Volume 84 — Massachusetts Reports

Two actions of contract, the first by the assignees, and the second by the surviving assignees, of the Metropolitan Fire and Marine Insurance Company, an insolvent corporation, upon four promissory notes given by the several defendants for premiums on policies of insurance issued to them by the company, on marine risks. The notes were all given in the spring of 1854.

<p>Contract for money had and received. At the trial in this court, the following facts were agreed:</p> <p>In August 1858 the defendant sold to John H. Delee the bark Messenger Bird for $16,000, receiving one half in cash, and Defee’s note for $8000, payable in six months with interest, secured by a mortgage of the vessel. The defendant at the same time took as further security policies of insurance on the vessel to the amount of $16,000, payable to him in case of loss for a voyage stated by Delee to be contemplated by him, at and from a port of lading north of Cape Harteras to Rio Janeiro and back to a port of discharge north of Cape Harteras.</p> <p>On the 2d of May 1859 the defendant received from Cross & Co., merchants of Valparaiso, a letter dated March 31,1859, advising him that the vessel had put into Valparaiso on her voyage to San Francisco, and discharged a portion of her cargo, 601 bags of coffee, which had been consigned to them by Delee, with directions to sell the same and remit the proceeds to the defendant, after deducting their advances to him of $4292. Upon receiving this letter the defendant at once, upon the same day, cancelled his former policies and made an oral agreement for a reduced insurance for a voyage of the vessel at and from Valparaiso to San Francisco; which agreement was afterwards discharged by the parties, upon the development of the facts hereafter stated.</p> <p>On the 5th of May 1859 the defendant, who until then was wholly ignorant of the proceedings of Delee, and of the fact that he was not the owner of the coffee consigned by him to Cross & Co., saw in the Boston Daily Advertiser an article as follows:—“Bark Messenger Bird, of Kingston, Mass., John H. Delio master, which sailed from Rio de Janeiro on the 19th of January last, with a cargo of 4824 bags of coffee, for Hampton Roads, for orders, consigned to Mr. John Gallop, of New York, arrived at Valparaiso on the 27th of March, ostensibly bound to California. The cargo, worth $90,000, is insured in England. She had been supposed to be lost, and the strange conduct of the captain in taking her to Valparaiso is yet to be explained.” On the same day the defendant wrote to Gallop, inquiring as to the truth of the facts stated in the article, and stating his own position as to security, and the notice received by him from Cross & Co. Gallop, in reply, on the next day, gave the information sought, and notified the defendant that the remittance would be claimed, when received, as the proceeds of the property of the plaintiffs which had been barratrously seized and appropriated by Delee.</p> <p>By letter dated Valparaiso, April 30, 1859, Cross & Co. remitted to the defendant, in bills of exchange payable to him or his order, $5084.34, being the net proceeds of the sales of the 601 bags of coffee above referred to, after deducting their advances. This letter was received June 14, 1859, and Gallop was informed thereof; and he, acting as agent of the plaintiffs and in their behalf, requested payment of the bills of exchange, with which request the defendant declined to comply. The bills were paid to the defendant before this action was brought.</p> <p>In January 1859 the plaintiffs, merchants of Rio Janeiro, owned and- shipped on board of the Messenger Bird, owned and commanded by Delee, 4824 bags of coffee, to be carried to Hampton Roads, and thence to New York, Philadelphia or Baltimore, according to orders to be received from Gallop, to whom the same were consigned, as agent of the plaintiffs, for sale on their account. The vessel sailed ostensibly on this voyage; but, instead of pursuing the same, Delee barratrously took her round Cape Horn, and put into Valparaiso in the latter part of March, where he landed the 601 bags of coffee, assumed ownership of the same, and fraudulently consigned them to Cross & Co. for sale, and obtained an advance thereon of $4292, and sailed with the vessel and the residue of the cargo apparently for San Francisco ; and the vessel and the residue of the cargo have since been lost, or are in possession of Delee, or have been fraudulently disposed of by him. No communication has been received by the defendant from Delee since the vessel sailed from the United States, nor has he received any payment for his debt, except as above stated.</p>

<p>Tort by the assignees of an insolvent debtor for the conversion of certain machinery. At the trial in this court, at April term 1860, before Shaw, C. J., a verdict was returned for the défend ants, and the case was reported for the determination of the whole court. The facts are stated in the opinion.</p>

<p>Tokt by the assignees of Asa Swett, an insolvent debtor, to recover the value of goods purchased of him by the defendant, between the 5th and 10th of November 1858, in violation of the provisions of St. 1856, c. 284, § 27.</p> <p>At the trial in the superior court, before Brigham, J., the plaintiffs introduced evidence to show that, on the 4th of November, Swett, who was a retail carpet-dealer on Hanover Street, in Boston, with a stock in trade worth about $14,000, applied to B. J. Gerrish, an attorney at law, for a loan of money, and Gerrish informed him that he had no money of his own to lend, but would give him a letter of introduction to the defendant, who had money to lend ; and accordingly he gave him a letter, highly recommending his credit and character, and Swett presented the same to the defendant, who kept a retail grocery store on Cambridge Street, in Boston, with a business of about $25,000 a year, and borrowed of him $300, giving his note for the same, and a bill of carpeting for about $500 as security, the carpets being delivered to the defendant at his store. A few days afterwards, Swett applied to the defendant for a few hundred dollars more, offering security as before; and a written contract was completed between them, in pursuance of which the defendant received carpeting to the value of $2100, including that already delivered, and furnished to Swett $1000 in money, including the sum already advanced, and conveyed to him an equity of redemption of a house in Chelsea, variously estimated at from $100 to $800 in value. There was also some evidence of the extent of the defendant’s acquaintance with Swett’s usual manner of doing business. Swett failed in business, and left the Commonwealth, on or about the 19th of November, and proceedings in insolvency were immediately commenced against him.</p> <p>The plaintiffs introduced evidence, under objection, of certain declarations by Swett, not in the presence of the defendant, some two months after the-sale, and tending to show a fraudulent intent on his part; and offered further evidence to the same effect, which was excluded by the court, upon the ground that, upon reconsideration, the evidence then offered, and that of the same character which had been already admitted, were both incompetent, and ought not to be considered by the jury, and this was said when the jury were present, but they were not so instructed. At a subsequent stage of the trial, the defendant admitted that the sale was made with fraudulent intent by Swett, but denied that he knew or had reasonable cause to believe the same.</p> <p>Gerrish was called as a witness by the defendant, and testified in chief to introducing the parties, as before stated, and that he had for some time acted as counsel for Swett, and had been in the habit of lending money for the defendant, and that he did not know or suspect, and had never heard, that Swett was insolvent, or contemplated insolvency, or that there was any doubt as to the payment of his bills. In cross-examination, he testified, under objection, that the plaintiffs had demanded payment of a small charge against him for goods appearing on the insolvent’s books, and that he gave to them, as a set-off, a bill against a partnership of which Swett was formerly a member, for professional services as an attorney, amounting to $68, which was mostly for advice as to business matters, in September and October 1858.</p> <p>There was no evidence of any demand by the plaintiffs upon the defendant for the goods sued for, or of any offer by them to restore the money or reconvey the equity of redemption which Swett received from him, and the defendant objected that, for this reason, tl 8 action could not be maintained; but the objection was ove. ruled. The defendant also objected that, even if the grounds taken by the plaintiffs were valid, the declaration, which contained the ordinary counts in trover, was insufficient; but this objection was overruled.</p> <p>The judge instructed the jury, amongst other things, that it was incumbent on the plaintiffs to prove that Swett was actually insolvent, or in contemplation of insolvency, at the time of the sale, and that the defendant had reasonable cause to believe the same, and that the sale was made for the purpose of removing the property, or its proceeds, out of the operation of the insolvent laws of the Commonwealth; and, if the sale was made out of the usual and ordinary course of Swett’s business, that fact would be prima facie, and, if uncontrolled, sufficient evidence that the defendant had such reasonable cause of belief. After these instructions had been given, the defendant requested the judge to instruct the jury that it was necessary for the plaintiffs to prove that he knew that the sale was made out of the usual and ordinary course of the insolvent’s business; but the judge declined so to rule.</p> <p>The verdict was for the plaintiffs, and the defendant alleged exceptions.</p>

<p>The clause in 1824, c. 15, “to authorize the Proprietors of West Boston Bridge to establish a turnpike road from Cambridge to Watertown,” which provides that “ neither tb'j towns of Watertown, Cambridge or Brighton shall ever be compelled to support any p'/rt of said road or bridges, without their own consent,” is not in the nature of a contract between the Commonwealth and those towns that they shall be forever exempt from the burden of maintaining a highway over the land included within the limits of the turnpike road; and 1859, c. 156, “to establish as a highway a part of the turnpike road, from Cambridge to Watertown,” is constitutional and valid.</p>

<p>Contract for labor performed, originally brought before the justices’ court of the city of Boston. Trial in the superior court before Lord, J., who, after a verdict for the defendant, allowed a bill of exceptions, the material portions of which are as follows:</p> <p>“ The defendant called Daniel Cram as a witness, who testified that the work was done by the plaintiff at his request and upon his credit, and that he had several interviews with the plaintiff upon the subject, and that he had an interview and conversation with him on the day of the trial of this action in the justices’ court, in which he offered to pay him the whole amount of the bill in cash, having before that time also offered to pay it. This evidence was objected to, but admitted. The presiding judge instructed the jury that, if the work was do mi for the defendant, the plaintiff was not bound to accept payment from any one else; and that no offer of payment by Cram, or tender by him, should have the slightest influence upon their judgment, if the work was done for the defendant.”</p>

<p>The surviving husband of a woman who, in contemplation of marriage with him, made with him an antenuptial contract, providing that, in case she should die leaving issue surviving her, a certain note and mortgage should be held to the use of her intended husband for his life, with remainder to her issue in fee simple, and who has since died leaving issue surviving her, may maintain a bill in equity against one to whom she in her last sickness delivered the note and mortgage, with directions to retain and hold them in trust for the purposes declared in the antenuptial contract, and especially to protect the rights and interests of her children, to compel the delivery of the same either to himself, or to such person as the court may appoint trustee.</p>

<p>Contract for money had and received, against the administrator of John S. Ryan. At the trial in the superior court, before Putnam, J., a verdict was returned for the defendant, and the plaintiff alleged exceptions. The facts are stated in the opinion.</p>

Contract by the assignee of John T. P. Treat, an insolvent debtor, for rent.

<p>Action by the widow of Benjamin Lakin against his executrix to recover one half part of certain land left by him.</p> <p>At the trial in the superior court, it appeared that the demand-ant and Benjamin Lakin were married, and lived together till 1838, when they separated ; and the tenant offered evidence to show that after that time the demandant married John Lewis, and lived with him as his wife; and the demandant offered evidence to prove that after that time the tenant married Benjamin Lakin, and lived with him as his wife until his death. But Lord, J. ruled that all this evidence was incompetent, without further proof that the fact of the demandant’s adultery had been judicially determined during the lifetime of Benjamin Lakin; and a verdict was returned for the demandant. And the case was thereupon reported to this court, with the agreement that, if the demandant is entitled to recover, the case should be sent to an assessor to assess damages; and if she is entitled to recover only one third of the premises, the verdict should be amended accordingly.</p>

<p>Tort to recover the value of a horse, wagon and harness, claimed by the plaintiffs, who were husband and wife, under a mortgage to the wife alone, in which the property was granted, bargained and sold to her “ in her own right, free from the control of all persons,” and attached at the suit of the defendant as property of the mortgagor. Patrick Hennessey has lived for sev eral years ip California, and sent money to his wife, which she lent to the mortgagor, and which was a part of the sum which the mortgage was given to secure. At the trial in the superior court, the defendant objected that the action could not be maintained in the joint names of the husband and wife; but Lord, J. overruled the objection, and the defendant alleged exceptions.</p>

<p>If the plaintiff in an action which was commenced in the police court of the city of Boston before St. 1859, c. 196, § 25 went into effect has appealed from a judgment therein rendered in his favor, and, after the General Statutes went into effect, recovered judgment in the superior court for a less sum as damages than in the court below, he is not entitled to recover any costs, hut the defendant is entitled to recover full costs.</p>

<p>Contract. The declaration alleged that the plaintiffs were formerly partners with William T. Hawes, now deceased, and engaged with him in the manufacture of coal oil at East Boston ; that, in the early part of 1858, the plaintiffs and Hawes employed the defendants to manufacture for them eighteen iron retorts, to be used at their works in East Boston, for the purpose of extracting oil from coal, for the price of $100 each, and the retorts were manufactured, and the price was paid ; that subsequently the retorts were set, and, when applied to use, proved defective and imperfect in their construction, and began to crack and leak, causing not only the loss of the retorts themselves, but a loss of oil, labor and fuel, an interruption of business, and the expense of removing the retorts and replacing them with others.</p> <p>At the trial in the superior court, before Putnam, J., the plaintiffs introduced evidence tending to prove their partnership with Hawes; and, to prove the contract, introduced a letter, signed by the defendants, as follows: “ South Boston Foundery, March 29, 1858. Mr. W. T. Hawes — Dear Sir: We propose to make you eighteen or twenty two retorts in dry sand, with two heads each, like the one furnished you in February last, weighing about 3000 lbs. each, for $ 100 each.” The reply of Hawes was as follows : “ You will please make for me eighteen retorts, as per memorandum and terms in yours of March 29, and directions given by myself and Henry Gessner.” They also introduced much evidence to show that a majority of the retorts, when used, cracked and leaked, and that some had blow-holes and shrink-holes and cold-shuts, and that, when broken, they were found to be of unequal thickness, and were otherwise imperfect; and that they were cast horizontally, and in green sand, which is an unusual and improper mode of casting retorts, and more likely to produce the defects enumerated.</p> <p>No evidence was introduced to show that the retorts were not like the one referred to in the defendants’ letter, or that the iron itself which was used was bad, or that the defendants did not follow the 'directions of Hawes & Gessner, or that they failed to comply with any of the express provisions of the contract; and there was no direct evidence that they were informed or knew for what special purpose the retorts were to be used.</p> <p>The defendants introduced evidence tending to show that they did not know the special purpose for which the retorts were designed; that making coal oil was a new business, experimental with the plaintiffs, and unknown to the defendants; that they had never made retorts for that purpose, though they had made gas retorts of similar construction and shape, and which had to be subjected to a greater heat, and knew that the retorts in question were to be exposed to a high degree of heat, and were required to be tight; that, when applied to by Hawes & Gessner, they told them, and it was mutually understood that, if they made the retorts, they should have to cast them horizontally, as they could not get the necessary fixtures to cast them vertically, in season ; that, after they had cast a number horizontally in dry sand, Hawes & Gessner desired them faster, and were told by the defendants that they could not cast them faster unless it was done in green sand, and, if so cast, they would be more likely to contain defects, like those mentioned; that, thereupon, they were directed to cast them in green sand, and seven were so cast, horizontally, it being impossible to cast them vertically in green sand; that Hawes & Gessner were present while some of them were so cast, and made no objection ; and that Gessner was an engineer, acquainted with the use of retorts for manufacturing coal oil. It did not appear, however, that either he or Hawes was particularly acquainted with the different modes of casting.</p> <p>There was no claim that the defendants were guilty of fraud, or acted in bad faith.</p> <p>The defendants offered to prove that there was, at the time of making this contract, a general, uniform and universal custom in Boston and its vicinity, that founders should not be held to warrant their castings against latent defects, in the absence of an express agreement; and that, in case of apparent defects, and in the absence of an express agreement, founders were entitled to have the castings returned within a reasonable time, and to replace them with new ones; but the judge excluded the evidence. The defects complained of in this case were mostly latent.</p> <p>The plaintiffs founded their claim for damages, and relied solely upon an implied warranty that the retorts were reasonably fit and proper for the purpose mentioned in the declaration. The defendants contended that the contract, being in writing was for the court to construe; that it contained no such warranty as was claimed; that no warranty could be added to it by paroi, or by implication of law, as no purpose was men tinned for which the retorts were designed; and that there was a variance between the declaration and proof. The defendants also asked the court to rule, amongst other things, that if there were unreasonable defects in the retorts, which arose from the fact that they were cast horizontally and in green sand, and this was so done by the request or with the consent of the plaintiffs, or their authorized agent, or in pursuance of an original agreement or understanding to that effect, the price being made and fixed accordingly, the plaintiffs must take the risk of such defects and that, if the plaintiffs can recover at all, it is only the difference between the value of the retorts as delivered, and what they would have been worth, if not defective.</p> <p>The judge declined so to rule; and instructed the jury, amongst other rulings not material here, that, in all cases where a person orders of a manufacturer an article to be made for a special purpose, and relies upon the judgment of the manufacturer alone, there is an implied warranty that the article shall be reasonably fit for the purpose for which it is to be used ; and, if they found the present case to come within this principle, it was the same as if the parties had put the implied warranty in writing, and had expressly warranted to furnish such retorts as should be fit for the purpose for which they were ordered; that it was not necessary for the defendants to know the entire object for which they were to be used, but only so much as was material for their purposes, and not the whole art of making coal oil; that it was for the jury to say whether the defendants did not know enough, upon the evidence, to require them to make retorts fit and proper for that use and purpose; that it was not necessary for the plaintiffs to inform the defendants of the purpose for which the retorts were to be used, but it would be sufficient if the defendants knew it; that the wnrds in the letter of the defendants, “ like the one furnished you in February last,” did not apply to quality, but only to shape, exterior form, &c., and that the words in the reply of Hawes, “ directions given by myself and Henry Gessner,” referred to matters of general superintendence, and not to quality ; that, in relation to those directions of Hawes & Gessner, as stated in the contract, the jury would say whether anything more was intended than an oversight from them as to the form of the article, the thickness of the iron, and matters of that kind; that, in regard to the mode of casting, whether vertically or horizontally, the jury would say whether, if the parties were satisfied that it was better that the retorts should be cast vertically than horizontally, the defendants were authorized by Hawes & Gessner to cast them horizontally, the latter knowing at the time when they authorized this mode of casting that it was not so good as the other; that, if Hawes & Gessner gave such directions, knowing this fact, the plaintiffs could not claim damages for defects arising from this source; and that they must take info consideration, not only whether these gentlemen authorized this mode of casting, but whether they knew at the time that it was not so good as the other mode; that, in regard to damages, if entitled to recover at all, the plaintiffs were entitled to recover the difference between what the defective retorts were worth, and what such retorts as the defendants were bound to give them would have been worth ; and also damages for the delay arising in the operation, and the extra cost of coal, and of having their men idle during this time, the additional cost of labor, and anything of that kind.</p> <p>The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

<p>A justice of the peace has authority to entertain a complaint under St 1846, c. 244, concerning hawkers and peddlers, and, after examination of the defendant, to require him to recognize with sureties to appear at the higher court; but not to require him to recognize with sureties to keep the peace and be of good behavior, in the mean time; and for an excess of jurisdiction in the latter respect he is liable in damages.</p>

<p>Contract by a citizen of Maine upon three promissory notes ■ signed by the defendants, who lived in this commonwealth, payable to the order of Coveil, Steele & Co., and by them indorsed. The first was dated Boston, October 1, 1853, and payable in sixty days; the second was dated Boston, October 8, 1853, and payable in six months; and the third was dated Boston, October 15,1853, and payable in sixty days. The firm of Covell, Steele & Co. consisted of four partners, of whom Coveil lived in Maine, and the others in Massachusetts, their place of business being in Maine. On the 1st of January 1854 Covell, Steele & Co. sold and.delivered the notes to W. P. Greenough, the first one only having been indorsed by them, and in April 1856 Greenough sold them to the plaintiff, and indorsed the other two with the name of Covell, Steele & Co., he having authority to do so. In June 1856 proceedings in insolvency were instituted by the defendants, and in January 1857 they received their discharge. Upon these facts, which were agreed, Putnam, J. rendered judgment in the superior court for the plaintiff, and the defendants appealed.</p>

<p>Contract for rent of a store leased to Ebenezer E. Dyer, the defendant’s intestate, by the plaintiff’s father, for five years from the 1st of July 1854, at $2300 a year, payable on the 1st of October, January, April and July in each year, and the taxes.</p> <p>At the trial in the superior court, before Allen, C. J., the following facts were agreed: The plaintiff’s father died in 1857 and his title became vested in the plaintiff before the 1st of October 1858, after which time no rent was paid. Dyer died in November 1858, having previously leased a portion of the store to one Huckins, who continued to hold under his lease till the 15th of February 1859. The defendant was appointed administrator of Dyer’s estate on the 27th of December 1858, and after-wards sued Huckins for four months’ rent, ending February 1, 1859. A portion of the store was occupied by Dyer, and after his death his property remained there until it was sold by the defendant, on the premises and elsewhere, by public auction and otherwise, in January. On the 1st of January 1859 the plaintiff demanded payment of the defendant of the rent due for the premises on that day, and, the same not being paid, on the 4th of January gave to him a notice to quit in fourteen days ; and, no portion of the premises having been vacated, brought the statute process for his removal on the 20th of the same month, in which he obtained judgment, and was put into possession on or about the 15th of February following. The estate of Dyer has been declared to be, and is, insolvent.</p> <p>Upon these facts, judgment was rendered for the plaintiff for $575, the amount of rent due January 1, 1859, and the defendant appealed.</p>

Contract on a recognizance taken under St. 1857, c. 141, concerning imprisonment for debt, with condition that the defendant Williams, 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 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 Mahan, who had been arrested on an execution in favor of the plaintiff, should within ninety days from the time ol 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, the plaintiff produced the recognizance, and proved that the signature to it was in the handwriting of an acting master in chancery; and introduced no other evidence. Lord, J. ruled that the plaintiff had not made out a ptima facie case, and a verdict was returned for the defendants. The plaintiff alleged exceptions.</p>

<p>Writ of entry by the assignee of Ephraim S. Phelps, an insolvent debtor, against the wife of Phelps, to recover possession of land alleged to have been paid for by him, but conveyed to the tenant for the purpose of fraudulently securing the same from attachment by his creditors.</p> <p>Ephraim S. Phelps and the tenant were married in 1845, and have ever since lived together as man and wife. After the marriage, the tenant by her own labor earned money, which was deposited in the Provident Institution for Savings in the name of Mary M. Hall, and which, in September 1857, amounted, with interest, to $671.59. The amount was then drawn out, and invested in a note of the city of Boston payable to her or her order. After the passage of St. 1855, c. 304, she also earned money by keeping boarders on her own account — she making the bargains, paying the expenses and receiving the money. Her husband paid her as a boarder at the rate of seven dollars a week, and she bought groceries of him for use in keeping the boarders, and paid him therefor. The husband knew of all her earnings and deposits, and assented to her holding the same as her own property.</p> <p>The tenant claimed title to the premises by virtue of a mortgage to her from Michael Tighe, the former owner thereof, dated January 7,1858, to secure $300 lent to him by her, and a deed from him dated February 13, 1858. The consideration of the deed was $1100, and was paid with the money received by her from the city note, and a small sum earned by keeping boarders; by cancelling the prior mortgage; and with a note of her husband for the residue—this note being in part payment of money which she had earned by keeping boarders and lent to him. All these transactions were known by her husband, and it was admitted that she believed the whole consideration paid for the deed to be legally her own separate property, and that the conveyance was made without any design or intent to defraud creditors, unless in view of the facts, the transactions are in law fraudulent.</p> <p>On the 7th of May 1858 Phelps presented his petition as an insolvent debtor, and the plaintiff was chosen assignee of his estate on the 1st of June following. ></p> <p>Upon these facts, it was agreed at the trial in the superior court, before Lord, J., that a verdict should be taken for the tenant, and the case reported for the determination of this court.</p>

<p>A deposit of money in the hands of a third person, to be held in trust for the depositor’s minor son, with the agreement that the trustee shall retain it for a certain time at a specified rate of interest, and in the mean time prepare a deed of trust, creates a complete trust, and leaves no power in the depositor to dispose of the money for his own benefit.</p>

<p>A policy of insurance issued by a mutual insurance company, under the conditions and limitations expressed in the by-laws thereto annexed, one of which provides that the policy shall become void, “if the assured shall neglect, for the term of thirty days, to pay his premium note, or any assessment thereon, when requested to do so, by mail or otherwise,” is rendered void by the neglect of the assured to pay the amount of an assessment upon his premium note, for thirty days after a written request for payment, prepaid, duly directed, and deposited by the company in the post-office, in due course of mail, would •reach the place of his residence, as set forth in the policy, whether he received such re quest or not.</p>

<p>The owner of a cargo, who has paid the freight in advance to the owners of the vessel, can not recover on a policy of insurance by which prepaid freight is insured.</p> <p>Contract on a policy of insurance issued by the defendants, which insured the plaintiff, for whom it might concern, £f fifteen hundred dollars on prepaid freight on board brig Oriental, at and from New York to San Francisco, with liberty of ports on the route for advice and refreshments. Freight valued at $1500, carried or not carried.” The writ also contained a count for money had and received. The following facts were agreed:</p>

<p>The defendants in a bill in equity, after a final decree in their favor, without costs, entered at a previous term, moved for a rehearing upon the question of costs, upon which they had not been heard.</p>

<p>Ho constructive total loss can be claimed by reason of a sale of a vessel at a port of distress, unless the sale is made by the master, if he is present and in charge of the vessel.</p> <p>Ho recovery can be had for an actual total loss occasioned by a storm by which a vessel and her outfits are destroyed in a port of distress into which she has put, and where, before the occurrence of the storm, she has been surveyed, condemned and sold, under the direction of the consul of the United States, and her cargo transshipped, and her master has given up all attempt to prosecute the voyage in her.</p> <p>The wrongful seizure and sale of a cargo by a consul of the United States is not a loss under a clause in a policy which insures against the acts of pirates and assailing thieves.</p> <p>In an action on a policy of insurance, the evidence proved that a seaworthy whaling vessel encountered a gale and sprung a leak, which made it necessary to take in sail and put all hands to the pumps, and throw the try-works overboard, in order to lighten her; that the leak was stopped to such an extent that the vessel did not leak except when sail was carried on the foremast, or, even in that case, so as to require more than one hour in four at the pumps to free her; that the master was of opinion that the leak did not render her unseaworthy and unable to continue the voyage without putting into a port of distress, but was forced by the crew to do so, for reasons which were not distinctly shown; that, while in the port of distress, against his protest, the vessel was surveyed and condemned, but the survey was not put in evidence, although called for by the defendants, and the reasons for the condemnation were not fully disclosed: Eeld, that these facts were insufficient to allow the insured to claim for a constructive total loss of the vessel and outfits, by reason of a necessary sale at a port of distress, from perils of the sea; or of the catchings which had replaced the outfits consumed, and which had been transshipped, in port into a vessel which was afterwards wrecked.</p>

<p>Under a will creating a trust fund, with directions to pay the income yearly to the testator’s son, u for the support of himself and his family, and the education of his children,” the income, when received by the son, is taken in trust, and his wife and children can enforce its due appropriation, in part for their benefit, in equity, and, if the will was made by a resident of this commonwealth, and was proved in this commonwealth, and the trustee who by the terms of the will holds the principal trust fund lives in this commonwealth, this court has jurisdiction to regulate the proper administration of the trust, although the testator’s son, and his wife and children, all live in another state.</p>

Contract for rent. The declaration was as follows : “ And the plaintiff says the defendant owes him ten dollars and forty two cents for the rent of a certain tenement hired of the plaintiff by the defendant.” At the trial in the superior court, the defendant objected that the declaration did not conform to the requisitions of the practice act, and did not sufficiently set forth the ground of the plaintiff’s claim; but the objection was overruled.

<p>Under Rev. Sts. c. 39, § 69, town or city authorities had no power to lay out a highway across a railroad, on a level therewith; and a railroad company is not estopped from objecting to the exercise of such power by an agreement made by it with former owners of the land, which contained a stipulation for a right of way, to be used by such owners and their assigns, at the place where the highway was afterwards laid out.</p>

<p>Bill in equity to redeem land from a mortgage, given to the defendant by Moses Cummings, dated April 1, 1840, to secure the sum of $1000, and interest. Cummings died September 10, 1840, and the plaintiff became owner of the equity of redemption by several deeds from his heirs at law.</p> <p>At the hearing in this court, before the chief justice, it appeared, from the bill, answer and master’s report, that the estate of Cummings was represented insolvent, and commissioners were appointed to receive and allow claims against the same, and, on the 5th of July 1841, the defendant presented for proof his claim above referred to, and was permitted to prove thereon the sum of $546.98, because the commissioners believed that the estate mortgaged to him was not sufficient to pay the mortgage note, within that sum, and that so much thereof would be left unpaid after deducting the full value of the mortgaged premises. Upon the claim so proved, dividends were paid to the defendant as follows : March 15, 1842, $339.13; September 9, 1853, $7.65; September 3, 1844, $27.35.</p> <p>The mortgage to the defendant contained the usual covenants against incumbrances; but, on the 25th of September 1838, Cummings had mortgaged a portion of the land therein described to James F. Baldwin, to secure certain notes, and the defendant did not know of the existence of this prior mortgage, until after the death of Cummings, when, having taken possession under his mortgage, he was called upon to pay to Baldwin the balance then due to him. And, accordingly, in order to prevent Baldwin from taking possession under his prior mortgage, the defendant, on the 30th of April 1842, paid to him the sum to which he was then entitled, amounting to $231.16, which was less than the value of the land embraced in his mortgage; and the mortgage was discharged of record by Baldwin, on that day. The plaintiff did not become the owner of the equity of redemption for over three years after this time, and he alleged that he purchased the same after an examination of the records in the registry of deeds, in which he found the discharge of the mortgage to Baldwin duly entered.</p> <p>The master stated an account of rents and profits, allowing the defendant the sum of $231.16, paid by him to Baldwin, and charging him with the dividends received by him from the estate of Cummings, by which a balance of $568.72 was found due to him upon his mortgage.</p> <p>The chief justice reserved two questions for the consideration of the whole court: First. Is the defendant precluded from claiming of the plaintiff the amount due on his mortgage, after deducting the sums received as dividends, by reason of his proof against the estate of Cummings 1 Secondly. Has he a right to claim the amount paid by him to Baldwin, in order to remove the prior mortgage ?</p>

<p>Writ of entry. At the trial in the superior court, the demandant proved that, on the 27th of June 1855, he conveyed the demanded premises to the tenant, by deed of warranty duly acknowledged, and at the same time, as part of the same transaction, took back from the tenant an instrument under seal, which is copied in the margin,* and which was duly recorded with the deed ; and Rockwell, J. ruled that this instrument granted to the demandant and his wife an estate in joint tenancy, and did not enable him to maintain an action to recover possession of the premises in his own name alone, even after breach of condition; and, further, that the instrument was inadmissible in evidence for want of acknowledgment. A verdict was accordingly returned for the tenant, and the demandant alleged exceptions.</p>

<p>A deed of mortgage which conveys all of the land and right and claim to land which the grantor now has in the town of 0. does not include land therein to which he has only a possibility of a reversion, on the non-performance of a condition subsequent.</p> <p>If there is no evidence of the time when a note secured by mortgage of real estate was paid, but the note is found among the mortgagor’s papers after his death, the presumption is that it was paid according to its terms, and the estate of the mortgagee is defeated thereby; and if, after the death of the mortgagor and mortgagee, a suit to redeem the mortgage has been brought by the heirs of the mortgagor against the heirs of the mortgagee, in ignorance of the facts, and, upon the finding of the note, a settlement is made by which the note is given up to the latter, this act is not effectual to revive the mortgage.</p> <p>Proceedings under a petition for partition, in which the petitioner alleges that a certain share of the premises is owned by persons therein described, who in fact are not the owners thereof, and in which partition is made according to the allegations of the petition, do not prevent him from subsequently purchasing such share from the true owner, and making a valid conveyance thereof.</p>

<p>A judgment against a trustee, in a police court, discharges him from all claim by the defendant in the suit for money paid by him upon the judgment, although the decision of the police court was erroneous and he did not appeal.</p>

<p>It is no defence to a real action to prove that, since the date of the writ, a mortgagee of the premises has entered for the purpose of foreclosure, and that the tenant now holds under him.</p>

Tort for the obstruction of a right of way over land of the defendant. The plaintiff’s title was by deed, in which no limits of the way granted were fixed or defined. At the trial in the superior court, before Morton, J., a verdict was returned for the plaintiff, and the defendant alleged exceptions.

<p>This court will not take cognizance of a case coming up from the superior court, if the revord shows simply an appeal from the decision of that court sustaining a demurrer to one count of a declaration which contains two counts, and the other count remains unanswered, and no judgment has keen entered in that court.</p>

<p>If the owner of land makes an excavation in it so near to the adjoining land of another proprietor that the soil of the latter breaks away, he is responsible for all the injury thereby occasioned to the land, and also for the disturbance of a right of way over the land, without proof of carelssness, negligence or want of skill in making the excavation, but not for injury to buildings which have been placed upon the land.</p> <p>One who is in the occupation of land, which he has agreed to purchase, by a written contract which contains no stipulation that he may have possession until the price is paid, ia a mere tenant at will, and cannot sustain an action for an injury to the reversion, although he subsequently becomes the owner of the land in fee.</p> <p>In an action for an injury to the plaintiff’s land, resulting from an excavation made by th& defendant upon his adjoining land, by means of which the plaintiff’s soil has broken away and fallen, it is no defence that the injury would not have occurred but for tb'. acts kf persons other than the plaintiff, in erecting buildings upon their own land.</p>

Tort for injury to a passage way appurtenant to land occupied by the plaintiff under a contract for the purchase thereof with the owner, caused by an excavation made by the defendant’s testator in his lifetime upon his adjoining land, by which the land of the passage way was made to fall in and to become impassable. The facts were, in general, the same as in the preceding case.

Indictment for the murder of Henry Gillen. At the trial in this court, evidence was offered by the government tending to show that the defendant suddenly approached the deceased in the night, and stabbed him in two places in the abdomen, and immediately ran away; and that the deceased died nineteen days thereafter.

<p>A judge of the superior court has power to revise and increase a sentence imposed upon a convict, during the same term of court, and before the original sentence has gone into operation, or any action has been had upon it.</p>

Indictment for obtaining a bank check for $500 of William R. Huston, by falsely pretending that a note for $500, dated May 25, 1859, and purporting to be signed by R. W. Blackwell, in exchange for which the check was obtained, was signed by him. At the trial in the superior court, before Wilkinson, J., the defendant was convicted, and alleged exceptions. The facts are stated in the opinion.

Indictment, charging that the defendants, five in number, “ together with divers others, to the number of twelve and more, to the jurors aforesaid unknown, being evil disposed and riotous persons, and disturbers of the peace of said commonwealth, on the thirty-first day of December in the year of our Lord one thousand eight hundred and sixty, at North Andover, in the county of Essex aforesaid, with force and arms, to wit, with clubs, stoves, stones and other dangerous and…

Indictment for larceny of money and a gold watch in a dwelling house.

Complaint made in the police court of the city of Boston, against the defendant, for selling adulterated milk in violation of the provisions of Gen. Sts. c. 49, § 151.

<p>An indictment for burning in the night time a building erected for public use, under Gen* Sts. c. 161, § 2, is sustained by proof of burning in the night time a building removed by a city, and afterwards fitted up as a school-house and engine-house.</p>

Indictment against the defendant for being a common seller of intoxicating liquor.

<p>A receipt in full of all demands is a discharge fpr money, within the meaning of Gen. &ts.</p> <p>an Possession of a forged instrument by a person claiming under it, is strong evidence tending to prove that he forged it, or caused it to be forged.</p>

Indictment for rape upon Honora Sullivan. The indictment contained no averment that the person of whom the defendant had carnal knowledge was not his wife.

<p>An indictment under Gen. Sts. c. 162, § 2, for uttering and publishing as true a false, forged and counterfeit promissory note, is not supported by proof of uttering and publishing as true a counterfeit bank bill upon an incorporated banking com any established in this commonwealth.</p>

Indictment under Gen. Sts. c. 87, § 6, charging the defendant with keeping and maintaining a tenement “ used for the illegal sale and illegal keeping of intoxicating liquors.” At the trial in the superior court, Brigham, J. instructed the jury that, “if the evidence satisfied them that the defendant used the tenement kept by him either for the illegal keeping, that is to say, the keeping for illegal sale, or the illegal sale, of intoxicating liquors,” they should find him…

Indictment for larceny of money, the property of Hazael Lucas, at Waltham, in the county of Middlesex.

<p>Indictment for murder.</p> <p>The first count charged that George C. Hersey, “ on the third day of May in the year of our Lord eighteen hundred and sixty, at Weymouth in the county of Norfolk, in and upon one Betsey Frances Tirrell, in the peace oí the said commonwealth then and there being, wilfully, feloniously and of his malice aforethought, did make an assault, and to her the said Betsey Frances Tirrell did feloniously, wilfully and of his malice aforethought, then and there give and administer a certain large quantity, to wit, ten grains in weight, of a certain deadly poison called strychnine, he, the said George C. Hersey, then and there well knowing the same to be a deadly poison, with intent that the said Betsey Frances Tirrell should then and there take and swallow down the same into her body, and that the said Betsey Frances Tirrell, the said strychnine, so given and administered as aforesaid, did then and there take and swallow into her body, and by reason thereof became then and there mortally sick and distempered in her body, and of said mortal sickness and distemper did then and there languish, and languishing for the space of one half hour did there live, and afterwards, on the day and year aforesaid, did there die of the mortal sickness and distemper then and there caused by the poison aforesaid, so as aforesaid, by the said George C. Hersey, then and there feloniously, wilfully and of his malice aforethought given and administered to her the said Betsey Frances Tirrell; and so the jurors aforesaid, on their oath aforesaid, do say and present, that the said George C. Hersey, her the said Betsey Frances Tirrell, in manner and form aforesaid, and by the means aforesaid, at Weymouth in the county aforesaid, feloniously, wilfully and of his malice aforethought, did kill, poison and murder, against the peace ” &c.</p> <p>The second count charged that the defendant, on the same day, and at the same place, with force and arms, “ a certain quantity to wit, ten grains of strychnine, the same being then and there a deadly poison, feloniously, wilfully and of his malice aforethought, did put, mix and mingle in and together with certain preserved fruit, the name of which is to the jurors aforesaid unknown, the said George C. Hersey then and there well knowing the said strychnine to be a deadly, poison ; and that the said George C. Hersey, the said strychnine, so as aforesaid put, mixed and mingled in and together with said preserved fruit, into a certain spoon did then and there put and place, and the said spoon, with the said strychnine put, mixed and mingled in and together with said preserved fruit so as aforesaid then and there contained therein, then and there to wit, on said third day of May in the year aforesaid, with force and arms at said Wey ■ mouth, in the county aforesaid, feloniously, wilfully and of his malice aforethought into the hands of said Betsey Frances Tirrell did then and there put and place, he the said George C. Hersey then and there falsely, wilfully, feloniously and of his malice aforethought pretending to the said Betsey Frances Tir rell that the said strychnine so as aforesaid put, mixed and mingled in the spoon aforesaid with the preserved fruit aforesaid, was a medicinal preparation which would produce the miscarriage of said Betsey Frances Tirrell, she the said Betsey Frances Tirrell being then and there pregnant with child, and the said George C. Hersey then and there well knowing the same not to be such medicinal preparation, and then and there well knowing that the same was then and there a deadly poison, and the said George C. Hersey then and there feloniously, wilfully and of his malice aforethought intending that said Betsey Frances Tirrell should then and there and thereafterwards take and swallow down into her body the said strychnine, put, mixed and mingled in and together with the preserved fruit as aforesaid, in the spoon aforesaid, in the belief then and there that the said poison was then and there a medicinal preparation so as aforesaid intended and adapted to produce the miscarriage of her the said Betsey Frances Tirrell. And the jurors aforesaid upon their oath aforesaid do further present, that the said Betsey Frances Tirrell, not knowing the said strychnine, so as aforesaid put, mixed and mingled with the preserved fruit aforesaid, in the spoon aforesaid so by the said George C. Hersey into the hands of said Betsey Frances Tirrell then and there put and placed, to be then and there a deadly poison, but believing the same to be a medicinal preparation, as aforesaid, afterwards, to wit, on the aforesaid third day of May in the year aforesaid, at Weymouth aforesaid in the county aforesaid, the said strychnine so as aforesaid, with said preserved fruit, in the spoon aforesaid, then and there put, mixed and mingled as aforesaid, did then and there take and swallow down into her body: by means of which said taking and swallowing down into the body of said Betsey Frances Tirrell so as aforesaid of the said strychnine, with said preserved fruit in the spoon aforesaid put, mixed and mingled by the said George C. Hersey as aforesaid, the said Betsey Frances Tirrell became then and there sick and distempered in her body, of which said sickness and distemper of body, so, by the said taking and swallowing down into her said body of the poison aforesaid, so, as aforesaid, put, mixed and mingled, caused and produced as aforesaid, the said Betsey Frances Tirrell did then and there languish, and languishing for the space of one half hour did there live, at the end of which time the said Betsey Frances Tirrell,- on the day and year aforesaid, at Weymouth aforesaid, in the county aforesaid, of the poison aforesaid so by the said George C. Hersey wilfully, feloniously and of his malice aforethought into the hands of said Betsey Frances Tirrell put and placed, and by said Betsey Frances Tirrell then and there into her said body taken and swallowed down as aforesaid, under the false representations of the said George C. Hersey aforesaid, did die. And so the jurors aforesaid on their oath aforesaid, do say and present, that the said George C. Hersey, her the said Betsey Frances Tirrell, on the day and year aforesaid, at Weymouth aforesaid in the county aforesaid, in manner and form aforesaid, wilfully, feloniously, and of his malice aforethought, did poison, kill and murder, against the peace ” &c.</p> <p>The third count charged that Betsey Frances Tirrell committed suicide, and that Hersey incited her thereto.</p> <p>The fourth count charged Hersey with the murder of Betsey Frances Tirrell in some way and manner and by some means and agencies to the jurors not known.</p> <p>At the trial in this court, before Bigelow, C. J., and Dewey, Merrick, and Chapman, JX, upon the motion of the prisoner, the witnesses for the Commonwealth, with the exception of those summoned merely as experts, were excluded from the court room, until they should severally be called to testify. The prisoner then moved that the officer having charge of the witnesses so excluded, should be directed to prohibit them from reading the newspaper accounts of the evidence in the case; but this the court declined to do.</p> <p>Frederick Morrill was called as a witness for the Common wealth, and asked as to a conversation with the prisoner in which the latter applied to him for information upon the subject of procuring abortions two or three years before the time of the acts charged in the indictment, and not with reference fo these particular acts; and, on objection, the evidence was excluded, as too remote to have any bearing on the issue to be tried.</p> <p>The same witness, on cross-examination, identified certain medical advertisements in the Boston Herald as his; and copies of the newspapers containing the same were offered to the jury, for the purpose of showing the nature of his medical practice, and affecting his credit before the jury. Objection being made, the court held that the advertisements might be read to the jury as a portion of the cross-examination of the witness, and for the purpose of affecting his credit, but that the newspapers themselves could not be laid before the jury.</p> <p>Evidence was offered in defence, that the prisoner’s brother advised him to fly, after the death of Betsey Frances Tirrell, and suspicions against him were excited, and that he refused to do so; but the evidence was excluded.</p> <p>The counsel for the prisoner contended that no conviction could be had on the first two counts in the indictment, because neither of them contained any averment that the prisoner administered the poison with an intent to kill, and asked the court so to instruct the jury ; but Bigelow, C. J., in charging the jury, instructed them that it was not necessary to the validity of the first two counts that they should contain an allegation that the prisoner in administering the poison intended to take the life of the deceased; that the law presumes that every man intends the natural and necessary consequences of his own acts; that if a person commits an act in its nature malicious and felonious, the inference of an evil and wicked intent is supplied by proof of the commission of the act. If therefore the jury were satisfied that the prisoner administered to the deceased a quantity of strychnine, knowing it to be a deadly poison, and that the deceased died in consequence of taking the poison thus administered by the prisoner, it would be competent for them to infer that the poison was given with an intent to take the life of the deceased, and to find him guilty on the first two counts in the indictment.</p> <p>After a verdict of guilty of murder in the first degree on the first two counts, and not guilty on the residue, the prisoner moved in arrest of judgment, because it was not averred in either of the first two counts that the poison was administered with an intent to kill.</p>

Tort for the conversion of 9000 feet of sheet glass lying unboxed in the glass factory of the National Plate Glass Company of Lenox, which was attached by the plaintiff as a deputy sheriff on a writ in favor of George C. Hubbell against that company, and not removed, but recorded in the town clerk’s office under Rev. Sts. c. 90, §§ 33, 34.

Tort against the sheriff of Berkshire county, for the default of his deputy, in not keeping property attached, which, by reason of its nature and bulk, could not easily be removed. At the trial in the superior court, before Rockwell, J., a verdict was returned for the plaintiff, and the defendant alleged exceptions to the rulings of the judge. The facts are stated in the opinion.

<p>Contract by a deputy sheriff, upon a receipt executed by the defendants for oxen attached by the plaintiff on a writ in favor of Abial Nichols against Daniel T. Bardin, and delivered to the defendants for safe keeping. The receipt was in the ordinary form, containing an agreement to redeliver the property on demand at the hotel of John D. Hull, in Dalton, and containing also the following provision : “ And I further agree that if no demand be made upon me, I will within thirty days from the rendition of judgment in the action aforesaid redeliver all the above described property as aforesaid, that the same may be taken in execution.”</p> <p>At the trial in the superior court, before Ames, J., the plaintiff proved, by the evidence of the attorney of Nichols, that the execution was delivered to him for service within thirty days' after the rendition of judgment, which was on the 10th of December 1859.</p> <p>It further appeared that, during the pendency of the action against Bardin, proceedings in insolvency were instituted against him, and a warrant was issued against his estate, and an assignee chosen, who obtained an order in the court of insolvency that the attachment should survive, and was admitted to prosecute the suit in his own name to final judgment and execution, which he did; employing the attorney of Nichols for this purpose The receiptors left the oxen attached with Bardin, who sold them before the institution of the proceedings in insolvency.</p> <p>The plaintiff also introduced in evidence, under objection, the execution, dated December 15th 1859, and his own return thereon, which is copied in the margin,* and rested his case.</p> <p>The defendants objected that this action could not be maintained in the name of the plaintiff, unless prosecuted by the assignee of Bardin ; but the court overruled the objection. They also asked the court to instruct the jury that it was incumbent on the plaintiff to prove, not only )that the execution was received by him within thirty days after the rendition of the judgment, but that it was so received for the purpose of levying the same, and that he made effort within that time to levy the same upon the oxen. At this stage of the trial, the plaintiff moved for leave to amend his return upon the execution, and he was allowed, under objection,, to make the addition thereto which is copied in the margin,* and to introduce the same in evidence.</p> <p>The court instructed the jury that it was incumbent on the plaintiff to pi'ove that the execution was delivered to the officer within thirty days after the rendition of the judgment, and that he made reasonable effort within that time to levy the same upon the oxen; and that the return as amended was evidence of those facts.</p> <p>The jury returned a verdict for the plaintiff, and the defend ants alleged exceptions.</p>

<p>Tort against the late sheriff of Berkshire county, for the default of his deputy, A. W. Kellogg, in failing to keep property attached on a writ in favor of the plaintiff. It was contended in defence that the plaintiff’s attorney accepted Leland Bmiingham as a receiptor for the property, and that Jones, the officer to whom the execution was afterwards delivered, demanded and received the receipt instead of the property.</p> <p>At the trial in the superior court, before Ames, J., it was agreed that the execution was committed to Jones within thirty days after the rendition of judgment, and his return set forth that within the thirty days he demanded the property of Kellogg and of the defendant, but it was not delivered to him, and he was called as a witness and testified to the same effect. On cross-examination he stated that, before making either of the demands testified of, he wrote a letter to Kellogg, who was then in Chicago, in which he might have said something about a receipt for the property. The defendant called Kellogg as a witness, and offered to prove by him that in the letter, which was lost, Jones only demanded the receipt, and did not demand the property itself; but the evidence was excluded.</p> <p>There was evidence tending to prove that Kellogg, after making the attachment, informed the plaintiff’s attorney that there was doubt as to the title of the defendant in the writ to the property attached, but that Burlingham had offered to receipt for it, and the attorney, after conversation as to his responsibility, said, “ I think you had better take him as receiptor for the property;” and this was accordingly done. The judge instructed the jury that if the plaintiff’s attorney consented that Kellogg should take the proposed receipt, it would relieve the officer of responsibility for the property afterwards; but, in order to have this effect, the consent must be more than a mere casual conversation upon Burlingham’s pecuniary ability, “ and should have been expressed with the intent of influencing or controlling the officer’s conduct, and of assuming the risk upon the plaintiff himself.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Tort against the sheriff of Berkshire county for the misfeasance of John W. Howland, his deputy. The first count alleged that Howland, by virtue of some process committed to him as an officer, seized four cows of the plaintiff and converted them to his own use. The second count alleged that Howland refused to serve a writ in favor of the plaintiff against Calvin Mason, though his fees were tendered, and property to be attached was pointed out. The answer denied the title of the plaintiff to the cows mentioned in the first count; and denied the various allegations in the second count, and averred that, if true, the property pointed out had already been seized by Howland on other precepts, which it was no more than sufficient to satisfy.</p> <p>At the trial in the superior court, before Rockwell, J., it appeared that the plaintiff held a mortgage of the cows from Calvin Mason, dated June 9, 1856, and recorded March 8, 1858; and in February 1858 an execution against Mason was delivered to Howland for service, on which he seized the cows in question, as well as other property, and on the 6th of March 1858 he sold the cows and other property for twelve or fifteen dollars more than enough to satisfy the same, and still proceeded to sell a mow of hay for about $28, so that after satisfying the execution he had left in his hands a surplus of $41.70. The plaintiff contended that, by selling the hay under the circumstances stated, Howland became a trespasser ab initia, and was therefore liable to him for the value of the cows; but the judge ruled otherwise.</p> <p>The defendant was allowed to introduce evidence, under objection, of a settlement made in April 1858, by which How-land paid over to other creditors of Mason the surplus in his hands, with the plaintiff’s consent; for the purpose of showing that “ when the writ mentioned in the second count was offered to Howland, March 17th 1858, he had not in his hands the said $41.70.”</p> <p>The jrny returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>Contract upon an agreement in writing to pay an award which might be made under a submission to arbitration entered into under the statute between the plaintiff and Washington Bissell. The submission recited that Bissell had leased to the plaintiff certain land and stock for four years, and that, as controversies respecting the terms had arisen, it had been agreed that the plaintiff should surrender the lease to Bissell, provided the latter should pay to him such sum, if any, as the arbitrators should award therefor; and the parties also submitted to the determination of the arbitrators all other claims and demands between them. The agreement upon which the action was brought was as follows:</p> <p>“ Whereas Washington Bissell and Washington L. Hubbell have entered into the foregoing submission to Jonathan P. To-bey, Orrin Curtis and Albert Bushnell, now I, Washington Bis-sell, and Josiah A. Hurlburt as his surety, and I, Washington L. Hubbell, and George Douglas as his surety, hereby agree and bind ourselves each to the other, to do and perform all such things and pay all such sums of money each to the other, as the said arbitrators shall award and determine to be done in the premises by either or both of said parties to said submission; and all payments in money which shall be awarded to be paid by one to the other shall be paid in twenty days after the said arbitrators shall have made and published to the said parties their award in the premises. In witness whereof,” &c. This agreement was signed by all the parties.</p> <p>The arbitrators awarded that Hubbell should recover of Bis-sell $294.88, with costs of the arbitration, taxed at $105.02, and costs of court to be taxed by the court; and that Hubbell should surrender the lease and certain stock and property which they specified.</p> <p>The declaration set forth the submission, agreement and award, and alleged that the plaintiff had surrendered the lease to Bissell, and that the defendants owed him the sums of money awarded, with interest after the expiration of twenty days from the time when the award was published.</p> <p>The defendants filed a demurrer, assigning various causes; but at the argument the only grounds relied on were that the action was not rightly brought by the plaintiff alone, and that the arbitrators exceeded their authority in awarding costs. They also filed an answer averring, amongst other matters not necessary to be stated here, that, at the time of the execution of the agreement, the defendant Josiah A. Hurlburt was not of sound mind and memory, or competent to make the same.</p> <p>At the trial in the superior court, before Rockwell, J., the demurrer was overruled, and the jury returned a verdict for the plaintiff. The presiding judge allowed a bill of exceptions, the material portions of which are as follows: —</p> <p>“ The plaintiff introduced testimony, the defendants objecting, to show that said Bissell, upon the publication of the alleged award to him, expressed his satisfaction with it.</p> <p>“ The defendants offered to show that the award was erroneous, and comprised errors and mistakes, but the court excluded the evidence.</p> <p>“ The defendants also offered to show that Orrin Curtis, one of the arbitrators, stated three days after the making and publishing of the alleged award that, as to one of the claims made by the plaintiff and decided in his favor, embraced in the award, he formed his opinion partly on the evidence adduced before the arbitrators, and partly upon statements made to him by the plaintiff previous to the submission or agreement to refer ; but this evidence the court excluded.</p> <p>“ Upon the issue of said Josiah’s incompetency, the plaintiff introduced evidence, the defendants objecting, that said Bissell set up a claim against one Edward A. Hurlburt for alleged damage done by said Edward’s swine to the corn of said Bissell, and, upon the dispute which arose thereon, offered to submit the matter to said Josiah and another as arbitrators to decide the dispute, and that'this offer was made within the time claimed in this case to be when said Josiah was not of sound mind and memory, and incompetent to contract. The evidence was allowed, the defendants objecting; said Bissell having previously testified to facts tending to show that said Josiah was at that time incompetent to contract by reason of mental imbecility.</p> <p>“ It was further claimed upon the part of said Josiah that it was shown that there were matters embraced in the award, not included in the claims submitted for arbitrament, but which were included in the award by the arbitrators with the consent or at the request of the parties; and it was urged in behalf of said Josiah that such proceeding absolved him from liability as surety. The court ruled that, as to everything which did not appear upon the face of the papers, it was for the jury to say whether matters were embraced in the award which were not submitted, and instructed them that the defendant Hurlburt would not be liable if the arbitrators had so exceeded their authority, and awarded upon matters not embraced in the submission.”</p>

<p>Writ of entry, to recover possession of a parcel of land in Pittsfield, containing thirty six rods of land, with two dwelling-houses thereon. The only material fact which appeared at the trial in the superior court, and is not stated fully in the opinion, was that, after the levy and set-off of the premises on an execution in favor of James Reid against the plaintiff, the latter left the premises and removed his family and effects to a house upon another piece of land. By consent, the case was tried by the court without a jury, and judgment was rendered by Rockwell, J. for the defendants. The plaintiff alleged exceptions, and the parties agreed that this court might order such judgment as the case should require.</p>

<p>A deed of mortgage of several parcels of land, one of which is held by the mortgagor as a homestead under St. 1857, c. 298, though not executed in such form as to be a valid conveyance of the homestead, is good as to the other parcels; and if the homestead has been sold under a power of sale contained in the mortgage, without right, and the sale lias been held to be void, the money received therefor is not to be deducted from the amount of the debt secured by the mortgage, in making up the sum for which conditional judgment shall be rendered in an action to foreclose the mortgage.</p>

<p>Contract against a resident of Chicago, Illinois, for the support and education of Edward and Mary Spring, his minor wards. The children were taken into the care of the plaintiff, who was their aunt, in 1854, with the defendant’s consent, and remained with her in Illinois and Ohio until June 1856, when they all came to Massachusetts. In June 1858, the plaintiff, on her own application, was appointed in Berkshire county as their guardian, without notice to the defendant. At the trial in the superior court, Putnam, ,J. ruled that the plaintiff could not. recover for charges after the date of her appointment as guardian, and a verdict was returned accordingly. The plaintiff alleged exceptions.</p>

<p>Under Gen. Sts. c. 88, § 64, one who suffers loss by reason of the worrying, maiming or killing of his horse by dogs is, upon proof thereof, entitled to an order from the selectmen of the town wherein the damage is done, upon the treasurer of the town, for the amount of his loss, to be paid from the fund created by taxes on dogs according to the provisions of that statute; and if the selectmen refuse to draw such order, upon proof of the facts, a writ of mandamus will be granted, ordering them to do so.</p>

Tort for the disturbance of a right of way claimed to have been established by prescription over the defendant’s land to a lot called the Gold Lot, in which the plaintiff had an interest.

Two actions of contract, tried and argued together, on promissory notes given by the defendants in' payment for a farm and a detached piece of woodland. At the trial in the superior court, before Rockwell, J., it appeared that the bargain for the land was made upon the premises, and that the defendants had viewed the same with reference to the purchase, and passed over the wood lot at several times before the purchase, in different directions.

Tort against a magistrate. The substance of the third count in the declaration was that the plaintiff recovered judgment before the defendant against Samuel Hearing, and requested an execution, and the defendant issued one in which he was wrongfully described as “ one of the trial justices,” instead of “ one of the justices of the peace,” for Berkshire county; and that the plaintiff had committed the same for levy to an officer, who seized and sold certain property thereon,…

Tort against a deputy sheriff for the conversion of a cow seized by him on an execution against the plaintiff. At the trial in the superior court, it appeared that at the time of the seizure the plaintiff was in possession of two cows, one of which was subject to a mortgage, and the other was taken on the execution by the defendant. It was in dispute whether the mortgage had been legally foreclosed or not, but that question became immaterial.

<p>A writ of entiy to foreclose a mortgage to “ The Copake Iron Works,” may be maintained by the individuals who compose a firm, and do business, and received the mortgage, under that partnership name.</p> <p>If the owner of land makes two mortgages thereof, and in the second mortgage, which if given merely to indemnity a surety upon a note who has since paid nothing thereon, reserves to Himself the right to cut and dispose of all the wood on the premises, and in the first mortgage stipulates for the right to make coal from the wood, under an agreement which provides that he shall deliver the same to the first mortgagees, and that the amount which may be due thereon shall be indorsed on the mortgage note, an assignee of the second mortgage has no right to complain, in a suit against him to foreclose the first mortgage, of a settlement fairly made between the mortgagor and the first mortgagees, by which the amount to be so indorsed is ascertained and determined, and is indorsed accordingly, although in such settlement a set-off was allowed for supplies furnished by them to enable the mortgagor to go on with his work, and to ‘a third person with whom he had a contract respecting the same subject matter; but conditional judgment will be entered for the amount due on the note, after deducting the indorsement.</p>

<p>Contract for sand sold and delivered. At the trial in the superior court, it appeared that the sand in question belonged to the plaintiffs, who authorized one Coman to dig and prepare the same for glass manufacture, and Coman without right sold it to the defendants, and received payment therefor. Ames, J. ruled that, after demand and refusal of payment, these facts were no defence to the action, and a verdict was returned for the plaintiffs. The defendants alleged exceptions.</p>

<p>In an action by one who lives and has his place of business in another state, to recover the price of spirituous liquors, the defendant, in order to show that the sale was made in this commonwealth, by an agent of the plaintiff, may prove that the alleged agent called upon him and ascertained that he desired certain kinds and quantities of liquor, and that the liquors sued for were afterwards received from the plaintiff, without any other order or direction by the defendant for them, and that the alleged agent also called on various other persons in the same town, and made similar inquiries, which were followed by the like results.</p>

<p>No exception lies to the decision of a jiidge of the superior court overruling an answer in abatement based upon an alleged want of legal service of the writ upon the defendants. If the return of the officer shows that personal service of a writ was made upon the defendant, neither a motion to dismiss the action, nor in arrest of judgment, on the ground that at the time when the service was made the defendant, a resident of another state, had no property in this commonwealth, and was himself here in attendance upon the court of common pleas, to answer to an indictment against him, having been brought here upon a requisition, can be sustained.</p> <p>Two agreements in writing executed on the 13th of May 1857, by C. D., as follows: “ This certifies that I agree to pay A. B. twenty four dollars per month for eight months peddling, commencing on the 16th day of March 1857, reference being had to an agreement between said A. B. and C. D. for one horse sold to said A. B. this day, which is to be used by said A. B. for peddling for the above time; ” “ This certifies that I have this day sold A. B. one grey horse for four months and one half peddling, he to use said horse for the above time for that purpose, and the horse not to be his till paid for; ” disclose no latent ambiguity, and their construction is for the court; and the title to the horse is vested in A. B. by his performance of the specified service for four and one half months after the 16th of March 1857.</p> <p>A general verdict for the plaintiff in an action of tort against two defendants, with counts for assault and battery, conversion of personal property, and slander, with an assessment of entire damages, furnishes no ground for a motion in arrest of judgment, if the jury were expressly instructed that the defendants were not responsible on the count for slander, and no request was made that the damages should be assessed on each count sep arately.</p>

This case, which was commenced in the court of common pleas, was removed into the supreme judicial court by agreement of parties, where it remained upon the docket for one year, when it was remitted to the court of common pleas. At the trial, which was afterwards had in the superior court, the defendant obtained a verdict, and the clerk allowed him to tax costs for those terms while the case was pending on the docket in the supreme judicial court.

<p>In an action by the indorsee against the maker of a promissory note, in which the defendant sets up a partial payment by the indorser, and it is in dispute whether a sum of money paid by the indorser to the indorsee was to be applied on this note or others on which the indorser was liable, it is erroneous to instruct the jury that, if the sum “ was left upon condition that it should be applied in part payment of the note only in case the maker should make security for or payment of the balance, and a negotiation ensued between the maker and indorsee upon the basis that the money should first be applied upon the note, and the maker pay the balance, the payee could not afterward deny to the maker the benefit of that sum in payment, although said negotiations fell through.*’</p> <p>'•nterest at the rate of six per cent, only can be recovered in an option in this commonwealth, upon a note by the terms of which no interest is payable, although it was given and payable in another state where a higher rate is allowed by law.</p> <p>No exception lies to the decision of a judge of the superior court upon the question whether there is upon the face of a note in suit a manifest alteration, which requires explanation from the party producing it, before it can be read to the jury; nor to his refusal to allow the jury to take its appearance into consideration, in reference to the question whether or not it was received in good faith by an indorsee, who has brought an action upon it, if the only peculiarity relied upon is the insertion in the body of the note, after the name of the payee, of a day of payment which corresponds with the last day of grace, according to the time previously stated therein for the note to run</p> <p>An instrument executed and delivered in this form: “$1585.90. Brooklyn, September 20th 1858. after date promise to pay to the order of Dec. 23, dollars at , value received. J. S.,” is a promissory note; and in an action against the signer by one to whom it was indorsed, after the blanks had been filled up by the person to whom the signer delivered it, evidence is inadmissible to show that it was intended only as a memorandum. And the note is not rendered invalid by filling the blanks, if they are not so filled as to alter its effect; but the insertion of the words “ three months,” to express the time of payment, if done without authority, is a material alteration.</p> <p>In an action brought in this commonwealth by the indorsee against the maker of a promissory note, payable in New York, executed in and by a resident of New York, and indorsed in and to a resident of Connecticut, the defendant has no ground of exception to a ruling of the judge rejecting an alternative offer of evidence by him to prove that the note was taken by the indorsee upon a consideration usurious by the laws of Connecticut or New York.</p> <p>The rule established in this commonwealth that one who takes a negotiable instrument in payment of a preexisting debt is entitled to the same protection as any other holder for value, is applicable to an action brought by the indorsee in this commonwealth, although he resides, and the indorsement was made, in another state.</p>

Complaint for flowing land. The respondent in his answer, amongst other things not material to be recited here, claimed the right to maintain his dam at its present height without making any compensation.

<p>Contract upon a promissory note, signed “ Ensign & Jones.” Sidney Jones, one of the defendants, relied in defence upon the. statute of limitations.</p> <p>At the trial in the superior court, it appeared that Ensign & Jones were partners on the 22d of April 1853, when the note was given, and there was evidence tending to show a dissolution of the partnership by the voluntary act of the partners in April 1854. No notice of the dissolution was given except by posting up two notices, and there was no evidence that the plaintiff knew of it, and the plaintiff, in his testimony, denied that he had such knowledge; and, on May 1st 1854, Ensign paid one year’s interest on the note and a part of the principal, saying, as the plaintiff testified, “We hope soon to pay the balance.” The writ was dated April 27th 1860. Ames, J. instructed the jury that 'a payment by Ensign after the dissolution of the firm, but before notice, and while the plaintiff was ignorant of it, would have the same effect as if made during the continuance of the firm. The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>In an action by a deputy sheriff against an attorney at law for loss sustained in conse quence of false representations by the latter that he was authorized to execute a written contract of indemnity in the name of the plaintiffs in various writs committed by him to the deputy sheriff for service, and thereby inducing him to accept the same and to attach and sell property of the defendants in the writs, the defendant has no ground of exception to instructions by the court that, “ to justify the jury in returning a verdict for the plaintiff, they must be satisfied upon all the evidence before them that the defendant had no right, either from previous appointment or subsequent ratification, to sign the contract as attorney for the parties in whose behalf it purported to be executed; that he falsely pretended that he had such authority, knowing that he had not, or having no reason to suppose that he had; and that the plaintiff, upon the faith of that representation, proceeded to perform official acts and thereby to incur liabilities, and that, by so acting, and being so misled, he had sustained loss and damage.”</p> <p>A.n attorney at law executed to a deputy sheriff the following agreement, in the name of the plaintiffs in various writs: “ Know all men by these presents that we agree to hold harmless A. B., deputy sheriff, for selling stoves and iron on the executions in his hands at this time, to wit, one in Knight v. Cheshire Iron Works, the other Dooley v. Same, and from all costs, charges, damages and expenses whatsoever that ma}r result or accrue to him for attaching or selling Cheshire Iron Works property, or property claimed or which belongs or belonged to Cheshire Iron Works.” In an action by the deputy sheriff against the attorney for falsely representing that he had authority so to execute it, Held,</p> <p>1. That the defendant could not be permitted to prove that it was only intended to indemnify the plaintiff against the claims of a single person;</p> <p>2. That the contract only applied to precepts then in the plaintiff’s hands, and did not extend to such as were afterwards committed to him for service;</p> <p>3. That the defendant had no ground of exception to an instruction that, in estimating the damages, the jury might take into consideration a judgment recovered against the plaintiff for taking and selling the stoves and iron, deducting therefrom so much of the damages therein as resulted from attachments made by the plaintiff subsequently to the making of the contract; or, if that amount could not be ascertained, the rule of damages might be the amount of the judgments in .favor of the parties whose names had been signed by the defendant to the contract, and which had been satisfied by the application thereon of the avails of the sale of the property so taken by the plaintiff;</p> <p>4. That the jury might allow interest on sums which the plaintiff had been compelled to pay, in consequence of his acts under the contract.</p>

Petition to the county commissioners of Berkshire county for a jury to assess damages to land of the petitioner, sustained by reason of the discontinuance of a highway.

Contract on a bond executed to the plaintiff by the defendants, the condition of which was as follows: “ The condition of this obligation is such that whereas the said R. J. Walker and C. W. Cotton [the defendants] have this day purchased certain property of the said Childs [the plaintiff], it being all the right, title and interest the said Childs has in the firm doing business under the name and firm of Childs, Cotton & Co. at Shelburne Falls, county and state aforesaid,…

<p>An assignee in insolvency who has taken possession of personal property which had been mortgaged by the debtor in fraud of creditors, and filed a bill in equity to prevent a transfer of the mortgage by the mortgagee, may hold the same against one to whom the mortgage, and the note which it was given to secure, were subsequently assigned for a good consideration and without notice.</p> <p>A party to a mortgage of personal property is a competent witness to invalidate it.</p>

<p>In an action on a bill of exchange accepted by the defendant, the consideration of which was a sale of spirituous liquors to him by the plaintiffs in the State of New York, proof that the liquors were sent upon a written order from the defendant, in which he stated that he wished them to sell again, and that he had a few friends who were in the habit of getting their supplies from him, and requested that they should be forwarded to a railroad station in another town from that in which he lived, marked in cipher, is insufficient to defeat the action.</p>

<p>Tort. First count, for trespass quare clausum; second count, for slander. Verdict for the plaintiff, with damages on the first count, one dollar, and on the second count, twenty dollars. The clerk taxed full costs for the plaintiff, and Fose, J. affirmed the taxation. The defendant appealed to this court.</p>

<p>Proof that in one instance the use by a son of his father’s name upon negotiable paper discounted at a bank was known and acquiesced in by the father does not authorize the introduction in evidence of subsequent similar acts, for the purpose of showing 'an implied authority in the son to sign his father’s name, without proof that these also were known and acquiesced in by him.</p> <p>The receipt of a notice of protest from a notary public by one whose name has been signed to negotiable paper by another, does not make it incumbent on him, as a legal duty, ti disclaim the genuineness of the signature of his name, h«* his omission to do so is competent evidence to be submitted to the jury, as a circumstance tending to show that the signature was put upon the paper by his authority.</p> <p>In an action upon several drafts, upon which the name of the defendant has been put by another person, if there is evidence tending to prove a ratification and adoption by the defendant of a portion of them, and evidence tending to prove an original implied authority to sign the defendant’s name upon all of them, it is the duty of the court to call the attention of the jury to the proper application of the evidence to the different drafts declared on, and to limit the evidence of ratification to those drafts to which it is property applicable; and an omission to do so is sufficient reason for setting aside a general verdict for the plaintiffs.</p>

<p>Bill in equity, praying relief by injunction and otherwise for the disturbance of the plaintiffs’ water privilege at Shelburne Falls. The case was heard in this court before Merrick, J., who reported the same for the determination by the whole court of questions of law involved therein. The facts are stated in the opinion.</p>

<p>In the trial of an indictment for being a common seller of intoxicating liquors, it is incumbent on the Commonwealth, under Gen. Sts. c. 172, § 10, to prove that the sales relied on were not such as the defendant might lawfully make without written license or authority.</p>

<p>No exception lies to the decision of a judge of the superior court upon the question whether a witness has sufficient knowledge of right and wrong and of the nature and obligation of an oath to qualify him to testify, if no erroneous view is taken of any legal principle.</p> <p>If a medical expert has testified, in an indictment for manslaughter by striking the deceased upon the head with a stone, that the appearances disclosed upon a post mortem examination of the head of the deceased, as described by another witness, were those of apoplexy, he may be asked on cross-examination what he would think to be the cause of death if he should find a man-dead, and a postmortem examination should disclose similar appearances to those described, and it should be proved that he had been struck violently upon the head with a stone.</p>

Indictment for being a common seller of intoxicating liquoi. At the trial in the superior court, William Tanner, a witness for the Commonwealth, testified to a purchase of liquor from the defendant, in his tent upon a camp-field, and that he purchased no other liquor and had no other on that day.

<p>No exception lies to the refusal of a judge of the superior court to require a district attorney to elect upon which count he will go to trial, in an indictment containing a count for keeping a disorderly house, and one for a nuisance under Gen. Sts. c. 87, § 6.</p> <p>In an indictment for keeping a disorderly house, evidence is inadmissible of what was said and done by disturbers of the peace in the highway at a considerable distance from the house, and not in the presence of the defendant or any of his family.</p> <p>In an indictment for keeping a disorderly house, no exception lies to an instruction to the jury that, in order to warrant a conviction, it need not be proved that all persons residing near or passing by it were annoyed, but it would be sufficient to prove a frequent annoyance and disturbance during the time alleged, and that the indictment might be supported by proof that large numbers of disorderly persons were seen going in and out and conducting themselves in a disorderly manner, although the witnesses did not see what was done inside of the house.</p> <p>In an indictment for a nuisance under Gen. Sts. c. 87, § 6, evidence is admissible to show that the defendant, before commencing the illegal sale of intoxicating liquors, told various persons that he intended to sell; and that casks and barrels were seen in his yard, and that a man was seen unloading them there, although there is no evidence of any stamps or marks upon the same.</p> <p>An indictment for a nuisance under Gen. Sts. c. 87, § 6, contains a sufficient description of the offence, which charges that the defendant, during a specified time, and at a specified place, “ a certain tenement there situate, used for the illegal keeping and sale of intoxicating liquors, knowingly and unlawfully did keep and maintain.”</p>

<p>Although it is proved that a witness in a criminal case is actuated by malice against the defendant, the court should not instruct the jury to disregard his testimony altogether; but, after giving proper cautions, leave it for them to say how much credit shall be given to it.</p>

Bill in equity, by the American Colonization Society, to compel the Trustees of the Smith Charities to pay to them the income of a legacy under the will of Oliver Smith. The case was heard by consent before Dewey, J., who reported the same for the determination of the whole court upon facts which are stated in the opinion.

Writ of entry. At the trial in the superior court, there was evidence tending to show that the tenant and those under whom he claims have had exclusive and adverse possession of a portion of the premises since 1834, and that the demandant was put under guardianship as an insane person in 1843, and has so continued ever since ; and this action is prosecuted in his name by his guardians. There was no evidence that he was insane in 1834, or for several years thereafter.

<p>In an action by an infant child to recover for personal injuries occasioned by the defendants’ pushing a railroad car upon her while she was in a highway along which the railroad track was laid, as she contended, no exception lies to a refusal by the judge to instruct the jury that, if these facts were true, the defendants, by obstructing the highway with the car, were making an unlawful use thereof, and were liable for any injury to her arising from such unlawful use, if the railroad track was not placed there by the defendants, and it is not proved that the highway was in fact obstructed by moving the car upon it; or to an instruction by the judge that the jury were not required to determine whether or not there was an existing highway there.</p>

<p>Appeal by the administrator of the estate of A. T. Wilmarth from a decree of the judge of probate of Hampshire county, disallowing his account of administration.</p> <p>At the hearing in this court, before Dewey, J., it appeared that the judge of probate had passed a decree, allowing to Mary S. Wilmarth, the widow of the intestate, “ such articles besides her apparel, out of the personal estate of said deceased, as she may choose, to the amount of $250, according to the inventory of the estate of said deceased on record in the probate office; ” and the account presented showed receipts by the administrator and assets, at the appraised value, to the amount of $406.94, of which so much was charged as having been paid for debts and expenses of the intestate’s last sickness and funeral, and of settling the estate, that the residue was less than $250; and, as there was no reason to expect further assets, the widow objected to the allowance of the account, and contended that her allowance was entitled to priority over the payments charged.</p> <p>At the time when the allowance was ordered, the value of all the articles in the hands of the administrator was less than $250, a portion having already been sold. A sale at auction was afterwards made, by the consent of the widow, both parties being under the error of believing that enough would be realized from the debts due to the estate to discharge all claims against it, and the judge found as a fact that she did not intend to waive her claim to her allowance, nor was there anything to show that the administrator understood otherwise, but she consented to the sale under the supposition that she was to receive the avails of the s'ame to the extent of her allowance, and had reason to believe that this was so understood by him.</p>

<p>»q an action of tort in the nature of trespass to real estate, the defendant, under an answei denying that the plaintiff is seised of the premises, may put in evidence a deed thereof to himself from a former owner, under whom the plaintiff also claims, which is prior in date to the title relied on by the plaintiff.</p> <p>If a defendant justifies an alleged trespass to real estate under a deed of the premises from a former owner under whom the plaintiff also claims, which is prior in date to the title relied on by the plaintiff, the plaintiff may prove that the description of the premises conveyed to the defendant, as inserted in the deed, includes two lots of land adjoining each other, and that the contract of sale between the parties related to only one of them, and did not include the close on which the trespass was committed, and that the description was fraudulently inserted in the deed without the knowledge and against the will of the grantor, and that the grantor, upon discovery of the fraud, after execution of the deed, reentered upon that portion of the land which was thus fraudulently included iu the deed, and repossessed himself of it, and while in possession thereof conveyed the same to the plaintiff; although the deed to the defendant purported to convey but one lot of land, embraced in a single description, and neither the grantor nor the plaintiff hat ever offered to return to the defendant the consideration paid by him for his deed.</p>

<p>Contbact on an account annexed, for 542f cords of wood, at $3.50 per cord. The answer set forth that the plaintiffs exposed to sale in Hampden county certain wood which was neither four feet, three feet, nor two feet long, and denied that they ever sold him any wood except that so exposed for sale; and denied the sale and delivery of the quantity alleged, and averred ignorance of the actual quantity sold and delivered.</p> <p>At the trial in the superior court, it appeared that, at the time of the sale, the wood was upon and by the side of the land where it was cut, and that the principal part of it was piled there; and, the defendant objecting that it was somewhat less than four feet long, the plaintiffs refused to sell it except as four feet wood; and the jury found, under the instructions of Rockwell, J., that it was agreed between them that it should be taken as such, and that, in ascertaining the amount, the length of the sticks should not be measured, but that a pile eight feet long and four feet high should be taken for a cord; and they accordingly returned a verdict for the plaintiffs, for the full amount claimed. The defendant alleged exceptions.</p> <p>This case was argued in writing, and decided in June 1861.</p>

<p>Tort to recover the amount of penalties incurred by sales of coal in the town of Westfield, in violation of St. 1855, c. 188, § 4. The writ was dated May 27th 1860.</p> <p>The first count was as follows : “ And the plaintiff says the defendants in the month of October A. D. 1859, at Westfield in said county, sold and delivered to the plaintiff a quantity of five hundred pounds or more of anthracite, bituminous or mineral coal, not by the cargo, and did not on or before the delivery of such coal so sold, cause the same to be weighed by a sworn weigher of the town in which the same was sold and delivered, nor was a certificate of the weight thereof signed by the weigher delivered to the • buyer or his agent at the time of the delivery of such coal, whereby the defendants have forfeited the sum of thirty dollars, one half thereof to the use of the plaintiff, and the other half to the use of the town of Westfield, where the offence was committed.”</p> <p>The second count charged a sale in March 1860 in the same manner.</p> <p>The third count was like the first, with the addition of these words: “ And therefore the defendants owe the plaintiff the sum of fifteen dollars, being one half the amount of said forfeiture of thirty dollars; ” and the fourth count was like the second, with the same addition.</p> <p>The defendants filed a demurrer, assigning for causes that the offences charged were not alleged to have been committed against the form of the statute; that an action of tort is not the proper remedy for the acts charged; that the declaration contained no averment that there was at the times of the alleged sales a sworn weigher in Westfield; or that the action was brought for the benefit of the town as well as of the plaintiff.</p> <p>The demurrer was overruled in the superior court, by Brigham, J., and it was thereupon agreed, the defendants reserving their rights under the demurrer, that the facts set forth in the declaration were true, and that there was at the times alleged no sworn weigher of coal in Westfield; and judgment was ordered for the plaintiff, for $60. The defendants appealed.</p>

<p>A delay of more than three years to pay instalments of an agreed price for land, after the same became due according to the terms of an agreement in writing for the conveyance of the same, and after a refusal by the owner of the land to give any further time for making the payments, is such loches as will forfeit all claim to the performance of the contract; and a bill in equity can'not be sustained by a creditor of the person to whom the agreement was given, to compel a sale of the land, and the application of the proceeds to the payment of his debt.</p>

<p>Contract to recover the price of 937 pounds of paper, sold to be manufactured into envelopes.</p> <p>At the trial in the superior court, the plaintiffs introduced evidence tending to prove a sale and delivery of the paper. The defendant denied the same, and testified, without objection, that he had received of the plaintiffs only 392 pounds of paper, which was no part of the paper sued for; that he manufactured envelopes in Holyoke, running two machines, both of which would cut from 100 to 150 pounds of paper a week, the clippings of which were about twenty-five per cent.; that most of his stock was purchased of the Parsons Paper Company; and that he sold to each company the clippings of the paper bought of it. The defendant then was allowed, under objection, to introduce evidence to show that all the paper bought of the plaintiffs was cut into envelopes in his shop, and that the clippings of it were kept separate, and amounted to only eighty-one pounds. A verdict was returned for the defendant, and the plaintiffs alleged exceptions.</p>

<p>If a note given to A. for the benefit of B., upon an illegal consideration, is indorsed before • maturity to one who, without knowledge of the nature of the consideration, advances a portion thereof to A. and promises to pay the residue to B. from time to time, and, before paying the residue to B., learns the nature of the consideration, the indorsee is entitled to recover in an action upon the note only the amount of the advancements made by him before he ascertained that the consideration of the note was illegal.</p> <p>If a note is taken by A. in his own name, for the benefit of B., and A. dies, the 'defendant is not a competent witness in an action upon the note by an indorsee.</p>

<p>A judgment against a railroad company, for damages for the destruction of a building by fire communicated from a locomotive engine, Is a bar to a subsequent action by the same plaintiff against the company for damages for the destruction of other buildings by fire communicated from the building first destroyed, although the subsequent action is brought and prosecuted for the benefit of an insurance company which has paid to the plaintiff the amount of a policy of insurance upon such other buildings.</p>

<p>A testator made a codicil to his will, as follows: “ Codicil to the foregoing instrument, that by the dispensation of God’s providence in talcing from me my beloved son, W. L. B., a part of his property has fallen into my hands; therefore I make the following codicil to my foregoing will in manner and form following, viz: to the Bible Society of the Methodist^Episcopal Church, $1000, the one half of the remainder to the American Missionary Society, the other half to the support of the Gospel among the refugees in Upper Canada; which sums I require my executor to pay over to the proper officers of said societies.” The testator received from his son’s estate less than $1000. Eeld, that only the amount received by the testator from his son’s estate should be applied to the payment of the legacies given by the codicil.</p> <p>A legacy was given in a codicil to a will to the “ Bible Society of the Methodist Episcopal Church.” An organization formerly existing under that name was dissolved, fifteen years before the time when the codicil was written, by the recommendation of the General Conference of the Methodist Episcopal Church, which at the same time recommended to the churches of that denomination to unite with the American Bible Society in carrying forward its objects, and their contributions, including those of the church of which the testator was a member, were accordingly from year to year given to that society. There are also various other societies, with different names, having the same general object, one of which belongs to that denomination. Eeld¡ that the American Bible Society is not entitled to the legacy.</p> <p>If a legacy for charitable purposes is given to an association which is incapable of undertaking the trust, this court will appoint a trustee to receive the legacy and apply it to the purpose intended by the testator.</p> <p>Reasonable costs of parties properly before the court to litigate a question, as to the party entitled to receive a legacy for charitable purposes, where the right was doubtful, will be allowed out of the fund.</p>

Whit of entry. It was agreed in the superior court, that the demandant went into possession of the demanded premises under a deed from Novatus Ely, dated September 24th 1855, which the tenant contended was void for want of compliance with the provisions of Sts. 1851, c. 340, § 6, and 1855, c. 238, § 5, relating to homesteads, and occupied the same until February 24th 1857, when the tenant, having recovered judgment against Novatus Ely in an action commenced on the 30th of…

<p>Contract for rent from September 1, 1857, to March 1,1858, of the first story of the west building of the Hampden Block in Springfield. The first count was in common form for use and occupation of the premises; and the second count declared on a lease from John Mills to the defendants, dated August 27th 1856, by which the premises were demised to them for ten years, at the rent of $500 a year, payable quarterly to Mills or his assigns, and assigned on the day of its date by Mills to the plaintiff* The answer of the defendants, after general denials of indebtedness, admitted the execution and assignment of the lease, and alleged that they had reserved the rents in question to pay the balance due from Mills to Charles L. Shaw, for floors, labor and materials furnished in constructing and finishing the premises, according to the following provision, of the lease: “ It is further agreed by the parties as follows: that the said Thompson & Co. [the defendants] are to deduct and reserve from the first rents, and pay to Charles L. Shaw, the cost of the floors in said story, and such further sums as the parties shall hereafter agree, or shall hereafter be determined is due from said Mills to said Shaw, for labor performed by him and materials furnished, in the construction and finishing of said story.”</p> <p>At the trial in the superior court, before Vose, J., at June term 1860, the plaintiff put in a deed of warranty of the premises from Mills to him, dated September 10, -1855. It also appeared that the defendants went into possession of the premises about the 1st of September 1856, and had occupied them ever since, and paid to the plaintiff the rent under the lease each quarter for one year, but refused to pay the rent accruing from September 1, 1857, to March 1,1858. The judge ruled that the first count could not be sustained, because the defendants held the premises under a lease ; and that the second count could not be sustained, because the action was not brought in the.name of Mills; and directed a verdict for the defendants. The plaintiff alleged exceptions, which were argued and decided at September term, i860.</p>

<p>Contract. The declaration contained one count, for one year’s work done for the defendant by the plaintiff’s minor son. Answer, that the work was done under a contract, made with the plaintiff’s assent, between the plaintiff’s son and the defendant, by which the former was to work on his own account, and that the defendant had paid him and the plaintiff in full.</p> <p>At the trial in the superior court, it appeared that the plain- • tiff’s son worked for the defendant eleven and one half months at ten dollars a month, and that he had received from the defendant $114.63; and there was evidence tending to show that after this suit was commenced the defendant made a tender to the plaintiff’s attorney of the residue of the son’s wages, and costs, and the plaintiff’s attorney took the same to apply pro tanto upon the claim. • The defendant introduced evidence tending to prove the son’s authority to receive bis wages, and his emancipation. The plaintiff requested the court to instruct the jury that, if a tender was made by the defendant to the plaintiff, this was an acknowledgment of the plaintiff’s right to recover his son’s wages, and the defendant could not avail himself of the defence of a general emancipation ; but Morton, J. ruled that whether there was a tender or not, the defence was open to the defendant.</p> <p>The jury returned a verdict for the defendant, and the plain, tiff alleged exceptions.</p>

<p>Under a declaration alleging that the defendant warranted a horse to be perfectly gentle, whereas in fact he was ungentle, the plaintiff cannot recover damages on the ground that he was not well broke, or trained so as to be suitable to be used to plough out com and potatoes, and rake hay, although the jury may think that the warranty was intended to cover these particulars.</p>

Writ of entry by trustees named in the will of Gad Root, which, after certain specific legacies to his grandchildren and to Mi’s. Electa Miller, contained the following devise : “ I give and bequeath unto Ira Yeomans and Eli B. Hamilton the residue of all my estate real and personal after my beloved wife shall have taken her thirds,” in trust for the support and maintenance of his three children, with a disposition of the estate after their death.

<p>The remedy for an obstruction of a watercourse, and preventing the water from flowing to the land of an owner below, as it has been accustomed to flow, by erecting a dam, and closing the gates at night for the purpose of collecting the water, is by an action of tort, and not by a complaint under the mill acts.</p>

Contract in favor of a deputy sheriff upon a receipt dated February 6th 1857, in the usual form of a sheriff’s receipt, signed by the defendant, for personal property attached by the plaintiff on a writ against Alonzo Day of Chicopee.

<p>The owner of land lying upon both sides of a natural stream of water which is not navigable may lawfully erect thereon a dam across the stream to such a height that in ordinary stages of the water it will not throw water back upon the wheels of an ancient mill above, although, in consequence of the erection oí the dam, the ice, when it breaks up in the spring, becomes packed together above the dam, and the water is thereby set back so as to flood the wheels to a greater height and for a longer time than it has done before at that season.</p>

<p>The legislature have no power to confirm proceedings in insolvency, commenced by petition of creditors, and had before a person claiming to act as judge of insolvency, but with no title to the office, and which have been adjudged invalid by a decree of this court.</p>

<p>No action can be maintained to charge a defendant upon or by reason of false representations concerning the credit and ability of another, made in order to induce the plaintiff to indorse a note signed by such other person, which the defendant received and used for his own benefit, unless the representations were made in writing.</p>

Contract on a promissory note of $300. In the superior court, Morton, J. ordered judgment for the plaintiff on an agreed statement of facts, which are sufficiently stated in the opinion ; and the defendant appealed.

Writ of entry. The demandants claimed title to the premises under the levy of an execution against James F. Eddy. The tenant claimed under a mortgage from Eddy, given before the date of the attachment in the suit on which the execution issued, and under a deed of quitclaim given afterwards.

<p>One who takes a deed of warranty of a portion of a parcel of land, the whole of which is subject to a mortgage, may maintain a bill in equity to redeem the same against a subsequent assignee of the mortgage, without contribution, if the remaining portion of the land is sufficient to satisfy the mortgage debt in full, although such assignee may also have become the owner of the equity of redemption of the remaining portion of the land.</p>

<p>An executor of a will by which money is bequeathed to his ward, payable when she reaches the age of twenty-one, has no right to transfer the same to his account as guardian before it becomes payable; and if he dies before that time, this cannot rightfully be done by his administrator, in rendering an account of his guardianship; and if an account, in which the amount received by him is so transferred, is rendered by his administrator and allowed by the judge of probate, without notice to a surety upon his guardianship bond, the latter may have leave to enter and prosecute an appeal, after the expiration of thirty days from the date of the decree.</p>

Tort against a deputy sheriff, for taking the plaintiff’s violin and bow by virtue of a writ of attachment against him. At the trial in the superior court, judgment was rendered for the plaintiff, by Morton, J., upon agreed facts, which are stated in the opinion ; and the defendant appealed to this court.

Scire facias upon a recognizance entered into by the defendant as surety for Franklin French, on an appeal by the latter from a judgment rendered against him by a magistrate in a suit in favor of the plaintiff.

Contract, brought by a foreign insurance company, to recover assessments on a premium note given to them by the defendant, dated June 19, 1849, for a policy of insurance on property in Berlin, in Worcester county. The answer, amongst other things, denied that the agent of the company published a statement of its condition as required by Rev. Sts. c. 37, §§ 40, 41, and St. 1847, c. 273, § 3.

Tort for malicious prosecution. At the trial in the superior court, the plaintiff offered to prove that the defendants without probable cause and with malice caused and procured a complaint to be made before a trial justice, charging him with the crime of larceny, on which he was held under recognizance to answer before the superior court, but not at the next or any regular term thereof, and that at the next term of said court, through the malicious procurement of the…

<p>Complaint under St. 1859, c. 239, charging the defendant with being the father of a bastard child with which the complainant was pregnant.</p> <p>The complaint was addressed to any justice of the peace for the county of Worcester, and the accusation and examination of the complainant were taken before Appleton Dadmun, a justice of the peace for that county, who issued a warrant returnable before Henry Chapin, another justice for the same county, on which the defendant was arrested and brought before Mr. Chapin, by whom he was ordered to give bond, according to the statute. At the return term, a new complaint was filed in the court of common pleas, signed by A. Dadmun, as the complainant’s attorney. The defendant moved that the proceedings be quashed, for various defects, which need not be stated here, in the warrant on which the defendant was arrested, and in the new complaint filed in court; because no attested copy of the record of the proceedings before the magistrate who issued the warrant, or before whom the defendant was brought, had been entered or filed in court; because a justice of the peace had no jurisdiction to try the offence charged ; because Mr. Dadmun, who received the complaint as magistrate, has been employed and has appeared as counsel in the prosecution of the same; * and for other reasons not necessary to be stated here. The court overruled the motion, but allowed the complainant to file another complaint, to be signed by her, or her attorney, other than Mr. Dadmun. Another complaint was thereupon filed, under objection, signed by Bacon & Aldrich, as her attorneys; and the defendant renewed his objection to the form of it.</p> <p>Before the trial commenced, the defendant offered to show that one of the jurors upon the panel was an inhabitant of the town in which the complainant resided and bad her settlement; but Vbse, J. ruled that this, if true, would not disqualify the juror from sitting in the case, and allowed him to remain upon the panel.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>[f the good faith of an assignment of wages is not questioned in the superior court, at the hearing of a trustee process by which the wages are sought to be held, it cannot be questioned in this court, on appeal.</p> <p>An assignment of future wages, without limitation of time, will include wages earned by a laborer for nine months thereafter, under a contract then existing, by which he was to labor for his employer for an indefinite time, although his rate of wages was after-wards increased; especially if the parties have treated the assignment as applicable to such wages, and payments thereof have been made to the assignee since the rate was increased.</p>

<p>[f one summoned as trustee in a trustee process has answered that the principal defendant had engaged to do a piece of work at a stated price, to be paid when it was completed, but that nothing had become due thereon at the time of the service of the writ; that a specified sum had become due for extra work; and that he had paid to the defendant generally on account for work, without any agreement for its application, a sum greater than that due for extra work; it is not competent for the plaintiff to allege and prove that the whole of the payment was actually made by the trustee in part payment for the labor done under the original agreement.</p>

<p>In an action to recover rent under a lease which by its terms is not assignable, if the lessee has been evicted from the demised premises before the expiration of the term, and both parties agree that the value of the unexpired term shall be set off against the claim for rent, it is erroneous to rule that the fact that the lease is not assignable is immaterial, in the estimation of such value.</p>

<p>Tort. At the trial in the superior court, upon facts which are stated in the opinion, Lord, J. ruled that the plaintiff was entitled to recover, and a verdict was returned accordingly; and the defendants alleged exceptions.</p>

<p>Contract to recover interest, amounting to $18.97, from January 1,1858, on the agreed value of damages to the plaintiff’s land taken by the Southbridge and Blackstone Railroad Com pony.</p> <p>The first count set forth the taking of the land, and that after-wards the defendant executed to him and others a writing, which is copied in the margin, marked (A), and that he assented to the same, and that the damages to him were fixed at $150, and that the railroad had been kept in operation, and the defendant had paid the interest on that amount up to January 1, 1858, and had refused to pay it since, though requested. The second count was for $18.97, money had and received; and the third count-alleged substantially the same facts stated in the first count, with an averment that the defendant’s promise was made in consideration that the plaintiff would forbear from pursuing his legal remedy against the railroad company for his land damages. The answer contained general denials of the facts charged in the declaration.</p> <p>At the trial in the superior court, before Morion, J., the plaintiff introduced in evidence the writing above referred to, (A), with the conditional acceptance thereon, marked (B), and the judge ruled that these did not constitute a contract. The plaintiff then called one Cook as a witness, who testified that he was employed as an agent by the plaintiff and other landowners to obtain their land damages from the railroad company ; that he was also employed by the defendant to obtain the assent of the land-owners to the proposition contained in the writing (A), and that he and the defendant, and E. D. Ammidown, an officer of the railroad, who was admitted to be duly authorized for that purpose, met together, and it was then agreed in the defendant’s presence that the plaintiff’s damages should be estimated at $150, and a paper, which is copied in the margin, marked (C), was drawn up, signed by Ammidown, and witnessed by the defendant; that at this time the paper (A) was produced and referred to, and it then bore upon it the acceptance (B), signed by various land-owners, but was not signed by the plaintiff till afterwards ; that this paper, (C), was afterwards presented to the county commissioners, but no decree was obtained thereon, and that he informed the plaintiff and defendant that no decree had been obtained thereon, and they both assented thereto. After all the above transactions, the interest on $150 was paid for two years to the plaintiff by the defendant’s directions. The claim of the plaintiff and ruling of the judge upon these facts are stated in the opinion.</p> <p>Upon facts not stated in the bill of exceptions, the defendant contended that the true construction of that clause of his proposition relating to keeping the railroad in operation was, that it should be' kept in operation substantially as it was at the date thereof, namely, by running passenger and freight trains over the same in the usual manner; but the judge ruled that if the railroad company claimed the right to exercise their franchise, and did run even a freight train over their road occasionally, this would be a sufficient compliance with the condition referred to.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Petition for the enforcement of a mechanic’s lien, under St. 1855, c. 431, and Gen. Sts. c. 150, setting forth that the petitioner had performed labor and furnished materials for the respondent under and by virtue of a verbal contract made with him on the 4th of May 1859, whereby he agreed to take down an old barn and erect a new one upon land of the respondent, and furnish all materials for the same, except that he was to use such timber and materials from the old barn as…

<p>Contract for breach of a covenant against incumbrances in a deed of land. At the trial in the superior court, before Morton, J., Ihe jury returned a verdict for the plaintiff, with $500 damages, and the defendant alleged exceptions. The facts and rulings which were excepted to appear in the opinion.</p>

<p>An affidavit for the arrest of “ the defendant ” in a writ against two defendants, without showing which of the two is intended, is insufficient to authorize the arrest of either.</p> <p>An officer is not liable for the escape of a debtor whom he has arrested on a process which was insufficient to authorize the arrest.</p>

Contract, brought by third indorsers of a promissory note against the second indorser. The answer denied that legal notice of. non-payment was given to the defendant. At the trial in the superior court, the following facts were agreed : “ At its maturity, the note being then in the possession of the Merchants’ Bank at Boston, payment was duly demanded of the maker, and for non-payment the note was duly protested, on the 5th of October 1860.

Contract upon a promissory note payable to the order of Greenwood & Nichols, the defendants, in six months from date, and indorsed by them.

<p>If the jury return a verdict that the complainant is entitled to no damages, under a complaint for flowing land, the respondent is entitled to costs as the prevailing party, although the jury also return as a part of their verdict that the dam shall be left open during a part of the year.</p>

<p>Contract to recover back $100, paid by the plaintiff as a portion of the price of land, under an oral contract for the purchase thereof with the defendant, which the defendant afterwards refused to fulfil.; and the expense of cutting and gathering into the defendant’s barn the grass thereon.</p> <p>At the trial in the superior court, the plaintiff introduced evidence tending to show that the defendant sold to the plaintiff a farm, with certain personal property thereon, for $5500, and orally agreed to prepare and execute a deed thereof, he receiving at the time $100 to bind the bargain, and the plaintiff agreeing to pay the residue upon delivery of the deed; that afterwards the parties met for the purpose of completing the transaction, and the defendant refused to fulfil his contract, under circumstances not necessary to be stated here in detail; that the plaintiff was prepared to pay the money, and the defendant knew it; and that after the making of the contract the plaintiff entered into possession of the land, and cut the grass, and put it into the defendant’s barn, and the defendant had the benefit of it; but there was no evidence of any request by the defendant for him to cut it.</p> <p>Upon this evidence, Morton, J. instructed the jury that, if the defendant refused to perform the contract on his part, it was sufficient to enable the plaintiff to maintain this action for him to show that he was ready to perform his part of the same, and that it was not necessary for him to make a tender of performance ; and that the plaintiff was not entitled to recover for the expense of cutting the grass. The jury returned a verdict for the plaintiff for $100 and interest, and both parties alleged exceptions.</p>

<p>Contract against the assignee in insolvency of Hartford Stoddard, for rent of premises demised to the latter. • At the trial in the superior court, upon agreed facts, which are stated in the opinion, Morton, J. rendered judgment for the defendant, and the plaintiffs appealed.</p>

Contract upon a promissory note. The defendant relied in set-off on a judgment recovered against the plaintiff by E. A. Goodnow, before Appleton Dadmun, a magisbate of Worcester county, and assigned to the defendant with notice to the plaintiff. The plaintiff denied the existence and validity of the judgment.

Bill in equity, under St. 1861, c. 174, § 2* setting forth that the plaintiff is a creditor of the estate of Lewis Bemis, deceased, whereof the defendant is administratrix, having a claim which was not prosecuted within the time limited by law, and stating the reasons for the omission, which it is unnecessary to repeat here.

<p>This court lias jurisdiction in equity to compel the grantee in a fraudulent mortgage of real estate, who took the mortgage with knowledge of the fraud, to transfer the same to the assignee in insolvency of the grantor.</p>

<p>If an officer who has a writ of attachment in his hands for service is informed by the debtor therein of the property owned by him, and thereupon, without making any actual attachment, returns an attachment thereof, and takes a receipt for the same from a third person, the latter may show, in an action upon the receipt, that the articles named therein were exempt from attachment.</p> <p>A receiptor for attached property, who has allowed a horse, included in his receipt, to remain in the debtor’s possession, and to be sold by him to a third person, is liable therefor, although after being sold, the horse died without the default of any one. So if he has allowed swine, which were included in the same receipt, to remain in the debtor’s possession, and to be killed by him, he is liable for such as were not exempt from attachment, although the debtor has offered to deliver a portion of their pork, equivalent to the full value of either one of them, to his assignee in insolvency, by whom the suit against him has been prosecuted to final judgment and execution.</p> <p>A receiptor for attached property, who in his receipt has agreed safely to keep the prope* ty until called for, and then to deliver the same to the officer, and who has allowed a port: m of the property included in his receipt to remain in the debtor’s possession, and to be sold by him, so that the same could not be delivered to the officer when called for, is not exonerated from liability by subsequently procuring the property and offering it to the officer.</p>

<p>The presumption of the legitimacy of the child of a married woman can only be rebutted by evidence which proves beyond all reasonable doubt that her husband could not have been the father.</p> <p>A child bom in eight months after marriage will be presumed to be legitimate, although, when born, it has all the physical appearances of a full grown and natural child; and proof of a statement by the mother that she had no connection with her husband before marriage, and that her reputation for chastity was bad at the time of her marriage, and that for some months previously thereto she had been intimate with other men, if competent, is insufficient to rebut this presumption.</p>

<p>Contract, upon the following agreement:</p> <p>“ This agreement, made this sixth day of March A. D. 1860, between George B. Lynde and A. H. Knapp, now doing business in Gardner under the firm of G. B. Lynde & Co., of the one part, and J. W. Thompson, of said Gardner, of the other part, witnesseth: That the said G. B. Lynde & Co., for the consideration hereinafter named, promise and agree to deliver up to said Thompson, on or before the 17th instant, all of their entire stock and trade, it being such kinds of stock generally as is used for the tin manufacturing business, with all their tools used for and about said manufacturing, excepting from the same one horse, harness and wagon. This stock to be taken at the billed prices, so far as the bills for the same may be had, of the purchase. The remainder of said stock and tools to be taken at the appraisal of James F. Davis, of Barre. In consideration whereof the said Thompson, of the other part, hereby agrees to pay the said G. B. Lynde & Co. the full amount of said bills and appraisal upon the receipt and possession of the same articles, and within the above specified time. It is also hereby agreed between the parties that, in case either party shall fail to comply with the terms of this agreement, the party so failing shall forfeit to the other party the sum of three hundred dollars which shall be paid in full on or before the forfeiture as above.</p> <p>“ In witness whereof, we have interchangeably set our hands and seals the day and year first above written,</p> <p>“ In presence of G. B. Lynde & Co. (L. S.)</p> <p>Thorley Collester. J. W. Thompson. (L. S.)”</p> <p>At the trial in the superior court, evidence was introduced tending to show a refusal by Thompson to fulfil the agreement on his part, and Vose, J. instructed the jury that the sum of three hundred dollars was not to be taken as liquidated damages, but as a penalty, and that the plaintiffs were only entitled to recover the actual damages sustained by them. Upon evidence introduced, and instructions given, in reference to the actual damages, which are not now material, the jury returned a verdict for nominal damages only; and the plaintiffs alleged exceptions.</p>

<p>Replevin of goods attached by the defendant, as a deputy sheriff. At the trial in the superior court, the verdict was for the defendant, and the plaintiff alleged exceptions, which were overruled. The defendant thereupon moved for a writ of return. The plaintiff offered to show, as a reason why the motion should not be granted, that the defendant’s interest in the goods was, at the outset, only that of an attaching officer, and that, since the rendition of the verdict, the attachment has been dissolved and the defendant’s interest has ceased. But Wilkinson, J. ruled that this evidence was inadmissible, and ordered a writ of return to issue; and the plaintiff alleged exceptions.</p>

<p>If by an erroneous ruling of county commissioners the rights of a party are injuriously affected, a writ of certiorari, to be issued in the exercise of a sound discretion, is the appropriate remedy, to bring before this court the record of their proceedings, accompanied by a statement of their ruling, when there is no mode provided by law to bring up such questions by appeal, exceptions or otherwise.</p>

<p>Trustee process. The general answer of the trustees disclosed that the defendant had executed to them an assignment of his property in trust to be converted into money, and, after payment of expenses, distributed amongst his creditors; and that they had sold his property, and collected the debts due to him as far as possible, and appropriated the proceeds towards the payment of the debts due to his creditors, and had in their hands five dollars, received for property sold, which was less than the amount of the defendant’s indebtedness to them.</p> <p>In reply to a specific inquiry, the trustees answered as follows : u The trustees have sold the property assigned to them for about $900.28, and had paid out to said Bebee’s creditors, at the time of the service of the plaintiff’s process upon them, about $368.62, and we have owing to us about $526.66 for property of the defendant assigned to us, and sold by uá, previously to the service of the plaintiff’s process upon us.”</p> <p>At the hearing in the superior court, Russell, J. ordered the trustees to be discharged, and the plaintiff appealed.</p>

<p>A. testator in his will, after various absolute devises and bequests, directed a certain sum to be invested, and the income thereof to be paid to his wife during her life, and, after her death, to be distributed among various legatees in certain specified sums, and gave the rest of his estate to his residuary legatees. He died without leaving issue, and his widow waived the provisions of the will in her behalf, and thereby became entitled to a larger share of his estate than the will gave her. Held, that the residuary legatees are entitled, during the life of the widow, to the- income of the fund provided for her, and after her death the principal should go to the legatees named in the will, in like manner as if the widow had accepted the provision therein made for her.</p>

Contract against the executor of the will of Edward H. Hemenway, to recover $1000, as the balance due on a legacy to the plaintiff under said will.

<p>A delivery to the holder of an overdue promissory note, by one of several joint promisors thereon, of his several note, with surety, for the full amount due thereon, and an acceptance thereof, and a surrender of the original note to him by the holder, will operate as a payment thereof, so that he may maintain an action against his co-promisors on a bond executed by them to save him harmless from the same, although these acts were done in the State of New York.</p> <p>A sale of a naked pledge can only be made at public auction, with notice to the pledger of the time and place thereof.</p> <p>If the makers of a promissory note deliver to the payee thereof a bond, as collateral security, with authority to pledge it to a third person, as collateral security for other notes held by him, on which the payee is liable as indorser, and the same is so pledged accordingly, the payee has no authority to bind the makers by assenting to a sale thereof without notice to them; and. if he does so assent, and the bond is sold for less than its reasonable and fair value, so that, only a small amount is left, after paying the notes held by such third person, to apply on the note held by the payee, the makers will only he liable to him, or to an indorsee who took it after its maturity, for such amount as would remain due, upon accounting for the residue of the full reasonable and fair value of the bond, after the payment to the last pledgee. And the fact that, after the sale, a notice thereof was given by the payee to the makers, with information that they might redeem the bond within thirty days at the same price and expenses, is immaterial.</p>

<p>who was the remaining partner of a manufacturing firm, which had been dissolved, said to B. that, as his business was so extensive, it was necessary for him to have a partner, so that, in case of his decease, there would be some one who could go on and close up the concern without the delay arising from an administration of his estate, and proposed to B. to take him as such partner, saying that he should have $1500 the first year, and the next year an interest in the business; to which B. assented; and thereupon an agreement was drawn and signed by them, as follows: “ Copartnership. The subscribers have this day formed a copartnership, under the style of A. & Co., and will hereafter carry on the business formerly conducted by A. & C.” Public notice of this agreement was given. Subsequently, and until the death of A., which occurred before the expiration of the first year, all purchases, sales and consignments of goods were made, and all drafts were drawn and promissory notes given, by A. & B. in the name of A. & Co.; and each of them exercised the full power of a partner, in relation to all their business, field, that they were partners; and that, after A/s death, B., as surviving partner, had power to commence proceedings in insolvency which should include the estate of the firm.</p>

<p>Contract upon a promissory note signed by the defendant and payable to the Boston and New York Central Railroad Company or bearer.</p> <p>At the trial in the superior court, before Lord, J., the defendant offered evidence tending to show that the note was given by him to the railroad company in part payment for a bond of .$1000 issued by it, which, at the time of its delivery to him, bore upon its face a certificate, as follows: “ We hereby certify that this bond is secured by first mortgage made to us, in trust for the benefit of the bondholders. F. Haven, Dav. A. Neal, Edmund F. Cutter, Trustees ”; and that said certificate was untrue, inasmuch as the most valuable portion of the railroad was incumbered by a prior mortgage for about $500,000, whereby the bond was rendered worthless, all which was known to the railroad company at the time of the delivery of the bond to him, and to the plaintiff, before he became the bearer of the note.</p> <p>It further appeared that, before taking the bond, the defendant had signed a written agreement to take a bond of the railroad company, at a price specified, in which agreement there was no stipulation that the bond should be secured in any manner, and that the bond referred to was taken in discharge of that obligation; but at the time of signing the agreement the defendant was assured, by persons engaged in procuring signatures thereto, that the previous mortgage on the railroad was to be discharged, and the bonds to be issued to the subscribers were to be secured by a first mortgage, and that he signed the agreement relying upon these assurances.</p> <p>A verdict was returned for the plaintiff, under instructions by the presiding judge which are stated in the opinion; and the defendant alleged exceptions.</p>

<p>Contkact to recover damages for a failure to deliver timber according to the terms of the following agreement made by the defendant with the plaintiffs : “ Marlboro, N. H., May 27, 1857. This is to certify that I, Martin L. Newton, do agree to deliver all oak timber I have on my two wood-lots, west of my house, near railroad, on board the cars of the Cheshire Railroad, at Marlboro depot, prior to April 1st next, at six dollars a cord — payment to be made six months after delivery; and timber is to be cut in logs from eight to fourteen feet in length, and none to be less than six inches in diameter, and to be good, sound, merchantable timber. ***** Martin L. Newton.” Upon the above, the following additional agreement was afterwards written : “ Marlboro, N. H., February 17, 1858. An agreement made this day with Martin L. Newton on the one part and Amos Whitney, for C. & G. C. Winchester, of Ashburnham, of the other part, concerning the within contract. Martin L. Newton agrees to extend the time of delivering the oak timber specified therein, one year, till April 1st 1859, excepting what is now put on cars, being four car loads and about ten cords at Marlboro depot, which is subject to the depot master’s order for delivery. Said Martin L. Newton further agrees not to cut the timber that is now standing until September 1858. Said Newton, in addition to what has been mentioned, has about thirty-five cords cut, that he agrees to put on cars at any time specified by said Winchesters, excepting the month of July. Martin L Newton.”</p> <p>At the trial in the superior court, it was agreed that the timbei specially referred to in the additional agreement was delivered, under the original agreement, and an action for the price thereof was brought by the present defendant against the plaintiffs, by writ dated February 21, 1859, which was defended on the ground that nothing was due from the plaintiffs until the delivery of the whole timber, respecting which the agreements were made. Before the commencement of that action, the present plaintiffs, by letter addressed to the attorney of the defendant, stated that they declined to make payment at present, as, in their opinion, the contract provided that payment should be made in a certain time after the delivery of all the timber contracted for therein, and that such delivery had not been made. The action, however, was sustained by the decision of this court. Newton v. Winchester, 16 Gray, . After the above refusal by the plaintiffs to make payment for the timber received by them, the defendant delivered no more timber, and thereupon the present action was brought.</p> <p>Upon these facts, Morton, J. rendered judgment for the defendant, and the plaintiffs appealed to this court.</p>

<p>Contract against the administratrix of the estate of Lewis Bemis, deceased, for money had and received. The writ was dated October 24, 1860.</p> <p>It was agreed, in the superior court, that a portion of the money mentioned in the declaration was received by Lewis Bemis prior to June 19, 1852, when St. 1852, c. 294, went into effect; that he died on the 8th of November 1856, which was within six years of the time when the whole of the plaintiff’s demand accrued, and the defendant was duly appointed as administratrix of his estate, and gave bond on the 20th of December 1856. Upon these facts, Morton, J. ordered judgment for the plaintiff, and the defendant appealed.</p>

<p>Bill in equity, commenced September 15,1860, setting forth that the plaintiff is a stockholder in a corporation called the New England Coal Mining Company, the stockholders of which are liable for its debts, for the reason that its officers have not made and recorded a certificate of the payment of the whole amount of the capital stock, or given notice of the amount of debts and assessments, and that he has paid a debt due from it for goods purchased, as by an account annexed appeared, and that the defendants are the only other solvent stockholders within the jurisdiction of the court; and praying for a contribution. An amendment subsequently filed set forth that the corporation, at the time of the payment of the debt by the plaintiff, had not, and has not since had, any property. The defendants demurred to the bill, assigning reasons which appear in the opinion.</p>

<p>Complaint charging the defendant with a single sale of intoxicating liquor to James McCormick, at Milford, in the county of Worcester. The defendant was convicted before the police court of Milford; and at the trial, on his appeal, in the superior court, evidence was introduced, under objection, tending to prove a sale of intoxicating liquor to McCormick, at Holliston, in the county of Middlesex, but within one hundred rods of the boundary line between the counties of Worcester and Middlesex ; and Wilkinson, J. instructed the jury that, upon this evidence, it was competent for them to find a verdict of guilty, which they accordingly did. The defendant alleged exceptions.</p>

Indictment. The first count charged the defendant in the usual form as a common seller of intoxicating liquors, from the 1st of January 1861 to the day of finding the indictment, which was in May following. The second and third counts charged single sales on the 1st of April 1861.

<p>Complaint by the selectmen of Hubbardston, in behalf of the Commonwealth, alleging “ that -Ira Thompson of Hubbardston aforesaid, heretofore, to wit, on the second day of May in the year of our Lord one thousand eight hundred and sixty, and at said Hubbardston, and from said last mentioned day to the day of exhibiting this complaint, at said Hubbardston, did keep a certain dog, without said dog being then and there licensed according to law, against the peace,” &c. After a verdict of guilty in the superior court, where the case had been brought on appeal, the defendant moved in arrest of judgment, assigning the reasons stated in the opinion, and certain errors in the record of the magistrate before whom the complaint was made. The motion was overruled, and the defendant appealed.</p>

<p>The opinion of a witness who is not an expert, as to the sanity of one charged with crime is incompetent, although based upon his own knowledge of facts.</p>

<p>An ancient burial-ground, which for sixty years has been separated by a fence from the adjoining land, and used occasionally for burials until the present time, may be described as a public burial-ground in an indictment for destroying trees in a place of burial, under Gen. Sts. c. 28, § 12, although it can only be reached by a way, which has always been used for the purpose, over an adjoining private estate, of which it was originally a part, and the owners of which built and have maintained the fence for their own convenience, and have depastured the burial-ground, cut the trees upon it, and cultivated parts of it at their pleasure, under a claim of right, and no one else has exercised or claimed any control over the same until the town in which it lies assumed the charge thereof within three years.</p> <p>Cutting trees upon a public burial-ground for purposes of private profit, without consent of the public authorities having charge of it, is a violation of the Gen. Sts. c. 28, § 12, which provides a penalty for destroying trees within the limits of a place of burial, although the person who cuts them is the owner of the fee of the land, and honestly believes that his acts are lawful.</p>

Indictment for malicious mischief, by injuring the sloop Taloola. At the trial in the superior court, before Rockwell, J., it appeared that the acts which were the subject of the indictment were committed in Fall River, in this commonwealth, in taking the sloop from her moorings there; and that, about two hours after the taking, the defendants were pursued in a steamboat, and were come up with at a distance of about ten miles, in Rhode Island, and the sloop was retaken.

Indictment under Gen. Sts. c. 87, § 6, charging the defendant with keeping a tenement used for the illegal keeping and illegal sale of intoxicating liquors. At the trial in the superior court, the defendant requested the court to instruct the jury that the evidence which had been introduced as tending to support the indictment was insufficient for that purpose; but Rockwell, J. declined so to rule, and submitted the same to the jury, who returned a verdict of guilty.

<p>A verdict of a jury in a suit in equity, upon an issue framed by the court to be submitted to them, if not set aside for good cause shown, will be regarded as settling the facts in issue conclusively.</p> <p>Tn a suit in equity for relief from a contract into which the plaintiff has been induced to enter by fraud, the court, in ascertaining the value of the consideration fraudulently obtained from him, will adopt the price fixed by the parties themselves as the value of shares in a mining company transferred by him as a part thereof, if the price fixed does not appear to have been unconscionable, and he has practised no fraud, and both parties had equal opportunities to judge of their value.</p> <p>One who has fraudulently induced another to purchase of him a note secured by a mortgage containing a power of sale cannot, in a suit against him to obtain relief from the contract on account of the fraud, object that the plaintiff, who has openly and fairly sold the mortgaged property under and in compliance with the provisions of the power of sale, might have obtained a greater price by waiting until a more favorable time before making the sale.</p> <p>One who has been induced by fraud to purchase a note secured by a mortgage containing a power of sale, and has sold the property under and in compliance with the provisions of the power of sale for a sum insufficient to pay the note, before ascertaining sufficient facts to justify him in rescinding the contract, is not required to exhaust his remedies against the maker of the note, before bringing a bill in equity for relief on account of the fraud.</p> <p>Under a prayer for general relief, in a suit in equity, any relief in addition to that specifically prayed for may be granted which the nature of the case requires.</p>

<p>Tort for injuries caused by laying imperfect gas-pipes in streets near premises hired and used by the plaintiff for a livery-stable by reason of which the gas escaped through the ground and into the water of a well upon the premises, and thereby rendered it unfit for use, and deleterious in its effects upon his horses and business.</p> <p>At the trial in the superior court, before Rockwell, J., the plaintiff’s counsel stated that he expected to prove that tne plaintiff and Joel F. Rainsford' were partners in the business of keeping a livery stable, and lessees under a lease dated November 12, 1857, and to continue until November 1, 1862, of premises in Fall River used for that business, on which there was a well of water; that in September 1858 Rainsford sold his interest in the partnership property and business to the plaintiff, but made no written assignment of the lease, and thenceforth the plaintiff carried on the business alone; that when this sale was made the water in the well was, and at different times before had been, affected by the escape of gas from gas-pipes of the defendants laid in streets near by, and in the winter, spring and summer of 1859 there was a large increase in the escape of gas into the water, so that horses kept by him to board were removed by their owners; that the gas-pipes were of poor materials, and imperfectly laid, and the plaintiff’s business was diminished, and his horses injured by drinking the water, and the expense of keeping them increased, and the plaintiff had been subjected to expense in cleansing the well repeatedly, and in cementing it, and that the defendants, though often notified of the injury to the plaintiff, had neglected to use due care to prevent the escape of gas from their pipes.</p> <p>Upon this statement, the judge ruled that, if the facts stated were proved, the action could not be sustained, and a verdict was returned for the defendants.</p> <p>The plaintiff alleged exceptions.</p>

<p>If a partnership note has been given payable on demand to the order of one of the firm, and indorsed by him, a retiring partner cannot defend an action thereon brought by the indorsee against him and his late partners, by proof of the execution, by them and hi* successor in the firm, of a bond to him to pay all the debts and liabilities of the lat# firm.</p>

<p>Contract, by writ returnable before the police court of Fall River, in the county of Bristol, in favor of an inhabitant of that county, against “ a corporation created by law, of Wareham, in the county of Plymouth.” The officer’s return upon the writ was as follows : “ Plymouth, ss. October 12th 1860. By virtue of this writ, I this day at seven o’clock A. M. attached a chip as the property of the within named defendants, and afterwards on the same day I summoned the said defendants to appear and answer at court, as within directed, by giving a summons in hand to Joshua B. Tobey, he being treasurer of said Tremont Nail Company. Milton Alden, Dep. Sheriff.” The defendants filed a motion to dismiss the action, on the ground that “ the plaintiff, at the time of the service of his writ upon the defendants, was an inhabitant of Somerset, in the county of Bristol; and the defendant corporation had its place of business in Ware-ham, in the county of Plymouth; and that said action was brought and heard before the police court of the city of Fall River, in the county of Bristol, which court had no jurisdiction of said action, but it should have been brought before a justice or police court within the county of Plymouth, where the defendant corporation has its place of business.” This motion was overruled in the police court, and, after a trial on the merits, judgment was rendered for the plaintiff, from which the defendants appealed. In the superior court, Rockwell, J. allowed the motion to dismiss, and the plaintiff appealed to this court.</p>

<p>Appeal from the decision of Wilkinson, J., in the superior court, setting aside, as repugnant and against law, a verdict of a sheriff’s jury under a complaint for damages sustained by reason of the laying out of a highway over and adjoining land of the complainants. The material portions of the verdict are set forth in the opinion.</p>

Motion by the plaintiffs to set aside a verdict for the defendant on the ground of. newly discovered evidence. Rockwell, J. overruled the motion for the reason, amongst others, that the plaintiffs had not used due diligence in obtaining the evidence before the trial, and to this ruling the plaintiffs excepted.

Tort. Upon the facts proved, which are stated in the opinion, the plaintiffs requested the judge, at the trial in the superior court, to instruct the jury that, if they were satisfied that the defendant only had a license to draw seaweed “ on a lay,” depositing one load on the heap of the plaintiff Gifford, and one on his own, alternately, and that he drew for himself alone, and exceeded his license, the license would be no justification to him ; but Rockwell, J. declined so…

Contract, brought by the judge of probate for the county of Bristol, upon a bond given by the defendant Russell, as administrator of the estate of Perry Russell, with the other defendants as sureties.

Trustee process, in which the city of New Bedford and the firm of Nye & Howland were summoned as trustees ; and Nye & Howland were allowed to appear as claimants and maintain their right, under the statute.

<p>Tort, for breaking and entering the plaintiff’s close. The defendant justified under a right of way. The situation of premises is shown by the accompanying plan.</p> <p> </p> <p>At the trial in the superior court, it appeared that the two lots A and B always belonged to the same person until 1844, when B was purchased by the defendant. The title to A after-wards became vested in the plaintiff, through mesne conveyances. C was never owned by the owner of A and B. B, when purchased by the defendant, was surrounded by lands of other persons; and he claimed a right of way by prescription over C, and by necessity over A. To rebut the latter claim, the plaintiff proved that B extended to the Bridgewater road until 1831, when Apollos Baton, the owner of the whole lot, sold the portion next to the road to George W. Keith; and he contended that Eaton retained a right of way by necessity to the road over the land thus sold. But the defendant contended, and the jury found specially, that in 1831, when Baton sold to Keith, he had a right of way by prescription over C to A, which was then owned by him; and that this right existed in 1844, when the defendant purchased B.</p> <p>In order to show that the defendant, if he had a right of way over A, had exceeded it, it was proved that a portion of the lot over which the way had generally been used was ploughed up and fenced, and the defendant thereupon entered from Hall’s Lane, at a different place, and came into the usual way as soon as possible; that this place of entrance was then .obstructed, and the defendant entered at a still different place ; and that a new obstruction was made, and yet another place of entrance used. It was not contended that the defendant had done any unnecessary damage, by his deviations, if under the circumstances he had a right to deviate from the usual way.</p> <p>Upon these facts, Rockwell, J. instructed the jury that the defendant did not acquire any right by necessity to pass over A from B; and, if he did have such right, he had no right to deviate from the path usually travelled by him, on account of the obstructions placed there by the plaintiff; and directed a formal verdict for the plaintiff, which was rendered; and reported the case to this court.</p>

Writ of entry, originally brought against Alfred Case and Eleanor his wife, and, since the death of the latter, prosecuted against Alfred Case alone.

' Two actions of tort for the conversion of sea-weed, which had been collected by the plaintiff on a beach adjoining land from which the defendants claimed the right in gross to take sea-weed, and removed by him to a point above high watermark.

Contract, against the makers of a promissory note, dated August 17, 1860, payable in four months to Virgil Draper, or or ler, and indorsed by the payee to the plaintiff before maturity. The only defence was usury.

<p>A large vehicle used as a daguerrean saloon, standing partly within the limits of a hignway, but outside of and several feet from the travelled path, is not a defect in the highway, which will entitle a traveller to recover against a town damages for the injuries sustained by him, if his horse, while driven by himself, is frightened thereby, and becomes unmanageable, and runs for some distance, and upon an embankment, so that the carriage is broken, and himself thrown upon the ground anct injured.</p>

<p>Petition for damages to land, sustained by reason of the laying out of a highway in the town of Dartmouth. The respondents moved, in the superior court, to set aside the verdict of a sheriff’s jury: because, 1. William Barker, the deputy sheriff who summoned the jury, was a citizen of Dartmouth, and therefore interested and incompetent to act in that capacity ; 2. Said Barker, being so interested, was left in charge of the jury and received their verdict; 3. The petitioner furnished refreshments to the jury during the trial.</p> <p>The facts which were put in evidence in relation to the first two grounds are stated in the opinion. In relation to the third, it was found by the court that, after the sheriff had left the jury in charge of his deputy, Barker, and while they were deliberating on their verdict, at the house of the petitioner, where the hearing was had, and after the time for supper had passed, and they had had none, they called on Barker for some refreshments, and he furnished to them a pitcher of water and a pitcher of cider, belonging to, but without the knowledge of, the petitioner; and that these refreshments were reasonable. There was no evidence or suggestion of any unfair conduct on the part of the plaintiff or Barker, or that any injury had happened to the respondents by reason of any of the facts stated in the motion.</p> <p>Rockwell, J. overruled the motion, and the respondents alleged exceptions.</p>

<p>Ill an action against an executor to recover the price of goods sold and delivered to the wife of the testator in his lifetime, she cannot be allowed to testify to a private conversation with her husband in which he ratified her purchases; but she is a competent witness as to other facts. And the plaintiff’s books of account are inadmissible to prove that credit was given to the testator; but they, in connection with his suppletory oath, are admissible to prove the delivery of the goods.</p> <p>If, in an action against an executor to recover the price of goods sold and delivered to the wife of the testator in his lifetime, she is called by the plaintiff as a witness, it cannot be shown by cross-examination of her that, at the time of making the purchases, she bought unnecessaiy jewelry and gold watches of others.</p>

<p>Bor the purpose of proving a fraudulent intent on the part of a grantor of real estate, evidence is competent to show that, on the same day of making the conveyance in question, he conveyed to near relatives all his other real and personal estate not exempt from seizure on execution; but evidence of his subsequent acts and declarations is incompetent In levying an execution upon land, interest on the judgment may be computed to the time when the levy is completed.</p>

<p>Scire facias, in this court, against the administrator de bonis non of the estate of Nathaniel Morton, upon a judgment recovered against him by the plaintiffs in a trustee process, in which he was summoned as trustee of Henry W. Coggeshall. The defendant filed an answer, to which the plaintiff demurred; and the case was reserved by Dewey, J. for the determination of the whole court. The facts are stated in the opinion.</p>

<p>One who accepts a policy oí insurance in which it is expressly provided that it is agreed and declared that the policy is made and accepted upon and in reference to the application filed in the office, is thereby concluded from denying that the application is his, and cannot set up that it was made by an agent employed by him to procure insurance upon his property, but without authority to bind him by representations in the application.</p> <p>A denial in the application that incumbrances exist upon property to be insured, in reply to a direct inquiry upon that subject, when in fact mortgages thereon do exist, and are known to exist by the applicant, will avoid a policy issued on such application, by a stock insurance company, for a premium fully prepaid, if the policy states upon its face that it is agreed and declared that it is made and accepted upon and in reference to the application, and to terms and conditions of insurance annexed, one of which provides that such application shall be taken and deemed to be a part of the policy, and a warranty on the part of the assured; although the application contains also a provision, at the end of it, that the applicant covenants that “ the foregoing is a full, just and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property to be insured, so far as the same are known to the applicant, and are material to the risk.”</p>

<p>The right to use land for a mill-yard may exist as an easement, for the disturbance of which a bill in equity may be sustained.</p> <p>A bill in equity seeking relief for an obstruction of a way to the plaintiff’s mill, and alleging it to be a public way, is not sustained by proof of the existence of a private way.</p>

<p>The owner of land through which a stream of water passes may lawfully build and maintain upon his own land a dam across the stream, for a fish-pond, although he thereby prevents the flowing back of water upon his land from the dam of a mill-owner below, which has not been maintained long enough to give a right by prescription.</p> <p>[f the owner of land through which a stream of water passes has erected upon his own land a dam across the stream, for a fish-pond, by means of which the flowing back of water upon his land from the dam of a mill-owner below is prevented, a bill in equity to abate the upper dam cannot be sustained by the mill-owner, on the ground of an oral license to him to use the same, in consequence of which he has erected a new mill and fixtures, which have been rendered worthless by the subsequent refusal and prohibition of the owner above to allow such use, if it appears that on application by the lower owner, prior to the erection of his mill, the upper owner expressly refused to sell or let the right to •ose his land as a reservoir for a specific time.</p>

<p>A policy of instance upon a building occupied as a provision and grocery store, which contains a stipulation that, in case the premises shall be used for the purpose of keeping therein any of the articles denominated hazardous or extra hazardous, in the terms and conditions annexed to the policy, the policy shall cease and be of no three or effect, is rendered void by keeping therein oil, sulphur and matches, if those articles are enumerated m a table of hazards annexed to the policy as hazardous and extra hazardous.</p>

<p>It one seeks to justify a trespass upon land of which the plaintiff holds a deed, on the ground that the close is his own property, acquired by a levy thereon of an execution against the plaintiff’s grantor, and had been fraudulently conveyed to the plaintiff, he must pinve not only the issuing of the execution, the levy, and that he was a creditor, but also the rendition of a judgment upon his debt, and that the execution was issued upon the judgment so rendered.</p>

<p>Contract. The second count in the declaration alleged that the defendants drew an order upon the plaintiff, as follows: “Plymouth, Mass. June 19th 1856. Mr. Jacob Monk, Philadelphia, Pa. Please forward to the address or order of Henry Beal such number of your New American Map, &c., as he may from time to time order, and charge the same to us at your usual price, for which we, or either of us, promise to pay you on demand. Henry Beal, Asahel Beal: ” and that, pursuant to said order, he forwarded goods according to an account annexed, for which the defendants owed him. The account was principally for “ Standard Maps,” “ R. R. & T. Maps,” “ Central A. Maps ’* and “ New Amer. Maps,” which were charged at different prices. Henry Beal was defaulted, and Asahel Beal alone defended, and filed an answer denying in detail all the averments of the declaration.</p> <p>At the trial in the superior court, before Russell, J., the plaintiff read in evidence the report of an auditor to whom the case had been referred, the contents of which are sufficiently stated in the opinion. In relation to the fact found by the auditor, that Henry Beal was not acting as the plaintiff’s agent, in receiving maps from him, the defendant moved that the case should be recommitted, with instructions to the auditor to report the evidence ; but the judge declined so to order. The defendant then moved for a continuance, to enable him to take the plaintiff’s deposition upon the subject: but this the judge declined to grant. The defendant then called the auditor as a witness, and asked him to state whether there was any evidence before him of any order from Henry Beal, other than those contained in certain letters from Henry Beal to the plaintiff, returned as a part of the report; but, objection being made, the evidence was excluded. In some of these letters, Henry Beal spoke of himself as agent of the plaintiff.</p> <p>The judge instructed the jury “that the writing signed by defendants did not constitute a contract of guaranty or surety-ship, but an original contract by both defendants to pay for such articles as should be furnished in accordance with its terms; that under said contract the defendant was only liable for copies of Monk’s New American Map, furnished by the plaintiff on the order of Henry Beal; that it was a question of fact, what Monk’s New American Map was; that although some maps had the boundaries of counties colored, and some had not, and although some had the lines of telegraphs and railroads, and some had not, yet if, notwithstanding these variations, and such variations in price as were in evidence, the maps were all known as Monk’s New American Maps, then these variations would not render the contract void, nor discharge the defendant from his liability for the maps furnished under it; that the maps, in order to render the defendant liable, must be furnished to Henry Beal on his order or orders; that if Henry Beal received them as agent for Monk, then Asahel was not liable.”</p> <p>The jury returned a verdict for the plaintiff, for all the maps charged, except those of Central America: and the defendant alleged exceptions.</p>

<p>A declaration for the diversion of a watercourse running through the plaintiff’s cedar swamp, by digging a ditch from the channel thereof above the swamp, on land not belonging to the plaintiff, and diverting the water into it, and thereby injuring the swamp, is not sustained by proof that the defendant dug a ditch which diverted water from flowing in an ancient stream into a large swamp, of which the plaintiff’s land was a portion, if no watercourse of the plaintiff is thereby disturbed; although it does not appear that the defendant had authority for his acts.</p>

<p>The plaintiff sued the defendant for entering upon his land and digging a ditch there. The defendant justified on the ground that he only cleared out an ancient ditch, as he had a right to do, to drain his own land above the plaintiff’s. The plaintiff formerly owned the defendant’s land, and sold the same to him; and C. formerly owned the plaintiff’s land. Held) that declarations of the plaintiff to the defendant, while owner of the defendant’s land, and while negotiating the sale of it to the defendant, that he had a right to drain it over C.’s land, were admissible in evidence.</p>

<p>A. teacher of a district school cannot recover payment for his services, until he has filled up and completed the register of the school kept by him, in compliance with the requirement of St. 1849, c. 209; and the school committee of the town have no power to waive a performance of this duty by him.</p>

<p>An inhabitant of a town is not entitled to recover back the amount of a tax paid by him therein, although,</p> <p>(1.' The record of the choice of assessors, by whom the tax was assessed, as originally made, did not show that they were chosen by ballot, if they were in fact so chosen, and the record has been amended;</p> <p>f2.) The whole amount assessed in the town was less than the whole sum voted to be raised, by a sum exactly equivalent to the amount voted for bridges, if there was also a vote at the same meeting to repair bridges by a labor tax;</p> <p>(3.) A vote was passed to make a discount on such taxes on property as should be paid within a specified time, but no discount on poll taxes, and a direction to this effect was inserted in the warrant to the collector;</p> <p>(4.) The valuation list was not deposited with the chairman of the assessors until the day before the tax list was committed to the collector;</p> <p>(5.) The valuation list contained no specification of particulars, under the several classes of property assessed, but only a general estimate of the value of each class, if the plaintiff did not furnish to the assessors a list of his property.</p>

<p>Prior to the time when the General Statutes went into effect, a magistrate had no jurisdiction to try a defendant charged with keeping an unregistered dog, in violation of St. 1859, c. 225, $ 9, in the town in which the magistrate lived. $</p>

<p>Viewing premises and staking out a road over the same by selectmen of a town do not constitute an incumbrance thereon, until a location is filed and accepted.</p> <p>If, after the selectmen of a town have viewed land and staked out a road over it, the owner conveys a portion thereof, and the selectmen, one of whom is a grantee in the deed, afterwards file a location of the road, which is accepted, and no damages are awarded to the grantees, but damages are awarded to the original owner, who receives the same, no action against him, for money had and received, can be sustained by the grantees in the deed, to recover a share of the money so received by him.</p>

<p>Tort. The first count in the declaration was for the disturbance of a water privilege, by barring the wheel and raising the gate of a mill formerly owned by Abram Washburn, and now occupied by the defendants, which was situated upon a canal leading from the stream upon which the plaintiff’s mill stood, and at a point above the same, and thus wantonly causing the water to run to waste. At the trial in the superior court, upon facts which are stated in the opinion, Lord, J. ruled that on this count the plaintiff could not recover, and ordered judgment thereon for the defendants. The plaintiff alleged exceptions.</p>

<p>Petition for the enforcement of a lien upon a ship. At the trial in the superior court, upon facts and under circumstances which are stated in the opinion, Russell, J. ruled that the lien would attach, and that interest should be computed from the time of the demand proved ; and the respondent alleged exceptions.</p>

<p>Petition for the enforcement of a lien upon the same ship mentioned in the preceding case. At the trial in the superior court, upon facts and under circumstances which are stated in the opinion, Russell, J. found for the petitioner, and the respondent alleged exceptions.</p>