Volume 83 — Massachusetts Reports

<p>Indictment found at October term of the superior court for Suffolk county 1860. The material averments were that the defendant, “ on the first day of April in the year of our Lord one thousand eight hundred and sixty, and on divers other days and times between that day and the first day of October in the year of our Lord one thousand eight hundred and sixty, at said Boston, .knowingly, wilfully, and without having any legal appointment or authority therefor, did keep and maintain a certain common nuisance, to wit, a tenement in said city of Boston, then and on said other days and times there by him used for-the illegal sale and illegal keeping for sale of intoxicating liquors,” &c. At the trial in the superior court, the defendant contended that proof was necessary both of an illegal keeping and of illegal sales ; but the court ruled otherwise. The court also ruled that in order to convict on such an indictment the government need not prove one actual sale; but that a conviction would be warranted by proof that the defendant kept the place for the purpose of making illegal sales of intoxicating liquors.</p> <p>The defendant, having been found guilty, moved in arrest of judgment, on the ground that the indictment contained no sufficient designation of the place of the alleged nuisance, or of the times of the offence charged; and also because on the first Monday of October there was in existence no statute making the offence described criminal on the first day of April, or at any period between that time and the first day of June 1860: but the court overruled the motion. The defendant alleged exceptions.</p>

<p>Complaint for being a common seller of spirituous and intoxicating liquors. The preliminary averments were that “ Mrs. John Butler, of Holliston in the county of Middlesex, on the first day of February in the year of our Lord eighteen hundred and sixty, at Holliston in the county of Middlesex, from said last mentioned day to the day of making this complaint,” &e. At the trial in the superior court, before Wilkinson, J., the defendant objected to evidence of sales made on any other day than the first day of February 1860, or, if such evidence was admitted, then she contended that evidence of sales on said day should be excluded. But the court admitted evidence of sales made between the first of February and July 17th, the date of the complaint.</p> <p>The defendant was a married woman, and the sales were made in her husband’s dwelling-house, but it did not appear whether he was present at any of them, and the defendant contended that, by presumption of law, the sales were made under his coercion and control; but the court instructed the jury that they might find the defendant guilty unless it appeared by the evidence that the sales were made in the presence of the husband, or under his coercion or control.</p> <p>The defendant, having been found guilty, moved in arrest of judgment: 1. Because there is no proper description of the defendant in the complaint; 2. Because the complaint is double ; but the motion was overruled. The defendant alleged exceptions.</p>

Complaint for being a common seller of intoxicating liquors.

<p>Proof of habitual intoxication will support an indictment for being a common drunkard, without proof of any disturbance of the public peace and good order."</p>

<p>Evidence of the had character for chastity of women who frequent a house is competent in support of an indictment against its owner and occupant for keeping a house of ill-fame</p> <p>Evidence in defence that there has been no disturbance of the peace in such a house is incompetent.</p> <p>It is sufficient to support an indictment for keeping a house of ill-fame if the defendant has only aided and assisted others in keeping the same.</p>

Tort for an injury occasioned by a train of the defendants being driven violently against a freight car which the plaintiff was loading, and which was standing upon the Methuen Branch Railroad in Lawrence, said Methuen Branch Railroad being owned by the defendants.

<p>A railroad company which is bound to erect and maintain a sufficient fence is liable in damages if a horse, feeding in an adjacent pasture, escapes through a defect in the fence and is run over and killed by the cars, without proof of any care on the part of the owner to prevent such an escape.</p> <p>Evidence of notice to the owner that the horse had escaped two or three times before, and been upon the track, is immaterial.</p>

Writ of entry to foreclose a mortgage. On a hearing in the superior court, before Wilkinson, J., after default, to ascertain the amount for which conditional judgment should be rendered, certain questions of law arose, which the presiding judge, aftei judgment for the demandant, reserved on a report of the case for the decision of this court.

<p>Contract upon a promissory note signed “ D. Silloway & Co.,” dated December 9 1853. At the trial in the superior court, before Ames, J., the plaintiff offered evidence tending to prove the existence of a partnership between the three defendants, Silloway, Currier, and Poor, from early in 1852 to December 15 1853. Among other evidence to prove the partnership the plaintiff was allowed to put in, under objection, two writs brought by the defendants against the Neptune and the Hope insurance companies, in which they were described as partners, and upon which Silloway had made the affidavit necessary to give jurisdiction to the supreme judicial court. These writs were dated April 4 1853. The plaintiff was also allowed to put in, under objection, certain papers filed in the same suits December 8 1859, signed by E. Merwin, as attorney of Silloway & Co., and agreeing as to the amount of the verdict and acknowledging payment thereof. No question was made that Mr. Merwin was their attorney in those suits. At a subsequent stage of the case, the defendant Poor testified that he had received $5,000 upon the judgments obtained against the insurance companies The signature to the note was made by the defendant Currier, who was defaulted. The verdict was for the plaintiff against the other two defendants, who alleged exceptions.</p>

<p>Writ of entry, to recover a parcel of land, in Newburyport. Plea, mil disseisin as to a part of the premises, and a disclaimer as to the residue. At the trial in the superior court, before Ames, J., the verdict was for the demandant, and the tenant alleged exceptions. The material facts appear in the opinion.</p>

<p>Under Rev. Sts. c. 46, § 13, a town which has furnished relief to a person found therein and standing in need of immediate relief may recover the expenses thereof from the town of his settlement, although sufficient provision may have been made for his general support by his father’s will.</p>

<p>Contract for the board of certain state paupers committed to the plaintiffs’ workhouse. All formal questions having been waived, it was agreed that if the action could be maintained either by the town or its overseers, upon the facts, which sufficiently appear in the opinion of the court, judgment should be rendered for the plaintiffs; otherwise, for the defendants.</p>

<p>Action for breach of warranty and deceit in the sale of a. • horse. The declaration contained one count in contract and one count in tort, with an averment that both were for the same cause of action, it being deemed doubtful to which form the cause of action belonged. At the trial in the superior court, the plaintiff testified that the representations of the defendant upon which he relied were made on the morning of the day before the sale; and his counsel then asked him if any representations were made the next day, at the time when the horse was delivered. The defendant’s counsel asked if such representations were made before or after the sale. The witness stated, after ; and Wilkinson, J., ruled out the evidence. In cross-examination, the defendant’s counsel asked the plaintiff if the defendant did not say to him that Dr. Saunders, a veterinary surgeon in whose charge the horse had been, had told him that the horse would get well in a few weeks, &c. The plaintiff’s counsel asked if that was before or after the delivery. The witness stated, after; and the court ruled out the evidence, for the reason that the conversation had before been objected to by the defendant.</p> <p>After the evidence was in, it appearing that both counts were for one and the same transaction, the defendant requested that the plaintiff should be required to elect upon which he relied, and that the other count should be stricken out; but the court declined so to order, and the jury returned a general verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>Judgment for the plaintiff in an action for instalments of interest due on a note payable in one year with interest semiannually, will not bar a subsequent action for the principal, although it was due when the former action was commenced.</p>

<p>Goods held by a mortgagee in possession, under an agreement that he should sell the same and account for the excess over the amount of his debt, are subject to attachment; and if attached by the same officer on several writs against the mortgagor, the mortgagee cannot maintain an action against the officer for the same without prior notice and demand to each of the attaching creditors, although there has been no formal taking except in the first suit, and although he has not been informed of the subsequent suits.</p> <p>Nor can the plaintiff in such action be allowed to aver that the attachments were excessive, or that the claims on which they were founded were invalid.</p>

<p>Tort for an injury sustained by reason of a defective highway. The defect alleged was the want of a fence. At the trial in the superior court it appeared that Bridge Street was a highway which the defendants were bound to keep in repair; that it adjoined land of the Essex Railroad Company; that the station of the company was forty feet from the located limits of the street; that between the station and the street the surface of the ground was smooth and even, and, for a portion of the way, was not separated from the street by a fence ; that at one end of the station there was an embankment, and that an agent of the plaintiff, while travelling over Bridge Street in the evening and driving the plaintiff’s horse and carriage, passed beyond the line of the street in front of the station, across the land of the railroad company, and down the embankment, thereby causing the injury complained of. Upon these facts, the defendants requested the court to instruct the jury that there was no defect in Bridge Street for which they were liable; but Rockwell, J. declined so to rule, and, a verdict having been rendered for the plaintiff, the defendants alleged exceptions.</p>

Tobt for a personal injury sustained by reason of a defective highway. At the trial in the superior court, before Wilkinson, J., the plaintiff called as a witness one Goss, who was asked, in cross-examination, if the surveyor of the district necessarily passed over the place of accident every time he visited the post-office ; which question was objected to and ruled out.

<p>Contract on three promissory notes signed by the defendant— one being dated December 18 1854, and the other two December 19 1854 — all payable to the order of the National Protection Insurance Company of the State of New York in twelve months after date, and purporting to be indorsed to the plaintiff by said company, acting by T. Safford, its treasurer The defendant denied that Safford had authority to make the indorsements. At the trial in the superior court, before Russell, J., the plaintiff introduced evidence tending to show that said Safford was the treasurer of that company in 1854 and 1855; that he was in the habit of indorsing notes and drafts drawn to the order of the company; that he signed all the checks and drafts of the company as its treasurer; that he kept the bank account of the company as its treasurer; that he accepted drafts for the company; that he did these things in the presence of officers of the company, and that this duty was imposed upon him by the directors; that.the name on the back of the notes was in his handwriting, and that he had since died; that the notes were in the possession of the plaintiff, indorsed as above stated, before they fell due, and were by him left for collection with the cashier of a bank in New York. One Walbridge was also introduced as a witness for the plaintiff, and testified that at a meeting of the board of directors of the company in the spring of 1855 the question of transferring the notes in suit to the plaintiff was brought up, and, according to his present recol'ection, Safford was directed to transfer them to the plaintiff that he, the witness, kept minutes of the action of the board as its clerk, but that the minutes were never recorded at length, and were now lost. Answers by the plaintiff to interrogatories propounded to him by the defendant were also put into the case, containing statements of his negotiations with the directors of the company respecting the transfer to him of some of their premium notes, and of their final agreement to make such transfers, and of the subsequent action of Safford in transferring the notes in suit.</p> <p>The plaintiff asked the court to instruct the jury that the facts testified to, if believed, showed a legal and valid transfer of the notes before their maturity by the company to the plaintiff, and gave him a good title to them. But the court instructed the jury that, upon the question of the authority of Safford to transfer the notes, the burden of proof was upon the plaintiff; that the jury must consider all the evidence offered to them, and must determine whether, on the whole, they were reasonably satisfied, upon a preponderance of proof that he had such authority; and in commenting upon the evidence, he stated to them that it would be proper for them to take into consideration, among other things, the absence of any record of any vote of the company authorizing or directing the transfer as a fact bearing upon the question.</p> <p>The verdict was for the defendant, and the plaintiff alleged exceptions.</p>

<p>Where county commissioners, upon a petition praying that a new piece of road may be made, or the existing road altered and shortened, and that such parts of the existing road, if any, as may be rendered unnecessary may be discontinued, laid out a new piece of road from one point in the existing road to another, and passed an order discontinuing so much of the existing road as was rendered unnecessary by the new location: Held, that that part of the road then existing, for which the new location was a substitute, was discontinued.</p>

Contract. At the trial in this court, before Metcalf, J., the report of an auditor was introduced, and judgment was entered by consent for the defendants, subject to the opinion of the whole court, upon such of the evidence reported as might be found competent, upon the question whether a partnership existed between the parties.

<p>Tort for breaking and entering the plaintiff’s close, and excavating the soil so as to endanger the safety of the plaintiff’s house. The close described was a small parcel of land, with a house upon it, situated within the limits of a highway, and adjoining land of the defendant. At the trial in the superior court the plaintiff testified that he had no title to the premises except mere possession; that he applied for leave to put his house within the limits of the highway to the chairman of the selectmen, who replied that he should not object if no one else did; that he then applied to the defendant, who granted him leave to put it upon the locus, and, some time afterwards, ordered him to remove it. The defendant testified that he gave leave to the plaintiff to occupy the place in question for six months, and no longer; and that, after the expiration of the six months, he gave the plaintiff repeated notices to remove, which the plaintiff promised to do as soon as he could procure another place. It appeared by all the testimony that after the notices to remove and after the expiration of the six months, the defendant entered upon the premises and dug away the soil around and close up to the house ; and Wilkinson, J., ruled that the plaintiff was entitled to recover. The defendant alleged exceptions.</p>

<p>A judgment for the plaintiff in replevin, against one of two joint takers of goods for a part of the goods taken, is a bar to a subsequent action against both to recover damages for the same trespass, if the other goods are not shown to have been concealed, or otherwise disposed of, so that they could not be replevied.</p>

<p>When a town forms new school districts, by abolishing the old ones, the legal title to the existing school-houses vests in those of the new districts within whose territory they happen to fall.</p>

<p>A record, which sets out a judgment that A. recover of B. “ costs of suit taxed at-the amount of costs not being inserted in the record, will not support a declaration upon the judgment as for a fixed sum; nor can the defect in the record be supplied by resort ing to an entry upon the clerk’s docket.</p>

<p>The court has authority to require an auditor’s report to be read at the trial, although neither party relies upon it, or desires to offer it in evidence.</p> <p>When a witness, in his cross-examination by the plaintiff, has been asked if he had a conversation with the defendant upon a certain subject-matter, and the plaintiff states, in reply to a question by the court, that he shall rely upon the fact that such conversation was had, it is then competent for the defendant to put in the conversation.</p> <p>In a suit for work done in drawing stone, and for teams sold, evidence on the part of the defendant to show that the plaintiff owed many debts, and was frequently pressed for payment, and that persons refused to give him credit during the time covered by the account in suit, is inadmissible, although the plaintiff has put in evidence of his having then owned a considerable amount of teams and other like property.</p> <p>A paper produced upon notice at a trial, and received and examined by the party calling for it, may be put in evidence by the party producing it if the party who called for it declines to use it, although it was called for under a misapprehension of its contents.</p>

<p>The demandant in a real action is not estopped from maintaining it by proof of a deed of partition executed by a former owner, through whom he derives his title, and others, whereby the demanded premises were assigned and set off, with mutual covenants, both to the demandant’s predecessor and to another person, with whom the tenant has established no connection; or by proof of a deed of quitclaim of the premises, executed by another former owner, through whom he derives his title, without words of limitation, to a person since deceased,; or by proof of a subsequent deed of such owner, of land adjoining the premises, in which the demanded premises are referred to as having been sold to the deceased person.</p>

Petition for partition. The petitioner claimed title to three undivided eighth parts of the premises, the residue being alleged to be in the respondent.

<p>Proof of an application for insurance and of a policy issuing thereon, both of which describe the property insured as property of the plaintiffs, is prima facie evidence of title and of an insurable interest in the plaintiffs, in an action upon the policy.</p> <p>When one of the plaintiffs has taken an assignment of a first mortgage on the insured property, in trust for all the plaintiffs, and has completed a negotiation for the purchase of the interest of the mortgagee in a second mortgage, under which the title has been perfected by a foreclosure, a statement by the plaintiffs in the application for insurance that they are mortgagees in possession will not avoid the policy.</p> <p>When an applicant for insurance has answered a question in the application as to the existence and amount of incumbrances upon the property by saying that incumbrances exist, without stating their amount, the issuing of the policy is a waiver of any objection to the answer on the ground of insufficiency; and the whole amount of incumbrance is immaterial if the plaintiffs are in possession under a first mortgage, which is for a greater sum than the amount of the insurance.</p> <p>The fact that a third person, interested in the property, has previously obtained insurance in the name of the plaintiffs, but without their knowledge, will not avoid a policy, although the by-laws annexed thereto provide that if a previous policy exists and is not disposed the policy shall be void.</p> <p>When a policy recites that the amount insured is not more than three fourths of the value of the property, “ as appears by the proposal of the insured,” and the application of the insured contains a valuation of the property, the policy is a valued policy.</p>

<p>In a suit to recover the value of goods obtained by the defendant by a purchase for cash from an agent of the plaintiffs, evidence of the agent’s agreement and general course of dealing with a former firm, consisting of two of the three plaintiffs, is admissible for the purpose of proving the agent’s authority to sell and deliver the goods for cash, if there is evidence that such former agreement and dealings were referred to in his agreement •with the plaintiffs, and as a part thereof.</p>

<p>A bail-hand which provides that the debtor shall surrender himself at the expiration of ninety days is valid, either as a statute bond or at common law.</p> <p>Since St. 1857, c. 141, a discharge of a poor debtor upon proceedings before two justices of the peace and of the quorum, under the forms prescribed in the Rev. Sts. c. 98, is invalid.</p>

Contract for goods sold and delivered. At the trial in the superior court, it appeared that some time before the transaction in question the plaintiff’s son had been doing business in Lynn, but had sold to the plaintiff his whole stock of goods, of which the articles now sued for were a part.

<p>Under St. 1850, c. 62, which divides the town of Bradford, and incorporates a portion thereof into the new town of Groveland, and which provides that “ the paupers now supported by the town of Bradford, and all such as may hereafter require support, in virtue of having acquired a settlement in said town, shall be supported by the town within the territorial limits of which they may have acquired a settlement,” the inhabitants of Groveland are bound to support all paupers who have a settlement within the territorial limits of that town, whether such settlement is derivative, or has been acquired by their own act.</p>

Writ of entry. Both parties derived their title from Thomas and Abigail Russell, who occupied the premises in 1790. The demandant claimed by direct descent; and the tenants claimed under John Candler, deceased, who married Abigail Russel' after the death of her former husband Thomas, and who, it was contended, had acquired a title in himself by prescription, under the circumstances recited in the opinion of the court.

<p>Contract, brought by the master of the schooner Moro, on a charter-party executed in the city of New York, and signed on the part of the charterers as follows:</p> <p>“ We agree to the above and will furnish cargo and pay freight accordingly, and hereby bind ourselves as above.</p> <p>“ Albert Freestone Quarries, by Kettell, Collins & Co., Agents.</p> <p>“ Per A. W. Bowman, Att’y.”</p> <p>The defendants, Kettell, Collins & Co., admitted the authority of Bowman to sign their names to the charter-party as agents. At the trial in this court, it was proved or admitted that there was not, at the time when the charter-party was executed, any corporation or company having the name of “ Albert Freestone Quarries.” But it was also proved or admitted that Christopher D. Archibald, of London, a British subject, was then the proprietor of certain quarries in the province of New Brunswick, styled “ Albert,” and that he was in the habit of using the name “ Albert Freestone Quarries ” in transacting business respecting his quarries; and that about a year afterwards a corporation by that name was established in New Brunswick. A paper, by which said Archibald appointed the defendants his agents, dated August 9 1856, was introduced in evidence; but it did not appear that the plaintiffs knew of this paper, or knew that Archibald was the party intended by the words “ Albert Freestone Quarries.”</p> <p>A breach of the contract contained in the charter-party having been proved, Metcalf J., ruled, for the purpose of ascertaining the damages, that the plaintiff was entitled to maintain this action; and a verdict was taken by consent for the plaintiff, subject to the opinion of the whole court, upon the question of the defendants’ liability upon the facts above reported.</p>

<p>One who has taken a hill of sale of a vessel, absolute in terms, but intended only as collateral security for a debt, and has never taken her into his possession or control, or held himself out to the world as an owner, is not liable for supplies or repairs, although the vessel is registered in his name.</p> <p>Ihe fact that such a bill of sale was intended only as collateral security may be shown by paroi, for the purpose of negativing any authority to procure supplies or repairs on the credit of its holder.</p>

Tort for breaking and entering the plaintiff’s grocery shop, and destroying various articles of trade and consumption.

<p>Where, for the purpose of invalidating the consideration of a promissory note, evidence has been introduced to show that it was one of several notes given by a person since deceased, in pursuance of a general design to settle his estate, declarations of the maker in relation to the consideration of such notes, made a few days after they were given, are incompetent.</p>

<p>A town is not liable for an injury sustained by reason of the negligence of a laborer employed by one of its highway surveyors, to aid him in performing the duties of his office.</p>

Petition under St. 1847, c. 37, filed June 30 1857, by eleven voters and tax-payers of Lynn, for an injunction to restrain the respondents from paying money from the city treasury under the following vote passed on the 29th of June by the board of aldermen and common council of that city: “ Ordered, that his honor the mayor and aldermen Holmes and Stacey, with such as the council see fit to join, be a joint special committee whose duty it shall be to procure a display of…

<p>Bill in equity to redeem mortgaged premises. It appeared by the bill and answer that the plaintiff had conveyed the premises to the defendant by an ordinary deed of warranty, taking back at the same time an agreement of which the following is a copy:</p> <p>“ Whereas John Murphy, of Salem in the county of Essex, trader, has this day conveyed to me his house and land on Derby Street, in said Salem, for the consideration of one thousand dollars, I, William Galley, of said Salem, for the above and divers other good considerations me hereunto moving, do hereby bind myself, my heirs and assigns, and promise for myself, heirs and assigns, that I will, and they shall, reconvey, release and assign to said Murphy, his heirs, executors, administrators or assigns, whenever within five years from this date said Murphy or his heirs or assigns shall repay said one thousand dollars to me or my heirs or assigns, together with lawful interest thereon. And if said Murphy shall not pay the same sums as aforesaid and within the time aforesaid, then this agreement to be void, and my deed to be. absolute, with full power for me to sell or otherwise dispose of the premises and with no further right of redemption for said Murphy or on his behalf. Witness my hand and seal this thirty first day of July 1854.</p> <p>“ Signed and sealed ) William Galley.” [Seal.]</p> <p>in presence of D. Roberts. J</p> <p>At the hearing in this court, at May term 1860, Bigelow, J. was of opinion that the plaintiff was entitled to redeem, and ordered the case to be sent to a master to state the account. The defendant appealed to the whole court.</p>

<p>Certified copies of the schedule of debts and list of claims filed in proceedings in insolvency are incompetent to prove that the debtor was insolvent at the time of making an alleged preference, in a suit by the assignee to recover back the property conveyed.</p> <p>But in such suit evidence that the debtor had expensive habits, and was inattentive to business, and that these facts were known to the defendant, and evidence of the debtor’s general reputation as to insolvency, are competent for the purpose of proving that the defendant had reasonable cause to believe the debtor insolvent.</p> <p>A. deposition is inadmissible, the caption of which does not set forth that the deponent was sworn to testify the truth, &c. relating to the cause for which the deposition was taken.</p> <p>f goods alleged to have been converted have been mixed by the mortgagee with other similar goods which the defendant as mortgagee had a right to retain under a mort gage, and it is left for the jury to determine whether or not he had means for making a discrimination which the other party had not, evidence of a general demand by the plaintiff for the goods mortgaged, and of a reply by the defendant that “ he was sorry he could not accommodate him, and that he had been expecting this demand for some days,” is competent to be submitted to,the jury with the other testimony to show a conversion but, if all the goods so intermixed have been sold by the defendant, no proof of demand is necessary.</p> <p>if a mortgage, given as security for a debt at the time when the same was contracted, contains a covenant that a new mortgage shall be given, at a future specified time, as additional security for the same debt, a mortgage afterwards given in pursuance of that covenant is not within the protection of St 1838, c. 163, § 10, but may be impeached like other securities given for pre-existing debts.</p>

<p>Bill in equity. The bill set forth that the plaintiffs anti defendants are members of an association called the Union Fire Company, formed in Beverly in 1804, under which a fund w as established for the purpose of relieving such of the members thereof as might be reduced in circumstances by fire ; that one of the articles of association provided that if any member should be reduced in circumstances by fire, the society should take his case into consideration and grant him such relief from the funds of the society as to them should appear just and reasonable, and in case of the death of any one of the society his widow, if any such there should be, should be entitled to the same assistance as a member; that in said articles there were no other provisions for the appropriation of the funds of the association except for its expenses, &c., but not for any distribution thereof; that the funds of the society now amounted to over $3000 ; that some of the members thereof have died, leaving widows and legal representatives now living; that at a meeting held January 24 1859, a vote was passed, by eighteen in the affirmative against eleven in the negative, to divide said funds equally among the present members and the widows of deceased members; that the defendants were appointed a board of trustees to carry said vote into effect, and have accordingly taken possession of the books, papers, and funds of the society for that purpose. The prayer was for an injunction to restrain such distribution.</p> <p>The answer admitted all the facts set forth in the bill, but averred in addition that the original members of the society are now all dead ; that there was never any call for relief upon the association under the provisions of its articles; that the funds now on hand arise solely from the accumulation of voluntary assessments upon the members, received by the treasurer before 1812; that in 1842 the association had become materially changed as to its members, many having ceased to belong to it and others having been admitted in their places ; that at a regular meeting in 1842 a new series of by-laws and articles was adopted, and signed by all the members, including the plaintiffs ; that one of the articles contained a provision that no alteration or addition should be made to them except at the annual meeting in January, or at that meeting unless two thirds of the society present should agree thereto ; that, by the adoption of the new articles, the rights of members were materially modified ; that neither the widows nor the legal representatives of deceased members have any vested interest in the funds; and that, after the vote of January 24 1859, four other members of the society presented a written request to be allowed to record their votes in favor of the distribution of the funds, according to said vote.</p> <p>Upon a hearing in this court, Hoar, J.,.found the facts stated in the answer to be true, and that no members of the association before the year 1811, or any widows of such members, are now living; and reserved the case for the decision of the whole court.</p>

<p>The record of county commissioners establishing a town way, and reciting that it was made to appear to them that the selectmen of the town, on petition, had unreasonably neglected to lay out the same, can only be avoided by a petition for certiorari; and, until so avoided, the order of the commissioners will justify an entry by the town upon the lani appropriated, for the purpose of constructing the way.</p> <p>The adoption of a city charter, after proceedings for the establishment of a town way have been commenced before county commissioners, does not oust them of their jurisdiction to pass an order, before the city government is organized, for the construction of the way; and such order is valid if addressed to the town of L. instead of to the city of L.</p> <p>In a suit by the land-owner against the city for damages for constructing such way in pui • suance of the order of the commissioners, it is not necessary to prove in defence a final acceptance of the way.</p> <p>If, in such suit, the plaintiff has only put in evidence of an entry upon land within the limits of the way as located, and the defendants have replied thereto, it is within the discretion of the court afterwards to admit or reject evidence offered to show a trespass outside of said limits, but within the close described; and to the exercise of this discretion no exception lies.</p>

<p>Bill in equity, setting forth that Burley Smith, deceased, the father of both the plaintiff and defendant, executed his will, of which a copy was annexed, in which he made certain devises and bequests to the plaintiff upon this condition: “ That he shall pay one half of my just debts, his brother Augustus to pay the other half; ” that the plaintiff and defendant were therein named as executors, and as such proved the will and entered upon the trust; that the defendant has since become possessed of a large amount of property given to him by other provisions of the will; that the testator was owing the plaintiff the amounts due on two certain promissory notes; that, by the provisions of the will, the defendant became bound to pay the plaintiff one half of the amounts so due to him; and that the defendant has refused payment thereof, though requested.</p> <p>The defendant filed a general demurrer.</p>

<p>I note signed “ A. B., Pres’t of the Dorchester Avenue R. R. Co.,” binds A. B. personally, although given by the authority of the railroad company, and in consideration of a policy of insurance issued to that company by the payee.</p>

<p>Tort for assault and battery. At the trial in the superior court it appeared that in the year 1857 one Thalberg gave a concert in a public hall in Lowell; that in the advertisement of the concert there was no restriction as to the persons to be admitted but it was stated therein that, in order to bring it within the reach of all classes, the fee for admission was put at fifty cents; that the plaintiff, who was a colored man, entered the building, purchased a ticket at the ticket-office, passed to the outside door of the hall, delivered his ticket to the doorkeeper, received from him a programme of the concert, entered the hall, and was proceeding to the seats, which were about ten feet from the door, when the defendant called him back and said to him, “ You cannot go in here: we don’t allow black men in here ” ; that, after some further conversation, in which the defendant ordered the plaintiff out and he refused to go, the defendant took hold of the plaintiff and put him outside of the hall in the presence of the audience and near the ticket-office, and there tendered him the amount of money which the plaintiff had paid for his entrance. There was no claim that any more force was used by the defendant to put the plaintiff out than was necessary, though the plaintiff’s coat was somewhat torn.</p> <p>The defendant requested the court to rule that this action of tort could not be maintained, and that the action should have been for breach of contract; but Rockwell, J., ruled that thSplaintiff might recover in this form of action.</p> <p>A verdict was returned for the plaintiff, and the defendant alleged exceptions.</p>

<p>St. 1845, c. 197, § 2, regulating the use of steam-engines and furnaces, applies to works subsequently erected, as well as to those existing at the time of its passage.</p> <p>In a suit in equity, in which the plaintiff seeks to recover damages for a nuisance to his buildings, arising from the unlawful erection and maintenance of steam-engines and furnaces, as well as for an injunction to prevent their further continuance, evidence of the general character of the neighborhood in which his buildings are situated, of the various kinds of business carried on there, and of the class of tenants by whom dwelling-houses in that vicinity are usually occupied, is competent, upon the question of damages; but evidence that a particular insurance company had increased the rate of insurance on his houses is incompetent.</p> <p>If the use of steam-engines and furnaces has been regulated by an order of the municipal authorities, duly made and recorded, under St. 1845, c. 197, the burden is on a party who complains of the works as a nuisance to prove a non-compliance with the terms of tile order, or an unlawful or improper use of the works.</p>

<p>In a suit in equity to redeem mortgaged premises, the mortgagor is entitled to the benefit of the statute penalty for usury in reduction of the sum payable upon the mortgage.</p> <p>When unlawful interest is reserved by taking a note for a greater amount than the sum lent, the penalty is threefold the difference between the amount for which the note was given and the sum lent, with interest thereon to the date of the verdict; and this penalty is to be deducted from the amount appearing to be due upon the note.</p> <p>The payment into court of a less sum than that justly due, if not made under any rule or order of court, or with any averment or proof of a previous tender, cannot affect the rights of the parties in any manner.</p>

<p>St. 1853, c. 315, which imposes upon owners of lots abutting on any street or way which then was or thereafter should he opened over any private land by the owners thereof, and dedicated to or permitted to be used by the public before being accepted and laid out according to law, the duty of grading such street or way at their own expense, in such manner as the safely and convenience of the public shall, in the opinion of the mayor and aldermen of the city, or selectmen of the town, require; and which authorizes the mayor and aldermen, or selectmen, to cause the same to be so graded, and to assess the expenses thereof upon the owners of such abutting lots, and to create by such assessment a lien upon their respective lands, if upon notice they refuse or neglect to grade the same in manner aforesaid, or to close the same from public use, is unconstitutional and void.</p>

<p>The drawer of a written order for a specified amount of goods, upon which, through mistake, too large an amount was delivered, is liable upon an express oral promise, made with full knowledge of the facts, to pay for the excess, although he himself derived no benefit therefrom.</p>

Contract on account annexed for work and labor. The defence was that the services sued for were performed for the Feltonville Horse Shoe Company, and not for the defendant.

<p>A bill in equity which alleges that the plaintiff is the owner of the right to take ice from a certain portion of a “great pond,” within the meaning of the Colonial Ordinance of 1641 respecting such ponds, and of a fishing right therein, and of the outlet thereof, is, on demurrer, a sufficient statement of the plaintiff's title to equitable relief against an unauthorized injury to these rights, and a diversion of water from the outlet.</p>

<p>A delay of ten months by inhabitants and tax payers of a town before bringing their bill to restrain the payment of money for expenses already incurred in draining a pond, under a vote of the town, is such loches as will forfeit their right to equitable relief.</p>

<p>Tort against a dentist, for carelessly cutting the plaintiff's tongue while extracting her tooth. At the trial in the superior court there was conflicting evidence as to the extent and nature of the wound, and the jury found a verdict for the plaintiff with one dollar damages. The plaintiff moved to set aside the verdict on the ground that the defendant had conversed about the case in the presence of one or more of the jurors before the trial; and, upon the hearing of the motion, one of the jurors who tried the case testified that while he and several of his fellows were standing in the door of the court-house, and talking of a case in which they had just disagreed, some one asked if they knew what the next case was, and the defendant, whom the juror did not then know, said it was his; some one then expressed the hope that it would not come before the second jury, because they had disagreed in everything, and the defendant replied that he thought it would not be a very hard case to decide, as the plaintiff had sued him for five hundred dollars, and had offered to take five dollars. The" witness did not know to whom the defendant addressed his remark.</p> <p>The defendant testified that he did not know that any of the persons standing near the door were jurors, and he gave an account of the conversation not materially different from that of the juror.</p> <p>Upon this evidence Vose J., ruled as follows: “ Being of opinion that whatever was said by the defendant in the presence of one or more of the jurors was said by him without any knowledge on his part that they were jurors, and that they were strangers to him, standing near him in a promiscuous crowd, and that it was not particularly addressed to the jurors, or said for the purpose of influencing their minds in regard to this suit, and there being no evidence that these jurors were influenced by what was said by the defendant, I do not think it is a legal cause for setting aside the verdict, and I therefore overrule the within motion.”</p> <p>To this ruling and opinion the plaintiff alleged exceptions, which the presiding judge certified as follows: “ Allowed, so far as I can now legally allow them.”</p>

<p>It is too late to raise formal objections to a deposition on the trial in the superior conn after it has been read before an auditor without objection.</p> <p>If it appears that a plaintiff had, a short time before commencing his action, presented his bill to the defendant for a much less amount than that claimed in the writ, and the plaintiff, in explanation of that fact, says that such bill was only for the balance due after deducting the price of certain calves bought by him of the defendant, it is competent to contradict him by showing that in a former suit against him for those calves he had testified that he paid for them in cash.</p>

<p>A city is not liable for an assault and battery committed by its police officers, even though it was done in an attempt to enforce an ordinance of the city.</p> <p>The action of a city in authorizing and employing its solicitor to appear and defend an action brought against its police officers for an assault and battery committed by them, does not make the city liable to pay damages for the assault and battery.</p>

<p>Contract on the following instrument:</p> <p>“ Be it known that I, Rebecca S. Warner, in consideration of the love and good will I bore my late nephew, Warren F. Stone, deceased, and in consideration of services by him performed in his lifetime, hereby order and direct my executors or administrators to pay to the widow of said Warren F. Stone, for her benefit and for the benefit of her children, and for her and their use, a sum of money equal to the proceeds of a wood-lot owned by me, situated in Groton, and near the depot of the Fitchburg Railroad.</p> <p>“ Witness my hand and seal, at Groton, this sixteenth day of February, A. D., 1858. Rebecca S. Warner. [Seal.]</p> <p>“ In presence of Willard Torry, Bame Torry.”</p> <p>The declaration alleged that Rebecca S. Warner, in her lifetime, executed the above instrument and delivered it to the plaintiff; that said Rebecca afterwards died, and the defendant was duly appointed administrator of her estate; that her estate was solvent; that the plaintiff is the widow of the said Warren F. Stone; that the proceeds of the said wood-lot are worth the sum of one thousand dollars; that since the appointment of the defendant as administrator, she has demanded of .him, as such administrator, a sum of money equal to the proceeds, or equal to the value,- of said wood-lot, which he has refused and neglected to pay; and that more than one year and less than two years had elapsed at the time of the commencement of this action ince the defendant gave bond for the discharge of his trust as administrator.</p> <p>The defendant demurred to the declaration, assigning for cause that the instrument declared on is void, and of no legal effect, and no action at law can be maintained thereon. In the superior court Rockwell, J. sustained the demurrer, and the plaintiff appealed.</p>

<p>Tort to recover damages sustained by the female plaintiff, by reason of a defective highway.</p> <p>At the trial in the superior court, there was evidence tending to prove that, in the afternoon of the day of receiving the injury complained of, the female plaintiff was walking in Bridge Street, in Lowell, in which there was a brick sidewalk; that coming to Paige Street, she undertook to cross the same upon a stone walk which was laid there; that an open space of about a foot in width was left between the brick sidewalk and the stone crossing for the passage of water, over which a plank was placed which, for a considerable time before the time of the accident, had been insecurely fastened down, and had become split, and on one or more occasions had been out of place; that, at the time of the accident, one part of the plank was out of place, and one edge raised up about an inch and one half; and that the female plaintiff, in attempting to cross at this place, struck her foot against this raised edge of the plank, which threw her down and caused the injury complained of. There was also evidence that her eyesight was poor and weak, that she usually wore spectacles when walking in the street, but did not wear them at this time, and that she was walking very fast. It was not denied that the defendants were bound to keep Bridge Street in repair.</p> <p>The defendants requested the following instructions:</p> <p>1. The plaintiff cannot recover unless the particular defect which was the immediate and proximate cause of the injury, of which she complains, had existed for twenty four hours, or unless the city had notice of the defect if it had not existed twenty four hours, for a time sufficiently long before the accident to enable them, by using reasonable diligence, to repair the defect.</p> <p>2. If the jury find that the injury of which the plaintiff complains was caused by striking her foot against a piece of plank projecting an inch and a half above the level of the street, in the manner described, and that the plank thus projecting was a defect, the city will not be liable, unless they also find that the projection of the plank had existed for twenty four hours, or .that the city had reasonable notice of the defect.</p> <p>3. If the jury find that the plank was loose, and was and had been split for more than twenty four hours, and that it had before been out of place and that such condition of the plank was a defect, the city will not be liable, because the plaintiffs do not claim that the general condition of the plank was the immediate and proximate cause of the injury.</p> <p>4. The plaintiff can only recover in this case by reason of the immediate cause of the injury, and not because the general condition of the street or place was unsafe.</p> <p>5. The city is not bound to take the highest possible care, but only ordinary care; they are not insurers against accident; they are not obliged to keep their streets and crossings even or smooth; and an object against which a foot passenger might trip, though it was unlikely and improbable that she would do so, is not ordinarily a defect in a street.</p> <p>6. If the plaintiff was a person of poor sight, common prudence required of her greater care in walking upon the streets, and avoiding obstructions, than is required of persons of good sight.</p> <p>Rockwell, J., gave the first instruction substantially as requested. He declined to give the instructions asked for in the 2d, 3d, and 4th requests; and, instead thereof, instructed the jury that, if the plank was split, and loose, and liable to change, and unsafe, for twenty four hours before the accident, and continued so until the time of the accident, or if the city authorities had reasonable notice that it was unsafe, the defendants would be liable, although the position of the plank which was the immediate cause of the accident had not continued an hour. He gave the instruction asked for in the fifth request, with the omission of the last clause thereof. He declined to' give the last instruction prayed for; but, instead thereof, instructed the jury that “ although her sight was impaired, yet, unless materially affected, that they should take the state of her eyesight, as proved, into consideration, upon the question of due care on her part.”</p> <p>The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

Tort for an injury sustained by reason of a defective highwav. At the trial in this court, before Bigelow, J., the only evidence introduced by the plaintiff to prove the place where and the circumstances under which the injury was received was his own testimony.

<p>The obligation of a town to make toads safe and convenient for travellers continues where such roads are crossed by railroads at grade, except so far as the necessary use of the crossing by the railroad may prevent it, and subject to such specific directions as may be given by the county commissioners.</p>

<p>Tort for an injury received from a collision of carriages in the highway. At the trial in the superior, court the plaintiffs offered evidence tending to prove, that the defendant left his horses, harnessed to a wagon, standing on his own land within about fifteen feet of his house and within the enclosure adjoining the same, without being tied, or under the charge of any person; and went into the house, out of sight of the horses, to give directions to the workmen employed therein; and that the horses started and ran into the road and against the wagon in which the plaintiffs were riding, and thereby injured the female plaintiff. The defendant offered evidence tending to control and vary this evidence of the plaintiff, and also offered to show his own character as a careful, prudent and cautious man, as bearing on the question of whether he used ordinary care on this occasion. To this last the plaintiffs objected, and Morton, J., rejected the evidence. The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>Tort for an injury to the plaintiff’s intestate while passing along a highway in Cambridge, by being crushed between the cars of the defendants, whereby his death was caused.</p> <p>At the trial in this court, one of the grounds upon which the plaintiff relied was, that the defendants were using the public highway as a freight yard, in which to make up their freight trains and to shift their cars from one part of their yard to another, and that this was habitually and commonly done, to the detention and obstruction of the public travel. To prove this issue, the plaintiff called witnesses, and asked whether the defendants caused their freight trains to stand across the highway for any length of time, and how long each day, and whether they were accustomed to move their freight trains backward and forward across the highway for any space of time each day. This was objected to, and the testimony ruled out by the court.</p> <p>Another ground relied upon by the plaintiff was, that the flagman at the crossing was a careless and intemperate person, and for that cause unsuitable to be employed in that capacity, and it appeared that he had since been in the house of correction as a common drunkard. The defendants denied that the flagman was an intemperate person, and, for the purpose of showing that he was not so while in their employ, asked different witnesses, against the objection of the plaintiff, whether, during a series of years, when they had often been at the crossing, the flagman was attending to his duty, and whether they ever saw any indication of intemperance in his conduct, and if he appeared to be a man competent to his place. These questions were asked witnesses not as experts or having any peculiar skill.</p> <p>Merrick, J., instructed the jury that the defendants had a right to use the track where it crosses the public highway, to make up their trains in, or to shift their cars, in the usual pursuit of their business, provided it was done in a reasonable manner, and they did not delay the public thereby for any unreasonable length of time; that the sole question for them, in relation to this part of the case, was, whether they delayed the plaintiff’s intestate unreasonably or unnecessarily, in this instance; and the juiy could not, upon this question, regard the habit of the defendants at any other time or occasion in making up their trains and unnecessarily obstructing the highway.</p> <p>The court further instructed the jury, that if the defendants did not on this occasion conduct the train with due care, and did thereby unreasonably obstruct the highway, still, to enable the plaintiff to recover, she must show that her intestate himself used due care, that is, such care as a man of ordinary prudence and discretion ought to use in such circumstances, not such care as men of ordinary prudence and discretion might sometimes use, under like circumstances, to avoid the obstructions of the highway, because such persons sometimes do or may act carelessly ; that, no matter how long the defendants obstructed the highway, if the plaintiff’s intestate attempted to cross over the train between two freight cars shackled together, while it was in motion from the force of the engine attached thereto, as a matter of law, this was not the use of due care, and the plaintiff could not recover for any injury received by him while so attempting to cross over the train.</p> <p>A verdict was returned for the defendants, and the plaintiff alleged exceptions.</p>

Tort for damages sustained in consequence of an attack by a dog upon the plaintiff’s horse.

<p>Tort. The plaintiffs described themselves as all the officers in commission in company A of the fifth regiment of third brigade of second division of Massachusetts militia. The original declaration averred that the defendants broke into and entered by force the premises of the plaintiffs, describing them, used and occupied by the plaintiffs for their armory, and for other purposes, and took and carried away seventy three muskets, seventy three bayonets, and various other military equipments, the property of the plaintiffs.</p> <p>A count subsequently added averred simply the forcible ta • king and carrying away and conversion of the articles before named.</p> <p>The defendants answered separately. Stone in his answer denied, upon his personal knowledge, each and every fact and allegation in the declaration, and, for further answer, said that he was at the time of the alleged trespass the adjutant general of the Commonwealth; that company A, referred to in the declaration, had been previously disbanded by order of the commander-in-chief according to law; that the plaintiff Proctor, who had been theretofore in commission as captain commanding said company, had been duly ordered according to law to return to the adjutant general all the muskets and other equipments furnished to said company by the Commonwealth, but that said Proctor refused so to do; that thereupon the commander-in-chief ordered him, the said Stone, to take possession of said property, and to have the same removed to the state arsenal in Cambridge; that, agreeably to said order, he, in his official capacity, did cause seventy muskets, and various other military equipments, (which, in the enumeration, were somewhat less than the number averred in the declaration,) embraced in said order, to be removed from the room occupied by said company as an armory, and to be disposed of according to the said order. He further answered that the room used by the plaintiffs as an armory was furnished by the Commonwealth through the agency of the mayor and aldermen of Lowell, as a place of deposit for the arms and equipments furnished to said company by the adjutant general according to law; that the rent and expenses thereof were and had been paid by the Commonwealth; that said Stone notified the mayor and aldermen of Lowell of said order, and of his purpose to execute the same by entering said room; and that they assented to and concurred in all his acts.</p> <p>Ambrose Lawrence, the other defendant, in his answer to the original count denied that the property mentioned was the property of the plaintiffs, and denied the conversion. In his answer to the additional count, he denied that he took or converted to his own use any of the articles therein named.</p> <p>The plaintiffs demurred to the answers, assigning as cause that they did not state a legal defence to plaintiffs’ declaration. The demurrer was overruled, and the plaintiffs appealed.</p>

Three actions of tort for obstructions to a right of way. The .following facts were agreed: Thomas B; Wales and others, trustees, under whom both parties claimed, conveyed to P. S. Briggs the whole of lot No. 43 on Monument Square, Charlestown, with the right to use a certain private passage way over the adjoining lots, Nos. 42 and 41, to Chestnut Street.

Petition for certiorari, directing the county commissioners of the county of Middlesex to produce their records in the matter of the application of the Fitchburg Railroad Company for an abatement of taxes assessed on said company by the city of Charlestown for the year 1859. The list of taxable property furnished by the company to the assessors was as follows: “ To the Assessors of the City of Charlestown.

<p>Contract for cash paid for board of the defendant’s horse at New York, and commission for services in selling him for the defendant, and expenses incurred in transporting him to New York, where he was sold. The defence relied upon was accord and satisfaction.</p> <p>At the trial in the superior court it appeared that the defendant employed the plaintiff to sell the horse, and that the parties met at New York, where the plaintiff had taken the horse to sell. There was conflicting evidence on the point whether the defendant gave the plaintiff authority to exchange the horse for another; the plaintiff testifying that he had general authority to dispose of the horse in any way he thought proper or expedient, and the defendant, on the other hand, testifying that he gave no authority except to sell. It was also proved that, some two months after the interview, the parties again met in Bos ton ; and that the plaintiff then explained to the defendant that he, the plaintiff, had exchanged the horse for an interest equa. to one half in value in another horse known as “Jack Potter,” the other half of which belonged to the plaintiff himself. The value of Jack Potter did not distinctly appear; but it appeared that he was a noted trotting horse, and was highly esteemed by the plaintiff and others.</p> <p>The defendant was not satisfied with this report, and brought an action against the plaintiff, which led to another interview at an attorney’s office.</p> <p>The defendant still declining to accept an interest in Jack Potter, the plaintiff finally consented to pay and did pay $400, and took a receipt from the defendant’s attorney in full of all demands. The present action was commenced shortly after this transaction. There was conflicting evidence on the point, whether the defendant’s attorney demanded a receipt and whether the plaintiff refused to give one.</p> <p>Ames, J., ruled, upon this evidence, that even if the plaintiff had full and general authority to dispose of the defendant’s horse as he thought fit, whether by sale or exchange; and if, in pursuance of such authority, he had exchanged the horse for a share in another horse, he was bound to render an account of his doings to the defendant; and if, on being so called to account, he had as a final payment delivered to the defendant any sum of money, which the defendant had received with the belief and understanding at the time that the money so paid was in full for all that he was to receive on that transaction, the legal presumption would be that the plaintiff’s commissions, expenses and services in the same transaction were included and considered in the settlement, or kept back by the plaintiff at the time; and that, in this state of facts, the burden of proof would be on the plaintiff to show that those commissions, expenses and services were understood by both parties to be excepted and reserved out of, or not included or considered in, the settlement; and that if the plaintiff did not disclose or make any such claim at the time of settlement, the jury might presume that it was waived or provided for and paid by value in his hands, not paid over to the defendant.</p> <p>The jury found for the defendant, and the plaintiff alleged exceptions.</p>

<p>In an action for deceit, a declaration which alleges that the representations made were well known by the defendant to be untrue, is not supported by proof simply that the defendant had reasonable cause to believe that they were untrue.</p>

Petition for partition. At the hearing in this court it appeared that the land in question was devised to the heirs at law of William Hemmenway; and the principal question in issue was, whether the petitioner was his son. Certain evidence, which is stated in the opinion, was offered to prove the illegitimacy of the petitioner, and rejected by Merrick, J., and the respondents alleged exceptions.

Complaint under the bastardy act, instituted before S. L. Plummer, a justice of the peace. The papers were entered in the superior court by him, and he appeared therein as attorney of record for the complainant, though not as counsel at the trial. On motion made after .the case was opened to the jury, Ames, J dismissed the action, and the complainant alleged exceptions.

<p>An award absolute and unconditional in its terms may be accepted, independently of another award, made by the same arbitrators and returned at the same time, respecting other matters in dispute between the same parties, no mutual dependence between the two being shown.</p>

Submission to arbitrators under Rev. Sts. c. 114. An award was duly made and returned to the court of common pleas, which was afterwards recommitted for a further hearing; but, the arbitrators having refused to hear the parties anew, or to act under the order of the court, the award was set aside in the superior court by Ames, J. with costs for the defendant and the plaintiff alleged exceptions.

<p>Tho insolvency of the demandant in a real action, and the assignment of his estate under the insolvent laws, after the commencement of the action, can only be pleaded in abatement, at the first term after the assignment.</p> <p>An insolvent debtor, who has commenced a real action before his insolvency, and after-wards purchased the land from his assignee, and taken a deed thereof, may prosecute the same to final judgment in his own name, if no plea in abatement has been filed.</p>

<p>Tort for entering the plaintiff’s dwelling-house, and removing his furniture and ejecting his family therefrom. The defendants proved, in justification, that the defendant Galvin, being the owner of the premises, conveyed them by deed to the othei defendant Carney, and that, eight days before the acts com plained of, Carney informed the plaintiff thereof, and gave him notice to quit. At the trial in the superior court Rockwell, J directed a nonsuit, and the plaintiff alleged exceptions. The facts appear more fully in the opinion.</p>

Contract for use and occupation. The plaintiffs were the heirs at law of Patrick Flood, and the defendant was his illegitimate son. At the trial in the superior court the plaintiffs introduced evidence tending to show that the defendant occupied the tenement in question for some time before his father’s death at a specified rent, and that he continued to occupy the same for four months after his father’s death.

<p>tool to St. 1859, c. 127, a discharge in insolvency was no bar to a claim for the rent 01 a dwelling-house occupied by a debtor and bis family, if such claim had not been proved against his estate.</p>

<p>Tort against the standing justice of the police court of Lowell, and the city marshal, a police officer, and the deputy jailer, all of Lowell, for assault and battery in committing the plaintiff to jail on a warrant issued upon a judgment of conviction against him for violation of the city ordinance against allowing cows to stop and feed in the public streets. The facts, which were agreed, are stated in the opinion.</p>

<p>A testator, after devising to his wife all the income of all his real and personal property during her natural life, devised to five of his children as follows: “ all the property both real and personal that may be left at the death of my wife, to be divided equally between the last five named children. And provided, furthermore, that if any of the last five named children die before my wife, then the property to be equally divided between the survivors.” Held, that the children named took vested remainders.</p>

<p>In a suit in equity, in which the plaintiff alleges that a mortgage given by him is now held by the defendants as devisees of one who was employed in his lifetime by the plaintiff as an agent to procure a discharge thereof, but fraudulently took an assignment of the same to himself, the plaintiff is not a competent witness, under Gen. Sts. c. 131, § 14, to prove the fraud.</p>

<p>Contract to recover back a school district tax. At the trial in the superior court it appeared that the town of Dunstable was regularly and lawfully divided into school districts in the year 1846 ; that the first meeting of the defendant district was regularly called upon application to and warrant from the selectmen of the town, and at the said meeting, under the following article in the warrant, namely, “ To see if the district will prescribe the mode of calling all future meetings of the district,” it was voted that “ the clerk shall call all future meetings by posting a warrant on the school-house in said district ”; that, at all subsequent meetings of the district, the return of the clerk upon the warrant stated that he had “ notified and warned the freeholders and other inhabitants of School District No. 5 in Dunstable, qualified to vote in town affairs,” &c.; but it did not in any instance appear from his return, or from any evidence in the case, what notice was in fact given, or whether any copy had been posted on the school-house; nor was there any article in the application to or warrant from the selectmen to see if the district would prescribe the mode of warning all future meetings, or any meetings of the district, or in any manner relating to or contemplating the subject or mode of warning meetings. There was no vote of the district after the first meeting, prescribing by whom or in what manner all or any of the future meetings of the district should be called, or in what mode such meetings should be warned.</p> <p>At a school meeting in 1856, warned in the manner above described, and under a proper article in the warrant, a vote was passed to raise $350 to build a school-house in said district, and afterwards, at an adjournment of the same meeting, $50 was added for the same purpose; and this action was brought to recover back the amount assessed upon the plaintiff in pursuance of that vote.</p> <p>It also appeared that the plaintiff was called upon for payment of the tax by the collector, who had a tax bill and warrant in the form prescribed by law, and, at the time of paying the tax, declared that it was illegal, and that he paid it intending to have it back if he could get it.</p> <p>Upon this evidence, with other evidence not material to the decision, Ames, J., instructed the jury that the tax was illegally assessed; and that if paid upon compulsion, and not voluntarily, the plaintiff was entitled to recover it back with interest. A verdict was returned for the plaintiff, and the defendants alleged exceptions.</p>

<p>Writ of entry. The tenant Alvah Austin was the administrator of Henry Austin, through whom both parties claimed title. At the trial in the superior court there was evidence tending to prove the following facts.</p> <p>Henry Austin executed a deed of the premises to Abijah Aus tin, dated April 19 1854; recorded September 23 1854. Abijah Austin executed a bond and mortgage back the same day. This mortgage having been burnt, a new mortgage was executed on the 1st of October 1854, to replace it; the date of the execution and acknowledgment of the new mortgage being antedated to correspond with that of the former mortgage. The condition of the second mortgage was as follows:</p> <p>“ Provided, nevertheless, that if the said Abijah Austin, his heirs, executors and administrators shall from time to time, and at all times hereafter, during the natural life of the said Henry Austin, well and sufficiently maintain and keep, or cause to be well and sufficiently maintained and kept, the said Henry Austin and Betsey his wife, with meat, drink, clothes and all other things necessary and convenient for them, or either of them, in sickness and in health, then this deed, and also a bond or obligation of the same date with these presents, given by the said Abijah to the said Henry, in the penal sum of one thousand dollars, conditioned to maintain the said Henry and Betsey, as above mentioned, shall both be void, otherwise remain in full force and virtue.”</p> <p>In October 1854 Abijah Austin ceased to furnish any support to Henry Austin or his wife, and left the premises in possession of Henry Austin, who continued to occupy them until his death in March 1857; and some time thereafter the administrator took possession, claiming to hold under the bond and mortgage. Abijah Austin executed a quitclaim deed to the plaintiff, dated May 18 1857. Stephen Huse commenced a suit against Henry Austin, October 23 1855, and attached his real estate, and afterwards obtained judgment and levied his execution oh a part of the premises, and subsequently executed a deed thereof to the demandant. The demandant objected that the defence could not be maintained, because the condition of the mortgage was personal to Henry Austin and his wife, and she, although alive, made no claim to the land; and because the mortgage was not executed till long after its apparent date; and because it was never delivered. The tenants introduced evidence tending to prove that the new mortgage was executed for the express purpose of replacing that which had been burnt, and was left with Ira Hall for Henry Austin; and that afterwards Henry Austin, on being informed that a new mortgage had been so made out and deposited, gave his assent. But it was proved that he did not, in his lifetime, ever see the new mortgage; and there was no evidence to show that he knew that it was antedated. It was not claimed that there was any fraudulent design in the antedating of the mortgage on the part of any of the persons concerned.</p> <p>A question also arose at the trial whether the bond which the mortgage was given to secure could be waived or discharged by paroi; but, upon the facts in evidence, this question became immaterial.</p> <p>Rockwell, J., instructed the jury, that, if “ Abijah Austin left the premises in 1854, without, after that, doing anything for the support of his father and mother, leaving his father Henry Austin in possession, and if Henry continued in possession until his death, and if Abijah never again entered into possession, and if Alvah, the tenant, after his appointment as administrator, went into open and peaceable possession under the bond and mortgage, and continued in possession until the present action was commenced, having taken possession for the purpose of foreclosure, though not having complied with the statute requirements for that purpose, he can now set up this defence; that if on April 19 1854, Henry conveyed the premises by deed to Abijah, and at the same time Abijah made and delivered to Henry the bond and mortgage, and between April 19 1854, and October 1 1854, Henry had burnt the mortgage, and on said October 1 1854, Abijah had, in good faith, on the part of said Henry and himself, executed and acknowledged a duplicate, substantially, of the original mortgage, for the sole purpose of replacing the original, and to put the title as it was before the original was burnt, although such duplicate was dated April 19 1854, and the acknowledgment was also dated the same day, the transaction might be explained by paroi testimony; and if the testimony introduced should satisfy them that Henry, knowing that it was executed and left for him at Ira Hall’s, with the bond, consented to receive it there, and had assented to its delivery there in good faith, the jury were authorized to find a valid delivery to him, although he suffered it to remain there, with the bond, till his death, and the bond and mortgage could not afterwards be waived or released by paroi; that, as to the title claimed to be acquired by the demandant through Stephen Huse, the demandant cannot hold the land under that title, as against the deed from Henry Austin to Abijah of April 19 1854, the same having been recorded prior to Huse’s attachment, unless the demandant goes farther and proves that the deed of April 19 1854, from Henry to Abijah, was fraudulent and void as against the creditors of Henry.”</p> <p>The jury returned a verdict for the tenants, and the demand-ant alleged exceptions.</p>

<p>The purchase of a mortgage by the owner of the equity of redemption does not operate as a merger of the two titles if there is an intervening right.</p> <p>The purchaser of an equity of redemption of mortgaged premises made a second mortgage thereof, and, while the mortgage so made by him was outstanding, took an assignment of the first mortgage, which he shortly afterwards re-assigned to a third person. Held, that the existence of the second mortgage at the time of these assignments prevented the merger of the first mortgage.</p>

<p>A verdict in a real action in this form, “ The jmy find for the plaintiff and assess the damage in the sum of dollars,” is sufficient.</p> <p>It is within the discretion of the court, after a verdict for the demandants in a real action, to allow an amendment by striking out the name of one of the demandants who, with her husband, is named as claiming a share of the premises in her right, but who in fact died before the date of the writ, and by inserting a claim by the husband to hold her share as tenant by the curtesy.</p> <p>The death of one of the persons named as demandants before the date of the writ is no cause for an arrest of judgment, since St. 1852, c. 312, § 22.</p>

Tort for the conversion of wood cut upon land to which the defendant asserted title by possession, acquired by his late father, Jonathan Parker, and himself. It was proved at the trial in the superior court that the .land in controversy was a wet swamp which could not be passed over by teams, and that it had never been used by either party except for the growing of wood.

Contract on the covenants against incumbrances in a deed. The plaintiff, under an order of the superior court, filed a specification setting forth that the incumbrance relied upon by him was a right of way which was held by several persons who were named, including one Hastings, whose Christian name was unknown. The defendants moved for a more specific statement, but the court refused to order it.

Contract on a promissory note given in settlement of the plaintiff’s account as general agent and cashier of the defendants in carrying on for them the lumber business in Michigan. The defendants relied upon a failure of consideration, and filed, by order of court, a specification of the particulars in which the settlement was claimed by them to be erroneous.

<p>An officer’s return upon a notice by a poor debtor of his intention to take the oath prescribed by statute for his discharge, cannot he questioned in an action upon a recognizance entered into by the debtor upon his arrest.</p> <p>Under St. 1857, c. 141, § 4, justices of the peace and of the quorum have no jurisdiction to act in the examination and discharge of poor debtors, if any of the other officers named therein can he conveniently found.</p>

Contract upon an account and note. The defendant was a married woman, living with her husband Obed Simonds; and the plaintiff sought to charge her, under the statute, on the ground that she was carrying on the business of keeping boarders on her own account, and that the debts sought to be recovered were incurred by her in said business, the note having been given for a balance of account.

<p>A husband who has deserted his wife and family without cause, and furnished no adequate means for their support, is liable for household supplies reasonable and proper for their ordinary use, and actually used by them, although the wife receives the earnings of two daughters who live with her; and the question whether supplies furnished to her, which come within the class of necessaries, were actually reasonable and proper, is for the jury under the circumstances of each particular case.</p>

Contract. The first count was for money received by the defendant to the plaintiff’s use.

Contract. The declaration alleged that Martha Hay recovered a judgment against George W. Grover, one of the defendants^ in the court of common pleas; that Grover petitioned for a review; that he as principal, and the other defendants as sureties, executed to Hay a bond, a copy whereof was annexed; that, after due proceedings, the petition for review was finally dismissed, and costs taxed in favor of Hay; that the judgment was not reversed, and is still in force; that Hay has…

<p>Contract to recover seventy five cents for carrying the de fendant from Lowell to Boston. The following facts were agreed in the superior court: The defendant while travelling as a passenger in the plaintiffs’ cars from Lowell to Boston, March 21 1860, being asked by the conductor for his fare, presented a ticket issued by the Vermont Central Railroad Company, dated March 16 1860, on which the words “ Good for this trip only ” were printed in black ink as a part of the ticket, and the words “ Good only two days after date ” were stamped upon its face in red ink; but the conductor refused to receive the same, because the time named upon it had expired. During that month of March an arrangement existed between the Boston and Lowell Railroad Company and the Vermont Central Railroad Company and the intermediate railroad companies, by which each of them might sell through tickets over the whole continuous line of railroad formed by their several railroads, and by which each was bound to carry over its road the persons holding such tickets, provided the same were presented within the times lim ited thereon. On March 16 1860, the defendant, being in Vermont, purchased at one of the stations of the Vermont Central Railroad Company a pass through to Boston, consisting of four tickets, each for a part of the distance, and one of which was the ticket above described, entitling the bearer to be carried from Nashua, N. H., to Boston. The defendant used these tickets as far as Lowell, which he reached on March 17, and stayed there until March 21, when he continued on to Boston, and presented one of the same tickets to pay his fare over the plaintiff’s road. Upon these facts Rockwell, J., gave judgment for the defendant, and the plaintiffs appealed.</p>

<p>A widow who is entitled to dower in her husband’s lands, subject to a mortgage executed in his lifetime, in which she joined to release dower, may maintain a bill to redeem against the mortgagee, although in the same bill she improperly seeks to have her dower set out to her. And in such bill she may join as a co-defendant one who, after the execution of the mortgage, purchased her husband’s interest in the land.</p>

Replevin of a cow, impounded by a field driver, as going at large.

<p>If a declaration is inserted in a writ before service, no addition to it can afterwards be made except by leave of court or by consent of the defendant.</p> <p>Under one item of charge, as follows: “ To goods sold, materials found, and work done,” only one particular subject matter of charge can be proved.</p>

<p>After verdict for a demandant, a motion for a new trial on the ground that the verdict was against evidence, and that the facts which his whole evidence tended to prove were insufficient in law to authorize the verdict, is addressed to the discretion of the court, and to its decision no exception lies.</p>

<p>Scire facias against an indorser of a writ. At the trial in the superior court the plaintiff introduced a deputy sheriff as a witness, to prove declarations of the defendant in reply to a demand upon him by the witness for payment of the execution for costs in the original action. These were objected to on the ground that whatever took place should appear in the officer’s return, and could not be proved by oral testimony; but Vose, J. admitted them. No proof was offered of an arrest of the judgment debtor on the execution, or that the execution was ever returned into the clerk’s office. The officer’s return, however, showed that he had made diligent search for goods and estate of the judgment debtor, and for his body, but could find neither; and that he had demanded of the defendant money or goods to satisfy the execution. Under the instructions of the court the jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>No exception lies to the refusal of a judge of the superior court to recommit an auditor’s report.</p> <p>An auditor’s report is prima facit evidence of the correctness of the accounts stated therein, but either party may impeach it by proof that a greater or less sum is due than it allows; and a witness called by a party who seeks to impeach it may be asked if he testified before the auditor.</p> <p>Non-joinder of defendants is matter of abatement only.</p> <p>The extent to which the re-examination of a witness may be carried, on matters not testified of in cross-examination, is within the discretion of the court; and to its decision no exception lies.</p>

Contract for the price agreed to be paid to the plaintiff for a wooden building sold by him and one Boddy, by a bill of sale conveying all their right, title and interest therein to the defendant. At the trial in the superior court there was conflicting evidence as to whether certain defects in the title were disclosed fully to the defendant before the sale, and also as to whether Kerr and Boddy had any title at all to the building at the time of the sale.

Tort for the conversion of two undivided third parts of certain hay, straw, corn fodder and corn stalks.

<p>Under Gen. Sts. c. 133, § 32, a sewing machine of less than one hundred dollars in value, and necessary for carrying on the trade or business of the debtor, was exempt from attachment.</p>

Tort for the default of a deputy sheriff. The following facts were agreed: The defendant was the sheriff of Middle-sex county, and in August 1855 John Costigan, having brought an action of replevin against the present plaintiff, delivered the writ to S. B. Page, a deputy of the defendant, by whom it was regularly served, with the exception that no penal sum was ever inserted in the replevin bond. The goods were appraised at $48.50, and this was their real value.

<p>Contract upon an account annexed. The answer set up payment, and an account in set-off; but at the trial in the superior court the defendant stated, and by leave of court entered upon the docket, that he relied upon payment and not upon set-off. The defendant for several years past has lived in Essex county, and never lived, or had a place of business, in Middle-sex. The items of the plaintiff’s account having been proved, the defendant introduced in evidence, under objection, the record of a judgment of the police court of Lowell in favor of Lemuel Page and others against the plaintiff, and the defendant as trustee, rendered December 21 1859, with the execution which issued thereon, dated December 24 1859, and the officer’s return upon the execution showing that he, within thirty days, by direction of the plaintiff, received of the trustee therein named a promissory note, payable to Page and others, for $17.62, being the amount of funds in the trustee’s hands. No bill of particulars was filed with the writ in the action of Page and others against Dole and trustee, but one was filed after the entry and before judgment. Both Dole and Boutwell objected, in that action, to the jurisdiction of the court, on the ground that the supposed trustee did not dwell or have his usual place of business in Middlesex; but the trustee afterwards filed a general answer.</p> <p>The defendant also introduced in evidence, under objection, an order drawn upon him. by the plaintiff for $16.12, in favor of one Wright, upon which the defendant had given his note to Wright, which was accepted in payment of the order.</p> <p>Upon this evidence Rockwell, J., instructed the jury that the record was a good defence against the plaintiff’s ‘ claim to the amount of $17.62; and that the order was a good defence to the further amount of $16.12; whereupon a verdict was returned for the plaintiff, for the balance due upon his account annexed after deducting those sums, and he alleged exceptions.</p>

<p>Under the city ordinances of Lowell, prescribing the duties of the city solicitor, he is entitled to recover against the city for services rendered by virtue of his office, without special employment, as assistant counsel, in the preparation and trial of a case of flowing land in which the city was one of numerous complainants, and for services in drafting exceptions and reports of cases; but not for examining records, and making a report of the business of his office to the city council.</p>

<p>Contract on account annexed. Answer, 1, that the articles sued for were furnished to the defendants as a military company of which the plaintiff was commander; 2, set-off. The plaintiff thereupon offered to discontinue as to all of the defendants who had not been defaulted; but, objection being made, this was not allowed. At the trial in the superior court the defendants relied solely upon the first ground stated in the answer, and a. general verdict was returned in their favor. Ames, J., ruled that the defendants were entitled to full costs, to which ruling the plaintiff excepted.</p>

<p>In an action by the indorsee against the maker of a promissory note, if the payee is dead, the defendant is incompetent to testify, under St. 1857, c. 305, but the plaintiff is competent; and St. 1859, c. 230, § 2, does not apply to such a case.</p>

Contract. At the trial in this court the plaintiff offered to prove that heretofore the defendants had duly issued to George W. Gerrish a policy of insurance on his brick dwelling-house in Chelsea, which policy, with the consent of the defendants, had been assigned to her as mortgagee; that a short time before the policy expired, the president of the company made an oral agreement with Gerrish to renew it, making it payable in case of -loss to the plaintiff as mortgagee;…

Contract upon a policy of insurance issued by the defendants to the firm of M. &. J. Ricker, of whose estate the plaintiffs are assignees in insolvency. The answer denied that the plaintiffs had given notice and made proof of loss, according to the bylaws, by which the assured were bound.

<p>An application by a mortgagee in possession for insurance “on dwelling-house,” which contains no direct question or statement as to his title, but, in reply to a question as to incumbrances, states as follows: “ First mortgage to M. W. (the name of the plaintiff), entered October 1855 ”; and, in reply to a question whether the property is insured, states as follows: “Not on first mortgagee’s interest”; does not disclose such a want of true representation of the title of the applicant as to avoid the policy, although the by-laws require him to state his true title.</p> <p>A notice to an insurance company claiming for a total loss of a wooden dwelling-house, without mentioning the stonework and bricks which were left unconsumed, is a sufficient compliance with a by-law which requires the insured, in case of partial loss, to state the amount of damage done, and the value of such parts as remain.</p>

<p>If an application for insurance is expressly made a part of the policy, and a warranty on the part of the insured, and contains a clause inserted after the printed questions by which the applicant “ covenants and agrees with said company that the foregoing is a correct statement and description of all the facts inquired for, or material in reference to this insurance,” and the by-laws, which are also expressly made a part of the policy, provide that u unless the applicant for insurance shall make a correct description and statement of all facts required, or inquired for in the application, and also all other facts material in reference to the insurance, or to the risk, the policy issued thereon shall be void,” the applicant must be held to warrant that all facts inquired for are correctly given, whether material or not; and the omission to mention several buildings within one hundred feet of the property insured, in reply to a question, “ What is the distance of said building from other buildings within one hundred feet, and how are such other buildings constructed and occupied ? Annex a ground-plan to the application ; ” will avoid the policy.</p>

<p>Contract upon a policy of insurance. At the trial in the superior court, before Rockwell, J., a verdict was returned for the plaintiffs, and the defendants alleged exceptions. The facts are stated in the opinion.</p>

<p>A mortgage is a material alteration in the ownership of property insured; and, under a bylaw of an insurance company which provides that “ all alienations and alterations in the ownership, situation or state of the property insured by this company, in any material particular, shall make void any policy covering such property, unless consented to or approved by the directors in writing within thirty days,” will avoid a policy issued “under the conditions and limitations expressed in the by-laws,” unless so consented to or approved.</p>

Writ of entry. At the trial in the superior court, the demandant introduced in evidence the record of a suit commenced by him on the 30th of March 1854, against William F. Osgood, under whom both parties claim title, in which he attached the land in controversy, recovered judgment, and levied his execution thereon.

Contract upon a promissory note. At the trial in the'superior court, evidence was introduced in defence, that since the date of the note the parties had entered into an agreement submitting to the determination of arbitrators a certain specified demand of the defendant against the plaintiff, “ and all other demands whatsoever”; and that an award thereon had been made, accepted and paid.

<p>Tort, for damages to land entered upon and taken by the defendants for their railroad. The defendants justified the taking under their act of incorporation, St. 1847, c. 269, and the acts in addition thereto, and it was admitted that, if they had a right under their charter to enter upon and take the land in question, their mode of proceedings in so doing was regular. Si. 1847, c. 269, § 2, is as follows: —“ Said corporation is hereby empowered to locate, construct and maintain, with one or more tracks, a branch railroad, commencing 'at some point near the village of Northborough; thence running to a point near the centre village of Southborough; thence to connect with any branch of the Boston and Worcester Railroad, near the centrevillage of Framingham; and such branch railroad, on its way from said point, near the village of Northborough, to such pain near the centre village of Southborough, shall be required t< pass to the north of the house of Willard Newton, Esquire in the southerly part of Marlborough; provided, a feasible route shall be found therefor with grades not exceeding forty two feet to the mile, and which can be constructed at a cost, per mile, not materially exceeding the average cost per mile of the residue of the railroad hereby authorized.” St. 1853, c. 185, § 2, contained a provision as follows: — “ the said corporation are hereby authorized to construct their railroad in sections.” At the trial in the superior court, it appeared that the general direction of the road, as originally located by the defendants under these statutes, would leave the village of Marlborough and the house of Willard Newton to the north, but on approaching these places a curve was made by which a point north of Newton’s house was reached, from which the road, by an acute angle, was continued to Southborough; and that afterwards, a spur was constructed northerly from the point of this angle to the village of Marlborough, a distance of about a mile and one half, passing over land of the plaintiff. Upon this evidence Morton, J. ruled that the defendants were justified under their charter in locating their railroad in the manner described, and were not liable in this action. A verdict was thereupon taken for the defendants, and the plaintiff alleged exceptions.</p>

<p>Contract to recover back moneys paid for taxes assessed upon the plaintiff, as a resident of Stoneham, for the years 1856, 1857 and 1858.</p> <p>At the trial in the superior court it appeared, that in the years 1856 and 1857 one sixth of the state tax in that town was not assessed upon the polls; and that, at the annual town meeting in March 1858, the plaintiff was chosen as one of the selectmen of the town, and it was voted that the selectmen should also be the assessors; and the plaintiff was sworn, with the others, as selectman and assessor. At the same meeting the selectmen were requested to present to the town, at an adjourned meeting, an estimate of the probable expenses of the town for the year, and the meeting was adjourned to the first Monday of April A warrant was also issued afterwards for another and distinct town meeting on the first Monday of April, and contained an article to see if the town would appropriate the sum of $100 to celebrate the national Independence, and under this article that sum was appropriated accordingly. After this meeting was dissolved, the adjourned meeting was held, and the plaintiff, in behalf of the selectmen, presented an estimate of the probable expenses of the town for the year, amounting to $7900, which included the sum of $100 for the celebration of the national Independence; but he was unable to testify whether this item was particularly mentioned to the town; and there was no other evidence upon this subject. The town voted to raise the sum so presented by the selectmen. At the same meeting two additional selectmen were chosen, and were sworn both as selectmen and assessors ;■ and the plaintiff, and one of those chosen at the meeting in March, resigned their offices, and the other three acted alone for the remainder of the year, and assessed the taxes.</p> <p>Upon these facts Rockwell, J., directed a verdict for the plaintiff for the full amount of the taxes paid, and the defendants alleged exceptions.</p>

<p>Under Rev. Sts. c. 24, § 13, county commissioners have final jurisdiction of the question whether a highway which crosses a railroad shall be laid out over, under, or on a level with it.</p> <p>In a deed to a railroad company of land covering only a portion of the width of their location, a reservation to the grantor and his assigns of the right to make a crossing over the land conveyed, to a new street on the opposite side of the railroad, creates an easement in the land conveyed, but does not confer a right of way over other land of the company, to the street referred to; and the deed is admissible in evidence to affect the estimate of damages for .laying out a highway over the land, only to the extent of the easement created. And evidence of the occasional use of the land for a crossing by the grantor’s assigns is inadmissible.</p> <p>In estimating the damages sustained by a railroad company by the laying out of a highway across their railroad, the jury have no right to take into consideration any supposed future benefit to them from a probable increase of business in consequence of the establishment of the new highway; and evidence of payments of money by them for accidents at their several crossings, and of the comparative profit of the travel over their railroad from South Reading to Boston, and that from beyond Lawrence and Haverhill is inadmissible.</p>

Contract, commenced by a writ dated April 4 1859, signed and issued by William Barnes of Marlborough in the county of Middlesex, as justice of the peace for said county, and made returnable before him April 16 1859. The parties appeared on the return day, and, after a trial, judgment was rendered for the plaintiff, and the defendant appealed to the superior court.

<p>Tort. The declaration averred that the plaintiff was a deputy sheriff, qualified and authorized to serve civil process; that the defendant Francis Hemsley, being a partner in business with the defendant Cropper, negotiating under the firm of Hemsley & Cropper, on the account and in behalf of the firm and for the benefit of the same, procured a writ of replevin for certain goods and chattels to be made in the name of Frederick A. Belby against Joseph Butterfield, returnable to the court of common pleas; and also, on account and in behalf and for the benefit of the firm, procured a replevin bond in the penal sum of $1200, to be made in the case, and signed by Belby as principal, and Joseph Prince as surety; that Hemsley also signed the bond as a surety ; that he then and there declared to the plaintiff that the firm was worth property and able to pay whatever might be recovered upon the bond, and that his signature upon the bond bound the firm, and that he was authorized by the firm to bind it as a surety upon the bond by his signature alone; that he then delivered the writ and the bond to the plaintiff, and requested him to serve the same according to law; that the plaintiff, relying upon the declarations of Hemsley, and being ignorant as to the responsibility of Belby and Prince, thereupon, at Hemsley’s request and for the benefit of the firm, served the writ, and replevied the goods and chattels therein specified, and returned the writ into court; that, after the service of the writ, and solely by means thereof, the goods and chattels replevied came into the possession of the firm, and were disposed oi by Hemsley & Cropper for their own use and benefit; that afterwards Butterfield recovered judgment against Belby for a return of the goods replevied, with damages and costs, and execution issued thereon, but was never satisfied by Belby, and no return of the goods was ever made; that Hemsley did not by his signature bind the firm, as he falsely declared to the plaintiff, and that, by reason thereof, the sureties on the bond were insufficient; and that the plaintiff has been compelled to pay the judgment recovered by Butterfield, and the value of the goods replevied, and has suffered other damages.</p> <p>The defendant Hemsley was defaulted; but Cropper demurred to the declaration, assigning for causes: 1st. That it was not alleged that Hemsley was authorized by this defendant, or by the firm of Hemsley & Cropper, to make the declarations set forth, or that this defendant in any way became bound thereby, or responsible therefor; 2d. That it was not alleged that Hemsley was authorized by this defendant, or by the firm of Hemsley & Cropper, to bind the firm by the signature of Francis Hemsley to the bond, or that the firm ever did business under the name of Francis Hemsley.</p> <p>At the hearing upon the demurrer, in this court, the questions arising thereon were reserved and reported by Hoar, J. for the decision of the whole court.</p>

<p>The sureties on the bond of the treasurer of a manufacturing corporation, the condition of which provides for his faithful discharge of the duties of the office 61 during the time for which he has been elected, and for and during such further time as he may continue therein by any re-election or otherwise,” are liable only for defaults during his continuous holding of the office.</p>

<p>Three actions of tort for injury to the health of the several plaintiffs, occasioned by the flow and escape of gas from a main pipe of the defendants, laid down in Middlesex Street in Lowell, through a sewer and drain into a tenement occupied by the plaintiffs. The cases were tried together in this court, before Merrick, J.</p> <p>At the trial it appeared that the plaintiff, Aaron Hunt, occupied as a tenant at will one of a block of wooden tenements on Jackson Street in Lowell, which leads from Middlesex Street, and that the other plaintiffs, Edwin R. Hunt, his son, and Annis, a boarder, lived with him; that the defendants had a main pipe laid in Middlesex Street, for the purpose of distributing illuminating gas throughout the city, in accordance with the provisions of their charter; that, at the time complained of, there were two large sewers in the same street, which were built by the city, with loose stones; and that there was a private drain, covered with uncemented flat stones, and built after the defendants had laid their gas pipe, leading from Aaron Hunt’s cellar to one of these sewers, and a sink spout leading from the kitchen into the drain in the cellar. It was contended by the plaintiffs that the gas escaped from the main pipe in Middlesex Street into one of the large sewers, and thence passed through the drain and up the sink spout into the kitchen. There were no gas pipes in the tenement. There was evidence that the smell of gas was first discovered in the kitchen on the evening of January 27 1857, and that it came from the drain in the cellar in the way described ; that the smell spread through the whole house, and that the family slept with the windows open; that Aaron Hunt afterwards sprinkled choride of lime about the house, but did nothing more, except to keep the windows and doors open ; that the smell of gas began to diminish in ten or twelve days, but did not wholly disappear for several weeks; that Aaron Hunt was taken ill about one week after the first discovery of gas in the house, and that Edwin R. Hunt and Annis became ill about the 13th of February. The plaintiffs were allowed to introduce evidence, under objection, that before the influx of the gas they and the other members of the family were in good health, and that afterwards they all became ill, and a daughter of Aaron Hunt died. The plaintiffs were also allowed to introduce in evidence the deposition of William Bass, a physician, which was objected to by the defendants, on the ground that sufficient notice had not been given to them of the time and place of taking it. The notice appeared, by the return of the officer, to have been given on the 26th of March, the hour of service not being stated; and the time of taking the deposition was fixed at two o’clock in the afternoon of the next day. The defendants appeared and cross-examined the witness, but made objection to proceeding under the notice, and stated in writing that they did not intend to waive any objection to the notice on account of its insufficiency.</p> <p>It further appeared in the case that neither the plaintiffs, nor any one in their behalf, ever notified the defendants that there was gas in the house; and the defendants introduced evidence to show that they were wholly ignorant that there was any gas there, or that any members of the family were ill. They also introduced evidence tending to show that, as soon as they had knowledge of a leak in their main pipe, they immediately commenced examining for it, and used all reasonable means in their power to ascertain where it was; that the street was paved with stone, and was deeply frozen, so that they were obliged to build fires upon the surface to thaw the paving stones from the ground; that after several days’ labor they discovered the leak, at a point more than three hundred feet from the house, and immediately stopped it; that their pipe was of a suitable and proper kind, and properly laid; that leaks in gas pipes are sometimes caused by the effects of heat and cold, and in other ways, and that it is not practicable to make them so that they will always continue tight; that the smell of gas will not pass through frozen ground, and it is very difficult to find a leak in winter, as it can be traced only by the smell, and will pass along under frozen ground until it can find an outlet; that the sink spout and drain in the house occupied by the plaintiffs were not closed up; that in other tenements, where the defendants had been informed of the smell of gas, they had advised and taken precautions to prevent annoyance from it, and that in some cases the closing of the spout had bee'n sufficient for this purpose.</p> <p>The defendants also offered evidence to show that the sickness of the plaintiffs was typhoid fever; that prior occupants of the house in question had been afflicted with much illness of that class; that many families had removed from it on that account ; that its location was low and upon made land; and that it was generally regarded and reported to be unhealthy: but the evidence was excluded.</p> <p>The defendants contended that they were not liable even if the illness of the plaintiffs was caused by the escape of gas into the house from the sewer and drain, which were not under the control of the defendants, but of the plaintiffs; and because they had no knowledge that the plaintiffs were suffering from the effects of gas, or that there was gas in their house.</p> <p>The presiding judge instructed the jury, amongst other things not excepted to, that, there being no evidence of defective con struction of the defendants’ pipes, they must use due diligence in stopping the leak which accidentally occurred, or in prevent ing the flow of gas into the plaintiffs’ house; that, if they knew that gas was escaping in that neighborhood, they were bound to take care, by the use of due diligence in making repairs, that it should not get into the plaintiffs’ house; that the plaintiffs were not obliged to give notice to the defendants that the gas was escaping into their house, and the want of such notice was not evidence of a Want of due care on their part, but that the questian of due care was' to be determined by the jury upon all the evidence in the case; and that the plaintiffs, in order to exercise due care on their part, were not obliged to leave their house, although they knew that the gas of the defendants, being a noxious substance, was escaping into it and injuring their health; but of this the jury were to judge upon all the evidence in the case.</p> <p>The jury returned a verdict for each of the plaintiffs, and the defendants alleged exceptions.</p>

<p>Tort against the sheriff of Middlesex county, for the default of his deputy.</p> <p>The declaration averred that the plaintiff, having claims against William Stoddard, commenced an action against him by writ returnable to the court of common pleas, “ as by the record of the same writ, in the same court remaining, more fully appears; ” and took the requisite steps to authorize his arrest, and delivered the writ for service to Philip V. Thomas, a deputy of the defendant, and that Thomas accordingly arrested Stoddard and had him in custody, but afterwards voluntarily' permitted him to escape.</p> <p>At the trial in the superior court, the plaintiff, without objection. introduced, from the files of non-entries of writs in the office of the clerk of the court, the original writ in the action of the plaintiff against Stoddard, which was never entered in court. The defendant objected that the present action could not be maintained, because the plaintiff did not enter his action against Stoddard; but Rockwell, J., overruled the objection. The defendant then objected to the maintenance of the present action, on the ground of a variance between the proof and the averment of the declaration in reference to the former action, and contended that, inasmuch as the writ was not entered in court, it could not be a matter of record, or appear of record; but this objection was also overruled.</p> <p>The plaintiff introduced evidence tending to show that Thomas, while having the writ against Stoddard in his possession, found him at the railroad station in Groton Junction, in Middlesex county, and took hold of him, informing him that he had a writ for his arrest in favor of the plaintiff, and that, unless it was settled, he must take him to Lowell; that Stoddard replied that he would not go, and ran a few rods in the station, when he was caught by Thomas; that the two then walked upon the platform of the station for several minutes, by the side of a train of cars, and, just as the cars started, and while they were moving, Stoddard sprang upon the train and entered one of the cars, and was instantly pursued by Thomas, who caught him by one of his wrists; that, after entering the car, they both moved as fast as they could towards the other end of it from tho o in which they entered, Stoddard leading the way and Thomas following; that there was much excitement among the passengers, and some children were knocked down and run over, and one man arose from his seat and stepped between the two, and held out his hand before Thomas, but the evidence did not show whether he actually took hold of him or touched him; and there was no evidence that Stoddard yielded to Thomas, or submitted to arrest, while in the car, but it did appear that, either by his unaided exertions, or by the assistance of some person, he wrenched away his wrist, and continued his flight through and out of the car, and jumped upon the ground, followed by Thomas, while the train was running at nearly or quite full speed, and escaped. There was no evidence that Thomas at any time, either in the railroad station or in the car, called upon any of the persons present to help him arrest or secure Stoddard.</p> <p>The defendant requested the court to instruct the jury that Thomas was not bound to call for assistance in arresting Stoddard ; but the court declined so to rule, and instructed them that, as Thomas had power to call for aid, he should have done so, if, in his opinion as a prudent man, there was need of it.</p> <p>The defendant also requested the court to instruct the jury that he was not liable for the escape of Stoddard into the railroad car, if, on instant pursuit, Thomas retook him into custody ; but the court declined so to rule, and instructed them that, if Stoddard was arrested in the station, and by the negligence of the officer got away from him into the railroad car, and, after being again taken hold of, he was, by overpowering the officer, or by the interference of others, enabled to escape, the defendant would be liable.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>The refusal by executors to account for large sums of money received by them as general business agents of their testatrix, more than twenty years before her death, which were left unaccounted for in two settlements with her in her lifetime, and the fact that almost her whole estate consists of debts due from the executors, are insufficient causes for their removal, as evidently unsuitable for discharging their trust, under Rev. Sts. c. 63, § 7.</p>

<p>Information filed January 15 1861, by the attorney general, for the removal of the respondent from the office of district attorney of the Suffolk district, and based upon Gen. Sts. c. 112, § 4, which authorizes a majority of the justices of the supreme judicial court, on bill, petition or other process, to remove district attorneys and other officers therein named, if sufficient cause is shown therefor, and it appears that the public good requires it; and provides for a summary hearing thereon. The. information was as follows:</p> <p>“ To the Honorable the justices of .the supreme judicial court now holden at Boston, within the county of Suffolk and for the Commonwealth of Massachusetts.</p> <p>“ Be it remembered that, on the fourteenth day of January in the year one thousand eight hundred and sixty one, Stephen Henry Phillips, the attorney general of the commonwealth, comes into court here and gives this honorable court to be informed that, having been directed by his excellency John Albion Andrew, governor of the commonwealth, to inquire into the condition of George W. Cooley, the district attorney of the commonwealth for the Suffolk district, and to proceed thereon as the interests of the commonwealth and public justice may require, upon due inquiry he finds that, by a derangement and enfeebling of the intellect, the said George W. Cooley has been rendered unable to perform any of the duties of his said office for the space of more than three months now last past, and that there is no reasonable ground to hope that he will ever be restored to such a condition as will enable him to perform the duties of his said office, and therefore that his longer continuance therein is likely to embarrass the administration of public justice.</p> <p>“ And the said attorney general further informing showeth unto your honors that it is necessary to the welfare of this commonwealth and the citizens thereof that all its officers should severally perform the high and important functions assigned them by the constitution and laws with promptness and efficiency, and that whenever, by reason of age or infirmity, they are unable so to do, they ought to retire to private life, that their places may be filled by new appointments.</p> <p>“ And the said attorney general further informing showeth unto your honors that, in and by the statutes of this commonwealth, district attorneys, as well as other public officers therein specially named, may be! removed from office by a majority of the justices of the supreme judicial court upon bill, petition or other process, if sufficient cause is shown therefor, and it appears that the public good requires such removal.</p> <p>“ Wherefore the said attorney general further informing shows that sufficient cause does exist for the removal of said George W. Cooley, and that the public good requires the same; and he prays that this honorable court, after due notice given, and a hearing of such proofs as may be exhibited to them, will be pleased to cause said George W. Cooley to be removed from the office of district attorney of the said commonwealth for the Suffolk district; and that the process of this honorable court may also forthwith issue requiring said Cooley, or such person as this court may order to appear in his behalf, to appear at a time and place therein to be named, to show cause, if any there is, why said Cooley should not be removed as aforesaid.</p> <p>“ Stephen H. Phillips, Attorney General.”</p> <p>An order of notice was issued for the respondent to appear on the first Monday of February, and show cause why the prayer of the information should not be granted, and was duly served upon him in the McLean Asylum for the insane in Somerville, in which he was confined, as appeared by the return thereon made by the superintendent of the asylum, who was specially appointed to make the service; and the case came up for a hearing on the 4th of February 1861.</p>

<p>An assessment for a quarter of a year, made by the water registrar under the direction of the water board of Boston, at the rate of two cents for each one hundred gallons of water used in a hotel in Boston, the daily consumption of which, as measured by a water-meter placed therein under the provisions of the city ordinance, exceeds 10,000 gallons a day, ia legal; although water-meters have been put into only a portion of the hotels in Boston, and although the assessment, if made according to the provisions of the city ordinance applicable to hotels into which no water-meters have been put, would have amounted to only about one fourth as much.</p>

<p>Proof of a conditional contract by the defendant to pay the plaintiff at the rate of five hundred dollars a year for his services in buying and selling old metals, payable by dividing the net profits of the sales until the plaintiff’s share should amount to that sum, with a provision that, if at any time he thought that his share was not likely to be so much, he might leave the work, will not support a declaration upon an absolute contract by the terms of which the plaintiff was to work one year, and the defendant was to pay him at the rate of five hundred dollars a year, payable whenever asked for.</p>

<p>It is too late for a defendant to object for the first time in the superior court to the service of a writ upon him in an action brought originally in the justices’ court in Boston, in ' which, after a default was there entered against him, he appeared at the taxation of costs and appealed from the clerk’s taxation, and finally, upon its affirmance by the court, entered a general appeal from the judgment there rendered against him.</p>

<p>An unrecorded mortgage of personal property, which is not delivered to and retained by the mortgagee, is not valid against the assignee in insolvency, of the mortgagor.</p>

<p>Contract on a covenant to pay taxes, in a lease running for one year, from September 20 1857. The case was tried in the superior court, before Allen, C. J., without a jury, by consent of parties. It there appeared that the plaintiff hired the demised premises of H. H. Hunnewell, the owner, by a lease for years, which bore the same date and was in the same form as the lease from the plaintiff to the defendant; that the taxes for 1857 and 1858 were assessed to Hunnewell, and paid by him; and that the plaintiff has not paid to him the taxes assessed in 1857, but has paid to him those assessed in 1858. The other material facts appear in the opinion. Upon the whole case the chief justice adjudged that the plaintiff could not maintain bis action, and the plaintiff alleged exceptions.</p>

<p>A purchase of goods which are designated and set apart by the seller, and paid for, and a part of which are actually removed by the purchaser’s order, is sufficient to vest the property in the purchaser, as between the parties, although he has never seen the goods.</p> <p>A bill of sale of gunny cloth, specifying the invoice weight, is not a warranty that the actual weight is substantially the same with the invoice weight; and evidence that such is the understanding among dealers in that article in Boston is inadmissible.</p>

<p>The discharge of the trustee in an action under St. 1844, c. 148, § 2, in which mortgaged personal property is attached, and the mortgagee summoned as trustee, vacates the attachment of the property and entitles the mortgagee to possession thereof.</p> <p>If an action of replevin is defeated solely by reason of its being prematurely commenced, judgment for a return of the goods replevied will not be ordered.</p>

<p>Appeal from the judgment of the superior court, against the defendant, on charges of fraud filed against him under Rev. Sts. c. 98, upon his application to take the poor debtors’ oath. The facts are stated in the opinion.</p>

<p>The tenant in a real action cannot introduce paroi evidence to control an absolute deed, of the demanded premises, given by him.</p> <p>Under Gen. Sts. c. 115, § 6, a judge of the superior court has no authority to report questions of law arising in that court for the decision of the supreme judicial court, except after verdict.</p>

<p>Tort against a deputy sheriff for poultry attached as the property of Otis E. Bowen.</p> <p>At the trial in the superior court, there was evidence tending to show that the plaintiff was owner of the poultry in question; that he had sent it from his residence in Vermont, in boxes addressed to his brother, Otis E. Bowen, who was a commission merchant in Boston; that it was put in the store of Otis E. Bowen, separate and apart from other goods; that on Saturday next after Thanksgiving day in 1858, at about half past nine o’clock in the forenoon, the defendant attached all the goods in the store, including the boxes of poultry, on a writ against Otis E. Bowen, and put a keeper in charge thereof. The defendant testified that, at the time when the attachment was made, Otis E. Bowen informed him that some of the goods in the store did not belong to him, but did not mention whose they were; and the defendant did not ask which goods they were, but did inquire to whom they belonged, and was answered, “ You will find that out soon enough.” The keeper was called as a witness by the defendant and testified that, immediately after the defendant had left the store, Otis E. Bowen told him that the boxes of poultry in question belonged to his brother in Vermont.</p> <p>There was also evidence tending to show that the brothers had arranged that morning to remove the poultry to a railroad depot, for the purpose of sending it by the noon train of cars to Need-ham, to freeze it, and then bring it into market again to be sold; that, at about eleven o’clock in the forenoon, the plaintiff went to the store, pointed out his property to the keeper, and demanded it of him for the purpose of removing it, as arranged; that the keeper refused to let him have it; that the plaintiff replied that he should sue for it; that he immediately commenced this action, and refused afterwards to have anything to do with the poultry; and that the keeper held control of all the property in the store until about half past one o’clock, at which time Otis E. Bowen deposited with the officer a sum of money suffi cient to secure the demand in the writ.</p> <p>Upon this, and other evidence in the case, Putnam, J, in* structed the jury that, if the defendant took the goods of the plaintiff on the writ, and put them in the charge of a keeper, and kept them, exercising control and dominion over them inconsistent with the rights of the plaintiff, this was in law a conversion, without a demand and refusal; and further instructed them, by consent of the parties, to find specially whether there Was a demand and refusal in clear terms; and that such demand need not be made upon the defendant personally, but might be .made upon the keeper who had the property in his possession and charge.</p> <p>The defendant then requested the court to instruct the jury as follows: 1. If the plaintiff had property in the store of Otis E. Bowen, consigned for sale, with no marks to indicate that it was his property, then, before he could maintain this action, he must notify the defendant of his title and ownership, point out his property, demand the same, and give the defendant a reasonable opportunity to ascertain his title, especially if the property had upon it the name of Otis E. Bowen. 2. Proof of a demand upon the keeper is insufficient, provided the plaintiff might readily have found the defendant. 3. If the court rules that a demand upon the keeper is sufficient, then enough time must elapse before suit to enable the defendant reasonably to satisfy himself of the plaintiff’s title.</p> <p>The court declined to give the first and second instructions requested, but, as to the third, instructed the jury that, if a demand upon the defendant was necessary, the defendant should have a reasonable time to satisfy himself of the plaintiff's title.</p> <p>The jury returned a verdict for the plaintiff, and found specially that there was such a demand and refusal as the plaintiff claimed. The defendant alleged exceptions.</p>

<p>The Suffolk Bank is chargeable as trustee of a bank whose money it holds on deposit, subject to be withdrawn fifteen days after notice, free from interest, as consideration for receiving its foreign money deposits, although such notice has not been given.</p>

<p>Contract upon a promise by the defendant to pay the plaintiff fifty four dollars for his services in procuring the settlement of a suit against the defendant. At the trial in the superior court, before Brigham, J., a verdict was returned for the plaintiff, and the defendant alleged exceptions. The case is stated in the opinion.</p>

<p>A forfeiture for usury must be ascertained judicially upon an issue between the parties, before it can be applied to the reduction of the debt so as to affect the title of the lendei to property held by him for collateral security.</p>

<p>Under Gen. Sts. c. 115, § 12, questions of law arising upon appeal, by bill of exceptions, reserved case or otherwise, except questions arising in cases in equity pending in this court, cannot be entered in this court until after the final adjournment of the court for the term in which the questions arose.</p>

Scire facias against an attorney at law, as indorser of a writ.

The appeal was entered in the superior court at October term 1860; and, no answer having been made or issue joined, as required by St. 1838, c. 163, § 4, the appellant moved for a default, but Allen, C. J. overruled the motion.

<p>Contract to recover of the owners of the bark Laroy for services as first officer thereof, and certain expenses. At the trial in the superior court, before Vose, J., a verdict was returned for the plaintiff, and the defendants alleged exceptions. The facts are stated in the opinion.</p>

Contract by a minor on a promise to pay for labor on the defendant’s wall.

<p>Tort for forcibly entering the plaintiff’s office, and removing therefrom a movable partition. The bill of exceptions, signed by Brigham,, J., stated that the evidence on the trial in the superior court showed that the plaintiff held the premises either as a tenant at will or by sufferance of Richardson, one of the defendants ; and the act complained of was an entry by the other defendant, Mason, and an attachment by him, as an officer, of the property in question upon a writ in favor of Richardson. A verdict was rendered for the plaintiff, and the defendant alleged, exceptions.</p>

<p>Contract for poultry sold and delivered. The case was re ferred by rule of court, and the referee returned his award in favor of the plaintiff. He also, by request of the defendant, reported the facts proved before him, by which it appeared that on the 3d of November 1859 the parties met, and the plaintiff executed to the defendant the following writing : “ Plattsburgh, Nov. 3 1859. Received of George Towns fifty dollars to buy poultry, to be delivered at Burlington at ten dollars per hundred, less by the expenses from this shop. Thomas Delaney.” The referee stated that he found from the evidence that the defendant agreed to purchase all the poultry which the plaintiff" would deliver to him at Burlington, Vermont, before the 19th of November 1859, and to pay ten cents a pound therefor; and that, the plaintiff accordingly furnished poultry before that date to the value of $379.95, which was accepted and partially paid for by the defendant, and that there remained due as the balance of account the sum of $159.95. In the superior court, Putnam, J, ordered judgment on the award, and the defendant appealed.</p>

Tort for injury to the plaintiff’s horse from immoderate driving.

<p>A denial in the answer of each and every allegation in the declaration, except certain specified averments, which are admitted, makes it incumbent on the plaintiff to prove all his material averments except those which are thus admitted.</p>

<p>The burden of proof is upon the plaintiff, who sues as indorsee of a negotiable promissory note, to show a consideration between the promisor and payee, or to show that he received it before maturity, for a valuable consideration, in good faith; and, although the note itself, with proof of its execution, is prima fade evidence upon both points, the burden of proof does not shift upon the defendant.</p> <p>The denial by a defendant in his answer of each and every allegation in the plaintiff’s declaration makes it incumbent on the plaintiff to prove the execution and indorsement of a note which he has declared on as indorsee.</p> <p>Proof that the indorsee of a promissory note which is indorsed in blank, who received it from other indorsees, knew at the time of receiving it that they were and had been engaged in the illegal sale of spirituous liquors, taking notes in payment, is not sufficient to nut him upon inquiry as to the consideration.</p>

<p>In an action for damages sustained from tide-water, which escaped into the plaintiff's cellar from premises which were under a lease for years, with a stipulation that the lessee should make repairs, the lessor is not rendered responsible for the negligence of his lessee in leaving open for repairs a drain which- communicated with a sewer, through which the tidewater came, by telling him, when informed of the need of repairs, to do what was necessary and he would pay a specified sum therefor.</p>

<p>In an action to recover for various items of work, if the only question in dispute is whether the work was done for the defendant or for a third person, the plaintiff’s books of account are inadmissible to prove that exclusive credit was given to the defendant.</p>

<p>Tort to recover for personal injury sustained by reason of a defective highway. At the trial in the superior court, it appeared that the highway in question was defective, and was one which the defendants were bound to keep in repair, and that the plaintiff was in the employment of the city as a special police officer, appointed to aid in preserving order on the evening of July 4 1858, and that he, using due care, received the injury complained of while actually engaged in that duty. Lord, J. ruled that the relation existing between the parties would not prevent the plaintiff from recovering ; and, the jury having returned a verdict for the plaintiff, the defendants alleged exceptions.</p>

Contract upon an agreement in writing setting forth that the plaintiff had conveyed to the defendant and F. A. Houghton two undivided third parts of certain letters-patent owned by him, and that, in consideration thereof, they had agreed to employ him as their agent, until the letters-patent should be legally established or invalidated, to sell the articles manufactured under the same, at the rate of one hundred dollars a month ; but that they afterwards refused so to employ…

Contract on the following agreement: “ Whereas I, Thomas Blanchard of Boston, in the Commonwealth of Massachusetts, am the inventor and patentee of a certain machine for turning and cutting irregular forms, and have under a renewal of said patent licensed certain parties to use and run a certain number of said machines within the states of Maine, New Hampshire, Rhode Island, and that part of Massachusetts which lies east of Connecticut River, for the purpose of turning…

Contract on a paroi agreement made by the defendants in New Hampshire, in July 1853, to sell and deliver to the plaintiff fifty cords of wood, at $3.75 a cord.

<p>An open, peaceable, exclusive and adverse possession of land, by means of tenants, for eleven years, under a claim of title in fee known to the defendant, is sufficient to support an action against one who only claims a right of way therein, for digging holes and inserting posts in the soil, and erecting a barrier before the plaintiffs’ doors aud windows.</p>

<p>The plaintiff and defendant each had claims against C«, who lived abroad. C.’s agent hero delivered to the defendant a draft for more than enough to satisfy his claim, taking back a written agreement for the repayment of the excess after the draft was cashed, and the excess was accordingly so paid. Before the defendant received the draft, a third person informed him that the plaintiff had written to C. to transmit to the defendant money sufficient to pay both their claims. The plaintiff offered evidence that he did so write to 0., and that C. sent money to his agent here, requesting him by letter to pay it to the defendant to cancel the plaintiff’s claim. There was no evidence that the defendant was informed of this. After evidence of demand and refusal, Held that an action for money had and received to the plaintiff’s use could not be sustained.</p>

Contract to recover a legacy of one hundred dollars, alleged to be due to the female plaintiff from the defendant, as executor of the last will and testament of her father, Peter Sanborn.

Contract against the indorser of a promissory note made by Charles Mann and payable to the plaintiffs. The answer averred that the indorsement of the defendant was obtained by fraud and false representations; and that Charles H. Blanchard, one of the plaintiffs, for the purpose of inducing the defendant to indorse the note, stated to him that Charles Mann was in good circumstances, whereas in fact he was in failing circumstances, which the plaintiff Blanchard well knew.

<p>No action lies to recover the price of milk sold hy the can, at wholesale, in cans not sealed according to 8t 1859, c. 206, § 4, although the state sealer refused to seal them for the statute price.</p>

<p>Two actions of contract on promissory notes, both payable in twelve months after date to the order of the Western Insurance Company, and indorsed to the plaintiff. The cases were tri.d and argued together.</p> <p>At the trial in the superior court, it appeared that the notes were given for premiums on two policies of insurance issued to the defendants by the Western Insurance Company, of Philadelphia; that this company had not complied with the requisitions of the statutes concerning foreign insurance companies, and that the defendants were citizens of Massachusetts.</p> <p>In respect to the manner in which the insurances were effected, John G. Hall, one of the defendants, testified that he procured the policies, which he produced, of Oliver Brewster, at his office in Boston ; that, when received, they bore upon them the words, which still appeared thereon, “ Oliver Brewster, Insurance, No. 4 State street, Boston ”; that he had known Brewster as engaged in the insurance business for many years; that he made application to him for the insurance; that Brewster then had several insurance signs in his office, among which was one of the Western Insurance Company, Philadelphia; that the defendants did not employ Brewster as their agent, or pay him anything for commissions or services; that, when the application was made, Brewster said he would put a certain sum in the Western Insurance Company, and certain sums in other offices, and represented that the standing of that company was good; and that, in a few days, he sent to him the policies. The witness further testified that, before the above transaction, Brewster sent to the defendants, requesting them to meet the president of that company at his office, and the witness went, and met a Mr. Norris, who was introduced as the president of the com pony, and who stated that the company was in good standing, and had a capital of $50,000, and desired the witness to give them his business.</p> <p>Oliver Brewster testified that - his business was that of an insurance agent; that the policies produced were procured through him; that he received the applications and forwarded them to the company; that they were returned to him executed, with the premium notes in blank; that the notes were filled out and signed in his office; and that he had procured other policies of this company for citizens of Boston, to the number, perhaps, of fifty. Upon cross-examination, he further testified that his manner of doing business for the company was as follows: he forwarded applications, and, if the company accepted the risks, they returned policies executed, with blank premium notes, which were signed and returned by him to the company, and the policies were delivered. The witness was asked by the plaintiff if he was an agent of the company, and replied that he had no power of attorney from them; and, upon being further pressed, said that he did not consider himself as their agent, and that he was not their agent; that he sent them business, which was transacted by correspondence, and that he had nothing to do with the acceptance or refusal of risks, or the rates of premium, or the conditions and terms of the policies, and had no authority to make any change in them; that he used no discre tian of his own in the matter; that he did not examine risks, but that this was done by a marine inspector; that, whenever he had done anything in cases of loss, the average was made up by an adjuster, and forwarded by him to the company; that he generally informed applicants what the rate of premium would be; and that he received from the company a commission of five per cent, on the premiums passing through his hands, but no compensation from the applicants.</p> <p>There was also testimony as to the circumstances under which the notes were indorsed to the plaintiff, not necessary to be reported.</p> <p>The plaintiff requested the court to instruct the jury that, if the notes were indorsed by the company to him, before maturity, as collateral security, the defence that the consideration was illegal would not be open to the defendants, even though the debt for which they were pledged had been paid since the commencement of the suits ; and that, if this defence was open, yet the facts testified to did not constitute a violation of St. 1856, c. 252, or render the notes invalid.</p> <p>But Allen, C. J., declined so to rule, and instructed the jury that, if the notes were indorsed to the plaintiff before their maturity, bond fide, for a good consideration, and were now so held by the plaintiff, the defence would not be open that they were originally given in contravention of the statute concerning foreign insurance companies, and it would be their duty to return a verdict for the plaintiff; but, if the notes were indorsed without consideration, or as collateral security for a debt which was afterwards paid, then they should inquire further, whether the company did the business out of which the notes arose, within this commonwealth and in contravention of the statute, and the burden of proof of this was upon the defendants; that it would not be a violation of the statute to issue policies to citizens of this commonwealth who should apply directly or indirectly to the office, provided the business was not done within this com monwealth ; as, for instance, to receive applications and return policies by express ; but, if Brewster in this transaction was doing business as agent for the company in this commonwealth, and they had not complied with the requisitions of the statute, and the indorsement of the notes to the plaintiff was without consideration, or as collateral security for a debt which was afterwards paid, they should return a general verdict for the defendants.</p> <p>The court requested the jury, in case they should find for the defendants, to be prepared to answer the following questions 1. Was there any consideration for the indorsement of the notes to the plaintiffs ? 2. Was Brewster doing business in this commonwealth, as agent of the company, in violation of the statute concerning foreign insurance companies, as explained to them by the court?</p> <p>The jury returned a verdict for the defendants, and replied to the first question put to them in the negative, and to the second in the affirmative; but, through misapprehension, the answer to the second question was recorded in the negative; and the plaintiff moved for a new trial, because of uncertainty in the verdict; but the court overruled the motion.</p>

<p>Tort for the erection of a dwelling-house with bay-windows projecting so as to overhang the plaintiff’s land. The following facts were agreed:</p> <p>In 1811, John Amory, being the owner of a number of lots on Common Street, now Tremont Street, in Boston, and of a passage way on the south side thereof, which separated them from other land owned by him, conveyed one of the lots to John T. Apthorp. by a deed of warranty, the material portions of which are copied in the margin.* The defendant now owns the title thus conveyed ; and the plaintiffs own the title left in Amory to the passage way south of the lot conveyed, and the land on the other side thereof. Upon the plan the lines of the several lots, and of the two passage ways referred to, are marked out. The passage way in dispute leads from Common Street easterly, along the south line of the lot conveyed to Apthorp, until it connects with the other passage way in the rear. In 1859, the defendant took down a house then standing upon his lot, and erected a new one, the outer walls of which stand upon the same lines as those of the former house, and built bay-windows projecting over the passage way, and of sufficient height above it not to interfere with the passage of vehicles. If, upon the tone construetion of the deed from Amory to Apthorp, and the foregoing facts, the plaintiffs are entitled to recover, judgment shall be entered for them for one dollar damages and costs; otherwise for the defendant, without costs.</p> <p>Upon the above agreement, judgment was ordered in the superior court, by Brigham, J., for the plaintiffs, and the defendant appealed to this court.</p>

<p>A party to a judgment cannot be permitted to impeach it collaterally, in equity, by proof of mistake or fraud in the rendition thereof.</p>

Tort for assault and battery. At the trial in the superior court, the plaintiff introduced evidence tending to prove that while he was removing a fence which had been erected on his wife’s land without leave, the defendant made an assault upon him, and shook and beat him.

<p>Contract to recover contribution from the defendant as joint indorser with the plaintiff of a promissory note paid by the plaintiff.</p> <p>At the trial in the superior court, before Vose, J., a verdict was returned for the plaintiff; and the defendant presented a bill of exceptions to the presiding judge, setting forth that the plaintiff testified that he paid the note; that the defendant indorsed it jointly with him, for the accommodation of the payee; that it was given in renewal of a former similar note, being the ninth of a series of such renewed notes, beginning in 1854; that at each renewal the plaintiff had received commissions from the maker, a share of which had been demanded three times by the defendant, but never paid by the plaintiff; and that the plaintiff offered in evidence his books of account, for the purpose of showing the amount of commissions so received by him, and also an extract or memorandum, said to have been made by counsel from the books, both of which were objected to by the defendant, and excluded by the court; that the defendant, in reply, testified that he made no agreement with the plaintiff to be jointly liable with him on the note, but that he indorsed the same as second indorser, at the plaintiff’s request; and that the note had been renewed from twelve to eighteen times, the plaintiff receiving at each renewal a commission, guaranty and bonus; that the plaintiff’s counsel argued to the jury that this paper would show the accuracy of the plaintiff and the inaccuracy of the defendant, and that, as there was a direct contradiction between the two, it would tend to substantiate the general accuracy of the plaintiff’s testimony; that the judge instructed the jury that, if they found for the plaintiff, one half of the amount received by him for commissions, &c. on the note should be deducted from one half of the amount paid by him and interest, and their verdict should be for the remainder; that, when the jury retired, the plaintiff’s counsel endeavored to give to them the paper before mentioned, but the defendant’s counsel prevented him from so doing, and that, after they had been out some time, they sent an officer for the paper, and it was sent to them by the judge, in the absence and without the consent or knowledge of the defendant’s counsel, the plaintiff’s counsel being present and furnishing it for the purpose.</p> <p>These exceptions were disallowed by the presiding judge, and the defendant presented his petition to this court for leave to establish their truth, and a commissioner was appointed to take the evidence in support of them, and to report the same to the court. The commissioner reported that, after the introduction of testimony, it was agreed by the plaintiff’s counsel that the allegations in the bill of exceptions were true.</p>

Contract on a recognizance taken under St. 1857, c. 141, concerning imprisonment for debt, with condition that the defendant Randall, who had been arrested on an execution in favor of the plaintiff, should, within ninety days from the time of his arrest, deliver himself up for examination, giving notice as theréin provided, and making no default, and abide the final order of the magistrate thereon.

<p>Contract on a recognizance taken under St. 1857, c. 141, concerning imprisonment for debt, with condition that the defendant Willis, who had been arrested on an execution in favor of the plaintiff, should within ninety days from the time of his arrest deliver himself up for examination, giving notice as therein provided, and making no default, and abide the final order of the magistrate thereon. At the trial in the superior court, it was agreed that the recognizance was entered into before John Cod-man, a master in chancery for the county of Suffolk, and, within the time limited therein, Willis delivered himself up for examination to William J. Hubbard, another master in chancery for the same county, by whom a notice to the creditor was issued, and the oath for the relief of poor debtors was administered to him. The notice to the creditor was served by Harum Merrill, who was then, and for a long time had been, an acting constable of the city of Boston, appointed by the mayor and aldermen, and had given a bond running to the city treasurer for the faithful discharge of the duties of the office.</p> <p>Upon these facts judgment was ordered for the defendants, and the plaintiff appealed to this court.</p>

<p>Contract on a recognizance taken under St. 1857, c. 141,-concerning imprisonment for debt, with condition that the defendant Emery, who had been arrested on an execution in favor of the plaintiff, should within ninety days from the time of his arrest deliver himself up for examination, giving notice as therein provided, and making no default, and abide the final order of the magistrate thereon. At the trial in the superior court, upon the admitted facts, Vose, J., ruled that the plaintiff was not entitled to recover, and a verdict was returned for the defendants. The plaintiff alleged exceptions. The facts are stated in the opinion.</p>

<p>A. executed a deed of trust, authorizing the trustee to receive certain moneys, and directing him to invest a portion thereof in an accumulating fond, and containing the following clause: “ At my decease to pay over so much of said accumulated fund to the trustee under the will of my late husband as may be necessary to make the value of the property in hands of said trustee equal to the present value of $146,000.” In fact, at the time this deed was made, the value of the property in the hands of the trustee under the will was less than that sum. Held, that the trustee under the deed should pay over to the trustee under the will enough to make the value of the property in his hands equal to $146,000.</p>

<p>Contract. The defendant was defaulted, and the only question was whether Hiram Emerson, the trustee, should be charged for certain funds in his hands claimed by George A. Fiske, the claimant, who was admitted under the statute as a party to the suit. The following facts were agreed in the superior court.</p> <p>In July 1857 the defendant, a merchant residing in Texas, made a settlement with his creditors in Boston, by which they agreed to accept their respective proportions of the proceeds of certain acceptances deposited by him with Loring, Fiske & Co., a firm of which the claimant was a member, in full of their claims against him. In the following September, Loring, Fiske & Co. failed, and subsequently dissolved their partnership and went into insolvency, and each partner obtained his discharge; and the claimant retained the acceptances deposited by the defendant, for the execution of the trust undertaken by his firm, and collected a portion thereof. Before the failure of Loring, Fiske & Co., they held a note against the defendant which was not included in the settlement made in July, and which they negotiated to Oliver Ames & Sons, who afterwards, in March 1858 sold it to the claimant. On the 18th of May 1858 the defend ant addressed to Loring, Fiske Si Co. a letter, as follows:</p> <p>“ Gentlemen: On the 10th July 1857 I made a settlement with Mr. W. Montgomery, as agent for my Boston creditors, by paying him J. C. Shaw’s drafts on Messrs. Powell & Ruthven of this city. All my paper was delivered to me by Mr. Montgomery, except two notes due Messrs. Parsons, Cutler Sc Co., who authorized him by letter to settle their claim against me, amounting to $1303.10, including interest to that date. Montgomery gave me a receipt against the notes (a copy of which I inclose). Since then, Montgomery and myself have written to the house to return the notes. They have failed to do so, up to the present time, which has caused the forfeiture of their contract with me. I do not know who controls the drafts, but you do, I suppose. You are hereby authorized to receive the pro rata amount coming to them (or was to come), and place the same to credit of my note in your favor that was not included in said settlement. You will also please advise me of the amount they have received, and have it credited on my notes in their favor.”</p> <p>Parsons, Cutler & Co. were among the creditors of the defendant included in his settlement, but they subsequently refused to assent to the arrangement. On the 26th of July 1858 the claimant, at the request of the other creditors of the defendant, delivered to Emerson, the trustee, the sum of $2224.36 in money, collected by him upon the above trust, and the remainder of the acceptances in his hands, taking back a receipt and agreement, as follows:</p> <p>“ Boston, July 26th 1858. Received of George A. Fiske twenty two hundred and twenty four 36-100 dollars in cash, and five of Powell & Ruthven’s acceptances, amounting to thirty one hundred and forty four 8-100 dollars ($3144.08), in full settlement of the claims of Dana, Farrar & Hyde ; Plympton, Stevenson & Co.; Sweetser, Gookin & Co.; Israel Nash & Co.; Emerson, Cochrane & Co.; Greenough, Cook & Co.; Converse, Harding & Co.; and the balance due Parsons, Cutler & Co. ($550.54) ; against J. H. Le Pert, of Richmond, Texas, the above having been left with Loring, Fiske & Co. for collection by the above creditors of J. H. Le Pert. Hiram Emerson Witness, William Montgomery.”</p> <p>“ Boston, July 26th 1858. Having received of George A. Fiske sundry acceptances of Powell & Ruthven, Galveston, Texas, amounting to thirty one hundred and forty four 8-100 dollars ($3144.08), I hereby agree, on payment of said acceptances, to pay George A. Fiske, or his order, the sum of five hundred and fifty 54-100 dollars ($550.54), that amount being a balance due Parsons, Cutler & Co., from the above acceptances, on account of J. H. Le Pert, and by said Le Pert ordered to be paid to said Loring, Fiske & Co., as per said Le Pert’s letter to Loring, Fiske & Co., dated at Galveston, May 18 1858. Hiram Emerson. Witness, William Montgomery.”</p> <p>Emerson collected all the acceptances, and paid the various creditors named in the receipt, except Parsons, Cutler & Co., and had remaining in his hands on the 2d of February 1859, the time of the service of the process upon him, the sum of $640.54.</p> <p>Upon these facts Vose, J. ordered judgment for the claimant for $550.54, and interest from the date of the writ; and that the trustee be charged for the balance in his hands; and the plain tiff appealed to this court.</p>

<p>The rule that paroi evidence is not admissible to vary or control a written contract is not affected by St. 1857, c. 305, which allows a party to call the opposite party as a witness.</p>

<p>The superior eourfc has power at the trial of a cause to allow a magistrate to amend the cap* tian of a deposition taken before him and returned into court, although the deposition has been read, under objection, at a hearing of the cause before an auditor.</p>

<p>Contract upon a promissory note, signed upon its face by H. M. Reed, bearing upon its back the name of the defendant, payable in ten months from date to the order of Joshua Hobart, and indorsed by Hobart to the plaintiffs. The answer set up a material alteration of the note after the defendant’s name was put upon it, by the addition of the words “ with interest,” but it was not alleged, or contended at the trial, that this alteration was made with fraudulent intent. At the trial in the superior court, Putnam, J., ruled that, even if the fact set up in the answer were proved, the plaintiffs were entitled to recover the amount of the principal, with interest after the expiration of ten months, and a verdict was returned accordingly. The defendant alleged exceptions.</p>

Contract to recover back moneys paid for taxes assessed upon the plaintiff as a resident of Boston, for the years 1857 and 1858. ' In the superior court, the case was submitted upon a statement of facts, to be taken in connection with a deposition of the plaintiff, with the agreement that the court might draw any inference from the evidence which a jury would be justified in drawing therefrom. Judgment was ordered for the plaintiff, and the defendants appealed.

Tort against a deputy sheriff for the conversion of goods mortgaged to the plaintiff, and attached as property of the mortgagor. At the trial in the superior court, it appeared that the plaintiff received a mortgage of the goods in question to secure an indebtedness of the mortgagor to Trott Brothers & Company, a firm of which the plaintiff was a member, for spirituous liquors sold by them to him in this commonwealth.

<p>Tort against a deputy sheriff for the conversion of goods attached by him as property of Joseph W. Tufts, Jr., which the plaintiffs contended were purchased of them by Tufts by means of false representations.</p> <p>At the trial in the superior court, there was a conflict of evidence between Tufts and one of the plaintiffs as to the facts attending the purchase, and the defendant offered to show that Tufts was a man of good reputation for honesty and moral worth; but Lord, J. excluded the evidence.</p> <p>The defendant asked the court to rule that the plaintiff must prove, not only that the goods were obtained by the fraud of Tufts, but that the attaching creditor had knowledge thereof; "tut the court ruled that proof of fraud on the part of Tufts was sufficient.</p> <p>The jury found for the plaintiffs, and the defendant alleged exceptions.</p>

<p>Under St. 1859, c. 196, § 27, exceptions allowed by a judge of the superior court more than fifteen days after they are presented to him, cannot be entered and heard in this court.</p> <p>A petition for leave to establish the truth of exceptions in this court cannot be filed after the time when the exceptions would by law have been entered, if duly signed and allowed, although the same exceptions were allowed in the superior court after the time limited by St. 1859, c. 196, § 27.</p>

Replevin of a table and counters used in a merchant tailor’s shop. At the trial in the superior court, the plaintiffs introduced in evidence a mortgage under seal of the property to them from William D. Taylor, dated March 6 1858, duly executed and recorded, to secure the payment of a promissory note of the same date for $250, which was still unpaid.

<p>Eviction of a tenant by his landlord from a part of the premises demised by a written lease for one entire rent, is a bar to any claim for rent under the lease, or for use and occupation of the demised premises.</p>

<p>Contract against the executor of the will of Jacob Pollard, to recover a legacy. The following facts were agreed in the superior court.</p> <p>The will of the late Jacob Pollard was admitted to probate on the 30th of June 1857, in which he appointed the defendant as executor thereof, and directed him to convert all his real estate and personal property into money ; and bequeathed to the plaintiff, who was his widow, the sum of $3800 in lieu of dower, or any distributive share in his estate, and on the express condition that she should release all her right and title thereto; and made various other specific bequests. The provisions of the will were accepted by the plaintiff, but the estate proved insufficient to pay all the specific legacies in full.</p> <p>The case was submitted with the agreement that, if the plaintiff was entitled to receive her legacy in full, judgment should be so entered; but, if she was only entitled to share with the other legatees, then the case should be referred to an assessor, to determine the amount due to her. Upon these facts judgment was ordered for the full amount of the legacy, and the defendant appealed.</p>

Tort to recover for the loss of a cow, and injury to a heifer, which were run over by the defendants’ cars.

<p>A. broker who has acted for both parties in negotiating an exchange of real estate between them, without informing either that he was employed by the other, is not legally en. titled to commissions for his services; and evidence in his behalf to show a custom among brokers to charge a commission to both parties in such cases is inadmissible.</p>

Contract to recover for the transportation of a quantity of stone from Concord, New Hampshire, to Boston. At the trial in the superior court, it appeared that the stone was consigned to the defendant, and that notice of its arrival in Boston was sent to him.

Contract by the indorsee against the maker of a promissory note. Answer, that the note was an accommodation note, and that there was no consideration for the making or indorsement thereof.

Contract against residents of England, on an account annexed. The amount of the bill of particulars, with interest to October 31 1857, was $1751.07. The ad damnum in the writ was $1500. By agreement, the case was referred to arbitrators, who reported, on the 1st of December 1859, that the defendants owed the plaintiff in the action, on the cause of action therein declared on, the sum of $1959.48.

<p>Proof that a note was transferred to the plaintiff by the indorsee, in violation of St. 1855, c. 213, which makes it criminal to dispose of collateral security before maturity of the debt secured, without authority, will not defeat an action against the maker and indorser; and proof that the holder received it as collateral security for another debt which matured at a later date, from brokers who informed him at the time that at or before its maturity they would wish to change it, and substitute other security for it, is not sufficient to put him on inquiry as to their title to it.</p>

<p>Bill in equity. At the hearing in this court, it appeared that the plaintiffs are the children of Francis Amory, late of Milton, who died in 1845, and devised the larger portion of his estate to the defendant and three other persons, in trust, and appointed them executors of his will; both of which trusts were declined by all except the defendant. The testator’s whole real estate was appraised at the sum of $196,575, and his personal estat at the sum of $7324.89. The real estate not specifically devisea was appraised at $181,000. His debts amounted to $60,000, and the legacies given in his will to $17,000. He directed his executors to sell certain specified estates, which were afterwards appraised at $78,000, and apply the proceeds to the payment of debts and legacies. The residue of his estate was devised to the defendant and his associates, in trust, during the lives of the testator’s children, and their survivor, to take charge of the same and lease it, and, after deducting expenses, to divide the income equally among his children ; with provisions that, upon the death of any child during the trust, its share of the income should be appropriated according to its will, or, in default of a will, or of issue, to the use of the survivors; and, upon the death of the last survivor, the estate should be equally distributed among the testator’s grandchildren, share and share alike ; or, in case any will or appointment should have been made by any of the children touching the reversion, then the order and direction thereof should be observed.</p> <p>The defendant considered it inexpedient to sell real estate for the payment of the debts and legacies, and, with the consent of the plaintiffs, but without any definite stipulation or agreement with them, or any express waiver of any legal or equitable rights on their part, proceeded to lease the same and to apply the income thereof in part to the payment of the debts and legacies, instead of selling the estates appropriated by the will for that purpose, until now the debts have been paid in full, and the lega cies also, except $7000. The estates have paid an income ex ceeding six per cent, on their appraised value, and have greatly increased in value, viz., from $181,000 to $420,500.</p> <p>The plaintiffs contended that the debts and legacies have been paid out of the income to which they were entitled under the will, and «that they are subrogated to the rights of the creditors and legatees, and entitled to have the estates appropriated by the testator for the payment of debts and legacies sold, and applied to reimburse the moneys paid by them, with interest; or to be paid out of other funds held by the trustees.</p> <p>The case was reserved for the decision of the whole court, with the agreement that if the plaintiffs are entitled to any remedy, at law or in equity, a decree may be entered accordingly.</p>

<p>Evidence of the declarations of third persons is inadmissible to charge a defendant, until some evidence of their agency is offered.</p> <p>In an action to recover for lumber sold on the order of a third person, and delivered upon land of the defendant, and used in the erection of a shop for him, evidence of a prevlou written contract between the defendant and the third person, by which the latter agreed to build the shop and to furnish all the materials therefor, is competent.</p> <p>After the plaintiff and defendant have introduced all the evidence on which they intend to rely, it is within the discretion of the court to reject further evidence offered by the plaintiff in explanation of a fact elicited by an inquiry made by a juror, as the last witness was leaving the stand.</p>

Contract to recover the balance of an account annexed. The defendant Willis was defaulted; and the following facts were agreed between the plaintiffs and the other defendants, Weed and Davis. The plaintiffs are, and, at the time when the account arose, were bankers and partners, living in Baltimore, in the State of Maryland; and the defendants were bankers and partners in Boston, Massachusetts, and they still live in this commonwealth.

<p>If ft husband who has expelled his wife from his house without cause afterwards designedly misleads her into the belief that he is dead, and she, honestly acting on that belief, marries another, whom she leaves at once upon learning that her husband is alive, he cannot avail himself of her second marriage, or of a conviction of bigamy against her by reason of such marriage, in defence to an action against him for necessaries subsequently furnished to her; and such action may be maintained, although the plaintiff was too young to know the circumstances under which she left him at the time when they occurred.</p>

<p>In an action against an officer for the conversion of property attached by him on a writ against one under whom the plaintiff claims title by a prior purchase, the plaintiff, while testifying in his own behalf, may be asked by his counsel if he took possession of the property; and the introduction in evidence of a notice given by him to the defendant, in which he claimed ownership thereof and demanded its return, furnishes no ground for a new trial.</p>

<p>A declaration alleging that the plaintiff agreed to send to the defendant certain bárrele containing beer, and did do so, and that the defendant agreed to return the same or pay therefor, and that the defendant did not return the same, and owes the plaintiff therefor a specified sum for each, is bad on demurrer; nor is it supported by proof of an agreement by the defendant to return all the barrels sent by the plaintiff, or, if for any reason he should not return all, to pay for them at the rate specified.</p>

<p>Parol proof of the actual consideration of a sale is admissible, although a bill of sale is executed by the seller, and a bond by the purchaser, as part of the same transaction, if neither of them states the terms and conditions of the sale.</p> <p>In an action for procuring the arrest and imprisonment of the plaintiff on an execution against him and a former partner, in favor of a third person, but assigned to the defendant, in which there is evidence that the plaintiff had sold out his interest in the firm, and that, as a part of the consideration thereof, the purchaser agreed to indemnify him against all the outstanding debts of the firm, and that the new firm had accordingly paid the execution, it is competent to prove b3r paroi that the defendant authorized the purchaser to make the contracts of purchase and indemnity, as his agent, before the assignment and arrest, for the purpose of showing knowledge on his part that the execution was paid.</p>

<p>In an action against an officer for the conversion of property attached by him on a writ against a third person, his return upon the writ, showing a sale of the property under the statutes as perishable, and the certificate of the appraisers, and a schedule of prices received for the same at the auction sale thereof, which were annexed to the return as a part thereof, are competent evidence against him, on the question of damages.</p>

Contract by an indorsee against the maker and indorsers ot a promissory note.

<p>Ata term subsequent to the return term, and after an answer to the merits, the superior court has no power to allow an answer in abatement to be filed, on the ground that neither party lived in the county in which the writ was made returnable, although the plaintiff is described in the writ as a resident of that county, and the fact that he was a resident of another county was not known to the defendants when the answer upon the merits was filed.</p>

At the hearing in this court, at April term I860, Bigelow, J., reported the following facts for the determination of the whole court: The testator died in 1857, leaving a will in which his widow, Sarah T. Jenkins, and the appellee were named as executors ; and they accepted the trust, and gave separate bonds.

<p>A recital in a policy for $2000, that other insurance, to the amount of $3000, subsists, and a reply to a question in the application inquiring if there was insurance on the properry, and, if so, to what amount, stating the same amount mentioned in the policy, do not prevent the plaintiif, in an action upon the policy, from showing that in fact the other insurance did not cover all of the property insured in it; although it was issued under the conditions and limitations expressed in the by-laws annexed thereto, and one of the bylaws provided that, in case any other insurance, prior or subsequent, should subsist, without the consent of the directors, the policy should be void} and that in case of loss or damage of property upon which such authorized double insurance should subsist, the company should be liable to pay only such proportion thereof as the sum insured by it should bear to the whole amount insured thereon, not exceeding three fourths of the actual value at the time of the loss: and the plaintiff may recover three fourths of the value of the property destroyed, which was not covered by any other insurance, and three tenths of the value of the property which was covered by other insurance.</p>

Contract on a recognizance taken under Si. 1857, c. 141, concerning imprisonment for debt, with condition that the defendant Smith, who had been arrested on an execution in favor of the plaintiffs, should, within ninety days from the time of his arrest, deliver himself up for examination, giving notice as therein provided, and making no default, and abide the order of the magistrate thereon.

<p>Under a declaration alleging that the defendants are a corporation owning a railroad, and the plaintiff was a passenger thereon*, and the defendants, by their agents, assaulted him and expelled him from their cars, if the assault is proved, the burden of justifying it resta upon the defendants, as in ordinary cases.</p>

<p>Contract to recover the price of four hundred and seventy-five bundles of gunny bags, sold and delivered by the plaintiff to the defendants.</p> <p>At the trial in the superior court, the defendants admitted their liability to pay for two hundred bundles, but denied their liability to pay for any more. The plaintiff introduced in evidence a paper, of which the following is a copy: “ Boston, Sept. 4 1858. Sold to Nath’l -Winsor Jr., & Co., for account of Stephen Cabot, Esq., five hundred (500) bundles, more or less, gunny bags at 10c. per bag. Terms, 6 months. Simeon Sowle & Co., Brokers for the parties. Accepted, Nath’l Winsor Jr., & Co.” The execution and delivery of this paper were not denied.</p> <p>The plaintiff offered evidence to show that, at the time when this paper was signed, he had about five hundred and twenty-one bundles of gunny bags, of fifty bags each, all of which, on the day before, were at the Grand Junction Wharf in East Boston, and that he had given orders to one Sullivan, who was a compresser of gunny bags, and had a store on India Wharf, to take them to his store and there compress them into bales; that, when the paper was executed, some of the bundles were at the Grand Junction Wharf, and some of them had already been taken +o Sullivan’s store, and others were on the way thither, and that forty-five bundles had been compressed into bales and put into the store, and orders were at once given by the plaintiff to Sullivan not to compress any more of them. These facts, except the number already compressed by Sullivan, were known to both parties; and the plaintiff claimed and introduced evidence, under objection, to show that it was the uncompressed gunny bags which were the subject of the contract.</p> <p>It appeared in evidence that both parties knew that the object of the defendants in making the purchase was to fill the ship Hesperus, then lying at India Wharf, and about to sail, and ihat at the time of the purchase it was uncertain what number of bundles would be needed for that purpose; and it was verbally agreed that they should be removed to the ship at the defendants’ expense by the truckman already employed by Sullivan Only two hundred bundles were actually taken on board of the Hesperus, that being all that proved to be necessary to fill the ship; and, of the remainder, amounting to two hundred and seventy-five bundles, some were left by the truck-man in a storehouse on the wharf, which, by permission of the wharfingers, was temporarily used by various persons having business there, and the residue were taken into Sullivan’s store, to keep them from the rain.</p> <p>The defendants claimed that under the contract they were to have five hundred bundles, or more or less than that number, as might reasonably be found, necessary to fill the ship ; or at their election; and that, as they did not require any more than the two hundred bundles for that purpose, and as they never in fact received any more than that number, they were only bound to pay for two hundred. But Lord, J., ruled that there was no latent ambiguity in the contract, and that its construction was for the court; and he instructed the jury that the contract covered all the gunny bags which had not been compressed, and that a delivery of a part of the lot, under and in pursuance of the contract, was a delivery of the whole.</p> <p>The defendants then offered to prove by paroi that both parties understood the contract differently, and that it was not intended to cover more than enough to fill the ship ; and they offered to prove the declarations and acts of the plaintiff, before, at the time of, and after the malting of the contract, for the purpose of showing that he so construed it; but the judge excluded the evidence.</p> <p>• The defendants, in view of the construction put upon the contract by the judge, requested him to instruct the jury that a delivery of four hundred and seventy-five bundles, or a readiness to deliver that number, was not a compliance with the contract, which called for a delivery of five hundred bundles, more or less, unless the defendants knew that the number was so much less than five hundred, and accepted the same as a compliance with the contract, or waived the non-compliance. But the judge declined so to rule, and instructed the jury that, if in point of fact the lot respecting which the parties were negotiating consisted of four hundred and seventy-five bundles, neither party knowing the precise number, there was no such discrepancy between the actual number and that stated in the contract, as to avoid the operation of the contract, and that the plaintiff was bound to deliver, and the defendants were bound to receive, the four hundred and seventy-five bundles, in execution of the contract.</p> <p>The plaintiff was called as a witness in his own behalf, and testified that the defendants were to take delivery of the property where it was. The defendants claimed the right in cross-examination to put in the whole conversation in which this agreement was made, to affect the construction of the contract, as well as the question of delivery. The court ruled that it was not competent for the former purpose, but was competent for the latter purpose. The whole conversation was then put in, and the plaintiff testified that it was then agreed that the defendants were to return what they did not want to fill the ship ; and the broker who made the agreement testified to the same effect; and the judge instructed the jury that this evidence could not be considered as controlling or affecting the construction of the contract as to the amount of goods sold.</p> <p>The jury returned a verdict for the plaintiff, for the price of four hundred and seventy-five bundles, and inierest; and the defendants alleged exceptions.</p>

<p>Contract to recover of the defendants reimbursement of a, proportionate part of the expense of constructing a railroad bridge, and altering the curve and grade of several railroad tracks and highways, at a place where the Fitchburg Railroad,' the Boston and Lowell Railroad, and the Grand Junction Railroad formerly crossed each other at grade in Somerville.</p> <p>The action was founded upon St. 1856, c. 296, “ to promote the public safety and convenience, by a bridge at the intersection of the Boston and Lowell, the Fitchburg, and Grand Junction railroads, in Somerville,” by which the Fitchburg Railroad Company and the Grand Junction Railroad and Depot Company were authorized to lower their tracks at the junction with the Boston and Lowell Railroad, in Somerville; and the Boston and Lowell Railroad Company were authorized to raise their track, so that the tracks of the former companies might pass under it; and, so far as might be necessary for the purpose,- to change the curve and grade of highways and connecting tracks, with the consent of the county commissioners of the county of Middle-sex. The statute required a bridge to be built in a certain manner described ; directed what portion should be built by the Boston and Lowell Railroad Company; and further directed that a certain part of the work should be done by the Fitchburg Railroad Company, under the supervision of a commissioner, to be appointed by the governor, who should apportion the cost of this part of the work between the Fitchburg and Grand Junction companies, in such proportions as should by him be deemed equitable; and provided that, if the award of such commissioner should not be promptly paid, the former company might recove, of the latter a fair and just proportion of the. cost incurred. Pursuant to the provisions of this act, Augustus C. Carey was appointed as commissioner by the governor and council, and the work described was done under his supervision, and he made an apportionment of the expense, of which the defendants were notified, and a demand of payment was made upon them; and, on their refusal to pay, this action was brought.</p> <p>At the trial in this court, at April term 1860, before Shaw, C. J., Mr. Carey was called as a witness, and his commission was produced, by which it appeared that he was appointed in pursuance of the application of the Fitchburg Railroad Company and the Lowell Railroad Company. The commission was dated August 29 1856. The further testimony of the witness as commissioner, and all his acts in that capacity, were objected to on the ground that his appointment was in contravention of the Constitution of Massachusetts, c. 6, art. 2, cl. 2, which declares that no person shall be capable of holding at the same time more than two offices, which are to be held by appointment of the governor, or the governor and council, or the senate, or the house of representatives, or by the election of the people of the state at large, or of the people of any county, military offices and the offices of justices of the peace excepted.</p> <p>For the purpose of presenting the question distinctly, it was conceded by the parties, that Mr. Carey was a state senator for the year 1856; that the legislature adjourned in June to the day next preceding the first Tuesday of January 1857; that he also held an appointment by the governor and council as commissioner for the supervision of the works authorized to be done by the Fitchburg Railroad Company, in widening their bridge over Charles River, in pursuance of the provisions of St. 1855, c. 230, by a commission dated July 10 1855; that he received a commission under St. 1856, c. 296, before the one now produced, and accepted it, and entered upon the duties of the office, but, objection being made that he already held two public offices, and therefore could not hold this, he tendered his resignation of the office of senator to the governor and council, the secretary of state, and the president of the senate, in vacation, by a letter addressed to each of them; that the senate did not meet again during that year, and never acted on his resignation ; and that, after the delivery of these letters of resignation, he was again appointed and received a new commission, under which he proceeded to execute the powers vested in the commissioner by the act referred to.</p> <p>The plaintiffs offered in evidence the license and authority granted by the county commissioners of the county of Middle-sex to do the acts referred to, upon the petition of the plaintiffs and the Boston and Lowell Railroad Company; and it appeared by the records that, at a meeting of the county commissioners, to which an order of notice upon this petition was made returnable, the defendants filed a protest against the grant of authority prayed for, and against any action in the premises, and gave notice that, if any authority to change locations was rightfully granted, they should claim damages. At that meeting the license prayed for was granted.</p> <p>Upon these facts it was ruled: 1. That the office of commissioner for the supervision and regulation of building bridges over navigable waters, under Si. 1855, c. 230, was a public office within the meaning and intent of the constitution. 2. That the commissioner had not duly resigned and divested himself of the office of senator when the second commission was issued. 3. That his acts and doings as commissioner, supervisor and assessor were not binding on the defendants, as those of a commissioner duly appointed under this act, and cannot be given in evidence as such. Whereupon the plaintiffs became nonsuit, subject to the opinion of the whole court upon the correctness of the rulings.</p>

Contract. The first count set forth that the defendant made an agreement in writing to be responsible for certain rent, according to the tenor of a lease referred to in the agreement, and that he owed the plaintiff thereon one hundred and fifty dollars. The second count was a common count for use and occupation.

<p>The fraudulent alteration of a promissory note, by the insertion of words which make it appear to be for a greater sum than that for which it was originally given, avoids the note in the hands of a bona fide, indorsee for a valuable consideration, although the alteration could not be detected on a careful scrutiny.</p>

<p>Contract for money had and received. The plaintiff’s bill of particulars was as follows : “ To cash received by you from me, the same having been won on an illegal wager, to wit: upon the result of a dog-fight, $40.” In the superior court, Morton, J., ruled that the action could not be maintained, and the jury accordingly returned a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Bill in equity filed March 26 1860, alleging that the plaintiff is a creditor of the defendant Stone; that Stone has not any vroperty which can be come at to be attached ; that on the 24th of March 1860, Stone recovered judgment against the other defendant, Noah Perrin, in the superior court in Boston, for two hundred dollars and costs, in an action of tort for injuries to the person, which sum he is about to collect for his own use, and does not intend to apply the same to the payment of the plaintiff’s demand; and praying'for an injunction to stay execution on the judgment, and for a decree that the demand of the plaintiff shall be paid from the proceeds thereof.</p> <p>The answer of Stone admitted the debt to the plaintiff; and averred that on the 16th of March 1860, he obtained a verdict in his action against Perrin for two hundred dollars; and that on the following day, for a valuable consideration, he assigned his interest in the same and in the judgment to be rendered thereon, by an instrument in writing duly executed, a copy of which was annexed, to Paul Adams, who thereupon held and still holds the same.</p> <p>Adams filed a petition in the case alleging the assignment to him, and claiming the amount of the verdict and judgment.</p> <p>At a hearing in this court, at April term 1860, before Bigelow, J., it was fully proved that the assignment was duly executed and delivered on the 17th of March to Adams, as security for a preexisting debt then due from Stone to him, and of an amount exceeding the amount of the judgment, and was made in.good faith and with no intention to hinder, delay or defraud creditors. The question was raised whether the claim of Stone against Perrin, having been ascertained by a verdict, was by law assignable after verdict and before judgment; and this question only was reserved for the determination of the whole court.</p>

An application addressed to the justices of this court, dated and filed March 26 1860, representing that the defendant Stone, and Stone his partner, doing business under the firm of Daniel Stone & Co., are indebted to the plaintiff; that he is unable to find any property of the firm, or of either partner, which can be reached by attachment; that the defendant Stone, at the last term of the superior court for the county of Suffolk, recovered judgment against the defendant…

<p>Evidence of another act of embezzlement committed by a defendant in the same week with one charged against him in an indictment, is competent only for the purpose of proving guilty intent on his part, in the commission of the principal act; and the admission of such evidence in a case which, after a verdict of guilty, is reported by a judge of the superior court for the determination of this court, is sufficient ground for a new trial, if it does not appear that it was limited to its legitimate effect by instructions to the jury.</p> <p>An indictment under St. 1846, c. 171, § 1, against an officer of a bank for fraudulently taking and secreting particular and designated moneys with intent to convert the same to his own use, is not supported by proof that he received the moneys in question as a deposit in the bank, from a depositor, and entered the same in the name of the depositor in an account book kept for that purpose, and that he afterwards fraudulently erased the entiy, altered the footing of the column so as to mbke it appear that no such sum had been received, and entered the amount so deposited upon the account of the depositor in the ledger as having been received two months before the time of its actual receipt; if there is also evidence from which it may reasonably be inferred that the erasure, alteration, and false entiy were not made until several days after the receipt of the money, and the making of the original and true entry thereof, during which time there is no proof of any fraudulent intent on his part respecting it, or that it was not put, kept and used with other funds of the bank.</p>

Indictment for assault and battery upon Frederick P. Moore, a police officer of Boston.

<p>Indictment, alleging that the defendant, intending to cheat and defraud one Joseph A. Harwood, made to him certain false representations respecting a bay colored horse, which Harwood believed ; “ and, being deceived thereby, was induced by reason of the false pretences and representations so made as aforesaid to purchase and receive of the said Lannan the said bay colored horse, and then and there gave and delivered into the hands of the said Lannan in payment therefor the property, moneys, goods and chattels of the said Harwood of the amount and value of two hundred and fifty dollars,” which property was described ; that the defendant received the same, with fraudulent intent; and that the representations were false. After a verdict of guilty in the superior court, the defendant moved in arrest of judgment, on the ground that the indictment contained no allegation of any bargain for or delivery of the horse, concerning which the false representations were made, and for other reasons ; but Putnam, J., overruled the motion, and to this and other rulings the defendant alleged exceptions.</p>

<p>An indictment under Gen. Sts. c. 87, § 6, for keeping and maintaining a common nuisance, is supported by proof that the nuisance was kept and maintained for the space of two hours.</p> <p>An indictment alleging that the defendants kept and maintained a common nuisance, to wit, a tenement, in a town which is designated, contains a sufficient averment of place.</p>

<p>Complaint made in the police court of the city of Boston, in behalf of the Commonwealth, by Henry Faxon of Boston, inspector of milk in said city, alleging that the defendant, on the thiity-fiist day of October, in the year of onr Lord one thousand eight hundred and sixty, at Boston aforesaid, with force and arms, being then and there a dealer in milk, and being then and there recorded as a dealer in milk in the books of said Henry Faxon, did then and there knowingly sell to one John Hayes a certain quantity, to wit, one pint of adulterated milk, the same being then and there adulterated by the admixture of water therewith, and the said O’Donnell then and there well knowing the same to be so adulterated as aforesaid, against the peace, See. The defendant was convicted in the police court and appealed to the superior court; and in the superior court demurred to the complaint, assigning as cause that there is no sufficient allegation that he was, at the time named therein, recorded in the books of the inspector of milk as a dealer in milk, as the law requires. The demurrer was overruled and the defendant appealed to this court.</p>

<p>Indictment for assault upon Seth Adams, a deputy sheriff of the county of Norfolk. The trial in the superior court was before Wilkinson, J., who signed a bill of exceptions, of which the following is the material portion.</p> <p>“ The evidence showed that said Adams had in his possession a warrant purporting to have issued from the tax collector and treasurer of Quincy. No evidence was before the jury to prove that said warrant was duly issued, or that Mr. Cummings, by whom the warrant was signed, was the treasurer or tax collector of Quincy. The defendant’s counsel asked the court to rule, that the simple warrant in the hands of Mr. Adams, unsupported by other evidence, was insufficient to authorize Mr. Adams to act upon. But the court declined so to rule, but admitted the warrant as evidence, and allowed the case to go to the jury with evidence upon the other parts of the case. The jury found the defendant guilty.”</p>