premises and building or take any control or direction of the same ”; and that, upon proper entry by Guild for such breach of condition, the estate would revest in him. And the judge so ruled.</p> <p>The plaintiff further contended that the extinction of the church and society in 1844 and the conversion of the property to other purposes were a breach of condition, which on proper entry would revest the estate in Guild. And the judge so ruled.</p> <p>It was proved that Guild occasionally turned his cattle upon the land; that the land on one side adjoined the road, and was entirely unfenced, so that cattle and carriages could pass in and out without obstruction; and that at places on other sides the fence was broken down, so that cattle could pass in and out from one lot to another without obstruction. It did not appear that Guild ever did any other act upon the land to constitute an entry for the alleged breach of condition, or ever gave any notice to Smith or the defendant that he had entered or should enter for breach of any condition in his deed.</p> <p>Evidence was offered tending to show that Guild and the defendant conferred together occasionally before the 10th of January 1849 about buying the land from Smith to own as tenants at common, at which times Guild set up no title or right on the land; but the negotiations were broken off because they could not agree about the extent of repairs and improvements which should be made after so purchasing.</p> <p>The defendant contended that if there had been such a breach of condition as entitled Guild to enter upon the premises and repossess himself of his former estate, Guild had never made a sufficient entry to revest the land in him, and that not having so entered he had no interest or estate in the land, which he could convey to the plaintiff. But the judge instructed the jury that the facts proved were sufficient to warrant them in finding that Guild had made a sufficient entry for the breach of condition to revest the property in him; and that if he had not done so, his deed to the plaintiff transferred to the latter the right to enter, so that he might enter and thereby vest the estate in him as Guild might have done.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions, which were argued in October 1859, and decided in June 1860.</p>

<p>A deed of land to a number of persons incorporated as a religious society, habendum to them and to their heirs and assigns “ and to each and every person who may hereafter become lawful owners and proprietors of a pew in the meeting-house to be built and erected thereon, and which may and shall afterwards be rebuilt thereon by the said proprietors and their successors, to the use and behoof of the said proprietors for the said purpose, and of each and every lawful owner and proprietor of a pew or pews in the meeting-house to be built and rebuilt on the said lot of land forever,’’ without any clause providing for forfeiture or re-entry, is not a grant upon condition that a meetinghouse shall be erected and maintained upon the land conveyed.</p>

<p>A testator gave a legacy “ to the Baptist Society in P., the yearly interest of which is to be appropriated to the support of their minister.” More than twenty years before the death of the testator a Baptist church had been organized at P., and had ever since maintained its existence; during the same time there had been a meeting-house, owned by pewholders, of whom some were and others were not members of the church, in which worship had been maintained during a considerable portion of the time by members of the church, pewholders and other persons; but no society had ever been organized or incorporated, or held any formal meetings or kept any records. Held, that the church was not entitled to receive the bequest; but that the persons usually attending worship in the meeting-house constituted an unincorporated religious society, within the meaning of the Rev. Sts. c. 20, § 25; and that an agent or trustee to be elected by the adult male members of such society in the manner provided in that section would be entitled to receive it.</p> <p>The provisions of the Rev. Sts. c. 20, § 25, are not affected by the Sts. of 1855, c. 814, and 1858, c. 133.</p>

<p>In a deed of all the grantor’s “ right and title to one undivided third part of ” land bounded and described, covenants that he is seised in fee of the granted premises, that they are free from all incumbrances, and that he will warrant them to the grantee against the lawful claims of all persons, are limited in effect by the description of the subject granted; and are not broken by an eviction of the grantee under an incumbrance previously created by the grantor.</p>

Writ of entry to recover land in Scituate. Plea, nul disseisin. At the trial in the superior court, the demandants put in evidence the record of a levy by extent upon the demanded premises of an execution issued on the 16th of May 1859 on a judgment against James Wyman, from whom the tenant derived his title.

Action of contract to recover back the amount of a tax on persona] property.

<p>Petition filed at May term 1858 in Plymouth, for a writ of certiorari to quash an assessment 'of damages by the county commissioners of Plymouth on the 8th of January 1858, after a hearing before the whole board, and signed by Martin Bryant and James Bates, two of the three commissioners, upon a petition of the Russell Mills, for water and water power taken by the town of Plymouth under the St. of 1855, c. 161.</p> <p>Upon this petition notice was ordered to the county commissioners. At October term 1858 they filed a joint answer, stating, among other things, that, immediately after such hearing and assessment, Mr. Bryant went out of office ; that after the signing of the assessment Mr. Bates became satisfied that it was made upon erroneous principles as to damages and under a mistake of the facts; and that the present board of commissioners were unanimously of opinion that it ought not to be enforced, and that a new hearing ought to be had, but were in doubt as to their power to order a new hearing.</p> <p>In 1859 Mr. Bates moved for leave to file a separate and amended answer.</p> <p>The case was now argued on the petition and original answer, and is stated in the opinion.</p>

<p>The county commissioners have no authority to issue a warrant of distress to compel the payment by the town of Plymouth of damages assessed for the taking of land, water or water power for the construction of water works under St. 1855, c. 61.</p>

<p>Petition in equity to restrain the town of Marion and its treasurer from paying money in accordance with a vote of the town. The case was heard and reserved for the full court by Hoar, J., upon the petition and answer, which disclosed the following facts:</p> <p>The town of Marion was incorporated by St. 1852, c. 225, and was afterwards divided into five school districts. On the 25th of April 1853 the town was again divided into five other districts, with different boundaries. On the 2d of April 1855 the town voted to abolish the school district system and all school districts. On the 14th of April 1856 the town passed a vote to divide the town into three school districts, which was declared illegal by this court at October term 1858. Blankinship v. Hadley, 11 Gray, 431. On the 27th of August 1859 the town voted to purchase two new school-houses in the town, “ and that the town treasurer assume, if practicable, immediately, all the liabilities outstanding against said school-houses, and shall be authorized to receive a deed of the premises from the building committees of said school-houses, and that the town treasurer be directed to refund, with interest thereon, to the persons who have paid the same, all moneys paid into the town treasury as school district taxes that have been assessed as such and collected since the year 1855.”</p> <p>The petitioners contended that the votes of April 2d 1855 and August 27th 1859 were illegal and void.</p>

<p>Under a declaration on an account annexed containing items for cash, and an answer denying that the defendant received the sums charged or owes them or any part of them to the plaintiff, the defendant may prove that he received the sums charged and applied them, with the consent of the plaintiff, to the extinguishment of debts previously due to him from the plaintiff.</p> <p>In an action on a promissory note, the defendant filed a declaration in set-off on an account annexed, one of the items in which was for cash. The plaintiff’s answer admitted the receipt of the cash, and alleged that it was in part payment of the note and had been indorsed upon it. At the trial it appeared that the defendant had given the note in payment for a lot of wood bought by him of the plaintiff, and the defendant put in evidence a bill of parcels of it, signed by the plaintiff, in which the amount of the price charged was equal to the face of the note, and payment of the whole was acknowledged. Held, that the plaintiff might prove that, in a certain contingency, the defendant was to pay him. an additional sum for the wood, equal to the cash item charged in the account annexed to his declaration in set-off; that the contingency had occurred; and that he had applied the money paid to him by the defendant to the discharge of this additional debt with the defendant’s consent; and upon such proof might recover the whole amount of the note.</p>

<p>Action of contract upon a policy of insurance to the plaintiffs “ on their stock in trade, consisting of the usual variety of a country store (except dry goods) and on their store fixtures, all contained in the wood building with brick basement, occupied by the assured, situated in East Bridgewater, Mass. Permission to keep and sell burning fluid and gunpowder, as per application.” “ And it is agreed and declared to be the true intent and meaning of the parties hereto, that in case the above mentioned premises shall at any time after the making and during the continuance of this insurance be appropriated, applied or used to or for the purpose of carrying on or exercising therein any trade, business or vocation denominated hazardous or extra-hazardous, or specified in the memorandum of special rates, or of risks prohibited, in the terms and conditions annexed to this policy, or for the purpose of keeping or storing therein any of the articles, goods or merchandise, in the same terms and conditions denominated hazardous or extra-hazardous, or included in the memorandum of special rates or of risks prohibited, unless herein otherwise specially provided for, or hereafter agreed by this company in writing and added to or indorsed upon this policy, then and from thenceforth, so long as the same shall be so appropriated, applied, used or occupied, these presents shall cease and be of no force or effect. And it is moreover declared that this policy is made and accepted in reference to the conditions hereto annexed, which are to be used and resorted to in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for; and no condition can be waived except in writing signed by the secretary.”</p> <p>Annexed to the policy were five classes of hazards, denominated respectively “ not hazardous,” “ hazardous,” “ extra-hazard-pus,” “ memorandum of hazards which will be insured at special rates of premium,” and a memorandum of hazards “ prohibited and not to be insured at any rate of premium.” Among the “ trades and occupations, goods, wares and merchandise ” denominated extra-hazardous were “ burning fluid ” and “ earthen or glass ware ; ” in the memorandum of hazards to be insured at special rates of premium was included “ oil; ” and in the memorandum of articles not to be insured at any rate of premium were “ gunpowder,” “ friction matches and match shops.”</p> <p>Among the conditions annexed to the policy were the following : “ Applications for insurance must specify,” “ in case of goods or merchandise, whether or not they are of the description denominated hazardous or extra-hazardous, or included in the memorandum of special rates. And a false description by the insured, of a building or of its contents, or any misrepresentation or concealment, or omitting to make known any fact or feature in the risk which increases the hazard of the same, or in a valued policy, an over-valuation, shall render absolutely void a policy issuing upon such description or valuation. And if any application or survey, plan or description, of the property herein insured is referred to in this policy, such application or survey, plan or description, shall be deemed and taken to be a warranty on the part of the assured.”</p> <p>The application, which was expressly made a part of this policy and warranty on the part of the assured, requested insurance “ on stock in trade, consisting of groceries, provisions, and such goods as are usually kept in a country store, with the fixtures of the same, except dry goods; ” and in answer to the interrogatory, “ Is there any other fact or circumstance affecting the risk ? ” stated, “ Applicants want permission to use and sell burning fluid, and also to retail gunpowder, to be sold only in the daytime.”</p> <p>At the trial in the superior court, before Russell, J., it was admitted that the plaintiffs, at the time of the making of the contract of insurance and during the existence of the policy, and at the time of the fire, kept for sale in their shop, as a part of their usual stock in trade, whale oil, friction matches, and earthen and glass ware. The plaintiffs offered evidence that all these were articles usually kept in “ country stores,” and so were embraced in the terms of the policy. But the judge excluded the evidence, and ruled that keeping these things for sale had avoided the policy.</p> <p>The plaintiffs, under the head of “ store fixtures,” claimed to recover for the loss of certain tools, implements, and furniture, not affixed to or forming part of the building; and offered evidence of a well settled custom among underwriters and the community generally by which the terms “ fixtures ” and “ store fixtures” were used in insurance to denote all the movable articles of shops and warehouses which are convenient or necessary for use in the course of trade; and that these articles were of the kind usually known and called by that name. The defendants objected that they were not fixtures within the well settled legal definition of the term, and that therefore the plaintiff could not recover for the same; and the judge so ruled, and excluded the evidence. The jury returned a verdict for the defendants, and the plaintiffs alleged exceptions.</p>

<p>If a sheriff’s jury summoned to assess damages for the laying out of a town way, after agreeing upon a verdict for one party, sign, seal up and return into court one for the other, through mistake; and this verdict is accepted by the court on motion of the counsel of the first party, made after being informed that it was said by the jury to be in his favor and without examining the verdict itself; the court has power, at a subsequent term, upon petition, before any action has been taken on the judgment, to bring the case forward and vacate or amend the judgment; and the jurors are competent witnesses to prove the mistake.</p>

<p>Action of tort for trespass on the plaintiff’s close. Trial and verdict for the plaintiff in the court of common pleas at April term 1858 before Perkins, J., to whose rulings the defendant alleged exceptions. The case is stated in the opinion.</p>

<p>The owner of a tract of land conveyed a portion of it, described as bounded in part on “ an avenue laid out on a plan ” of the whole tract, previously made for the grantor by a certain surveyor; “ meaning and intending to convey to the grantee all the land laid out as said avenue, so far as the same is connected with or contiguous to the land above described; and if the said avenue is finally opened, as laid out on said plan, by the agreement of the owners of all the land, then the same is to be open and free to all the abutters thereon from Adams to Elm Streets.” Held, that the fee thus granted in the soil of the way was subject to a right of way in the grantor and his assigns as appurtenant to the rest of the tract. Held, also, that the way might be identified by the testimony of another surveyor, that shortly before the deed the grantor handed him the plan made by the first surveyor, on which he marked out lots and an avenue in pencil, and caused a number of copies thereof to be lithographed, one of which he produced.</p> <p>When a bill of exceptions shows that the prevailing party at the trial put in a deed, which by its true construction is conclusive in his favor, the admission of oral evidence of subsequent acts is immaterial and no ground of exception.</p>

<p>If a contract of sale of personal property, under which it has been delivered to the buyer, is rescinded by agreement of the parties, and the buyer retains possession for the purpose of repairing the property for the seller, no further act is necessary to revest the title in the seller.</p> <p>In a controversy between two concerning the title to personal property, conversations between one of them and third persons, who are referred by the other to him as the owner, are not admissible in his favor.</p>

<p>Action of tort for the conversion of a horse. At the trial in the court of common pleas, at April term 1859, before Aiken, J., the plaintiff claimed title under a mortgage from William C. Melius, who was allowed by the plaintiff to retain possession of the horse after the execution of the mortgage; and introduced evidence tending to show that Melius owned the horse at the time of making the mortgage. The defendant denied the title of Melius; introduced evidence that the horse was the property of a firm, consisting of Melius and George W. Robinson; and claimed the horse under a conveyance from Robinson earlier than the plaintiff’s mortgage. There was also evidence that the firm of Robinson & Melius principally transacted their business in Roxbury; but the plaintiff’s mortgage was recorded only in the office of the town clerk of Dorchester, where Melius resided. The instructions requested, as well as those given, are stated in the opinion. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of tort for a malicious prosecution by making a complaint to a justice of the peace, charging the plaintiff with larceny of one hundred sticks of oak wood, upon which the plaintiff was arrested and tried before a trial justice and discharged.</p> <p>At the trial in the court of common pleas at April term, 1859, Aiken, J. admitted in evidence, against the defendant’s objection, a certified copy of the record of the proceedings in that prosecution, without calling either the magistrate who received the complaint and issued the warrant, or the one who tried the case.</p> <p>The defendant called the justice of the peace to whom the complaint was addressed, but who was not a counsellor or attorney at law, and offered to prove by him that the defendant, at the time of making the complaint, applied to him for advice and counsel, and stated that she had caught the plaintiff with two sticks of the defendant’s wood in her arms. But the evidence was objected to and rejected.</p> <p>Said justice then testified, without objection, that he advised a prosecution and put the complaint in such form as he chose, without consulting the defendant and without any directions from her, and in like manner issued a warrant, and that she had no control or direction of the matter, and merely testified at the trial, and that she then testified to the stealing by the plaintiff of two sticks only.</p> <p>The plaintiff’s counsel called the attention of the jury to the number alleged in the complaint, as evidence of malice. After the jury had been instructed “ upon the essential ground of the action, the want of probable cause, and that it was competent to infer malice from this, in a manner satisfactory to the defendant, and to which no exception was taken,” the defendant requested that the jury might be instructed as follows: “ If the jury find that Mrs. Partridge only stated to the magistrate that she had missed wood and saw Mrs. Olmstead carrying away two sticks, and the magistrate thereupon drew the complaint in such form as he pleased, without any directions in that respect from Mrs. Partridge, then the words ‘ one hundred sticks,’ being an immaterial allegation, would not be evidence of malice or want of probable cause on her part.” The judge remarked to the counsel, in the presence and hearing of the jury, that it could not be evidence of the want of probable cause in any event, but that whether evidence of malice would depend upon whether the magistrate caused it to be inserted without suggestion on her part. No more particular instructions were after-wards requested.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Trustee process. The principal defendants were defaulted, and Daniel M. Howard & Co. of Bangor, in the State of Maine, were admitted as claimants.</p> <p>At the trial in the court of common pleas at April term 1859, before Aiken, J., the claimants put in, without objection, the deposition of one of the defendants; and after they had rested their case, the plaintiffs offered the deposition of Howard, one of the claimants, taken some time previously at Bangor, to the admission of which the claimants objected on the ground that Howard was present in court and willing to testify, and requested the judge to require the plaintiffs to use him as a witness. The judge overruled the objection, and allowed the plaintiffs to read the deposition. The court had not previously made any order, or been requested to make any, whether the evidence to be used on the trial should be taken by deposition or orally. After the plaintiffs had rested their case, the claimants called Howard, and proposed to examine him generally as a witness in the case; but the judge refused to admit his testimony, except to rebut the plaintiffs’ case. The jury returned a verdict for the plaintiffs, and the claimants alleged exceptions.</p>

<p>After an appeal has been taken from the judgment of the court of common pleas in a civil action, and entered in this court, and the appellant allowed to plead a certificate of discharge in insolvency, and the case remitted to the court of common pleas for trial of that issue, it is too late to object that the appeal was unauthorized by law.</p>

<p>Under the St. of 1852, c. 312, § 2, cl. 9, a declaration on a written contract, stating its legal effect, is sufficient, without alleging it to be in writing or setting forth a copy.</p>

Action of tort. “ And the plaintiff says, the defendants made an assault upon him, and struck him and kicked him and threw a heavy stick of wood against his face, so that his face was greatly injured and disfigured for a long time, and he suffered great pain for a long time, and was for a long time unable to labor or follow his usual occupation.” The defendants filed a joint answer, denying the assault, and averring that any acts committed by them were done in self-defence.

Action of contract by the indorsee upon a promissory note, dated November 20th 1858, for one hundred dollars, payable to James Perkins or order on demand.

<p>Action of tort for injuries suffered by the plaintiff’s c.ow, in passing through a dry bridge or cattle pass under a highway in Dedham. At the trial in the superior court, there was evidence of the following facts :</p> <p>In 1806 and 1807, the Hartford and Dedham Turnpike Corporation built their turnpike through a pasture in Dedham, then owned by Timothy Baker, whose devisee the plaintiff was, and who, before the road was built, agreed to give them his land for the purpose, provided they should build him a dry bridge under the road, where it crossed the pasture, and pay him a certain sum per rod for fencing each side of the road through his land, in full of all damages. The turnpike was then built with a dry bridge or cattle pass, wide enough for cattle to pass through, from one part of the pasture to the other, under the travelled part of the turnpike, and the strip of land over which it was built was conveyed by Baker to the corporation in consideration of a gross sum “ in full for all damages whatever, except the privilege of passing and repassing under the dry bridge now made across the said road.”</p> <p>The turnpike corporation kept this bridge in repair until the year 1828, when, upon their petition, the county commissioners laid out parts of the turnpike, including all of it in Dedham, as a common highway, and ordered the towns through which the highway passed to put the same in repair and order, “ in a manner sufficient to insure the safety and ordinary accommodation of the travel having to pass thereon.” In 1842 the defendants paid twenty seven dollars and fifty six cents for repairs made upon the bridge in 1839 and 1841 by order of one of the selectmen. The bridge afterwards settled and became narrower, and in consequence thereof in 1858 one of the plaintiff’s cows attempting to pass under the bridge had the hair and skin torn from her sides.</p> <p>Upon this evidence, Brigham, J. ruled that the defendants were under no obligation to keep the bridge in repair so that the plaintiff’s cattle could pass through, and directed a verdict for the defendants, which was returned, and the plaintiff alleged exceptions.</p>

Action of contract for the support as paupers of Oliver W. Vinton and his wife and children in 1858 and 1859. The defendants admitted that Vinton’s lawful settlement was in Norton before March 1856, but contended that he then acquired one in Randolph. The case was submitted to the judgment of the court upon facts agreed, which are stated in the opinion. E. Ames, for the plaintiffs.

Action of tort for the conversion of various tools. The case was referred to an auditor to find and report which of the articles named in the declaration had been taken by the defendants and afterwards demanded of them by the plaintiff, and the value of such articles.

<p>Action of contract for services rendered by the plaintiff to the defendants, according to an account annexed, namely, for “ brokerage ” at the rate of one per cent. “ as per agreement ” on rattans imported in ships Brothers and Merrimack Trial in the superior court before Brigham, J., who signed the following bill of exeptions :</p> <p>“ There was evidence tending to prove that the plaintiff in 1858, in consequence of communications had by him with one Clew of New York, had interviews and conversations with the defendants, who were partners under the style of Sampson & Tappan and owners of ships employed in the East India trade, in relation to the terms upon which they had imported and would import rattans into New York ; that the plaintiff communicated the result of these interviews and conversations to Clew, and told him, amongst other things, that the defendants desired a personal interview, and thereupon Clew came to Boston, and was introduced by the plaintiff to the defendants; that thereupon Clew and the defendants made a contract for an importation of rattans by the defendants’ ship Huzzar into New York; that when this contract was concluded, and after Clew had left their presence, the plaintiff said to the defendants that he expected to be paid commissions, having had a good deal of trouble in bringing the parties together; that after some discussion between them as to this claim, the defendant Tap-pan, desiring to consult his partner, requested the plaintiff to call next day, which he did, when the plaintiff and defendants agreed that the plaintiff should receive one per cent, commissions on the bargain made in reference to the importation by the Huzzar, and on all subsequent bargains between the parties ] and that the plaintiff requested the defendants not to disclose to Clew their agreement about commissions. There was also evidence tending to prove that, before Clew made any contract with the defendants or made their personal acquaintance, he had agreed to pay the plaintiff one per cent, commission for bringing him in contact with parties who would do the business of importing rattans for him, and that this agreement was never disclosed to the defendants.</p> <p>“After the contract for the importation of rattans by the Huzzar, Clew and the defendants made like contracts for the importations of rattans by ships Nightingale, Brothers, and Merrimack. The contracts for importations by the Huzzar and the Nightingale were fulfilled by Clew and the defendants, and the plaintiff received his one per cent, commissions on these contracts from Clew as well as from the defendants. The rattans imported by the Merrimack and the Brothers were refused and not received by Clew, and neither the defendants nor Clew paid the plaintiff commissions upon the contracts made in reference to these ships.</p> <p>“ There was evidence tending to prove that the several contracts referred to were made by Clew and the defendants, without the aid, assistance or intervention of the plaintiff, except as before stated. There was also evidence tending to prove that the plaintiff had acted as a real estate agent for his mother, bought and sold stocks sometimes, but was not a merchandise broker, and had never acted in that character before the transactions herein referred to.</p> <p>“ The defendants offered evidence as to the time when, by the usages of trade, commissions are considered to be earned by persons acting as brokers between parties buying and selling. This evidence, upon objection on the part of the plaintiff was excluded.</p> <p>“ The jury were instructed, among other things, that if the plaintiff was employed by Clew to make contracts for the importation of rattans by the defendants, for commissions to be paid by Clew, he was the agent of Clew to act for his benefit, and his relation to Clew was adverse to the interests of the defendants ; and if afterwards employed by the defendants to contract for such importations, for commissions, in the belief that he was acting as their agent to make sales for their benefit, the plaintiff’s failure to disclose his relation to Clew would operate as a fraud upon the defendants, and would prevent him from recovering commissions of them; but if it was understood and agreed between the plaintiff and defendants, that the plaintiff was to receive commissions for introducing Clew to them, so that by means of the acquaintance thus procured they could personally make contracts for importations of rattans with Clew, and they, by means of such acquaintance, personally undertook to make and made such contracts with Clew, the plaintiff taking no part as the agent, or for the interest of either party, to buy or to sell, his relation to Clew was not adverse to the interests of the defendants, and his failure to disclose his relation to Clew in the transactions was not so far fraudulent as to prevent his recovering such commissions, if the jury, under the other instructions of the court, found that the same had been earned and were due when the plaintiff brought his action.”</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>Bill in equity by the plaintiff as administrator of the estate of his deceased wife, Betsey T. Rockwood, against George K. Wiggin, Allen Wiggin, Ellen Kelleher, and the executor of the will of Pierce Edgerly, to obtain possession of a trunk containing several promissory notes payable to her, and two books containing the evidence of deposits made by her in a savings bank. The defendants claimed the property under a gift causa mortis from the deceased; and an issue to determine whether she had made such a gift was framed and tried before Hoar, J., and found for the defendants.</p> <p>At the trial, the defendants proved a letter signed by the deceased, and not witnessed, containing directions for the distribution of this property among the defendants; and the following questions of law arose, and were ruled, for the purposes of the trial, in favor of the defendants, and reported for the consideration of the full court:</p> <p>1st. Whether a married woman can make a valid gift causa mortis of the whole or any part of her separate property, without the assent of her husband.</p> <p>2d. Whether a gift causa mortis of deposits in a savings bank can be made by a delivery of the bank book.</p> <p>3d. Whether the following testimony of Thais Stoddard was competent evidence to prove such a gift: “ I visited Mrs. Rock-wood on the day of her death; Mrs. Rockwood said she had made a will, and asked me whether I thought the will would stand the law; said that she had written it and given it to Ellen; that she wished Ellen to keep it and her trunk and papers in the trunk to give to Pierce to carry to Lawrence in case she died. She mentioned notes and bank books in the trunk, and said she had sold a farm in Worcester County, and the notes for it were in the trunk; that she wished her property disposed of according to the paper, as she had written, and that Ellen was to have some of it; that the paper was written three days before, and that Ellen had the trunk and was to give it to Pierce to carry to Lawrence. Pierce was Mrs. Rockwood’s brother, and was in the house at the time. Ellen was a domestic in the family.”</p>

<p>Appeal from a decree of the probate court, allowing an account of a guardian, crediting his ward with $ 276.92, proceeds of sale of his undivided fourth of certain real estate, with $ 186.66 for nearly seven years’ rent thereof, and $ 49.50 for the ward’s services, and charging him with $ 14.84 for taxes on his said share of the real estate, $ 237.50 for board and clothing for three years and eight months, and $ 104 for his expenses at a boarding school.</p> <p>Hearing before Hoar, J., who reported the case for the opinion of the full court upon the following facts agreed:</p> <p>The appellant was a son of John Mulhern, who died in 1851, leaving a widow and three minor children, a small amount of personal property, consisting chiefly of household furniture, and a bond for a deed of the house occupied by him, which was worth about eleven hundred dollars, and was afterwards conveyed to his wife and children, to hold in equal proportions. No letters of administration on his estate were ever taken out. In August 1852 the appellee married the widow and went to live with her and her children, occupying their house, having no children of his own, and assuming by common consent the direction of affairs as head of the family. He had little or no property of his own, and has been engaged in keeping a small shop on the premises, earning little or nothing more than enough to support the family, and employing the appellant, from time to time, in his shop. In January 1857 the appellee was appointed guardian of his wife’s children, and in April 1859 sold the real estate of his wards by license of the probate court. The board and lodging charged to the ward in the guardian’s account covered time both before and after his appointment, and the last charge in the account was for money paid before such appointment for the ward’s board and tuition at the House of the Angel Guardian, a private boarding school in Boston.</p>

<p>Bill in equity to foreclose a mortgage executed by the Norfolk County Railroad Company to the plaintiffs as trustees, to secure the payment of certain bonds of that corporation, upon which the court at a former term entered a decree for possession. See 5 Gray, 162 & seq. The successors of the plaintiffs as trustees afterwards filed a petition for an account of the bonds now outstanding and for the instructions of the court in regard to the distribution of net proceeds of the working of the railroad in their hands. Upon this petition the case was referred to a special master in chancery, and on the coming in of his report was heard by Bigelow, J., who reserved the questions of law arising thereon for the consideration of the full court. At the argument, the Boston and New York Central Railroad Company claimed a trial by jury. The facts necessary for understanding the points of law decided appear in the opinion.</p>

<p>The determination of the legislature is not conclusive that a purpose for which it directs private property to be taken is a public use; but is conclusive, if the use is public, that a necessity exists which requires the property to be taken.</p> <p>In order to constitute a public use which will justify the taking of private property, it is not essential that the entire community, or even a considerable portion of it, should directly participate in the benefits to be derived from the purpose for which the property is appropriated.</p> <p>A statute, providing that a large tract of land, situated in different towns and owned by a large number of persons, and overflowed by means of a dam, may be redeemed by the removal of the dam by public officers, and compensation paid out of the treasury of the Commonwealth to persons whose property is thereby injured, is a constitutional exercise of the power of taking private property for public uses.</p> <p>In a statute taking private property for public uses, a provision for the assessment of damages to the owners thereof, and the payment of the same by warrant from the governor out of the treasury of the Commonwealth, is a sufficient provision for the compensation of the owners of the property taken, although the Commonwealth is not liable to be sued.</p>

<p>A testator bequeathed to his daughter A. the sum of one hundred dollars, declaring it to be all that she and her issue could or would ever receive from his estate ; to his daughter B. a like sum, and a further sum of five thousand dollars, to he held by trustees and paid to her on her marriage or coming of age, and the income meanwhile paid to her annually; to his wife a legacy of twenty thousand dollars, and the income of a fund of one hundred thousand dollars, out of which he directed her to maintain and educate his daughter B.; and all the rest and residue of his estate to trustees in trust to pay the income to his daughter B. during her life, and upon her death to pay the income and principal to her issue, or, failing such issue, as she might appoint by will. By a codicil the testator ratified his will in all respects except as thereby altered or revoked; expressed a desire that his wife at her discretion should use the income bequeathed to her as well for the benefit of his daughter A. as of his daughter B : and directed that at the death of his wife one half of all his property then remaining and held under his will should be held for the benefit of his daughter A. during her life and at her death go to her children. The testator’s wife died before his daughter B. came of age or was married. Held, that the codicil revoked the bequest of five thousand dollars in trust for B., and operated upon the testator’s whole estate, except the two legacies of one hundred dollars each.</p>

<p>Action of contract to recover damages for not delivering two hundred thousand pounds of copper alleged to have been sold by the defendant to the plaintiff. Trial and verdict for the plaintiff before Merrick, J., who reported the case to the full court, in substance as follows :</p> <p>Charles Canterbury, called as a witness for the plaintiffs, testified that he was a merchandise broker; that on the 9th of December 1856, acting under instructions contained in a telegraphic despatch from the plaintiffs, merchants in New York, which he received between two and three o’clock in the afternoon, he called at the defendant’s place of business in Boston, and not finding him there, followed him to his house, where he had an interview with him, and stated to him the plaintiffs’ offer to buy three hundred thousand pounds of copper, at twenty four and a quarter cents per pound, on a credit of nine months, with satisfactory paper, and deliverable on board a vessel in Boston bound for New York, the seller to pay freight to New York, and the buyer to pay the insurance ; that the defendant asked if the steamer, which had that day arrived in New York, brought intelligence of any advance in the price of copper in Europe; to which the broker replied, “ None that I know of; ” and the defendant, after a moment’s hesitation, said that he would sell to the plaintiffs two hundred thousand pounds of copper on the terms proposed, reserving the right to add one hundred thousand on the next day if he should then elect to do so; that the broker urged him to sell the whole of the three hundred thousand pounds then, saying that the purchase was made for exportation, and would take that quantity out of this market; but the defendant said he would not do differently from what he had proposed; and the broker then said, “ Well, if that is the ultimatum, it is a sale,” and, returning to his office, communicated to the plaintiffs by telegraph what he had done, informing them that he should write the particulars by the next mail; which he did; and made a memorandum in his books of the transaction, according to his usual custom.</p> <p>This memorandum was on a page of a book headed, “ Boston, December 1856,” and was in the following terms :</p> <p>“ 9th. W. W. Goddard to T. B. Coddington & Co. 200,000 pounds Chili pig copper, 24¼ a 9 mos. from delivery, f. o. b. packet here for N. Y., seller paying freight, and buyer paying insurance to N. Y. To be 96 per cent, pure copper, and paper satisfactory to seller.”</p> <p>The broker testified that in this memorandum the figures denoting the quantity were written in pencil, in order to facilitate alteration in case the defendant should, as he had a right to do, elect to deliver a larger quantity. No sale note or letter relating to the sale or entry was sent by the broker to the defendant.</p> <p>The plaintiffs admitted that, before sending their telegraphic despatch to the broker on the 9th of December, they had received intelligence by the steamer, which arrived that morning in New York, of an advance of a penny a pound in the price of copper in Europe; that this intelligence would have been of material importance to the defendant in determining whether to sell upon the terms proposed; and that if it had been known to him he would not have agreed to sell his copper upon those terms ; and that they did not communicate it to the defendant or to the broker until after the completion of the bargain. The defendant conceded that the broker, at the time of his interview with him, was ignorant of the arrival in New York of intelligence of an advance in the price of copper ; and did not contend that the broker had any fraudulent design or purpose in making the entry in his books, or fraudulently omitted in the entry any of the terms of the bargain agreed upon. But the defendant did contend that by reason of the broker’s answer that no such intelligence had arrived to his knowledge, and of the omission of the plaintiffs to communicate that intelligence to the defendant, the bargain made by him with the broker as the agent of the plaintiffs was not binding upon him. And this objection was reserved for the determination of the full court, the parties agreeing that if for this reason the action could not be maintained, the verdict should be set aside and a nonsuit entered.</p> <p>The defendant, being called as a witness, testified that in his interview with the broker he said that he would sell to the plaintiffs two hundred thousand pounds of copper in case no intelligence had been received by the steamer of any advance in the price of the article in Europe, reserving the right to add one hundred thousand pounds the next day on the same terms at his option. And he contended that, if there was any verbal contract for the sale of two hundred thousand pounds of copper, it was upon this condition, and upon the further condition that the copper, if sold and delivered, should be exported by the plaintiffs, and therefore the plaintiffs could not recover.</p> <p>The defendant also contended that the entry in the broker’s books was not a sufficient memorandum in writing to take the case out of the statute of frauds; because no authority was shown in the broker to sign the memorandum in his behalf or in behalf of the plaintiffs ; because it was not intended by the broker, when he made it, as a complete and final statement of the bargain made; because it did not state all the material terms of the bargain; because it was not signed as required by the statute; and because the broker was not authorized by the defendant to make the bargain so entered by him.</p> <p>But the judge ruled that if Canterbury was a merchandise broker, and that was known to the parties, and they were dealing with him in this transaction in his capacity of broker, and made a contract through him for the purchase and sale of two hundred thousand pounds of copper, this gave him authority to bind them both by making a memorandum of the contract in writing, and signing it in their behalf respectively; that the memorandum in his book was sufficient in form to bind the parties, if he had authority to make and sign it for them; that if he did, in fact, make the entry in his book as and for a complete note or memorandum of the contract of sale made by the parties through him, such memorandum was conclusive evidence of the terms of the contract, and was to be considered and treated in all respects as if it was a written contract signed by the parties themselves; that it was in its terms a perfect and complete statement of a contract, and capable of a clear and intelligible exposition, and therefore parol evidence was inadmissible to contradict or vary the terms of it; and that even if the defendant did in his verbal contract with Canterbury make the sale upon such conditions as he contended, he could not avail himself of either of those conditions, because they were not contained or expressed in the memorandum. To these rulings the defendant alleged exceptions.</p> <p>Upon the second trial, Bigelow, C. J. refused to allow the defendant to prove, that when the alleged contract was made, there was, in the market and among sellers of copper, a general expectation of intelligence by the next steamer of a rise in the price of copper in Europe; and, upon evidence of facts substantially the same as appeared at the former trial, refused to instruct the jury, as requested by the defendant, “ that if they found it was part of the agreement of December 9th that one hundred thousand pounds of copper might be added by the defendant on the next day, the memorandum was insufficient, by reason of its omission to include that part of the agreement; ” but did instruct them, “ that the broker must record, in all essential particulars, the exact contract he had authority to make; and that, if they were satisfied that he omitted any essential element of it, there was no valid contract; that the omission to state in the memorandum the defendant’s right to add one hundred thousand pounds would not invalidate the contract, unless they should find that the sale of the two hundred thousand pounds depended upon the right to deliver the one hundred thousand additional on the next day; but that, if they should find that the right to deliver the one hundred thousand pounds was made a condition of the bargain, and was so far an element of it that none of it was to be binding unless this was, then the omission to insert it in the memorandum would be fatal to the action.” The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions, which were argued and decided in March 1862.</p>

<p>Action of contract on an agreement to insure the plaintiffs’ stock of paper and hydraulic press in the Gerrish Market in Boston, against fire for the term of one year from and including the 12th of April 1856. At the trial before Hoar, J., the following, facts were proved:</p> <p>The defendants were an insurance company established under the laws of South Carolina. Their charter provided that “ the said corporation in their said name, and by the signature of their president for the time being, or by the signature of such other person and in such form and with such ceremonies of authentication as they may by their rules and by-laws direct, shall have a right to make contracts and underwrite policies of insurance and indemnity against fire ” on buildings, vessels, goods, wares and merchandise, and other property, within or without that state.</p> <p>Oliver Brewster was their agent in Boston, authorized by his power of attorney “to effect fire insurance upon buildings, goods, wares and merchandise,” “ and for this purpose to survey risks, fix the rate of premium, and issue policies of insurance, signed by the president, attested by the secretary of the said company, and countersigned by the said Oliver Brewster, and to assent to the transfer and assignment of the same, which policies, so issued and assigned, shall have full force and effect to bind said company.”</p> <p>The property was of greater value than the amount alleged to have been insured thereon, and was destroyed by fire about one o’clock in the afternoon of the 12th of April 1856. Then plaintiffs, after the fire and before suing, demanded payment of the loss, and also demanded policies, and offered to pay the premium.</p> <p>William H. S. Jordan, called as a witness for the plaintiffs, testified as follows: “ I am an insurance agent; I was employed by the plaintiffs some days before the 11th of April to effect insurance on then- stock and hydraulic press in the Gerrish Market ; on the 11th of April I went to Oliver Brewster and asked him if he was disposed to take a risk in the Gerrish Market; after some conversation as to rate and companies, he said he thought he could take it in the Farmers’ and Mechanics’, and in the Fireman’s Insurance Companies; and if I would furnish an application and survey, he would see. I prepared a general application and survey for $ 6000 insurance, and left it at Brewster’s office that afternoon, but Brewster had then gone. About twelve o’clock the following day, the 12th of April, Brewster’s clerk came in and said Brewster would take two thirds of the risk, one third in each company, and would only allow me five per cent, commission. I replied that I would go and see Brewster, and did so immediately, at his office. Brewster and I agreed to alter the amount to one third of $ 1000 on the press, and one third of $ 5000 on the stock, in each company. There were no other companies spoken of as binding the risk ; we may have spoken of other companies for the balance of. the insurance that I wanted. Brewster offered to negotiate for the balance, but I told him I would fix that myself. Rate fixed on was one and a half per cent.; property, as described in application ; time, one year. I caused an entry of the transaction to be made in my books. Brewster and I had accounts with each other, commenced in 1853; we settled once a month ; we completed the policy, delivered it, and charged the premiums, and at end of the month settled, and usually paid the balance in cash.”</p> <p>On cross examination the witness testified: “ Brewster would allow me only five per cent, commissions; it is very probable that we did talk the matter of commissions over; I urging my ten, he saying five per cent was enough. I made an agreement for the insurance, which was completed; but about commissions I have no recollection. I went to get further insurance at other offices. I then returned to my office, and finding there would be fractions, I sent a paper by a boy to Brewster about the division of the risk — $ 333 on the press, and $ 1667 on the stock. I did not know then of the fire. Brewster came in immediately after the return of my boy, and said, ‘I see that building is on fire I said, ‘ I heard it is ; ’ he gave me to understand that he did not consider the risk completed on his part.”</p> <p>After the plaintiffs had introduced their testimony, the defendant requested the judge to instruct the jury as follows: “ 1st. That the contract of insurance is required to be in writing, and that a suit at law is not maintainable on an oral agreement. 2d. That the laws of South Carolina incorporating this company require that the insurance should be by a policy signed by the president, &c., and that a suit could not be. maintained upon an oral agreement of Brewster to insure. 3d. That Brewster had no authority to bind the company in any other way than by a policy signed by the president, attested by the secretary, and countersigned by himself. 4th. That this being a contract not to be performed within a year, it was void by the statute of frauds. 5th. That there was not sufficient evidence of a complete bargain for the plaintiff to maintain his case.” The presiding judge, for the purposes of the trial, ruled the first four points in favor of the plaintiffs, and ruled that there was evidence to go to the jury of a contract of insurance.</p> <p>The defendants then called as a witness Oliver Brewster, who, after describing the interview with Jordan on the 11th of April substantially as Jordan had done, testified further as follows : “ The next day I saw the application on my desk; I sent my clerk down to Jordan, to say that we could not allow him full commission; that it was an extra-hazardous risk. Jordan came up to the office soon after, about twelve o’clock, and we had some conversation. Jordan claimed the full commission of ten per cent., and I refused to allow that, on account of the character of the risk. I proposed dividing it among several companies, as it was not a good risk. The point in dispute between us was the amount of the commission. I said I would not allow it; he claimed the full commission. There was no agreement; nothing was said about my insuring this property, and leaving the commission open. The next thing I heard was, a boy came up from Jordan’s office with a memorandum, I think half an hour after. I told the boy I would see Jordan; I went down immediately. On my way down I heard of the fire, and just put my head into Jordan’s office, and told Jordan we had no insurance on the building.”</p> <p>Upon cross-examination Brewster said: “ I had ten per cent, commission allowed me by the defendants. Jordan’s commission would come from my commission, and not from the defendants. I went to Jordan’s office, because the boy came up and said Jordan wanted insurance effected. The boy said that the memorandum which he brought contained the division Jordan wanted made of the risk. I went because I had not effected any insurance, and I wanted him to know he was not insured. The only advantage to the defendants of five per cent, commissions over ten per cent, commissions was in discouraging the offering of such risks, by not allowing full commissions. I was not a moment in Jordan’s office; merely said I had no insurance for him on Gerrish Market. He said he hoped I would pay the loss. I had a monthly account with Jordan; generally settled premiums and commissions once a month.”</p> <p>The defendants further proved that Brewster always had blank policies of the company, signed by the president, and attested by the secretary, which he countersigned and issued, to insure parties applying.</p> <p>The defendants also, to corroborate Brewster’s testimony, and as evidence tending to show that there was no agreement for insurance completed, offered in evidence a book kept by him for them, in which he entered all risks taken by him for the company, as soon as taken. But, upon objection of the plaintiffs, the judge ruled that the book was inadmissible.</p> <p>After the jury had retired, they came into court and inquired of the judge whether it was necessary for them to find that the commissions to be allowed Jordan by Brewster were agreed upon between Jordan and Brewster. The judge instructed them that they must determine whether the commissions of Jordan were a part of the contract for insurance; and that if they were satisfied that the commissions were no part of the bargain for insurance between Jordan and Brewster, but that they had agreed upon the insurance and the terms thereof, and left the commissions to be adjusted between themselves, they should find for the plaintiffs.</p> <p>The jury found for the plaintiffs, the defendants alleged exceptions, and the judge reported the case to the full court.</p>

<p>In the case of a partial loss of freight, one half of which is covered by a policy of insurance, and the value of which, mentioned in the policy, is less than the actual amount of the freight, the rule for the assessment of damages is the proportion of the valuation which the freight actually lost hears to the real value of the freight.</p> <p>It seems, that the testimony of the assured to the statements of the president of an insurance company after the writing of the policy, as evidence of a usage tending to explain it, is not rendered incompetent, under the statutes of this commonwealth, by the death of the president.</p> <p>It seems, that under a bill of lading, otherwise in the usual form, but having upon its face these clauses: “ Goods to be received at the ship’s tackles, when ready for delivery; freight payable before delivery, if required; ” not merely safe arrival and notice thereof to the consignee, but reasonable time to enable him to receive his goods at the ship’s tackles, is necessary to the earning of freight.</p> <p>A policy of insurance upon freight on a voyage to a port of discharge in Australia terminates at the first port at which cargo is discharged.</p> <p>A policy of insurance was made upon the freight of a ship on a voyage “ from New York to port of discharge in Australia.” The ship arrived at Geelong in the bay of Port Philip, there discharged part of her cargo, destined to Geelong, afterwards proceeded to Hobson’s Bay, which is an anchorage ground for the port of Melbourne, also within the bay of Port Philip, but twenty five miles from Geelong, and to which the rest of the cargo was destined, and was there destroyed with part of her cargo by fire. Upon the trial of an action for this loss of freight, it was proved that Geelong and Melbourne were legally two distinct ports, each having a custom-house, and with a coasting trade between them, and were largely known commercially as distinct ports, that distinct contracts were commonly made in reference to them, and that Port Philip was not a port of entry. The assured contended that the whole bay of Port Philip was treated by commercial usage as a single port of discharge, including Geelong, Hobson’s Bay and Melbourne, as merely separate landing-places within it; and introduced evidence that at the time of loading the vessel the president of the insurance company was informed that she was to carry freight to Geelong, and said that no change in the policy was necessary, because she was insured to a port in Australia, Port Philip was the port intended, and Geelong was one of the landing-places in Port Philip; and also evidence that when shipments were made designed for Geelong or Melbourne, Port Philip was used as a more general and comprehensive term, in the same way as Australia or a port in Australia was used, without indicating the particular port; that some policies of insurance had been made to Port Philip, and that charter parties and bills of lading had been ma de in which Port Philip was named as a port of destination. But it did not appear that uniformly or usually these contracts were made in reference to more than one of the ports within the bay; or that before the making of the policy in suit there had ever been a loss adjusted under a policy of insurance, in which the question arose whether Port Philip was commercially regarded as a single port, or any policy made upon which such a question arose afterwards. Held, that there was no evidence of such a distinct, well settled and uniform usage as would maintain the action.</p>

<p>It is not a deviation for a vessel insured “ at and from Callao to the Chincha Islands and from thence to New York,” to return, after loading at the Chincha Islands with guano, to Callao for a clearance, if such is the usage of trade, and no clearance can be obtained at the Chincha Islands.</p> <p>Upon the issue of the seaworthiness of a vessel at a certain time, the question whether a vessel would be seaworthy with pumps in the condition in which hers were found to be on the completion of her voyage some months afterwards is immaterial.</p> <p>A paper stating the repairs made on a vessel, and her condition at the time of the repairs, signed but not written by a shipbuilder’s foreman, who testifies that from seeing his signature to it he believes and has no doubt that the facts were as there stated, but that he has no recollection of the facts or of having signed it, is not competent evidence of the facts stated therein.</p> <p>At the trial of an action on a policy of insurance on a vessel, the master of the vessel may be asked what caused the vessel to leak, whether its a matter of opinion or of fact.</p> <p>Where a vessel is not so injured as to be incapable of performing her voyage, and the cargo remains capable of delivery in specie at the port of destination, there is no loss of freight for which insurers on freight are liable, except in case of general average; but where the cargo is so injured by perils of the sea as to become wholly worthless and incapable of being earned with safety to the vessel and the remaining cargo, and is therefore thrown overboard, there is a total loss of freight on that part.</p> <p>A vessel laden with guano at the Chincha Islands, having stopped at Callao for a clearance, and then started on her homeward voyage, sprung a leak and put back to Callao in distress, when it was found that a part of the guano had been so damaged by sea water that it was utterly worthless and could not be kept on board with safety to the vessel, and, if it could have been landed, the cost of drying it would have been greater than its value when dried., and it was thrown overboard. The rest of the cargo was necessarily discharged in order to repair the vessel, a freight paid thereon, and it was transshipped by its owner into another vessel bound for a different port; and the first vessel, after being repaired, and by permission of the charterers, went hack to the islands, and took in another cargo of guano under the original charter, which she delivered in safety at her port of destination. Eeld, that there was a total loss of freight of the guano thrown overboard, but no loss of freight on that transshipped. Eeld, further, that evidence that the course thus taken was the usual and prudent course for vessels in such a situation, and the testimony of an insurance broker that in adjustment of losses under these circumstances the usage had been to treat the voyage as one and the same, and the substituted cargo as if it were the original cargo landed and reshipped, and that before the date of the policy on the freight of this vessel he had adjusted losses in one case, and, he thought, in others, accordingly, were insufficient to prove a custom which could affect the rights of the parties; and that the going back to the islands, and taking in a cargo after the repairs of the vessel, must be treated as a new voyage and not as a resumption of the old one.</p>

Action of contract by the owner against the charterers of the ship Hippogriffe, for demurrage under a charter party made according to a printed form in general use by the defendants, (who were merchants largely engaged in the guano trade,) for a voyage to the Chincha Islands for guano and back to the United States, at a certain rate of freight by the ton of cargo, and containing the following clause: “ Twelve running days for each one hundred register tons to be allowed to…

Action of contract upon the bond given by Kingman, as cashier of the plaintiffs’ bank, as principal, and the other defendants in various sums as sureties. Trial before Hoar, J., who reported the case for the consideration of the full court. The facts are stated in the opinion.

Action op contract upon an indenture executed on the 23d of September 1843, between the plaintiff of the first part, and’ the defendants, William Adams and Artemas Hammond, of the second part, by which, in consideration that the plaintiff by his license of even date, (the body of which is copied in the margin,*) granted and assigned to the defendants “the exclusive right and privilege of making and vending in the New England States the fireproof chests or safes, commonly…

Writ of entry, dated June 21st 1858, to foreclose a mortgage of a house and land in Boston. Plea, nul disseisin, with a specification of defence that at the time of the suing out of the writ and ever since the defendant had no estate in, or claim to, or possession of, the premises.

<p>Action of contract on a promissory note made by the defendant, payable to Daniel Peaslee or order, and by him indorsed in blank. The answer put in issue the indorsement of the note to the plaintiff.</p> <p>At the trial in the superior court of Suffolk at March term 1859, before Huntington, J., Daniel Peaslee, a resident of New Hampshire, testified that the note in suit belonged to him, and that he procured it to be sued in the name of his brother, the plaintiff, (who resided in this commonwealth and had no interest in the note,) in order to avoid the necessity of getting an indorser of the writ, and to enable his wife to be a witness, the whole expenses of the suit being borne by him, and the suit being prosecuted entirely for his benefit; and that the plaintiff directed the suit to be brought in his own name. Upon this evidence, the defendant objected that the action could not be maintained in the plaintiff’s name. But the judge overruled the objection, and submitted to the jury the question whether the note had been delivered by Daniel Peaslee into the possession and control of the plaintiff to be sued in his name, and the action brought and prosecuted by the plaintiff’s direction and assent.</p> <p>The plaintiff then called the wife of Daniel Peaslee as a witness,. The defendant objected that she was incompetent. But the judge overruled the objection and permitted her to testify, and her testimony had an important bearing on the case.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>One manufacturing corporation may take shares of another in payment of a debt; and neither the first corporation, nor any person taking from it, with knowledge of all the facts, a negotiable promissory note of the second corporation, can, in an action thereon against the latter, summon in other stockholders and have execution against them, under St. 1851, c. 315.</p> <p>Under the Rev. Sts. c. 38, §§ 17, 22, the notice required to be published annually by the directors of a manufacturing corporation, in order to exempt the stockholders from liability for its debts, may be published at any time within a year from the filing of the certificate of capital stock.</p>

Action of contract on a recognizance into which Richards as principal and the other defendant as surety entered with the plaintiff’s intestate under the Rev. Sts. c. 104, § 10, to prosecute an appeal to the superior court from a judgment of the justices’ court of Boston for possession of a tenement in an action under that chapter, and to pay all rent already due and all intervening rent, damages and costs.

Action of contract on the following written agreement: “ Boston, May 30, 1857. We promise to pay Mrs. J. Wright sixty dollars, if John Myers and Joseph Feaas proceed to sea in the ship Cato, agreeably to the articles they have signed, this present voyage. $ 60. Smith & Adams.” In the superior court of Suffolk at May term 1859, trial by jury was waived.

<p>Action of tort against a deputy of the sheriff of Norfolk for the conversion of a horse attached by the defendant as the property of George C. Riedell.</p> <p>At the trial in the superior court of Suffolk at May term 1859, the plaintiff gave in evidence a bill of sale of the horse from Riedell to him. The defendant offered evidence that this bill of sale was extorted from Riedell against his will by the plaintiff by falsely and maliciously threatening to accuse Riedell of larceny. But Nash, J. excluded the evidence; and ruled “ that a contract made under duress was not void, but voidable only; and the right to avoid the contract on that ground was personal to Riedell, and could not be taken advantage of by attaching creditors or by the defendant as representing them.” The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of tort for personal injuries suffered by reason of the negligence of the defendants.</p> <p>At the trial before Merrick, J., it appeared that the plaintiff was a widow nearly seventy years of age, but in excellent health, a remarkably good walker, and a person of extraordinary activity, both mental and physical, for one of her age, who had resided in Boston for twenty five years, and had friends in Salem, N. H., whom she had for years been accustomed to visit alone during the summer; that, for the purpose of visiting them, on the 27th of July 1858, she went from her home in Boston, accompanied by her son, to the Boston and Maine Railroad station, where a ticket for Salem was purchased of the defendants and paid for, and she was placed by her son on the left side near the window of the second car from the engine.</p> <p>The plaintiff testified : “ The station at Salem is on the right-hand side. I knew when I arrived at Salem by my observation and by the conductor speaking. The conductor called out at the door in front of me. I soon got ready to leave the car. I had a carpet-bag and parasol. A lady sat at my right hand, with a babe in her arms. No delay but for the lady to move. While I was advancing to the door, the cars appeared to be in motion. I got hold of the ring to hold on. I thought the cars were going to stop instead of starting to go on. A gentleman, who asked me why I did not get there sooner, stood directly in front. I told him I came as quick as I could. It appeared as if there was a jerk, and I was thrown like one in the air.” On cross-examination she testified : “I walked perfectly. The cars appeared to be in motion when I went to the door. The cars were in motion all the time. When I got to the door, the cars were in motion. When I got to the door, a man said, Why did you not come sooner ? The cars were then in motion.”</p> <p>A witness, who was near the cars on the opposite side to that upon which the plaintiff attempted to get out, testified as follows : “ I saw the plaintiff come out of the cars, step down the steps and step upon the platform. I saw her as she came out, in the cars. As soon as she stepped on the platform, it gave her a whirl and threw her between the platform and the cars. The cars stopped; I should not think more than half a minute after they came to a dead stop. When they stopped, the hind end of the rear car was opposite the station. The cars had started when she got out; they were in motion when she got upon the platform, when she fell. The cars had advanced the length of half or two thirds of a car, and she fell a little below the centre of the station. I saw the conductor before the accident on the platform of the station. I saw him op the platform when he got upon the rear end of front car, I did did not see them there together. The conductor had gone into the front car before the plaintiff came out; they were not there together. The cars were in motion as she came out of the door. I heard no one speak to her.”</p> <p>Two other witnesses, who were standing by the station on the side on which the plaintiff attempted to get out, testified that the cars stopped for about half a minute; that the conductor stood on the platform, made a motion to the engineer to go on his way, and stepped upon the hind steps of the forward car; and just after he stepped upon the steps, the plaintiff came out of the car, and undertook to step upon the platform and was thrown.</p> <p>Upon this evidence, the defendants contended that the action could not be maintained; and the presiding judge, being of that opinion, directed the jury to find a verdict for the defendants, subject to the opinion of the whole court.</p>

<p>In an action against a city for injuries caused by an obstruction in the highway, evidence that the obstruction was in the highway on the day before, and had been removed at night, is irrelevant and inadmissible.</p> <p>In an action against a city for a defect in a highway, the judge declined to instruct the jury that notice to some of the principal citizens who were taxpayers might be reasonable notice to the city of the defect; and instructed them that, in order to prove such reasonable notice, it must appear that the officers of the city having charge of the streets — suchas the mayor, aldermen, superintendent of streets or policemen—had actual notice of the defect, or that the defect had continued so long or been so notorious that if such officers or citizens passing had done their duty, the officers would have known it; but the jury might consider whether the defect was of such a nature that passers by, who saw it, would have been likely forthwith to have informed said officers of its existence. Meld, that the plaintiff had no ground of exception.</p>

<p>An order, passed without notice by a judge of probate upon the petition of a creditor, filed after the expiration and return of a commission to examine claims against an insolvent estate, alleging a contingent claim against the estate and praying the reservation in the hands of the administrator of a sum sufficient to pay to the petitioner a dividend equal to that which should be paid to other creditors, and which directs the administrator to retain the whole balance of the estate in his hands for this purpose, is no bar to a subsequent petition for distribution filed by creditors whose claims the commissioners have allowed, nor to an inquiry, upon such petition, into the merits of the alleged contingent claim.</p> <p>The possible liability of surviving partners of a deceased insolvent debtor to be compelled by pending actions at law to pay notes and obligations given by him in the name of the firm without their knowledge or consent, for his private use, does not give them a contingent claim against his estate, within the meaning of the Rev. Sts. c. 68, § 5, upon which the judge of probate, in ordering a dividend among creditors who have proved their claims before commissioners against the estate of the debtor, may leave in the hands of the administrator a sum sufficient to pay a dividend equal to that paid to the other creditors.</p>

<p>A person who makes a contract in writing for the building of a ship, to be finished and ready for sea on a day and at a place named in the contract, for a fixed price, part of which he agrees to pay while the work is in progress, in regular weekly payments, without regard to the amount of work accomplished, and the remainder when the ship is ready for sea, acquires no property in the ship before her completion, although an agent employed and paid by him to superintend the construction is, by oral permission of the builders, present every day while the ship is building, making suggestions and giving directions about the work.</p>

<p>Action of contract upon a promissory note. Answer, a certificate of discharge in insolvency.</p> <p>At the trial in the superior court of Suffolk at March term 1859, the following facts were proved: The defendant applied for the benefit of the insolvent laws on the 17th of July 1854. The first meeting of his creditors was held, after due notice to the plaintiff and other creditors named in the debtor’s schedule, on the 8th of August, when an assignee was chosen, and an assignment made to him. The second and third meetings were duly notified and held. The plaintiff’s debt was not proved against the estate. On the 6th of February 1855, the defendant, having procured the assent of a majority of the creditors who had proved their debts, and three fourths in value of the sums proved, a certificate of discharge was granted.</p> <p>Huntington, J. ruled that, as the discharge was granted two days before the expiration of six months from the date of the assignment, and as the note in suit was not proved against the estate, the discharge was no defence to the action. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>A defendant, who, after entering in this court exceptions duly filed and allowed in the superior court of Suifolk, obtains a certificate of discharge in insolvency, may be allowed to waive his exceptions and plead it; and such certificate will be a bar to the action, and will discharge a bond given to dissolve an attachment therein.</p>

Petition for the assessment of damages caused by the location of the respondent’s railroad over lands of the petitioner.

<p>A petition to the mayor and aldermen of Boston for the assessment of damages was filed by two owners of land over which a railroad had been located, and an order of notice issued thereon. Some years afterwards, a new petition was filed by the administrator of one of the petitioners and the other petitioner, stating that the proceedings upon the first petition had been restrained by a suit in equity, since dismissed, and praying that such proceedings be had in the premises as were prayed for in the first petition. Held, that an adjudication by the mayor and aldermen upon the last petition was, in effect, an adjudication upon the first, and authorized the petitioner to apply to the superior court for a jury.</p>

<p>Action of tort against a deputy sheriff for levying an execution against the New England Mining Company, a corpora-ti on established in this commonwealth, upon property of the plaintiff as a director thereof.</p> <p>At the trial in the superior court of Suffolk at March term 1859, before Nash, J., all the other facts were agreed by the parties, and by agreement the single issue submitted to the jury was whether the plaintiff was a director of the corporation in 1857.</p> <p>The defendant put in evidence the records of the corporation, verified by the testimony of their clerk, by which it appeared that at its annual meeting on the 14th of January 1857 the plaintiff was duly elected a director for the ensuing year; and that at a regular meeting of the directors on the 12th of February 1857 he was present, and made two motions, which were put to vote and carried. The plaintiff testified that he was a stockholder in the corporation, but was not present at that annual meeting; that soon afterwards he received a written notice of his election, to which he thought, but was not sure, that he replied; that he shortly afterwards called on the president, and told him that he should not accept the office of director; that he attended said directors’ meeting at the special request of the president, to advise with them as to the affairs of the corporation, and only made informal suggestions and no formal motion, but expressly said at the meeting that he was not a director and should not accept the office. It was not contended that the records were fraudulently made.</p> <p>The defendant objected to this testimony, upon the ground that the records, having been made by the sworn clerk of the corporation and agent of the plaintiff as one of the stockholders, were the only competent" evidence of the proceedings at the directors’ meeting, and could not be contradicted and controlled by him. The judge ruled that the records were prima facie, but not conclusive evidence; that the plaintiff’s testimony was admissible ; that he was not constituted a director by the election merely, unless he had accepted the office; and whether he had accepted it was for the jury to determine upon all the evidence. To this ruling the defendant, alleged exceptions, which were allowed by the judge.</p> <p>The bill of exceptions, as allowed, then stated the following proceedings: At the usual hour of adjournment in the afternoon, the jury were out; and the judge left the bench, without having given any verbal order for the adjournment and before the proclamation therefor was completed, and without having given any order as to the jury who were out, and passed into the adjacent lobby, leaving the intervening doors open. In a moment or two the judge came back into the court room, while the clerk and other officers of the court remained in their usual places, and, in the presence of the defendant’s counsel, recalled and vacated any adjournment that had been made. The jury then came in, and the judge directed the verdict to be taken, the defendant’s counsel being present and interposing no objection, and the jury rendered and affirmed their verdict that the plaintiff was not a director. Whereupon the court adjourned.</p> <p>The defendant afterwards moved that the verdict be set aside and a new trial granted, because the verdict was received by the judge and recorded by the clerk after the court had adjourned and while it was not in session. But the judge overruled the motion, “ on the ground that courts have a right to recall and vacate proclamations and adjournments as prematurely and inconsiderately made, for the necessary or reasonable transaction of business, so long as no one is thereby prejudiced; and that, under the above circumstances, it was impossible that the defendant was prejudiced; and that there was not, in fact, a substantial adjournment; and that if there was, the presence of the defendant’s counsel was tantamount to an assent and a waiver c f error.” The judge, the defendant objecting and excepting, ordered judgment on the verdict for the plaintifl, and the defendant alleged exceptions.</p> <p>It was alleged in the bill of exceptions as originally tendered by the defendant, (though not as allowed by the judge,) and was proved before a commissioner appointed by this court upon the defendant’s petition to establish the truth of his exceptions, by the concurrent testimony of the clerk of the court, the officer who made the proclamation of adjournment, and the defendant’s counsel, (the plaintiff’s counsel not having been present,) that a proclamation adjourning the court until the next day had been made in the usual manner by order of the judge before he left the bench and while the jury were out.</p>

<p>A draft made by a bank within upon a bank without the Commonwealth for more than the sum of one hundred dollars, contrary to the Rev. Sts. c. 36, §§ 57, 62, is not void; but an innocent holder, after due demand upon the drawees and the bank, may recover the amount thereof, with interest at the rate of two per cent, a month, under §§ 60-63.</p> <p>A bank is responsible for the acts of its cashier, in making a draft upon another bank for the payment of money at a future day certain, contrary to the Rev. Sts. c. 36, § 67, although fraudulently drawn by him, for the purpose of concealing his embezzlement of the funds of the bank.</p>

<p>Under the St. of 1866, c. 38, § 2, a suit in equity to enforce the execution of a trust might be begun by a bill inserted in a writ of attachment, according to the Rev. Sts. c. 90, § 117.</p>

<p>Ho hearing can be had upon a bill in equity, founded upon articles of copartnership, and naming all the partners as defendants, if the return upon the subpoena does not show that all the defendants residing within the Commonwealth have been duly summoned to answer the bill, although those defendants who have been summoned have appeared and demurred thereto.</p>

<p>Bill in equity, alleging that the plaintiff was and long had been the lessee and manager of a place of amusement in the city of New York, known as Laura Keene’s Theatre, and engaged in the business of presenting dramatic entertainments therein, and the defendant was the proprietor and manager of a similar place of amusement known as the Boston Museum, and engaged in the like business in Boston ; that in November 1858 the plaintiff, for a valuable consideration, purchased from Tom Taylor of London in England, the author thereof, a certain comedy or dramatic composition, entitled Our American Cousin, and took from him an absolute bill of sale and assignment of the comedy and the manuscript thereof, and became and now was the sole and absolute owner of the comedy and manuscript, and of all the rights, privileges, benefits and profits in any way connected with and arising out of the same; that Taylor was a dramatic author of great celebrity, and his works had a great value and popularity, and the plaintiff was induced to purchase the comedy from him, by reason of his celebrity as a dramatic author, and of its own intrinsic value and merits, and of the profits and benefits which would accrue to her from having the sole ownership of and right to represent this comedy, and from the sale of rights to represent the same; that the comedy, under an agreement with Taylor, was first produced at her theatre, and had continued to be there represented nightly for five months, with remarkable success; that the comedy was of very great value to her, and that such value chiefly consisted in having the exclusive use and possession of the comedy and the manuscript thereof, and the sole right and privilege of representing, and of selling the right and privilege to represent and enact the same; that the unauthorized use or representation thereof by other parties and at other theatres greatly injured the plaintiff, depreciated the value of her property in the same, and irreparably injured her rights therein; that the defendant, well knowing, or having cause to know, that the plaintiff was the sole proprietor of the comedy, that it was first produced at her theatre, that she acquired it by the payment of a large sum to the author, that she produced it at her theatre at great cost and expense, that its popularity had been greatly enhanced and increased by the skill and care with which it had been so pro: duced and by her personal labor and attention, and being well aware of its value to her, and well knowing that its value chiefly consisted in the sole and exclusive use and enjoyment of the same, and of the right of representing and enacting it, and that all the benefit and profit to be derived from the comedy and the public enactment thereof belonged to her, and after being warned to desist from performing the comedy in violation of her rights, did, in wilful disregard and violation thereof, openly produce and publicly and repeatedly represent and enact the same comedy at the Boston Museum, and still continued and threatened to continue to represent and enact the same and to advertise it for future representations; that the comedy, as produced at the Boston Museum, was produced in palpable imitation of the manner in which it was produced at the plaintiff’s theatre, and that the defendant had sent his artists, or some one or more of them, or some person whom he engaged to instruct them in the proper manner of performing the comedy, to witness its representation at the plaintiff’s theatre, in order that that representation might be copied by the artists in said representation at the Boston Museum; that this representation was wholly unauthorized by the plaintiff, without her consent or approval, and in gross and utter disregard and violation of her rights; that the plaintiff had sustained great injury and damage by the representations heretofore given by the defendant, and apprehended that he would continue such unauthorized representations, and would irreparably injure her, depreciate the value of her property in the comedy, and deprive her of large gains and profits which would otherwise accrue to her from the representation of the comedy and from selling to others the right to represent the same; that before it was first produced by the plaintiff as aforesaid, the comedy had never been publicly enacted or represented, and had not then or ever been published or dedicated to the public at any time or in any manner, nor had she done any act relinquishing her exclusive right thereto; that she was advised that the comedy, never having been published, was not within the purview of the statutes of copyright; and that except in equity the plaintiff was remediless.</p> <p>The bill prayed for a discovery and account, an injunction, damages, and further relief. The defendant filed a general demurrer, and the case was thereon reserved by Hoar, J. for the decision of the full court.</p>

Action of contract, praying for relief in equity to compel the specific performance of the following agreement, signed by the parties: “ In consideration of $ 2100, to be paid on the 1st of October, I hereby agree to convey to Mr. Francis Conley, house No. 87 Broadway. I agree to give a warranty deed of the same, clear of all incumbrance, except mortgage for $ 1600, held by Mr. Cain, and clear the house of the tenant therein.

Bill in equity, filed by Josiah L. C. Amee on the 30th of September 1856, and now prosecuted by his assignee in insolvency, alleging that about the 31st of March 1851 Amee, conceiving that a certain parcel of land in Boston might be purchased, and warehouses erected thereon, and then resold to great profit, and being unable to undertake so large an operation without assistance, proposed to the defendant to advance the moneys necessary to purchase the land and erect the…

<p>A restriction, in a deed of one of several messuages from the owner of all, that the granted premises are conveyed “subject to the following restriction, that no outbuildings or shed shall ever be erected westerly of the main building of a greater height than those now standing thereon,” does not so appear to have been inserted for the benefit of one of the adjoining messuages that it will be enforced in equity at the snit of a subsequent grantee thereof by deed containing no express mention of the restriction.</p>

Bill in equity to redeem land in Boston from a mortgage made by Daniel Quinlan to Nahum Brigham, and by him assigned to John W. Shaw, who entered upon the premises to foreclose the mortgage in the presence of two witnesses, who signed and made oath to the following certificate thereof, which was duly recorded; “ We the undersigned declare and say that on the tenth day of May A. D. 1853 John W. Shaw entered into and upon the land and buildings described in mortgage deed, to…

<p>In a suit in equity to redeem land from a mortgage, if the mortgagee in possession, on demand, renders an untrue account, the court may order him to pay the plaintiff’s costs, under the Rev. Sts. c. 107, § 19.</p>

<p>A marriage settlement of real and personal property, executed before the Revised Statutes, recited that the settler “ is desirous of securing the said estate, both real and personal, in the event of her marriage, to her sole use and benefit; and for this purpose it hath been agreed that all the estate and property aforesaid shall be granted, assigned and transferred unto J. S., to be held in trust by him for the separate and sole use and benefit of ” the settler, “and her heirs, (notwithstanding any such coverture,) upon the terms and conditions, for the uses, intents and purposes, under the limitations, and for and during the time, as hereinafter is expressed; ” and conveyed the property to the trustee in trust “ to the sole use and behoof of" the settler “ and her heirs until the solemnization of any such marriage, and from and immediately afterwards ” to be held during her life “ to the sole use and separate benefit ” of the settler, “ without being liable to the debts, incumbrances or control of any husband she may have during the existence and continuance of said trust," to pay the income, as well as such portion of the principal as the trastee should judge necessary for her convenience and support, to the settler or to such person as she without the signature or interference of any husband should appoint, “for and during the natural life” of the settler, “that is to say, for and during the term for which said trust shall continue,” and after her decease to pay the unpaid income and transfer the remaining property to her children, if she should leave any, and, in case she should die without issue, then to transfer the same in like manner unto her heirs at law. Among the covenants of the trustee with the settler was one that upon her death he would transfer the property to her child or children if she should leave any; but there was no covenant with respect to her heirs at law. Held, that the settler, from the time of her marriage, took an equitable estate for life with a contingent remainder to her children if she should leave any; and with a reversion to herself, in case of her death without issue, which she could lawfully dispose of by will.</p>

<p>A testator bequeathed a sum of money to trustees, to hold and invest the same, “ and to pay over the net income thereof semiannually from my decease to my granddaughter until she shall arrive at the age of twenty one years or be married; and upon her marriage the same to be paid wholly over to her, together with any accumulated interest unpaid thereon; and if at the said age of twenty one years she shall still remain unmarried, then to be paid over to such other trustee as she may select, to be held by such new trustee on the like trust, and to pay over to her the net income thereof in like manner until she shall be married, and the same upon the event of her marriage to be wholly paid over to her; and upon her decease without issue living, the said principal sum to be divided among my lawfhl heirs then living.” The granddaughter married after arriving at twenty one years of age, and did not appoint a new trustee. Held, that on her marriage the principal sum, with its accumulations, must be paid over to her.</p>

<p>A bond given by the executor upon the probate of a will in the probate court is not vacated, but only suspended in its operation, by a subsequent appeal from the probate of the will; and upon an affirmance of the same in this court, no new bond need be given by the executor.</p>

<p>The mere fact that an action in which judgment has been rendered for the defendant for costs was brought in the plaintiff’s name, without his consent, is no ground for granting a review.</p>

<p>Action of contract to recover the price of ten shares of the capital stock of the Bay State Mills.</p> <p>At the trial in the superior court of Suffolk at March term 1859, before Allen, C. J., the plaintiff introduced evidence tending to show the defendant’s agreement to buy the shares, and a request to have the transfer of them made to his son; that the plaintiff caused the certificates of the stock so sold to be assigned by an indorsement on them to the defendant’s son, the transfer entered upon the books of the corporation, and a new certificate made and signed by the president; that the defendant promised to pay for the stock on being furnished with the new certificate; but, before the signature of the treasurer had been obtained, the corporation was dissolved and perpetually enjoined against transacting business, and receivers thereof appointed, by a decree of this court; and that afterwards, and before this action was brought, the new certificate was signed by the treasurer, and tendered by the plaintiff to the defendant.</p> <p>The plaintiff requested the court to rule that the new certificate was valid, and the treasurer was authorized to sign it when he did, and that if the defendant agreed to pay the price on the new certificate being furnished, he became liable on being tendered the certificate thus issued. But the judge declined so to rule; and instructed the jury “ that if they should find that the agreement of the parties was that the plaintiff should procure and deliver to the defendant a certificate to him of the stock before the defendant was required to pay for the same, then it became necessary for the plaintiff to procure a valid certificate; and that the treasurer had no authority to sign the certificate, and the corporation no right to issue a new certificate, after the decree of dissolution.” The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>The mortgagor of land, of which the mortgagee is in possession for the purpose of foreclosure, cannot maintain an action of tort against a stranger for using it as a way.</p> <p>A reversioner cannot maintain an action of tort for a trespass on land, which does not injure the reversionary interest.</p> <p>A mortgagor, whose mortgage contains general covenants of warranty, does not, by buying the title of the purchaser at a sale of the land for taxes assessed, before the execution of the mortgage, under the Rev. Sts. c. 7, § 7, and St. 1849, c. 213, acquire the right to sue a stranger for a trespass afterwards committed, while the mortgagee is in possession for the purpose of foreclosure.</p> <p>A quitclaim deed of land, bounding it by the land of A., conveys all the grantor’s title up to the true boundary of A.’s land, and is not void as to land belonging to the grantor, but held adversely by A. at the time of the conveyance, in consequence of an erroneous location of the division fence.</p> <p>Where the owners of adjoining tracts of land have conveyed them, agreeing that a strip between them, half on each, shall be used as a way, and reserving the right so to use it, a person having the title of one of them to part of the land, either by inheritance, or by deed bounding on the way, describing it as a street, cannot maintain an action of tort for using the strip as a way against one to whom one of such owners grants another part of the land with like boundaries, or with a right of way over the street so far as the grantor can legally grant it.</p>

<p>Action of tort against Samuel B. Sawyer and Christopher B. Sawyer for deceit. The defendants filed separate answers. Trial in the superior court of Suffolk at May term 1859, before Morton, J., who allowed a bill of exceptions, the material part of which was as follows:</p> <p>“ The two defendants were ‘ sole owners, each one half,' of the schooner Atlantic, and so conveyed her to the plaintiff. The representations were made by Christopher, and the bill of sale was subsequently executed by them both; but none of the representations were embodied or referred to in the bill of sale; and there was no evidence that Samuel knew of the representations before executing the bill of sale.</p> <p>“ The defendants’ counsel requested the judge to rule and instruct the jury as follows:</p> <p>“ 1st. The two defendants owning and conveying separate and distinct shares in the vessel, the action could not be maintained against them jointly, unless they previously conspired, or else jointly participated in the fraud; and the fraud of one person cannot be ratified or adopted by another so as to make the two liable to a joint action.</p> <p>“2d. This action was against two defendants jointly, and was based on an executed contract, and damage thereby; and unless a joint liability was proved, the action could not be maintained against either defendant.</p> <p>“ 3d. Evidence that Christopher acted as agent for the other defendant would not support this action against the two defendants jointly, no agency being alleged in the declaration.</p> <p>“ 4th. Samuel could only be liable for the fraud of his agent, committed without his (the principal’s) knowledge to the extent of the damage arising from the sale of his (the principal’s) own property; and in such case could not be held as joint defendant in a suit for damages arising from a sale of his agent’s property, together with his (the principal’s) own individual property.</p> <p>“ The judge declined so to rule; but did instruct the jury, among other things, that they might find a verdict against both defendants, or against Christopher alone; that if, before the representations were made, Samuel had authorized Christopher, as his agent, to make a sale of the vessel, the former would be liable in this action for such damages as the plaintiff had sustained, although ignorant of the representations.”</p> <p>The jury returned a verdict against both defendants, and they alleged exceptions.</p>

Action of contract on a policy of insurance on personal property in a building in Roxbury, made “subject to the provisions of the constitution and by-laws of the said company annexed.” The sixth article of those by-laws was as follows : “ In case of loss the insured shall, as soon as possible, deliver to the president or secretary a particular account in writing, under oath, stating the value of the property lost, the nature and value of his interest therein, and if a…

<p>Action of contract by the plaintiff as indorsee against the defendant as second indorser of the following promissory note :</p> <p>“ Boston, January 4th 1850. Six months after date I promise to pay to the order of myself twenty four hundred dollars, value received, to be held as collateral security for the payment of E. Boynton’s note December 5th 6 months for $ 968.41; P. E. Webster’s note September 7th 6 months for $ 257.72, and his acceptance December 11th 6 months for $ 178.10; M. Bartlett & Co.’s note, May 7th 6 months for $ 435.40; Wm. M. Jackson’s note, November 5th 6 months for $ 562.59.</p> <p>George Lambert.”</p> <p>No objection was made in the answer to the form of the note; but at the trial in the superior court of Suffolk at May term 1859, Morton, J. ruled that if all the facts necessary to make out his case were proved, the plaintiff could not maintain this action, because the instrument declared on was not a negotiable promissory note. A verdict was taken for the defendant, and the plaintiff alleged exceptions.</p>

<p>An oral promise by the indorser of a promissory note to pay the same, made, without being misled, after maturity of the note, and with a knowledge that there has been no demand for payment upon the maker, or notice of nonpayment given to himself as indorser, and of all other material facts, is a waiver of the want of demand and notice, and renders him liable on the note without a new consideration, although the note is payable on demand, and he does not know that upon such a note the law required demand and notice.</p> <p>The indorser of a promissory note made by a corporation, of which he was treasurer for more than a year before it was made, and who is sought to be charged, without proof of demand and notice, upon the ground that he had promised to pay it after it was due, has no ground of exception to an expression of opinion by the presiding judge to the jury, that the defendant, being treasurer of the corporation, must be presumed to have had knowledge that no demand had been made or notice given.</p>

<p>A mortgage of spirituous and intoxicating liquors passes a title therein to the mortgagee, which will sustain an action against one taking them without authority; and is not invalidated by containing a provision that the proceeds of any sale of the property made by the mortgagor shall be applied to the purchase of articles of the same kind, to be held subject to the mortgage.</p>

<p>Action of contract, commenced June 16th 1858, upon a recognizance entered into on the 24th of February 1858, before a master in chancery, by Jackson as principal, and the other defendant as surety, and conditioned that Jackson, who had been duly arrested on execution on that day, should within ninety days from the time of his arrest deliver himself up for examination, giving notice in the manner required in and by the St. of 1857, c. 141. The parties submitted the case to the judgment of the court upon the following facts:</p> <p>On the 18th of May 1858 Jackson applied to a master in chancery to fix a time for his examination ; and the master appointed the 19th of May, at noon, and his own office in Court Street in Boston, as the time and place for the examination. The officer’s return upon the notice was as follows: " Suffolk ss. Boston, May 19th 1858. At 10 h. 45 m. a. m., I have served the within notice on the within named Shepherd by giving to him in hand a true and attested copy of the same. William Calder, constable.” The plaintiff did not appear at the examination, and the oath for the relief of poor debtors was administered to Jackson by the master. The plaintiff, at the time of the service of notice upon him, resided in South Boston, two miles from the master’s office; but the notice was in fact served upon him at his own office, within a quarter of a mile of the master’s office. On the 17th of May 1859, the master allowed the constable to amend his return by adding thereto the place and distance from the master’s office of the service.</p>

<p>Complaint on the Gen. Sts. c. 88, § 52, alleging that the defendant at Medway on the 28th of July 1860 “ did unlawfully keep a certain small dog of yellowish color, said dog not being licensed, registered, numbered and described; against the peace of the Commonwealth, and the form of the statute in such case made and provided.”</p> <p>At the trial in the superior court in Norfolk, before Putnam, J., the defendant moved to dismiss the complaint, because it did not allege that the defendant had not caused the dog to be registered, numbered, described and licensed. But the judge overruled the motion.</p> <p>The district attorney called the town clerk of Medway as a witness, and asked him if the defendant did not, on a day subsequent to that alleged in the complaint, apply to him for a license — not for the purpose of proving that such a license had been obtained, but as tending to show that he was the owner or keeper of the dog at the time he so applied. The defendant objected to the question; but the judge allowed it to be put and answered. The defendant, being found guilty, alleged exceptions.</p>

<p>Upon an indictment, returned since the General Statutes took effect, for unlawfully administering, before their passage, to a woman pregnant with child a noxious thing with intent to procure her miscarriage, a conviction cannot be had under the Gen. Sts. e. 165, § 9, which do not limit the offence to the case of a pregnant woman; but may be had under the St. of 1845, c. 27, upon proof that the defendant did the act alleged to a woman pregnant with child when it was done.</p>