Volume 85 — Massachusetts Reports

<p>No action lies against the selectmen of a town for refusing to put upon the list of voters therein the name, and rejecting the vote, of one who was not a legal voter, although the proof produced by him to them was sufficient to establish,prima facie, his right to vote; and they may prove at the trial that in fact he was not a legal voter.</p>

<p>In the service of a warrant of distress for the collection of a tax, the collector cannot lawfully arrest the body of a tax debtor, unless he is unable to find property whereon to levy it, and by means of which payment of the tax may be secured.</p> <p>One who is unlawfully arrested and committed to prison on a warrant of distress for the collection of a tax, may show, as competent evidence upon the question of damages, in an action to recover for the illegal arrest and imprisonment, the manner in which he lived while detained in prison, if he was subjected only to the ordinary inconveniences of persons lawfully detained there.</p>

<p>Under Gen. Sts. c. 148, county commissioners have no power to authorize an owner of marshy or wet land to dig a ditch into his neighbor’s land, and discharge the water upon the same, to his injury, but only to authorize him to dig a ditch across the same, or to some outlet where the water may be discharged without injury.</p>

Writ of entry by the devisee of Daniel French against the inhabitants of Quincy, to recover a lot of land in the village of Quincy, upon which the town-house of the defendants stands. At the trial in this court, before Metcalf, J., a verdict was taken for the demandant, on an agreement of the parties that if the whole court, upon a report of the case, should be of opinion that the verdict should not stand, judgment should be rendered for the tenants.

Contract against the executrix of the will of H. W. Carr, upon a promissory note indorsed by him. At the trial in this court, the evidence showed that after the dishonor of the note, and notice, the maker paid money to a duly authorized agent of the plaintiff for forbearance to press him for payment, before a certain future time; which was granted accordingly. Upon these facts, and others, which are not now material, Metcalf J. reported the case to the whole court.

Writ of entry by a husband and wife, to recover possession of land in Roxbury, claimed by the demandants in right of the wife. At the trial in the superior court, the demandants introduced evidence tending to show that the tenant executed a deed of the premises to Sarah Parks, the female demandant, on the 19th of August 1837, which was not recorded, and which was after-wards borrowed by the tenant and not returned. The tenant denied that such deed ever existed.

Tort to recover damages for an injury received by the plaintiff while travelling as a passenger in the defendants’ cars.

<p>If the payee of an accommodation note has had the same discounted at a bank upon his own sole indorsement, and afterwards, upon learning of the insolvency of the maker, has procured another person to indorse it without consideration, and, upon its dishonor, has requested and induced him to pay and take up the same, and then, by a subsequent arrangement, has borrowed of the bank the amount of the note, and deposited it to the credit of the second indorser, and caused the note to be delivered to the bank again, and, finally, has caused the borrowed money to be repaid to the bank, and the note is accordingly taken again by the second indorser, the latter cannot prove it against the insolvent estate of the maker.</p>

<p>Bill in equity to enforce specific performance of a contract, a mémorandum of which was made by the defendant in his own handwriting, to purchase of the plaintiff the “ Hermitage Lot ” in Dorchester, then owned by the plaintiiPs wife. The contract was as follows: “ 1st. A deed is to be drawn up conveying the land described in the accompanying papers to William Gray, Jr. Title to be examined. 2d. A mortgage of $5000 for five years on house and land already mortgaged to the M. H. Life Ins. Co., for $10,000, and on the land above conveyed, which is unincumbered. Interest, five per cent, payable semi-annually. 3d. A mortgage of $5000 for ten years on land above conveyed; any part or the whole of this mortgage to be released on payment of a proportional part of thé $5000. Interest, five per cent., payable semi-annually. The right ol paying any part or the whole of either of the above mortgages at any time, with interest up to that time, is reserved by W. G. Jr., not less than $1000. The mortgages to be made out to Mary E. Richmond; notes to own order. Mortgages and notes to be dated July 1st 1859. Mortgages to be made power of sale.”</p> <p>At the hearing in this court, before Chapman, J., the case was reserved for determination by the whole court. The facts are stated in the opinion.</p>

<p>tn an action by the assignee of an insolvent debtor, in which he seeks to set aside a mortgage of land, as a preference, it is competent for the tenant, for the purpose of showing that he had no reason to believe the mortgagor to be insolvent, to prove representations made to him eighteen months before by the mortgagor as to his means and ability to carry on business, in reply to inquiries made by him prior to forming a partnership with the mortgagor, if coupled with proof that since then neither the firm nor the mortgagor has met with losses; but it is not competent to put in evidence the opinion of one who has examined the books and papers of the firm, and cast up the receipts and disbursements, having no means of knowing whether they were complete or correct except by information from the tenant, for the purpose of showing that there had been no loss in the business.</p>

<p>Appeal from the decision of commissioners disallowing claims against the insolvent estate of Sibyl C. Bacon, deceased.</p> <p>In the superior court, it was agreed that on the 29th of Maj 1850 Warren Smith, by a deed of warranty, in the usual form, and with no special provisions, conveyed to Sibyl C. Bacon, who was his daughter, as an advancement towards her portion of his estate, certain land in Foxborough, which continued to stand in her name until her death, in November 1858, and was returned by her administrator as her property. More than twenty years before her death, Sibyl was married to Dean Bacon, who was living in California in October I860, and no information has been received of his death. In 1858 Josiah D. Richards recovered judgment against Dean and Sibyl C. Bacon, and an execution issued, upon which the officer made a seizure of the land of Sibyl; whereupon she requested Smith to pay the amount of the judgment, which he did, taking her promissory note for the amount so paid, dated November 12, 1858.</p> <p>It was further agreed that in 1856, 1857, and 1858, Smith, by Sibyl’s request, paid the taxes upon her land, and a bill for painting her house standing thereon.</p> <p>Upon these facts, Wilkinson, J. rendered judgment for the administrator, and Smith appealed.</p>

Tort for damages sustained by reason of a defective highway. The injury was received by falling into a cellar way in North Street, in the city of Boston, and the defence relied upon was that the plaintiff, at the time of receiving the injury, was not in the use of ordinary care.

<p>A written notice, posted up and published in a newspaper by a field driver who has impounded beasts going at large in a public highway, which states that the beasts were “ going at large, and without a keeper,” sets forth a sufficient cause of impounding, under Rev. Sts. c. 113, § 9.</p>

<p>Bill in equity, filed June 16, 1860, by the receivers of the Cochituate Bank, which was incorporated by St. 1849, c. 160, for the confirmation of an assessment upon the stockholders in said bank of an amount in their opinion sufficient to make up the deficiency of the funds in their hands for the redemption of the bills issued by the bank.</p> <p>The bill set forth that, at the expiration of thirty days after their appointment, the receivers were satisfied that the assets of the bank were then, and at the expiration of thirty days thereafter would be, insufficient for the redemption of the bills; and that, pursuant to St. 1860, c. 167, they had assessed ratably on all the stockholders liable therefor an amount sufficient to make up the probable deficiency.</p> <p>The answer filed by the stockholders who appeared to oppose the granting of the prayer of the petition raised the following questions, amongst others: First, whether St. 1860, c. 167, is applicable to the stockholders of the Cochituate Bank; and, if so, whether it is constitutional and valid. Secondly, whether the claims sought to be enforced by this petition are barred by the statute of limitations.</p> <p>At the hearing in this court, before Bigelow, C. J., it was admitted that the original petition against the bank made by the bank commissioners was filed on the 15th of April 1854, and a temporary injunction was then ordered, which on the 5th of June following was made perpetual, and receivers were appointed; and the case was reported for the determination of the above questions by the whole court.</p>

<p>If a testator, who in his lifetime has given $15,000 to one of his four daughters, makes a devise in trust, with a direction that the trustees shall from the rents and income thereof pay to each of his other three daughters $450 every six months from the time of his decease, and lay by and invest for accumulation annually a certain sum, till from this source, and from the ordinary and not forced sales of lands authorized by other parts of the will to be sold, $15,000 shall have been obtained, which sum, as often as obtained, shall be paid to each of said three daughters upon their respective receipts, or be invested in the purchase of a house or houses, in their separate names, as they respectively shall prefer, upon which payment or investment the semi-annual payments of $450 shall cease; and it appears from the whole will that the postponement of the payment of the principal legacy is for the benefit of the estate; and there is no devise or limitation over, in case of the decease of either of the daughters before payment of the principal legacy; the legacies vest at the time of the testator’s death, and the husband and administrator of one of the daughters who has died without issue, and without making any election whether she would receive the legacy in money, or have the amount invested in a house, is entitled to receive the full amount of the same in money, and the semi-annual payments until the principal legacy is paid; although the will, which provides for the distribution of the rents and income of th<3 residue of the trust property, directs that, in the event of the decease of any of the testator’s daughters, leaving a husband, one half of the sun* that would have been paid to her shall be paid to hiüi, in every division and payment thereafter to be made from the rents and income thereof; and although by a codicil the testator orders the trustees to provide for and pay his principal debts, and also the three several principal sums of $15,000, from the proceeds of the sales of the estates authorized to be sold in his will, which have thus far proved insufficient for the purpose, and the interest on his debts and the semi-annual payments of $450 to be paid from the rents and income as aforesaid.</p>

<p>Appeal from a decree of the judge of probate and insolvency for the county of Suffolk, disallowing a claim presented for proof against the estate of William W. Tobey, one of the firm of Tobey, Sampson & Co., insolvent debtors, of whose estate the appellee was assignee. The claim consisted of a promissory note of $5000, dated June 1, 1859, signed by Charles E. Minot, who was also a member of the same firm, payable in three years from date to the order of Tobey, and by him indorsed; and the presentment for proof was long prior to its maturity. The note was proved and allowed against the estate of the maker. On these facts, Ames, J. directed the jury, in the supe rior court, to return a verdict for the appellee, which was done, and reported the case for the determination of this court.</p>

<p>No exception lies to the refusal by a judge of the superior court, in the exercise of his d scretion, to allow a plaintiff to file, as an amendment to his declaration, other counts, in different words, for the same causes of action for which the action was originally brought.</p> <p>A count in slander alleging that the defendant charged upon the plaintiff an act of fornication, witnessed by a particular person, is not sustained by proof of words charging an act of fornication, witnessed by another person; or by proof of words implying a charge of habitual fornication and lewdness, with the person named in the declaration.</p> <p>A count in slander alleging that the defendant charged the plaintiff, who was an unmarried woman, with having had a child, is not sustained by proof of words spoken by the defendant expressing the opinion that, at the time of speaking them, she was pregnant with child.</p> <p>In an action of slander, a denial of having spoken the words charged and an averment of their truth are consistent defences, and may be separately stated in the same answer.</p> <p>An action to recover damages for abduction and false imprisonment is not maintained by proof that the defendant, by misrepresentations, threats of a criminal prosecution and payment of money for expenses, but without using or threatening force, induced the plaintiff to go to another place and remain in concealment for a time.</p>

<p>Tort by the mortgagee of personal property against a deputj sheriff, for the conversion of the same.</p> <p>It was agreed, in the superior court, that the defendant at tached the property on a writ in favor of one Ferguson against Charles B. Locke, on the 9th of August 1859, and on the 16th of the same month the plaintiff demanded of him the amount due upon the note secured by his mortgage; and thereupon the writ against Locke was altered by the insertion therein of a direction in the usual form of a trustee writ to summon the plaintiff as his trustee, after which the service was completed b) leaving a copy at the last and usual place of abode of the trus tee, he being out of the Commonwealth, and the action was entered, Locke and Brown'were defaulted, judgment was rendered, and the execution levied upon the property originally attached.</p> <p>On these facts, judgment was ordered in the superior court for the plaintiff, the damages being fixed by agreement at one hundred dollars, provided the action could be maintained; and the defendant appealed.</p>

<p>This court has no power to restrain by injunction the use of a trade-mark which consists in part of the name of one with whom a portion of the defendants were formerly asso- ' ciated as partners, and which was invented, adopted and used by them in his lifetime, without objection, and has béen used by them ever since; but, on the application of his executors, the court has power, under Gen. Sts. c. 56, § 4, to restrain the use of his name in their business and firm without having obtained his written consent in his lifetime, or that of his executors since his death, although such use'has been continued for more than six years.</p> <p>A receipt given by executors for money due and paid to the estate of a deceased person from former partners, in which the latter are mentioned by the name of the former partnership, under which they continued to carry on business, will not be construed, as a written consent to the continued use of the former partner’s name in the new business and firm, if it was executed and delivered merely for the purpose of exhibiting the settlement of the claim.</p>

<p>Petition by the assignee in insolvency of the firm of Tobey, Sampson Sc Co., praying for a reversal of a decree of the judge of insolvency for the county of Suffolk, ordering the petitioner to account for certain funds as assets of the separate estates of two of the members of that firm.</p> <p>At the hearing in this court, it appeared that the firm of To-bey, Sampson Sc Co. agreed to dissolve their partnership on the 31st of December 1858, and that William W. Tobey, one of the partners, should take and be charged with goods to the amount of $10,000, and that Charles E. Minot, another of the partners, should take and be charged with goods to the amount of $5000, subject to a deduction of fifteen per cent., they furnishing money from the new firm of Tobey, Foster Sc Co., which they with others were about to form, or otherwise, to the amount of the goods so withdrawn, and that the residue of the goods on hand should be sold to the new firm ; and Tobey and Minot accordingly formed a new partnership with Joseph A. Foster and Charles W. Badger, under the firm of Tobey, Foster & Co., and the entire stock of goods of Tobey, Sampson & Co. was transferred to the new firm, in accordance with the arrangement as above set forth, and Tobey was creditéd on the books of the new firm with the sum of $8500, and Minot with the sum of $4250, those being the sums at which it was agreed that the goods which they had severally contributed should be taken; and it subsequently appeared that the firm of Tobey, Sampson & Co. was insolvent; whereupon, on or about the 1st of April 1859, the firm of Tobey, Foster & Co. was dissolved, and Foster and Badger formed a new partnership, taking the property and assuming the liabilities of the firm of Tobey, Foster & Co., and giving their notes payable in twelve months to Tobey and Minot respectively for the sums of $8500 and $4250, for the amounts with which they were credited on the books as aforesaid ; and on the 19th of April 1859, no payment having been made by Tobey or Minot for the goods taken by them, Tobey, Sampson & Co. filed their petition in insolvency, and the petitioner was chosen assignee, and collected at maturity the notes given by Foster & Badger, and was ordered by the judge of insolvency to account for the proceeds as assets of the private estates of Tobey and Minot respectively.</p> <p>Upon these facts, the chief justice ordered the petition to be dismissed ; and the petitioner appealed to the whole court.</p>

<p>Under a written contract, by which commission merchants agree that they will receive goods consigned to them, and insure and sell the same in accordance with provisions therein contained, and charge on all such sales a certain specified commission, which charge shall include commission, labor, cartage, insurance, and every expense whatever no action lies to recover for services or expenditures on goods consigned to and received by them under the contract, and not sold, but, at the termination of the contract, at the request of the consignees and by consent of the consignors, transferred by them to other commission merchants, who were appointed to succeed them as agents for the sale of the goods; and evidence is incompetent to prove a usage of commission merchants to charge one half commissions, under such circumstances.</p>

<p>Contract against a savings bank, to recover the amount of a deposit therein, with interest.</p> <p>In the superior court, the following facts were agreed: The plaintiff, a Danish seaman, on the 10th of May 1848 deposited with the defendants one hundred and thirty dollars, and on the 26th of July following twenty dollars more, signed an agreement to be bound by the by-laws, and within a month after making the last deposit went to California, leaving his deposit book with one Benson, and was not heard from until June 1860, when he returned. In May 1860, Henry P. Rolfe was appointed by the judge of probate for Suffolk county as administrator of the plaintiff’s estate, received the deposit book from Benson’s widow presented it to the defendants’ treasurer with a demand of pay ment, and, upon delivery of the book to him, received the amount of the deposit, with interest. Such of the by-laws of the defendants as are material, are copied in the opinion. Before the commencement of this action, the defendants, though satisfied of the plaintiff’s identity, refused payment to him of the deposit.</p> <p>Upon these facts, judgment was ordered in the superior court for the defendants, and the plaintiff appealed to this court.</p>

<p>Contract on account annexed, containing one item for money deposited with the defendants by Michael Wall, the plaintiff’s intestate, and one item for interest thereon. At the trial in the superior court, before Russell, J., a verdict was returned for the plaintiff, and the defendants alleged exceptions. The case is stated in the opinion.</p>

<p>In an action brought in the name of the assignee of an insolvent debtor, upon an account, the defendant, in order to avail himself of the defence that prior to the commencement of the action the account had been sold by the assignee, must set it out in the answer.</p>

<p>A judge of the superior court is not bound to decide upon the sufficiency of evidence offered by a plaintiff to support his case, unless the defendant submits the whole case for determination upon that evidence.</p> <p>A horse railroad company may be held liable for double the amount of damages sustained in consequence of the bite of a dog kept by their servants or agents.</p> <p>If, in an action against a horse railroad company for damages sustained in consequence of the bite of a dog, there is evidence tending to show that the dog was kept about their stable by a person employed by them to have charge of the same, and with the knowledge and implied assent of their superintendent, the jury may properly find that the dog was kept by the company.</p>

<p>A bill of lading is conclusive evidence against the master of a vessel in favor of a consignee, not a party to the contract, who has advanced money upon the faith of its statements, as to the amount and condition of the property of which it acknowledges the receipt, so far as from the whole instrument and usage of trade the facts may be regarded as absolute statements from the master’s own knowledge; but it is not conclusive against the owners, as to property not actually shipped, because it is not within the scope of the master’s authority from the owners to sign bills of lading for any property but such as is put on board.</p> <p>In an action by the owners of a vessel, of whom the master is one, to recover freight for goods actually carried, delivered and accepted, the consignee cannot recoup in damages a loss sustained by him by reason of a failure to deliver cargo never actually put on board, but which the master, without other authority than belonged to him in that capacity, improperly receipted for in the bill of lading. The proper remedy is by an action against the master, or the consignor.</p>

Contract upon a promissory note dated February 1, 1860, signed by the defendant, payable to the order of John Wetherbee, Jr. in three months from date, and indorsed by him. The defence was that the note was given to Wetherbee as an accommodation note, and that the plaintiff took it after its maturity, with notice, and was not a bond fide holder thereof.

<p>A stockholder of an insolvent corporation, who has been compelled to pay debts of the corporation subsequently to the commencement of the proceedings in insolvency, cannot avail himself of the amount so paid by him in defence of an action by the assignee of the corporation against him to recover a debt due to the corporation from him.</p> <p>In an action by the assignee of an insolvent corporation to recover a debt, the defendant is not entitled to set off a claim due from the corporation to a firm of which he is a mem her.</p>

<p>»n an action by the assignee of an insolvent corporation to recover the value of goods transferred by it to a preexisting creditor in violation of law, the defendant cannot be allowed to call a witness to testify that after the failure of the corporation lie first learned of the existence of certain large debts due from it, and then informed the defendant thereof, and that the defendant had no previous knowledge of the same; nor can he prove his own acts or declarations at that time, for the purpose of showing that he then for the first time learned of such indebtedness.</p> <p>If after such transfer it is mutually agreed that the corporation may take such portion of the articles transferred as any of its customers may prefer, in exchange for others to be taken by the creditor, as he may wish for them, and in pursuance of this agreement certain articles are afterwards exchanged, these facts will not prevent a recovery by the assignee for the goods originally transferred to the creditor and afterwards thus returned.</p> <p>The same definition of insolvency which applies to ordinary traders is applicable also to a corporation engaged in the manufacture and sale of pianos.</p> <p>4.n assignee of an insolvent debtor, whose books contain accounts showing that a large amount of goods were delivered to a preexisting creditor shortly before the failure, and a note held by the latter was given up and a balance struck, waives the right to contest the transfer of the goods as a fraudulent or illegal preference, by demanding and receiving such balance, after full opportunity of investigating the circumstances of the transaction, and after submitting the items of the account to arbitration.</p>

<p>The date of a wit of replevin is not conclusive evidence of the time when the action was commenced; and if the cause of action had not accrued on the day of the date, but did accrue before the commencement of the service thereof, and there is no evidence of the time when the writ was given to the officer, the action may properly be considered as having been commenced after the cause of action accrued.</p>

<p>Bill in equity against trustees and residuary legatees under the will of Mary G. Russell, deceased, to enforce the payment to the plaintiff of an accumulation of surplus income from a trust fund therein created.</p> <p>The following facts were agreed : On the 26th of April 1836, Mary G. Russell, the plaintiff’s wife, having under the will of a former husband the right to dispose of certain property by will, made her last will, which was assented to in writing by the plaintiff, and contained the following provision:</p> <p>“ First. I give and bequeath to my executor hereinafter named so much of any stock standing in my name, or in that of the trustee under the will of my said husband, at the time of my decease, or so much of any property in the hands or management of said trustee, as will be sufficient to produce the annual sum of two thousand dollars, upon the trust that my said executor do and shall cause the said stock or other property to be transferred into his own name, and do and shall at his discretion pay the dividends, interest or income arising therefrom to my beloved husband, Joseph Russell, during his own life, and for his use and benefit; and from and after the decease of my said husband my will is, and I do hereby direct, that said stock or other property hereinbefore given for his benefit shall sink into and become part of my residuary estate, and shall go and be applied according to the provisions hereinafter made of the same.”</p> <p>After certain specific legacies, the residue of the property was disposed of by a clause commencing as follows :</p> <p>“ Thirdly. As to all the rest of my property, including that given to my husband for life, my will is that in the settlement of my estate the part not hereinbefore devised for the use of my said husband, and, immediately after his decease, the" part so bequeathed to him, be divided into two equal parts, by the parties, or by the judge of probate for the time being, to be disposed of in the manner following,” &c.</p> <p>The testatrix died in November 1836, and Josiah Quincy, Jr., the executor and trustee named therein, accepted the trusts, and as executor transferred to himself as trustee property appraised at $40,000. This sum was not taken by him in the expectation that that precise amount, or any sum on which he might fix, would during a series of years produce the exact net income of $2000 a year; but with the intention to take a sum which should surely produce that amount, and at the same time provide for the charges and expenses of managing the trust, and for possible loss or depreciation of the trust fund. No objection to the amount of this fund was made at the time it was set apart, or at the time of the settlement of Quincy’s account as executor. Quincy resigned his office of trustee in March 1852, rendering no account in the probate court, and at that time the accumulation of the net income of the fund, over and above the $2000 a year, which had been regularly paid to the plaintiff, amounted to $1103.65'; which, together with the principal of the fund, he paid over to his successors, the defendants, from whom the plaintiff first learned of the existence of the surplus. The now trustees continued to pay to the plaintiff $2000 a year, until his death in May 1858, not deeming it safe without an order of court, to comply with his request to pay to him the entire income of the fund. At the plaintiff’s death, the accumulation amounted to about $3000, and this suit is now prosecuted by his administrator.</p>

Contract on a constable’s bond. The declaration alleged in substance, that the present defendant Moore, after serving a writ as constable, received from the defendant therein the amount of the demand sued for, and, though requested, had neglected and refused to pay the same to the plaintiff therein. In the superior court, a demurrer to the declaration was sustained, and judgment rendered for the defendants. The plaintiffs appealed to this court.

<p>A married woman cannot form a partnership with her husband, and is not liable upon a promissory note given by a firm of which, by partnership articles, she and her husband have agreed to be members.</p>

<p>If a married woman has for her own-benefit invested her sole and separate money in a firm of which her husband is a member, an assignment by her to a third person of her share, interest, contribution and investment in the firm is a sufficient consideration to support an express promise to pay an agreed price therefor; and such promise, though not in writing, may be enforced, if she, in consideration thereof, relinquished.all claim against the firm.</p>

<p>If land is purchased by partners with partnership funds, for partnership purposes, and is not needed for the payment of debts, the title vests in the members of the firm as tenants in common; and after the death of one of them, a petition for damages sustained by reason of the location of a railroad upon it is properly brought in the joint names of his administrator and the surviving partner.</p> <p>Proof of a written agreement to sell land to a railroad company for a specified price within a certain time, and of a tender of the amount within the time and a refusal to accept it, will not authorize the company to enter upon the land afterwards and locate their road upon the same, or defeat a petition, for the damages sustained by reason of such location.</p> <p>Proof of a deed of land, with a privilege in an adjacent canal, to the grantee and his heirs and assigns forever, is prima facie, evidence of his title, and in the absence of controlling proof will authorize him and his assigns to recover damages for the destruction of a permanent easement therein, by the location and construction of a railroad, by which the same is filled up.</p> <p>(Jnder a deed conveying a lot of land bounded on a canal, and referring to a plan by which the boundary appears to be on the side thereof, together with a privilege in the canal, and an obligation on the part of the grantee, bis heirs and assigns, to maintain the canal wall forever, and permission to drive piles, against such parts of the wall as have projected. into the canal, and to fasten land ties thereto to prevent any further pressure outwards, no right is acquired by the grantee to cover the ends of piles so driven with a platform; but a title is acquired to the land up to the walls of the canal as they then existed and were delineated on the plan.</p> <p>If by reason of /he location of a railroad over a part of a lot of land, and the filling up of an adjacent canal, in which the owner of the lot had a privilege, the value of the land was so enhanced that what afterwards remained of it was worth more than the entire lot was worth before, the owner has no claim for damages; and the omission so to instruct the jury, in compliance with the request of the respondents, in a petition for damages sustained by reason of such location and filling up, is a sufficient reason for setting aside a verdict for the petitioner.</p> <p>It seems that in a petition for damages to land sustained by reason of the location of a railroad, evidence is inadmissible of the nature, extent and amount of all the business done thereon, even for the purpose of showing, as one element of the market value thereof, how and to what extent it might be used by any one.</p>

<p>Petition for a jury to assess the damages sustained by reason of the location of a railroad upon the wharves and land of the petitioners, on South Cove, in Boston. The circumstances under which the location was made are stated in the opinion 0given at the former hearing of this case, in 12 Cush. 605.</p> <p>At the second tidal in the superior court, before Vose, J., in order to show the value, at the time of the location, on the 31st of December, 1847, of the land taken, and of the residue, which were formerly part of the lands of the South Cove Company, “ the petitioners introduced evidence of sales by Josiah Quincy, Jr., of upland on the South Cove, at a considerable distance from the wharves in question, in August 1847, and of the prices paid therefor; and also a witness, John Howe, who stated his opinion as to the effect of the location on the value of these wharves for the wood and lumber business, for which, upon the evidence, the wharves in this vicinity were chiefly used, whose qualifications as an expert consisted in having been engaged in the lumber business for fifteen years till 1840, on a wharf in Sea Street; and he had been connected with railroads since 1841, and had been president of the Eastern and Boston and Maine Railroads. To all this evidence of the petitioners the respondents objected—the objection to the evidence of Mr. Howe being that he was not an expert; but the same was admitted.”</p> <p>“ The petitioners also examined witnesses to show the interruption and inconvenience incurred by them in the prosecution of their business at said wharves, caused by the respondents’ use of the land taken.”</p> <p>“ The petitioners also, for the same purpose, introduced evidence of the number of respondents’ engines and trains which passed over the land taken during four days in January 1860 ; and also the following evidence of the kind and amount of business done by the petitioners at said wharves, namely: that two hundred and fifty to three hundred vessels per annum, come to the Railroad and Clark’s wharves; 30,000 to 50,000 tons per annum of lumber, wood, coal and plaster; to all which the respondents objected, but the same was admitted. The court instructed the jury, both when the evidence was admitted and in the charge, that the petitioners could not recover any damages to their business caused by the location ; and that, so far as this species of evidence was concerned, the jury were to consider the results which had developed themselves in the use of the wharves by the petitioners, as throwing light upon the effect produced by the location upon the petitioners’ property in question.”</p> <p>"The respondents called Thomas C. Amory, Jr., counsellor at law, alderman of the city of Boston, and a member of the committee on laying out and widening streets, who testified that he had given much time and attention to the consideration of the value of land subject to easements of different kinds, including that of land taken for streets and similar purposes, but not for railroads; that in the course of his official duty he had frequent occasion to estimate such values for the purpose of adjusting amounts to be paid to owner's of land so taken for streets, and that he considered himself competent to give an opinion as to the value of the reversion of land, subject to such an easement as that acquired by the location of a railroad ; but the court, upon the objection of the petitioners, refused to allow him to express an opinion upon such value.”</p> <p>The jury returned a verdict for the petitioners, with $41,501.95, damages; and the respondents alleged exceptions.</p>

<p>Complaint charging the respondent with being the father of a bastard child, with which the complainant was pregnant.</p> <p>At the trial in the superior court, the defendant introduced evidence, tending to show that at the time the child was begot ten, and the complaint instituted, the complainant was a mar tied woman ; and Putnam, J. instructed the jury, that if this fact was proved, the complaint might be sustained; that the non joinder of the husband could only be pleaded in abatement and that the burden of proof was on the complainant to satisfy the jury that her husband was not the father of the child.</p> <p>The jury returned a verdict of guilty, and the respondent alleged exceptions.</p>

<p>Sureties in a bond given by one who is arrested on a complaint under the bastardy act, tot his appearance to answer thereto in the superior court, have no authority to surrender their principal to the jailer, and the jailer has no authority to detain him in jail upon such surrender.</p> <p>The oath for the relief of poor debtors cannot be administered, under Gen. Sts. c. 72, § 11, to one who is imprisoned on a complaint under the bastardy act, except after thirty days’ notice to the complainant; and such notice cannot be issued until the prisoner has been imprisoned for ninety days.</p> <p>One who is arrested on a complaint under the bastardy act, and imprisoned for ninety days under the order of a police court or magistrate for failure to give bond for his appearance to answer thereto in the superior court, is not entitled to the benefit of the acts for the relief of poor debtors.</p>

<p>Contract on a bond taken under the bastardy act, with condition for the further appearance of Charles R. Swift, who had been held to answer on a charge of being the father of a bastard child, with which the plaintiff was pregnant. At the trial in the superior court, upon agreed facts which are stated in the opinion, judgment was rendered for the defendants, and the plaintiff appealed to this court.</p>

The first of these causes was a bill in equity against a cestui que trust and co-trustees, in which the plaintiff, William Bogle, prayed to be discharged as one of the trustees under an indenture with Archibald Bogle, one of the defendants. The second was a cross bill, seeking for discovery as to the account of William, and other appropriate relief, and opposing his discharge.

Trustee process. Isaac Seavey, who claimed to be a partner of the defendant, and jointly interested with him in certain funds disclosed in the trustees’ answer, was admitted to appear as claimant.

<p>Writ of entry to recover a narrow strip of land lying east of Harrison Avenue, in Boston, occupied by the tenant as a wharf.</p> <p>At the trial in the superior court, before Ames, J., it appeared that' the demandant, the tenant, and some other proprietors of adjoining flats executed the following agreement:</p> <p>“ Boston, November 4th 1853. We, the undersigned, owners of wharves and flats east of Harrison Avenue, are desirous of having our respective lines runi so as each of us may know our boundary. We severally agree to employ Mr. Alexander Wads-worth to run said lines, and put up stakes or marks to designate each lot, and we further agree to pay our proportion of the expense of the same.”</p> <p>In pursuance of this agreement, the lines were run and stakes set up, and in January 1855 the tenant began building his wharf, in conformity with the lines so run, and finished it in about six months, and a quitclaim deed was written upon the back of the plan drawn by the surveyor, assenting to and establishing the lines laid down by him, which was signed by the tenant and some of the other parties interested, but not by the demandant • and the deed was never recorded or acknowledged by any of those who signed it.</p> <p>A verdict was returned for the demandant, under instructions vhich are stated in the opinion, and the tenant alleged excepons.</p>

<p>Tort to recover damages for injuries to the female plaintiff sustained by falling into Charles Fiver in the night time, at the draw of Warren Bridge, through the negligence of the defendant, who was the tender of the draw-bridge, appointed under the provisions of Sts. 1859, c. 186, and 1856, c. 282, in not shutting the gates and hanging out lanterns while opening the draw.</p> <p>At the trial in the superior court, before Lord, J., the plaintiff introduced evidence tending to show that the accident occurred under the circumstances set forth; and then, in order to prove that it was the defendant’s duty to shut the gates and hang out lanterns, called the tenders of other draw-bridges, who were allowed to testify, under objection, that in their opinion it is necessary, having due regard and caution for the public travel, to keep gates and shut them, and to hang out lanterns, while the draw is open in the night time.</p> <p>The judge instructed the jury that the defendant was bound to have due regard and caution for the public travel, and to use such reasonable care as might be required for that purpose, while the draw was open, and that for any negligence in this respect he would be liable to any person injured solely through such negligence.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>A. prisoner confined in a house of correction under sentence of court, and while there put into solitary confinement for refractory conduct, in accordance with rules established for such cases, cannot maintain an action against the master thereof for neglect to provide for him sufficient food, clothing and fires, if he is kept in one of the usual cells, and ther is no evidence of express malice, or of such gross negligence as to authorize the infer ence of malice.</p>

<p>Tort to recover damages for an injury sustained in a collision between two omnibus sleighs, while meeting each other in Washington Street, in Boston.</p> <p>At the trial in the superior court, it appeared that the plaintiff was the taker of fares in a large, open four-horse sleigh, belonging to the line of the Metropolitan Railroad Company; and, at the time of the collision, he was standing alone upon the fender, which is on the outside and runs the whole length of each side of the sleigh just above the runners. The inside of the sleigh was not full, and if the plaintiff had not been on the outside he would not have been injured. The other sleigh" was one of the Citizens’ Line of omnibuses, owned by the defendant, and, while the plaintiff’s sleigh was on the left side of the street, having gone there, as was contended, for the purpose of avoiding a horse-car which was coming, met the same and ran into it, hitting the plaintiff, knocking him off, and breaking his leg. It was in dispute whether the plaintiff’s sleigh was necessarily upon the left side of the street.</p> <p>Allen, C. J. instructed the jury that the plaintiff was bound to keep to the right if he could; but if he could not, he had a right to cross over to the left; that if he went unnecessarily to the left, it was in violation of the law of the road, and he would be liable to the statute penalty ; that the plaintiff could not recover unless he and his driver were in the exercise of ordinary care, or if their fault contributed at all to the accident; but that the plaintiff’s team might be wrongfully on the left side of the street, so as to subject him to the statute penalty, and yet not necessarily prevent him from recovering in this action ; that no one, on that account, would have a right recklessly and wantonly to run into him ; and that if the defendant’s driver at such a time carelessly and recklessly ran into and injured him, the defendant would be liable, although the plaintiff or his driver was so in violation of the law of the road as to be subject to the penalty.</p> <p>The defendant asked the court to rule that the plaintiff was not in the exercise of ordinary care, because riding on the fender ; but the judge left that as a question of fact for the jury.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Tort to recover damages to the plaintiff’s wall by the insertion therein of timbers of a building erected by the defendant, upon his own land.

<p>Tort against a deputy sheriff, to recover the value of a large number of chests of tea and boxes of tobacco, attached by him on a writ against Charles A. Flagg.</p> <p>At the trial in the superior court, the plaintiff introduced evidence tending to show that he bought the goods of one Blake, and took possession of them; and that Blake bought them of Flagg at different times, and in different lots. The defendant introduced evidence tending to show that Flagg, Blake and the plaintiff conspired together and formed a fraudulent plan, by which Flagg should buy these and other goods on credit, with the intention not to pay for them, and put them into the possession of Blake or the plaintiff, and that all the transactions between them were fraudulent. The plaintiff denied the existence of such conspiracy and fraud, and contended that, if Flagg bought any of the goods with the intention not to pay for them, this was not the case with all the purchases; and there was no proof of any misrepresentations or false pretences by Flagg in purchasing any of the goods. Subsequently to the commencement of this action, replevin suits were brought by various persons who had sold goods to Flagg, against the defendant, for a portion of the goods attached by him, in which, without any notice to the present plaintiff, the defendant was defaulted and submitted to judgments against him, without making any defence. Among other instructions, not now material, Vose, J. instructed the jury that “ if Flagg originally bought the goods with an intention not to pay for them, such a sale was fraudulent and void, and no title in the goods passed to Flagg as against the vendors, and the vendors had a right to reclaim and recover the goods from the possession of Flagg, or from any person to whom he had sold or conveyed them, with notice of the fraud or without-a valuable consideration; and that if the plaintiff was entitled to recover, he could recover only for the goods not replevied.”</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>Contract, brought by the chief mate against the owners of the bark Laroy, to recover damages for injury sustained from the unlawful act of the master in wounding and discharging him, under circumstances hereinafter stated, while in the prosecution of a voyage upon shipping articles in the usual form, for a voyage to the Spanish Main and West India Islands and back to the United States, where it was to terminate, not to exceed six months in all, for thirty five dollars a month. The voyage began on the 15th of February 1857, and the vessel went to Laguira, thence to Cienfuegos, and thence home, where she arrived on the 1st of June 1857. A former trial of this case resulted in a verdict for the plaintiff, which was set aside on exceptions. 1 Allen, 404.</p> <p>At the second trial in the superior court, it appeared that in April, as the vessel was about leaving Cienfuegos, the plaintiff was shot by the master and wounded in such a manner that it became necessary to take him ashore for medical treatment. He was not able to proceed with the vessel, and was not discharged in any manner required by law. The defendants introduced evidence tending to show that the master paid to the American consul the wages of the plaintiff to the time he was taken ashore, and for three months more, and contended that these covered all his expenses up to a time as late as the termination of the voyage. The plaintiff introduced evidence to prove that he always performed and was ready to perform his duty, and that the wounding was the unlawful and wilful act of the master; and that he was not sufficiently cured to be able to leave Cienfuegos until October 1857.</p> <p>Tose, J. instructed the jury that if the plaintiff was prevented from performing the voyage by the unlawful act of the master, and the injury rendered his removal on shore necessary to receive proper medical treatment, he was entitled to recover wages, deducting such as bad been paid to him by the owners or consul, without reference to the termination of the voyage, up to the time when he was sufficiently recovered to sail for home, and to such further time as was reasonable for obtaining a passage, and making a voyage to the United States, and also to recover for the expenses of his board, nursing, medicines and medical attendance, until he had so recovered, and for his passage home.</p> <p>The jury returned a verdict for the plaintiff, with $491.38 damages; and the defendants alleged exceptions.</p>

<p>Contract for $100, money had and received.</p> <p>At the trial in the superior court, there was evidence tending to show that the plaintiff deposited a parcel of foreign money containing $214, and inclosed in a strap marked with that amount, in the Eliot Bank in Boston, which the latter without counting or removing the strap transmitted to the defendants, who counted the same and then found the parcel to contain but $114, and returned it to the Eliot Bank, marked “ short $100; ” that there was a paroi agreement between the Eliot Bank and the defendants that the latter should receive from the former its deposits of foreign money and cause the same to be redeemed, and it was the custom to transmit them uncounted, in the same parcels in which they were deposited, and the Eliot Bank had agreed to become responsible for and make good to the defendants “ all shorts, counterfeits and uncurrent bills that might be found by the count of the redeeming bank;” that the Eliot Bank had given to its depositors, and inserted in their several books of deposit, the following notice: “ It is mutually understood and agreed by and between this bank and its depositors that all foreign money deposited by them and placed to their credit is received upon the express condition and understanding by and between the bank and the depositor, that the said foreign money shall be sent by this bank to the assorting bank, and that it shall be at the risk of the depositor as to the amount and quality thereof, and that any band or package of money or bills returned from the assorting bank must be adjusted and made good to this bank by the depositor.”</p> <p>On this evidence, Morton, J. ruled that the plaintiff could not maintain his action, and a verdict was returned for the defendants.- The plaintiff alleged exceptions.</p>

<p>Tort under Rev Sts. c. 58, § 13, to recover double the amount oí damages sustained from the bite of a dog. At the trial in tne superior court, before Ames, J., a verdict was returned for the plaintiff, and the defendant alleged exceptions. The facts sufficiently appear in the opinion.</p>

<p>The payee of a note not negotiable who writes his name upon the back of it without consideration, and delivers it to a third person to be used in a particular manner, takes upon himself the risk of its being used in a different manner; and is liable to pay it to any bona Jide holder into whose hands it may come.</p>

<p>Tort by the administrator of William Wilson, to recover damages for an injury sustained by the intestate by reason of the defendants’ negligence.</p> <p>The cause being at issue in this court, the parties entered into an agreement to submit it to arbitration, as follows :</p> <p>“ In this case, it is agreed between the parties, that the same shall be submitted to the determination of Paul R. George, Esq., of Contoocookville, in the State of New Hampshire, and Fisher A. Hildreth, Esq., of Lowell, in the County of Middlesex; the award of whom, made in writing, is to be final upon the cause of action submitted to them : and judgment thereon shall be entered in this action and for costs of court. And if either party shall neglect to appear before the arbitrators at the time and place appointed for hearing, after due notice given, then the arbitrators may proceed in his absence.”</p> <p>Under this agreement a hearing was had in July 1857, the arbitrators failed to agree, and notified the parties thereof; whereupon a new agreement was indorsed upon the former, as follows:</p> <p>“ The referees within named, having failed to agree, it is further agreed, that Hon. Caleb Cushing be added to the number of referees; the decision of a majority of whom shall be final, as within provided.”</p> <p>Two days afterwards, an award in favor of the defendants was made and signed by Mr. Cushing and Mr. George; and the defendants moved for leave to plead it as an additional answer to the action. In reference to the validity of the award, the following facts were agreed: At the date of the original agreement, the parties by their agents agreed to submit the cause to Mr. George, who was a brother of the defendants’ counsel, and to Mr. Hildreth, who was a brother-in-law of the plaintiff’s counsel; and Mr. George was the owner of twenty shares, of $50 each, of the capital stock of the defendants from June 1856 to May 1858, but this fact was not mentioned or thought of by either of the counsel, at the time when the agreement was entered into. The plaintiff was ignorant of Mr. George’s interest until after the award was made. The determination of each of the original arbitrators was made known to the counsel of the parties at the time of making the second agreement, December 13,1858; after which no new hearing of evidence was had, but the cause was submitted upon the statements by counsel of the evidence, and the minutes and memory of the original arbitrators. All of the arbitrators and counsel were on the most friendly terms.</p> <p>Upon these facts, Hoar, J. ruled that the award was a bar to the action, and reported the case for the determination of the whole court.</p>

<p>u. two persons own adjoining city lots subject to a contract with the city that the buildings to be erected thereon shall be of a certain size and material, and that the owner who builds first may erect one half of the thickness of his wall upon the lot of the other, who shall pay to him a proportional part of the cost thereof for such part of the wall as he or his heirs or assigns may use or occupy, the wall contemplated by the contract is such as is proper and suitable for the size and kind of building therein described; and, in an action on a bond given to secure the performance of the contract, the owner of one of the lots who has built thereon a building with such a proper and suitable division wall may recover of the other, who has subsequently erected a building covering a portion of the surface thereof, and with timbers not extending half through the same, a proportional part of the cost of the wall, having reference to the surface covered, and not to the thickness.</p>

<p>Past breaches of a bond, the condition of which provides that the obligor will accept orders of the obligee to a specified amount, in consideration of the conveyance of land to him as security therefor, and that upon being indemnified and paid for advancements and services he will reconvey the land, are not waived by the obligee’s procuring a third person to take for his benefit a conveyance of the land from the obligor.</p>

<p>Tort against a bank at Hampton Falls, New Hampshire, for the conversion of two promissory notes, one of which was for $670, dated February 16, 1860, signed by J. A. Coolidge, payable in four months from date to the order of H. F. Coolidge, and by him indorsed, and the other for $1500, dated January 20, 1860, signed by the plaintiff, payable in six months to his own order, and by him indorsed.</p> <p>At the trial in the superior court, before Russell, J., it appeared that in February 1860 the plaintiff purchased the Coolidge note, and on the 16th of that month delivered it to Allen, Neale & Co., brokers with whom he kept an account; and he testified that he thus delivered it to them for them to procure it to be discounted, and to receive the money and place it to his credit, to be drawn out by checks like his other money, subject to a commission for their services, and that he made no inquiry of them about it until their failure on the 17th of April 1860. On the 21st of March 1860, Allen, Neale & Co. indorsed and delivered to George H. Dodge, the defendants’ president, various notes, among which was the Coolidge note, and on the 26th of the same month the note of the plaintiff, which was written on that day and ante-dated; and Dodge received the same as agent of the defendants, to be discounted by them or at a Portsmouth bank or elsewhere. The plaintiff offered evidence tending to show that Dodge received these notes knowing them to be his property, with an agreement that the proceeds thereof when discounted should be sent to Allen, Neale & Co. to be placed to his credit. It appeared that on the same day when Dodge received the $1500 note, he delivered both notes to the defendants, and on the next day the Coolidge note wad discounted for the benefit of the defendants at the Portsmouth Bank. On the 17th of April the plaintiff made a formal demand of the defendants for the two notes.</p> <p>The defendants requested the court to instruct the jury as follows:</p> <p>1. “ No action can be sustained for the note of which the plaintiff was the maker, if unpaid and so held that the plaintiff is not liable to pay it.</p> <p>2. “ If the agreement was that the notes were to be discounted, and the proceeds sent to Allen, Neale & Co., to be by them credited to the plaintiff, on his general account, to be drawn out by the plaintiff on his checks, at his discretion, this action cannot be sustained.</p> <p>3. “ If the notes were left by the plaintiff with Allen, Neale & Co., to be discounted, and they delivered them to Mr. Dodge to be discounted and the proceeds remitted to Allen, Neale & Co., they being entitled to a commission upon the transaction, this action cannot be sustained, until the defendants have notice that Allen, Neale & Co. release their claim, or that they assent to the delivery of the notes or the proceeds to the plaintiff.</p> <p>4. "The plaintiff cannot maintain the action for the note of which he was the maker.”</p> <p>The judge declined so to do, and instructed them as follows :</p> <p>“ If the notes belonged to the plaintiff, and Mr. Dodge agreed to take them to procure discount and to remit the proceeds to Allen, Neale & Co. for the plaintiff, then the action of the defendant bank t as a conversion of the plaintiff’s property; and, after the failure of Allen, Neale & Co., and the demand made by the plaintiff, the defendant bank was liable.”</p> <p>The jury rendered a verdict for the plaintiff, for the amount of both notes, and the defendants alleged exceptions.</p>

<p>A vessel which is attached in proceedings to enforce a lien thereon, under St. 1855, c. 231, cannot rightfully be appraised and sold during the pendency of the proceedings.</p>

<p>A. petitioner to enforce a Ken upon a ship cannot be allowed to prove that the prices charged by him in his account for labor and materials were the usual cash prices, in reply to evidence tending to show that he had agreed to give an extended credit therefor.</p>

<p>If the parties to a cause in the superior court waive a trial by jury and submit it to be determined by the judge, no exception lies to his decision, unless the case shows some erroneous ruling or opinion on the matters of law involved in the issue.</p>

<p>Contract on a policy of insurance. The application upon which the policy was issued contained a clause inserted after the printed questions, portions of which are as follows: “ And the applicant covenants and agrees with said company that the foregoing is a full and correct description and statement of ah the facts inquired for or material, in reference to this insurance; ’ “that the above statements are substantially true, and that if a policy of insurance shall issue on this application, he hereby assumes all of the liabilities specified in said policy; ” and “ that the misrepresentation or suppression of any facts inquired for or material shall destroy his claim for a damage or loss.” The other material facts appear in the opinion.</p> <p>In the superior court, a trial by jury was waived, and Putnam, J. found for the plaintiff. The defendants alleged exceptions.</p>

Bill in equity by the trustee under the will* of George Treadwell, which was executed in October 1852, and proved in March 1853, seeking to obtain an order for the delivery to him of certain trust property pledged by a former trustee to the defendants as collateral security for money lent by them to him, on his private account.

<p>In an action to recover for the use and occupation of a house, entries in account books of a deceased agent of the plaintiff, of moneys received by him from the defendant for rent of the house, are competent for the purpose of proving that the defendant occupied the same as the plaintiff’s tenant.</p> <p>The owner of a house is not estopped to maintain an action for rent against an occupant of it by proof that heretofore he brought a writ of entry against the defendant to recover possession of the same, and afterwards became nonsuit therein, although the rent sought to be recovered accrued during the pendency of the former action.</p>

<p>A married woman committed to an insane asylum by her husband is not entitled to be discharged, on habeas cwynis, if it appears that the asylum is well managed, and she is subjected to no unnecessary or unusual restraint or improper treatment, and her remaining there will tend to promote her recovery. And it is immaterial that, previously to her commitment, she had consulted counsel in reference to a divorce, and has since filed a libel for divorce.</p>

<p>The estate of a tenant who holds a house under a lease for years, which contains this clause: “It is also agreed that if the lessor shall sell the said house, or that the city shall cut off said premises, that the said tenant shall consent thereto, and that the said tenant shall do all repairs at his expense,” is determined, if the city cuts off the premises; and the tenant can recover no damages of the city for the injury done thereby.</p>

Contract against the maker of a promissory note, payable in six months from date to C. S. & J. G. Smith or order, and indorsed by them, in blank, without date. The plaintiff declared as administrator de bonis non of C. S. Smith, deceased. The defence was that the note was given for spirituous liquors illegally sold in this commonwealth.

Contract for the use and occupation of a railroad in New Hampshire. There was also a count on a special contract, for one half of the amount of money paid by the plaintiff for repairs of the same railroad.

Contract against a broker to recover the balance due upon a large number of transactions in buying and selling stocks for the plaintiff. At the trial in this court, before Hoar, J., a verdict was returned for the defendant, and the plaintiff alleged exceptions. The facts are stated in the opinion.

<p>Tort against a deputy sheriff for the conversion of a quan tity of pickles and other articles attached by him on two writs against William Macomber. Upon agreed facts, which are sufficiently stated in the opinion, judgment was rendered in the superior court for the plaintiff, with $532.10 damages; and the defendant appealed to this court.</p>

<p>Contract brought by the indorsee against the executors ot the maker of a promissory note of $2500. At the trial in the superior court, before Russell, J., a verdict was returned for the plaintiff, and the defendants alleged exceptions. The facts are stated in the opinion.</p>

<p>Contract brought by the justice of the police court of Taunton to recover five dollars as fees for taking the recognizance and attending the examination of a judgment debtor, arrested on execution, who made application to take the poor debtors’ oath.</p> <p>At the trial in the superior court, there was evidence tending to prove the following facts: The defendant, who was the judgment creditor, sent his execution to one Alden, a deputy sheriff of Plymouth county, with a letter as follows : “ Please take the directions in the matter of this execution from Mr. Allen, and charge me for your trouble.” Two days after the date of the letter, a deputy sheriff of Bristol. county brought the judgment debtor, who had been arrested on the execution, before the plain tiff, and Allen came with them, and the letter was exhibited, and the judgment debtor desired to take the oath for the relief ' of poor debtors, and the plaintiff, after consultation with Allen, assigned a day for the examination, took a recognizance from the debtor with a surety, against the form of which certain objections were urged which are now immaterial, and issued a notice to the creditor. After this had been done, the plaintiff demanded of Allen payment of his fees, which was refused. On the day assigned, an' examination was had, and, no one appearing in behalf of the creditor, the oath was administered, and the debtor discharged. On this evidence, it being agreed that the defend-; ant’s liability resulted, if at all, solely from the provisions of the. statute, and not from any promise, Morton, J. ruled that the plaintiff was not entitled to recover, and a verdict was returned for the defendant. The plaintiff alleged exceptions.</p>

Contract upon a policy of insurance, by which the defendants insured the plaintiff in the sum of $6000, to wit: “ $2000 on freight of ship Abby Langdon at and from Newport to Point de Galle, and at and thence to Akyab; also $4000 on freight of said ship at and from Akyab to port of discharge in the Kingdom of Great Britain.” The case was submitted to the court upon the following facts: The ship performed her voyage to Akyab, and while lying there the master entered into a…

<p>Contract, brought in the name of the plaintiff by James M. Stevens, upon an order or draft of John Friend, accepted by the defendants, to pay to the plaintiff or order the proceeds of certain bricks after deducting therefrom $700 and interest. At the trial in the superior court, upon facts which are stated in the opinion, Morton, J. ruled that the plaintiff was not entitled to recover, and a verdict was returned for the defendants. The plaintiff alleged exceptions.</p>

<p>Contract against brokers to recover back money paid to them for two notes purporting to be signed by H. J. Libby & Co., payable to their own order, xnd indorsed by them.</p> <p>At the trial in the superior court, it was agreed that the defendants received the notes for sale from E. O. Libby, who indorsed the same, they advancing to him three hundred dollars thereon, and on the same day sold them to the plaintiff without indorsing them, for $1406.80, which sum, deducting the three hundred dollars and their commissions, they paid over to E. O. Libby on the same day. The notes were sold for a price less than their face, equal to a discount of twelve per cent, per annum, for the time they had to run, to which was added one eighth of one per cent., which was equal to one half of the defendants’ commissions. The plaintiff knew that the defendants acted as brokers in the transaction, but the name of their principal was not disclosed or asked for. The signatures of H. J. Libby .& Co. were forged, but this fact was not known either to the defendants or the plaintiff till after the maturity of the notes. No assurance was given or asked for at the time of the sale, hat the signatures were genuine.</p> <p>Upon these facts, judgment was rendered for the defendants, and the plaintiff appealed to this court.</p>

Tort. The declaration alleged that the defendant sold to the plaintiffs three horses, four wagons, four harnesses, three leighs, and certain stable utensils, together with the good will of his jobbing business in Boston, for which the plaintiffs paid to him $2300.

<p>iiestoring a structure which was a nuisance to a right of way, and which has been abated, will render a tenant for years liable, although the structure existed before the commencement of his tenancy; but merely refitting it after it has been injured but not abated will not render him liable.</p> <p>A tenant for years is not liable for keeping a nuisance as it used to be before the commencement of his tenancy, if he has not been requested to remove it, or done any new act which of itself was a nuisance.</p> <p>A notice to a tenant for years to remove a nuisance which is only kept by him as it used to be before the commencement of his tenancy must be distinct and unequivocal, m order to lay the foundation of an action against him for its continuance.</p>

<p>Replevin. After judgment was entered for the defendants, at the former hearing of this case, (1 Allen, 399,) they moved in the superior court for judgment for a return of the goods replevied, to which the plaintiff objected, alleging that since the commencement of the action the defendants’ title to the property had ceased, and that at the trial Shannon, the mortgagee under whom they claim, testified to certain facts, which were set out by the plaintiff in detail, tending to show fraud and conspiracy between himself and one Emerson, through whom the loan which the mortgage was given to secure was negotiated, in relation to the usury which was exacted of the plaintiff, and the person who was to have the same; and that upon hearing this testimony he tendered to the defendants the sum of $240, which was more than the amount justly due, and the costs of this action; but Tose, J. ruled that the evidence was incompetent, and ordered judgment for a return, and the plaintiff alleged exceptions</p>

<p>If a testator has manifested in his will a clear general intent to make an equal distribution of his estate, by giving equal shares thereof'to his five children who survive him, and to the children of ja deceased child the share which their parent would have received if living, and in pursuance of this general intent has divided his estate into six equal parts, two of which are given to two of his children absolutely, and the other four are devised in trust, with directions to the trustees to pay over three fourths of the net income thereof from time to time, quarter-yearly or otherwise as is most convenient, to his three other children respectively, and the other fourth to the children of his deceased child, and with a further disposition of the principal fund of which the income was thus given to his grandchildren, in case they should all die without issue, a subsequent provision in the will, authorizing the trustees, if they should at any time deem it inexpedient to pay to either of said children or grandchildren the income which might then be coming to them, in their discretion to paj only so much thereof to any such child or grandchild as they might deem expedient, gives no power to the trustees to withhold entirely any portion of such income and add it to the principal fund, but only gives to them a discretion to regulate and control the time and mode of payment of the income, in the exercise of which they are subject to the supervision of this court. And no equivocal language, which may have another reasonable explanation, will be so construed as to defeat the bequest.</p> <p>If a testator directs his estate to be divided into shares, some of which he devises in trust with directions to the trustees to pay over the income thereof to persons therein named, the amount of income received by the executor, and paid over by him to the trustees, is to be disposed of in the same manner as the income received by the trustees afterwards.</p>

<p>A surviving partner cannot be held responsible on a contract made without his assent or knowledge by another partner, after the firm has been dissolved by the death of one of its members, although no notice of its dissolution has been given to the person with whom the contract was made.</p> <p>In an action on a promissory note given in the name of a firm by a surviving partner, the other surviving partners, under an answer which avers that the firm had expired and was dissolved before the note was given, may prove that the partnership had been dissolved by the death of one of its members.</p>

<p>Declarations of a deceased mother that her child was born before her marriage, and cor* roborating statements by her of the circumstances and history of her life, are competent evidence to prove that the child was illegitimate; but evidence of a general reputation that the child was illegitimate is not competent.</p>

<p>Contract upon a replevin bond, given in a suit in which judgment was rendered for the defendant therein, and a return of the goods replevied was ordered, but never made.</p> <p>• At the trial in the superior court, the defendants offered to prove that Harding, who was the plaintiff in the replevin suit, failed therein solely because it was prematurely commenced; but Putnam, J. rejected the evidence, and a verdict was returned for the plaintiff for the penalty of the bond. The defendants alleged exceptions, and the parties agreed to a subsequent assessment of damages by the court, if the ruling should be found erroneous.</p>

<p>If a vote is passed at a school meeting to build a new school-house or enlarge the old one, and a building committee are chosen with instructions "to proceed forthwith to complete the work which is on their hands,” the committee have power, at their election, either to build a new school-house or to enlarge the old one.</p> <p>. A lien exists under Si. 1855, c. 431, for work done in enlarging a school-house under a written contract with a building committee chosen by the district, with authority to make the enlargement, although by the terms of the contract the committee were personally responsible therefor; and it is immaterial whether the acts of the committee were subsequently ratified by the district at a legal meeting.</p>

Tort. The first count of the declaration charged that the defendant forcibly entered the plaintiff’s dwelling-house. The second count charged that the defendant forcibly entered the plaintiff’s shop. At the trial in the superior court, before Ames, J., it appeared that the defendant, being a deputy sheriff, did the acts charged; and he justified the entry into the house, which was after the entry into the shop, under a search warrant.

<p>Under a will giving to the testator’s wife certain real estate and personal property and all of the income arising from the same, for the maintenance and education of two of his children, as long as she should remain his widow, and making a disposition of all that might remain after her death, she is entitled only to a life interest in promissory notes which are included in the property so left by him, coupled with a trust for the maintenance and education of the two children; and if she has taken in renewal of them other notes, which can be identified after her death, they cannot be held by her administrator, but are still subject to the provisions of her husband’s will.</p>

Contract to recover compensation for services in trimming carriages, against partners, of whom the husband of the plaintiff was one. In the superior court, upon agreed facts, judgment was rendered for the defendants, and the plaintiff appealed.

<p>In order to gain a possessory title to land lying in common and undivided, there must b< proof of acts of ownership done with an intent to assert a title thereto.</p> <p>If the inhabitants of a town, through their committee, survey a portion of land lying in common and undivided, run the lines, put up stakes as monuments, and a row of posts marked with the name of the town, and afterwards, through one of their selectmen, proceed to erect a fence about the same, which is removed by others before its completion, this is enough to give to them a possessory title to the same as against strangers.</p> <p>The St. of 1853, c. 114, incorporating the town of Nahant, and providing that it should be entitled to receive of the city of Lynn its proportion of all the corporate property then owned by Lynn, did not transfer or vest in Nahant the title to any real estate owned by Lynn.</p>

Replevin by the assignee of Luther Day, an insolvent debtor, of goods mortgaged by Day to the defendant. The plaintiff contended that the mortgage was in violation of the insolvent laws, and therefore void.

<p>Contract brought by the administrator of the estate of Mary Wilkins against the maker of a note payable to her. At the trial in the superior court, it appeared that the note was given in renewal of a former note, which was executed before the passage of St. 1857, c. 249, for work done by Mary Wilkins and her husband, and money lent. There was no evidence that during her life her husband attempted to reduce it to possession, or did any act indicating an intention to take it to himself. On this evidence, Ames, J. directed a verdict for the defendant, which was'rendered; and the plaintiff alleged exceptions.</p>

<p>á. second mortgagee of land may maintain an action to foreclose his mortgage against the first mortgagee, who is in possession for the purpose of foreclosure, if the latter is also the owner of the equity of redemption; and under his execution may be put temporarily c possession, without an actual ouster of the first mortgagee.</p> <p>One of two executors may assign a mortgage given to his testator. Note*</p>

Contract to recover for work done upon a railroad station. At the trial in the superior court, before Ames, J., it appeared that the plaintiff did the work in question at the request of the defendant, and the only question was whether the defendant acted on his own account or as agent of the railroad company, of which he was the president.

<p>Tort for breaking and entering the plaintiff’s close. At the trial in the superior court, before Putnam, J., a verdict was returned for the plaintiff, and the defendant alleged exceptions. The material facts are stated in the opinion.</p>

<p>In order to sustain a bill in equity to reform a deed on the ground of mistake, there must be full and satisfactoiy proof that it does npt conform to the oral contract as understood by either party.</p>

Tort against the selectmen of Saugus, a town containing over one thousand inhabitants, to recover the penalty of $100, alleged to have been forfeited by reason of their failure to make a legal appointment of an agent for the sale of spirituous and intoxicating liquors, under St. 1855, c. 215, § 5.

Contract to recover the value of manufactured and finished goat and kid skins, which were not stamped as provided in Gen. Sts. c. 49, § 116.* Upon facts agreed in the superior court, judgment was rendered for the plaintiffs, and the defendant appealed to this court.

<p>No exception Iíós to the refusal by a judge to rule that a particular piece of evidence, which „ is in the case, has a tendency to prove the issue between the parties, if he submits the issue to be determined by them upon all the evidence, with proper instructions.</p> <p>If defendants who are alleged to have been partners of another person, who signed a contract with the plaintiff, have testified that they were not partners, and request a ruling that persons cannot be partners as between themselves unless they mutually intend to be so, it furnishes no ground of exception by them if the judge, after giving the ruling requested, adds that although they might say they were not partners, it did. not depend upon what they said; and that while the jury might take that fact into consideration, it was for them to decide the matter on the whole evidence.</p> <p>Exceptions cannot be sustained to the refusal of a judge to instruct the jury that there was no evidence in the case sufficient to establish certain material facts, if the bill of exceptions does not contain a report of the whole evidence, so that this court may see whether there was such evidence or not.</p>

<p>Writ of entry. At the trial in the superior court, before Ames, J., various questions were raised and rulings given which are now immaterial; and the only facts which are material are stated in the opinion. The jury returned a verdict for the tenant, and the demandant alleged exceptions.</p>

<p>A laborer who by a written contract has agreed to forfeit his wages if he should fail to comply with certain printed regulations, one of which was that persons employed “ are no! allowed to be absent from their work without the consent of their overseer, except in case of sickness, and then they are required to send him word of the cause of their absence,1’ cannot maintain an action to recover for his labor, if he left his work by reason of sickness, and, though able to send word of the cause of his absence to the overseer, omitted to do so.</p>

<p>Contract upon a check given by the defendant, under circumstances stated in the opinion. In the superior court, upon facts agreed, judgment was rendered for the defendant, and the plaintiff appealed to this court.</p>

<p>Tort against a gas light company, to recover damages for an injury to the female plaintiff from an explosion of gas.</p> <p>At the trial in the superior court, before Allen, C. J., it appeared that Mr. Flint was the owner of a new. house in Gloucester, and that he employed and paid one Thomas to put gas pipes therein, connected with a service pipe which had been laid for the purpose by the defendants; and to put up and arrange the fixtures and burners necessary for using gas in some of the rooms. In one room, however, no fixtures were put, and no cap was kept over the end of the pipe which opened into it. After adjusting such fixtures as he was employed by Flint to put up, Thomas examined all of the rooms except the one mentioned above, to see if the pipes were tight and safe, and then turned on the gas, and lighted up the house, and went away; and a few hours afterwards the female plaintiff, with a lighted candle, entered the room referred to, into which the gas had been escaping freely from the time it was let on, and an explosion took place, which caused the injury complained of.</p> <p>Thomas had for several years been the defendants’ superintendent and agent but ceased to be so before the acts which led to this explosion; he was, however, the only gas-fitter in Gloucester, and continued as before to turn on the gas in all cases, with the knowledge of the company and without any objection on their part, down to the time in question. This was not done by the request of the superintendent, or of any other officer of the company, but it was with the superintendent’s knowledge, and without objection from him; and he collected the bills for the gas after it was so turned on. It was the defendants’ business to let on the gas, and no one except them, or some one acting by their authority or consent, had any right to do so, and they had entire control of this matter; and it was the duty of the person who let on the gas to make in advance a careful examination of the pipes all over the house, to see that they were tight, before turning on the gas. Certain other facts in evidence are stated in the opinion.</p> <p>The plaintiffs contended that Thomas was the agent of the defendants for turning on the gas, in supplying it to consumers, and that he acted as such agent in turning on the gas in this case. The defendants denied that he was their agent, and requested the court to give the following instructions : 1. Inasmuch as Thomas was employed by the plaintiff William H. Flint to put on and adjust his gas fixtures, and for that purpose was not the agent of the defendants, it would be, as a matter of law, such negligence on his part, in leaving one of the pipes open, while acting for Flint, that the plaintiffs cannot recover ; 2. If the defendants never assumed in fact to furnish or interfere with the pipes inside of the meters in the buildings to which they furnished gas, or with furnishing or regulating the gas fixtures, but uniformly permitted without objection the person who had been employed by gas consumers to furnish and put in and up such pipes and fixtures, to let on the gas fter so doing, the defendants would not by such permission be liable, as a matter of law, for the act of such person in letting on the gas before he had properly secured all the pipes and fixtures ; and such permission would not be sufficient to constitute such person an agent of the defendants, for whose acts they would be responsible; 3. It being admitted or testified by Flint and all his witnesses called to that part of the case, that it was his business to furnish all the gas pipes of the house inside of the meter, and that he assumed to do so, if the defendants authorized and permitted the agent employed for this purpose by him, to let on the gas without sufficiently securing the outlet of a portion of such pipes, the plaintiffs cannot recover for such act of the person so employed by him; 4. If the explosion was the result of the negligence of Thomas, while acting as agent of the defendants, and if his negligence while acting as agent of Flint, that is, if the negligence of Flint’s agent, in furnishing and putting up the pipes and fixtures for him, contributed to the accident, the plaintiffs cannot recover.</p> <p>The judge instructed the jury that the burden was on the plaintiffs to satisfy them that Thomas was the agent of the defendants in letting on the gas on the occasion in question, and that it was their duty to see that the pipes were in a suitable condition to hold the gas and to prevent the escape thereof by which the injury in question was caused; and that if Thomas was their agent to let on the gas, and to see before it was so let on that the pipes were in a suitable condition to receive and hold it, taking care that the caps or stoppers were closed, and if he did let on the gas, neglecting to see that the pipes were closed and the caps on, and by reason of such neglect the flow of gas and the injury complained of were caused, the defendants were liable. The judge further ruled that the injury complained of must have been caused entirely by the negligence of the defendants, without any admixture of the negligence or fault of the plaintiffs or either of them, and substantially adopted the fourth ruling.requested, with certain explanations and illustrations which were not objected to, and ruled that if the defendants merely allowed or permitted Thomas to turn on the gas — if they merely consented to his doing so—the defendants would not be liable, though the plaintiffs suffered injury by his negligence in turning it on, and that the defendants would not be fiable for his act in turning on the gas unless he was authorized to turn it on by an appointment or agency from them, and in so doing was acting in their employment. And the judge did not otherwise rule as requested by the defendants.</p> <p>The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

Tort to recover damages for the obstruction of a way, bi erecting a fence across it. The action was originally broughby Moses Pettingill, and after his death was prosecuted by th» plaintiff as his administratrix.

<p>Writ of entry to recover possession of one undivided half of certain premises in Marblehead, which formerly belonged to Thomas Furnace, who died in 1826, when the same descended to his two daughters, under whom the present parties respectively claim. It was agreed that the tenant and those under whom she claims have been in open, peaceable and undisturbed possession of the whole of the premises since 1829, paying taxes upon the same and taking the whole of the rents and profits to their own use. On these facts judgment was rendered in the superior court for the tenant, and the demandant appealed to this court.</p>

<p>A sheriff’s deed of an equity of redemption of mortgaged land which is described as Having been sold by him on execution conveys no title, if it does not correspond with his description of the premises in his return upon the execution.</p>

<p>If the magistrate’s certificate upon a deposition shows that the deponent was sworn to testify, &c., in relation to an action pending between A. B. and C. D., the judge may allow it to be read in evidence on the trial of an action bearing that title, although it appears that another action with the same title is pending in the same court.</p>

<p>If the by-laws of a mutual insurance company provide that “ each person, before the policy shall be binding on the company, shall pay to the treasurer or agent such premium and make such deposit as the directors shall determine," the company is not rendered liabi on a policy which is executed but not delivered, and for which no premium has been paid, by an oral promise of their treasurer to the applicant for insurance that, if anything should happen, he would see the premium paid, or that he would take it upon himself to keep the policies good.</p>

<p>[f the owner of property, which is insured by a policy which contains an express provision that the by-laws of the company are declared to form a part thereof, mortgages the same in violation of one of the by-laws, the policy is defeated; and no right of action thereon remains in favor of one to whom it had previously been assigned "with the consent of the company, to secure a prior mortgage, if no new contract was made between such assignee and the company, by which his interest was insured.</p>

<p>A will, after bequests of two small legacies, contained the following clauses: Third. J give and devise to my beloved wife, A. B., all my real and personal estate, together with any and all estate, right or interest which I may acquire after the date of this will, as long as she shall remain unmarried and my widow. Fourth. I give and bequeath to my beloved wife, A. B., all my household furniture, wearing apparel, and all the rest and residue of my personal property.” The testator died childless. Held, that she is entitled to take absolutely the furniture, wearing apparel, and other personal property of the same kind, and the income, but not the principal, of the productive personal estate during her widowhood.</p>

<p>A parish which owns a meeting-house cannot maintain an action in its own name to recover the price of a pew therein, which has been sold by its treasurer, under the statute, for non-payment of taxes.</p> <p>if the original owner of a pew which is sold for non-payment of taxes assessed thereon, under the statute, bids off the same, and continues in the occupation thereof, he is not thereby estopped from objecting to the illegality of the sale, in an action against him to recover the price.</p> <p>It stems, that a parish which erected or procured a meeting-house for public worship before the passage of St. 1845, c. 213, has no authority to assess taxes upon the pews for the support of public worship, unless with the consent of all the pew-owners, or unless, at a regular parish meeting called for the purpose, it has decided to avail itself of that statute, by a vote of two thirds of the members present and voting thereon.</p>

<p>In an action to recover for materials delivered upon land of the defendant, and used, in the erection of a building for him, evidence of a previous contract between him and a third person, by which the latter agreed to erect the building and furnish all the materials therefor, is competent in defence.</p> <p>If evidence of a declaration made in the presence of a party to a contract, without reply from him, is objected to on the sole ground that the declaration was not heard by him, and the evidence is submitted to the jury with instructions to disregard it unless satisfied that the party heard the declaration, the objection cannot be taken for the first time in this court, at the hearing on exceptions, that the declaration was not such as, if heard, called for a reply.</p>

<p>Tort by the administrator of Richard Stickney, to recover damages sustained by 1he deceased by reason of a defective highway.</p> <p>At the trial in the superior court, before Putnam, J., the plaintiff offered evidence tending to show that Hardy Street was a highway in Salem, leading to the sea. At its termination there was a sea-wall about eight feet in height, and a wooden fence, built by the city, extended across the whole width of the street, and had become defective.</p> <p>The plaintiff called a witness who testified that Richard Stickney, whose age was seventy-three years, and who lived on Hardy Street, walked with him down to the fence, for the purpose of showing to him the harbor and surrounding objects, and upon reaching the foot of the street stood for ten or fifteen minutes near the fence, Mr. Stickney pointing out to him various objects in and around the city and harbor, and engaged in conversation generally; and Mr. Stickney then turned round, folded up his arms, leaned against the top rail of the fence lightly, and one end of it gave way, and Mr. Stickney fell backwards over the wall on to the beach, the tide being out, and was severely injured. There was other evidence in corroboration of the above.</p> <p>The defendants requested the judge to instruct the jury that upon this evidence the plaintiff was not entitled to recover, and also submitted various special requests for instructions, which the judge declined to. give, and instructed the jury as follows : “ That it was only those who were using the highway for legitimate purposes in the usual and ordinary mode who could recover damages for injuries caused by defects in such highway; that the right of foot passengers in the road was only that of passing and repassing over it in the usual way and for ordinary purposes, whether for business or pleasure; that it did not necessarily follow from this, however, that a foot passenger must keep moving all the time ; that he might stop for all reasonable and proper purposes connected with the objects of his passing, such as resting and addressing his friends whom he might meet, and so long as such stopping did not inconvenience others, and so long as he made his stopping but incidental to the main object of passing; that it would be for the jury to say in this case, taking the whole evidence into consideration, the age of the individual, and the object and motive in passing down the street, as he did, whether the stopping was reasonable and proper, and only incidental to his passing, or whether his passing over the road being ended, his intention was not to return immediately, but to remain there resting and lounging, so that wnat should be merely incidental had become his main object, and if they found the latter, then the plaintiff could not recover in this action ; that it was true that the city were not bound to furnish railings for foot passengers to lean upon for the purpose of resting themselves; but if the jury found the railing was necessary at the place of its erection, they were to judge whether the use of it for the purpose of resting upon it in the manner the plaintiff did was or not a proper and just use thereof as incidental to his main right in the way.”</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>Tort to recover damages for breaking down a mill-dam of the plaintiff, which he claimed he had a right to maintain for his ancient grist-mill and bark-mill in Ipswich.</p> <p>At the trial in the superior court, it appeared that the plaintiff claimed the right to maintain his dam under a grant of the town in 1670 to’ William Story, the r.ecord. of which is as follows : “ Towne meeting the 21 of Febr. 1670. Granted liberty to Wm. Story to sett vp a come mill and fulling mill at Chebacho river, not damnifieing other grants, provided he take none of the timbar from off the towne’s camons.” The defendants contended that the dam was erected under a grant of the town in 1667 to Thomas Burnham, the record of which is as follows : “ Att a towne meeting the 23d of May 1667. Granted vnto Thomas Burnam liberty to sett vp a saw mill vpon Chebacho river neare the falls, not preiudiceing Mr Wade’s grant.” And the defendants offered to prove that the last named grant was with the restriction and limitation that the same should be so enjoyed that the water should not be kept back to the injury of the owners of lands above; that the grant to Story was under restrictions to the same effect; and that they, and others whom they claimed to represent, were owners of lands above which were flowed and materially injured by the water kept back by the dam ; and that the restrictions above referred to have always been observed and regarded till within less than twenty years, and that until within less than twenty years there has never been any constant use of the dam, and in summer the gates had not been kept shut, and the lands not flowed or injured.</p> <p>Upon the statement of this offer, Putnam, J. suggested that in his opinion these facts, if proved, would afford no justification for breaking down the plaintiff’s dam ; whereupon a verdict was returned, by consent, for the plaintiff, for an agreed sum, and the defendants alleged exceptions.</p>

<p>The purchaser of a note and a mortgage given as security therefor, who had an opportunity to examine the property described in the mortgage, cannot maintain an action of tort against the seller for falsely and fraudulently representing to him that the security of the mortgage was undoubted, and the property conveyed was of great value over and above all incumbrances, and amply worth the amount of the note, and could be sold for its face at any time.</p>

<p>Tort. The first count was in trespass. The second was as follows: “ The plaintiff also says that he employed a carpenter, one Ira P. Brown, of said Lynn, to prepare or cause to be prepared a spot, which was designated by the plaintiff, to dig and finish a cellar, and to erect and finish a dwelling-house thereon, on the plaintiff’s land in said Lynn, for and on account of the plaintiff; that the plaintiff shortly afterwards went on a voyage to sea ; that while so absent at sea, the said Brown, acting for the plaintiff, prepared the spot designated, caused a cellar to be dug and stoned up, and when he was about placing the dwelling house thereon the defendant falsely represented to the said Brown that the true division line between the land of plaintiff, on which said cellar was dug, and that of the adjoining owner, which was either the defendant’s or had just been sold by him to one Hatch, ran about a foot nearer to the said cellar than it did in point of fact, and that the said house when built thereon would encroach upon the adjoining premises of defendant or his grantee, though the defendant knew at the time that the said line did not run as represented by him, but did run at a sufficient distance from said cellar to avoid any encroachment by the house to be erected thereon, upon the said adjoining land; and the defendant, knowing of the absence of the plaintiff and taking advantage thereof, intended by said representations to induce and did induce the said Brown, the plaintiff’s agent, to abandon the said spot on which he was directed by the plaintiff to erect the said dwelling-house, and to fill up the cellar he had dug, and to place the said dwelling-house upon another, more inconvenient and far less favorable part of the plaintiff’s land, and the said Brown did so act and change the location of said house by reason of the said representations of the defendant, to the great damage and injury of the plaintiff.”</p> <p>At the trial in the superior court, Putnam, J. ruled that no cause of action was set out in the second count, and declined to admit any evidence under it. The plaintiff alleged exceptions to this ruling, and proceeded to trial upon the first count alone.</p>

Contract brought by an insurance company incorporated in South Carolina upon a note given for a policy of insurance.

<p>The owner of bank bills, which cannot be identified or distinguished from other similar bills, cannot maintain an action against the bank which issued them, upon circumstantial evidence that they have been destroyed, and a tender of a bond of indemnity.</p>

<p>Tort. The first count was for a malicious prosecution, alleging that the defendants had maliciously caused the female plaintiff, Mary Kidder, to be indicted and prosecuted for peijury, and that on her trial she was acquitted. The second and third counts were for a libel. The alleged libel was a complaint to the grand jury, signed by the two defendants and ten other persons, stating their belief that Mrs. Kidder had committed perjury-</p> <p>At the trial in this court, before Chapman, J., the plaintiffs introduced evidence tending to prove the following facts: Martha B. Kidder commenced an action of tort against the inhabitants of Dunstable, to recover for personal injuries sustained by reason of a defective highway, which was tried in this court in April 1856, her mother, Mary Kidder, being a witness for her therein, and a verdict was returned for the plaintiff, which was set aside on exceptions, (7 Gray, 104,) and the case was tried again in April 1857, and another verdict returned for the plaintiff, on which, after the exceptions taken had been overruled, judgment was entered in October 1858. By votes of the inhabitants of Dunstable, it was left with a committee to settle or defend the suit, and both of the defendants were members of the committee, Parkhurst having become a member thereof in November 1856. In June 1856 a complaint, drawn up by the partner of the district attorney, and signed by the two defendants and ten other persons, to some of whom the defendant Parkhurst exhibited it and asked them if they wished to sign it, was presented to the grand jury, setting forth the judicial proceedings in the trial of the action above referred to, and stating that in that trial it became a material question how long Martha B. Kidder was confined to her house in consequence of the injuries received by her, and that Mary Kidder testified as a witness that she was so confined from the 3d of February 1854 until the second week in March following, “ which declaration of said Mary Kidder your complainants believe to be false, and therefore said complainants say that said Mary Kidder at said court holden as aforesaid did, as they believe, commit the crime of wilful and corrupt perjury.” One of these persons did not read the paper before signing it, but signed it supposing it to be “ an instrument against Mrs. Kidder,” and had made up his mind from what he heard from others than the defendants that Mrs. Kidder’s testimony was false. Another person read it, and upon information which he had received from others than the defendants believed the charge to be true. This complaint was heard before the grand jury, the defendant Cummings being one of the witnesses before them, and no indictment was found. A new grand jury was summoned the next year, before whom the matter was brought, in February 1857, both defendants being called as witnesses, and other witnesses being summoned by the defendant Parkhurst in the night, and an indictment was found, on which Mrs. Kidder was tried and acquitted. There was also evidence tending to show that the testimony of Mrs. Kidder as to the length of time that Martha B. Kidder was confined to the house after receiving the injury was not quite so definite as the statement of it contained in the complaint to the grand jury; and that Martha B. Kidder went out to a dance during the time covered by Mrs. Kidder’s testimony.</p> <p>The above is all the evidence which at the argument was relied on as material; and, the plaintiffs having rested their case upon it, Chapman, J. was of opinion that it was insufficient to sustain the action, and reserved the question, by consent of the parties, for the consideration of the whole court, for them to grant a new trial or render judgment for the defendants.</p>

<p>Tort. The declaration set forth that the plaintiff was a “ coal-dealer ” in Lowell, and kept and advertised for sale the genuine, true and original Franklin coal, which had been shipped by the defendants, and the defendants, well knowing the premises, published of and concerning the plaintiff the following advertisement : “ Caution. The subscribers, the only shippers of the true and original Franklin coal, notice that other coal-dealers in Lowell than our agent, Mr. W. E. Livingston, advertise Franklin coal. We take this method of cautioning the public against buying of other parties than Mr. Livingston, if they hope to get the genuine article, as we have neither sold nor shipped any Franklin coal to any party in Lowell, except our agent Mr. Livingston. Remington & Henry. Delaware City, Delaware, Dec. 8,1859.” The declaration further alleged special damages. The defendants filed a general demurrer, which was sustained in the superior court and judgment ordered thereon for the defendants. The plaintiff appealed to this court.</p>

<p>Tort to recover damages sustained by reason of a defective highway. At the trial in the superior court, there was evidence tending to show that the female plaintiff, while walking on the sidewalk of the way in question in the evening, and using due care, was thrown down by a defect which consisted of uneven ice thereon, and had existed for several days ; that she had seen the ice there before, and had passed over the same place about half an hour before the accident. The other material facts are stated in the opinion. Upon the whole case, Wilkinson, J. ruled that the plaintiff was not entitled to recover, and directed a verdict for the defendants. The plaintiffs alleged exceptions.</p>

<p>Tort to recover damages sustained by reason of a defective highway.</p> <p>The declaration was as follows: “ And the plaintiff says there is in said city of Lowell a public highway, called Summer Street, leading, &e., which said defendants are bound to keep in repair ; that the same was negligently suffered by defendants to be out of repair, whereby the plaintiff, travelling thereon and using due care, was hurt.” The action was originally commenced by Daniel M. Alger, and after his death was prosecuted by the plaintiff as his administratrix.</p> <p>At the trial in the superior court, before Wilkinson,. J., the plaintiff offered evidence to show that on the north side of Summer Street, and between the line of the street as laid out and houses fronting thereon, there was an open space not separated from the street by any fence or railing, about four and one half feet wide and twenty feet long; that at one end of this open space a passage way, from sixteen to twenty two inches below the level of the open space, and not separated from it by any fence or railing, began, which led to the rear of the houses; and that, upon the evening of the accident, the original plaintiff was passing along the street, in a large crowd of people, by whom he was pressed into the open space, from which he stepped into the passage way, and fell, and received the injury complained of.</p> <p>The defendants requested the court to rule that the plaintiff could not recover upon this evidence, because, 1. She had not shown a defect in the street, as declared on; 2. The defendants were not bound and had not the right to erect a barrier or railing across a private passage way of the kind described; 3. Daniel M. Alger went into the passage way from the open space outside of the sidewalk, and not directly from the sidewalk. The judge declined so to rule, and ruled that there was evidence sufficient to go to the jury.</p> <p>The defendants then introduced evidence tending to show tho Daniel M. Alger was intoxicated at the time of the accident and reqtiested the court to instruct the jury as follows: 1. In order to prevail, the plaintiff must satisfy the jury that the accident occurred wholly through the negligence of the city, and in no part though the negligence of Daniel M. Alger; 2. If Daniel M. Alger was pushed down in consequence of the pressure of the crowd in which he was, he cannot recover; 3. The city is not bound to keep its streets safe and convenient for intoxicated persons ; 4. If the jury are satisfied that Daniel M. Alger was at the time of the accident in a state of intoxication, they are to presume that he was negligent; 5. If the accident happened from Daniel M. Alger’s walking along the ground between the sidewalk and the houses, outside of the street, and stepping or falling therefrom into the passage way, the defendants are not liable ; 6. The city had no right to put a fence or railing outside of the line of the street on the side of the passage way, between the sidewalk and the corner of the house; 7. The city was not bound to put a railing across the head of. a private passage way, like that described; 8. If the jury find that the accident happened by Daniel M. Alger’s stepping or falling into a private passage way, like that described, which was entered from the sidewalk by a step not exceeding seventeen inches in depth, the defendants are not liable, because they are not bound and have not the right to close up such passage way by a fence or railing; 9. If anything else than the negligence of the city contributed to cause the accident, the plaintiff cannot recover.</p> <p>The judge instructed the jury in the language of the first and ninth prayers, and refused to give any of the other instructions asked for; but instead thereof instructed them that the plaintiff could not recover if Daniel M. Alger was pushed down through the wilful act or negligence of the crowd, or of any person therein; that if he was intoxicated, that was a circumstance to be considered by them as bearing upon the question of due care on his part, more or less strong according to the degree of his intoxication; and that, if the place was dangerous, and he passed off from the street at a point so near to the dangerous place that, in order to protect travellers and make it safe, some railing or barrier was reasonably requisite at such point, the defendants would be liable.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

Tort by an inhabitant of the city of Lowell against that city, to recover damages sustained by reason of a defective bridge, which they were bound to keep in repair. At the trial in the superior court, before Putnam, J., the plaintiff introduced evidence tending to prove that while driving over the bridge at a rate no faster than a walk, his horse stepped into a hole in the floor and fell, whereby the plaintiff was thrown forward and inj ured.

Tort for taking a horse. The taking was the same for which the action of Howard v. Proctor, 7 Gray, 128, was brought. The defendant was one of the assessors who issued the warrants on which the horse was taken.

<p>In an action against a gas light company to recover damages for an injury to the plaintiff’s health caused by an accidental escape of gas from a main pipe in a public street, from which it passed through various sewers and drains into the plaintiff’s cellar and house, the plaintiff, in connection with evidence tending to show that the defendants did not use due diligence in finding and stopping the leak, after notice thereof, may show, by witnesses who passed along the street and lived in the neighborhood of the plaintiff’s house at the time, to what extent the gas escaped into the street; and also that it escaped from the same sewer through which it reached the plaintiff’s house into other houses at points beyond, if the defendants had notice thereof, but not otherwise; but he cannot show that wherever the gas escaped into other houses, sickness followed.</p> <p>In such action, a witness who is experienced in digging holes through frozen earth may testify how long a time and how much labor it would take to dig such holes as have been made through frozen earth by the defendants in searching for the leak, for the pulpóse of showing whether they have exercised reasonable diligence in finding and stopping the same.</p> <p>In such action, the defendants may show that the plaintiff made no claim on them for damages for more than two years after the injury complained of; but they may not show that the plaintiff, while sick in bed, in conversation about his sickness, did not then ascribe it to the effects of gas, and said nothing as to the cause of it.</p> <p>If, in such action, it is made a question whether the inhalation of gas is noxious to health, and it is established that it is so, the belief of the defendants’ agent upon the subject is unimportant, for the purpose of affecting the question of the care and diligence which it was their duty to exercise, in order to guard against its deleterious effects.</p> <p>The plaintiff in such action, in order to prove due care on his part, may not prove that the defendants’ agent advised the occupants of a neighboring house, into which gas had escaped from the same leak, what to do to avoid ill consequences from it, and that he did the same things so advised, if such agent gave directions to the plaintiff respecting the matter.</p>

Tort against a gas light company to recover damages for an Injury to the plaintiff’s health from an escape of gas into his house from a main pipe of the defendants, under the circumstances stated in the report of questions arising upon a former trial of this case, in 1 Allen, 343.

<p>Tort for an assault upon the plaintiff. The original defendants in the writ were John J. Swift and Henry Frothingham, Jr.; but after entry the writ was amended by joining the Fitchburg Railroad Company as a party defendant, under the statute.</p> <p>At the trial in this court, before Dewey, J., the evidence showed that Frothingham was a servant of the company, and had charge of the freight in the freight depot at Charlestown, and the plaintiff, a boy of about fourteen years of age, was playing there and refused to leave when required to do so; and that, in pursuance of a regulation of the company, Frothing-ham thereupon proceeded to remove him forcibly, and in doing so kicked him and severely injured him. Swift was president of the company, and gave to Frothingham directions to keep boys out of the depot and to remove them therefrom. No other orders but the above to Frothingham from Swift or the company were proved.</p> <p>Under instructions of the judge authorizing them to do so, the jury returned a verdict against all the defendants, with $2000 damages; and the defendants alleged exceptions.</p>

Tort for the conversion of one hundred bags of salt. At the trial in the superior court, it appeared that the plaintiff, a deputy sheriff, held the goods under an attachment, and the same were taken from him by the defendant, another deputy sheriff, by virtue of a writ of replevin, the bond in which vras defective in not mentioning any penal sum.

<p>The mortgagee of personal property which has been attached on a writ against the mortgagor cannot maintain an action against the officer for taking the same, if, in his statement of the debt for which the property is liable to him, delivered in pursuance of Gen. Sts. c. 123, § 63, he included a sum which was not covered by his mortgage.</p>

Replevin. Before an answer was filed, the action was dismissed in the superior court, for a defect in the bond. The defendant thereupon moved for judgment for a return of the goods replevied, which Putnam, J. declined to grant, because there was no answer or suggestion on the record that the defendant owned them.

<p>An action must be finally disposed of in the superior court, by verdict or judgment, before any questions raised in it, by appeal or exceptions, can be transferred to this court.</p>

After the exceptions formerly taken in this case were overruled, for the reasons stated in 1 Allen, 211, the plaintiff moved in the superior corn! to set aside the award, because it was dependent on the award in the other case between the same: parties, which had been set aside; 1 Allen, 212; and offered to show this fact by the evidence of the referees ; but Brigham, J. refused to hear the evidence, and overruled the motion. The plaintiff alleged exceptions.

<p>Contract. The declaration contained four counts upon promissory notes, and one count alleging that the defendants, representing themselves to be insolvent, paid sixty per cent, on their debts, and agreed to and with the plaintiffs that, at a specified time, they would render a final account, on the winding up of their business, and pay over to the plaintiffs their share of the surplus, but had neglected and refused so to do.</p> <p>At the trial in the superior court, before Brigham,, J., a verdict was returned for the defendants, upon facts and rulings which are stated in the opinion, and the plaintiffs alleged exceptions.</p>

<p>It is sufficient to fix the liability of the first indorser of a promissory note, if on the day of its dishonor a duplicate notice for him was inclosed by a notary to the second indorser, who, immediately after receiving it, deposited it in the post-office, properly addressed to him; although he lives in the same town where the note was payable and protested, and the second indorser lives in another town.</p> <p>A notice addressed to “Mrs. Susan Collins, Boston," is prima fade sufficient to charge her as an indorser, if she lived in Boston.</p>

Contract upon the following bill of exchange in favor of the plaintiffs’ agent: “ $2658.81. Clinton April 1, 1857. Six months after date, pay to the order of A. G. Snell, agt., twenty-six hundred fifty eight dollars value received, and charge the same to account of your ob’t servant, A. L. Fuller. To Messrs. E. & J. Holmes, Boston.” The defendant wrote his name upon the back of this bill, and it was accepted by the drawees.

<p>A promissory note for the balance due to a creditor of the maker, over and above the amount paid to him under an agreement for composition, given after the maker has been discharged thereby, but in fulfilment of an oral promise by which the creditor was induced to sign the same, is invalid in the hands of the payee.</p>

<p>In the assignment of a judgment upon a mortgage which is described as having been “given by A. B.,” when in fact no such mortgage existed, but a mortgage given by another person did exist upon which a judgment had been obtained against A. B. as mortgagee in possession of the same premises under a subsequent mortgage, the words “ given by A. B.” may be rejected as falsa demonstrate.</p> <p>In ascertaining the amount for which a conditional judgment shall be rendered in an action to foreclose a mortgage, no deduction should be made by reason of a payment to the mortgagee of a sum of money over and above the interest due upon his debt, in consideration of his forbearance for a time to enter upon the premises and foreclose his mortgage, if such payment and forbearance were not stipulated for in the original contract.</p>

<p>The execution of a witnessed instrument which is offered in evidence by one who is a party to it cannot be proved without calling the attesting witness, if he is living, competent and within reach of the process of the court; and this rule is not altered by the passage of a statute authorizing parties to testify.</p> <p>If one assumes to sell the property of another and takes in payment a note running to himself, the owner of the property cannot sustain an action for goods sold and delivered ■ against the purchaser.</p>

<p>In an action by a bank to recover back money paid under the mistaken belief that the defendant was the person who had delivered to them for discount a certain note, which had been accepted, when in fact he had delivered to them a note/for a smaller amount, the plaintiffs may introduce evidence that their president, who received both notes from strangers, paid the amount of the larger note to the defendant, and afterwards, in the absence of the defendant, offered the amount of the smaller note to the person from whom he had received the larger note, and thereupon discovered the mistake.</p> <p>In an action to recover back money paid by mistake, over and above the amount due and intended to be paid, the defendant cannot be allowed to introduce in evidence his own cash book, in corroboration of his testimony, to show the amount of money received by him; or to ask a witness, who was not present when the money was received, as to his personal knowledge of the amount received.</p>

<p>In an action against several defendants to recover for the use of horses and carts of the plaintiff, in which it is denied that he owned any such property, a judgment recovered by him against one of the defendants and an officer, for attaching as the property of another person the same horses and carts, is inadmissible.</p> <p>Declarations by the nominal plaintiff in an action of contract, made after he had assigned the claim to another person, who prosecutes the action for his own benefit, are inadmissible to show that the claim was never valid.</p>

<p>Two petitions for the enforcement of liens under St. 1855, c. 431, for work done in the erection of a house upon the land of the respondent. At the trial in the superior court, before .Brigham, J., verdicts were returned for the petitioners, and the respondent alleged exceptions. The facts are stated in the opinion.</p>

Petition to enforce a lien, under St. 1855, c. 431, for labor performed in erecting a house upon land of the respondent. At the trial in the superior court, before Brigham, J., a verdict was returned for the petitioners, and the respondent alleged exceptions. The facts are stated in the opinion.

Contract upon an account annexed, for groceries, cigars, confectionery and other articles delivered to the wife and minor son of the original defendant, of. whom the present defendant is administrator.

<p>Joint defendants who prevail in an action of contract, without severing in their defence, are entitled to but one bill of costs.</p>

<p>If the parties to an action make a written agreement that it shall be withdrawn and submitted to referees, and it is accordingly referred, decided and settled, but by some oversight remains upon the docket, and a nonsuit is afterwards entered, the superior court has authority to refuse costs to the defendant.</p>

<p>A declaration setting forth the recovery by the plaintiff against the defendant of a judgment for a certain sum as damages' and another certain sum as costs, which judgment remains in full force and unsatisfied, whereby an action hath accrued to the plaintiff to have and recover of the defendant the balance due thereon and interest, is sufficient on demurrer.</p>

<p>An answer to an action upon a promissory note, which alleges that the defendant received his discharge in insolvency from all debts due from him, and refers to an annexed copy of the discharge, is not bad on demurrer, although the discharge does not include all classes of debts due from him.</p>

<p>An action cannot be maintained upon a recognizance given by a defendant arrested on an execution, if the judgment upon which the execution issued has been reversed upon a review.</p>

Tort to recover damages for an injury sustained by reason of falling into a trench in a public highway in the city of Cam/ bridge. At the trial in the superior court, before Morton, J., a verdict was returned for the plaintiff, and the defendants alleged exceptions. The facts are stated in the opinion.

<p>If a woman who has instituted a complaint under the bastardy act neglects to prosecute it, a person authorized by one of the alien commissioners may prosecute it, without proving any request to her to proceed with it.</p>

Complaint under Gen. Sts. c. 72, charging the defendant with being the father of a bastard child with which the complainant was pregnant.

<p>If the complainant in a case under St. 1859, c. 239, relating to the bastardy process refuse» or neglects to proceed with her complaint, after the same has been entered in the superior court, and any one of the public officers therein enumerated and authorized to do so seeks to intervene and prosecute the same to final judgment, he should make application to the court and obtain leave; but if such officer has been allowed to come in and prosecute such complaint without formally obtaining leave, and no objection was made at the time to the omission, and the defendant does not show that he has sustained any real and substantial injury firom the irregularity, a new trial will not be granted.</p> <p>A jury may find one to be guilty of being the father of a bastard child upon the evidence of the mother alone, taken in connection with the record of the preliminar)' proceedings in the case.</p>

<p>One who has performed labor as an, operative for a corporation organized under St. 1851? c. 133, cannot maintain an action at law against a stockholder to recover for the same</p>

<p>Petition for partition of land in Dracnt, which the respondent claimed to be entitled to hold to his sole use.</p> <p>At the trial in the superior court, before Rockwell, J., it appeared that in December 1844, Albigence W. Fisher, who was then the owner of the premises, conveyed them to William F. Osgood and Aaron C. Osgood, to be held in common. The said William and Aaron held other adjoining lots in common the most of which they inherited from their father.</p> <p>The petitioner claimed title under the levies of two executions issued upon judgments recovered by him against William F. Osgood, on the 16th of January 1854, in which attachments of the real estate were made on the 21st of October 1853 The second judgment was for $521 damages, and $12.73 costs and an execution issued on the 17th of January, for these amounts, and twenty-five cents more for the execution. The return of the officer showed that upon this execution he completed a levy on a certain undivided portion of the premises in controversy on the 18th of the following November, and +Kat the same was appraised at the sum of $583, which was stated to be “ the amount of this execution and all fees and charges; ” and the items of the fees and charges were given, amounting in all to $22.32. The respondent objected to the admission in evidence of this levy, on the ground that more property had been taken by the officer than he was authorized to take, but the judge overruled the objection.</p> <p>The respondent is the only child and heir of Aaron C. Osgood, who died intestate in September 1852; and, to prove his sole title to the premises, offered to show that on the 2d of March 1846 William F. Osgood and Aaron C. Osgood, by mutual deeds of quitclaim, for the nominal consideration of one dollar, divided the lands held by them in common; that Aaron received as a portion of his share aE of the premises now in dispute; that from the time of this division the taxes, which until then had been assessed upon them jointly, were assessed upon them severally, in accordance with the division ; that Aaron thereafter lived upon the land so conveyed to him, cultivating and using the same and making improvements thereon until his death, and leased a portion thereof for five years to a .person who occupied the same under the lease ; that William thereafter occupied, used and improved the land so conveyed to him, and conveyed portions thereof by deeds of warranty which were recorded before the attachment of the petitioner; that upon Aaron’s death his property was duly inventoried and appraised, and the inventory and appraisal were returned into the probate court, and put upon record, on the 1st of March 1852, in which the real estate was described as “ Building and land, $4000; ” that the deed from Aaron to William was recorded on the 20th of September 1853, and the deed from William to Aaron was never recorded; and that in the winter of 1853-54 the petitioner said to another attaching creditor of William F. Osgood, “ that he hoped they would not go to putting on to Aaron’s property, so as to hurt the boy.”</p> <p>The judge ruled that this evidence was inadmissible, and directed a verdict for the petitioner, which was accordingly returned, and the respondent alleged exceptions.</p>

<p>Replevin of a steam boiler.</p> <p>At the trial in the superior court, it appeared that in the summer of 1856 the plaintiff made a verbal contract with J. B. Johnson for a steam engine and boiler to be sufficient to drive a certain scow at the rate of twelve miles an hour, for $1200. In November following, after they were completed and put on board the scow, but before trial of the same, the plaintiff paid to Johnson $700, taking a receipt as follows: “ Received of P. Stevens $700 in part payment for steam engine and boiler for scow at South Boston sold to said Stevens by me. Provided, however, if the said engine shall be insufficient to drive the said scow according to the terms of purchase, then said Johnson shall pay back to him the $700, and take the engine and boiler, and, if he fails to do so, said Stevens shall have the right to sell said engine and boiler and keep out of the proceeds of the sale enough to pay himself the $700, and all costs, damages and charges, and pay me the balance. Boston, Nov. 4, 1856. J. B. Johnson.” The engine and boiler proved insufficient, and Johnson was asked the same season to take them away and repay the $700, which he neglected and refused to do; and they remained on board the scow till March 1857, when Johnson asked and received permission of Stevens to take the boiler away and use it in bis shop, promising to pay for the use of it, and the boiler was removed and used accordingly. A short time after-wards, Johnson, in order to secure a debt, mortgaged it to one Chamberlain, who had no notice of the plaintiff’s title, and sold it under a power of sale to the defendant, who, on being informed of it afterwards, refused to give up the boiler. The defendant offered to prove that when Johnson took the boiler from the scow to his shop, the plaintiff authorized him to sell it; but the evidence was rejected, it being' admitted that no other conveyance of it was made except the mortgage to Chamberlain.</p> <p>Upon this evidence, Putnam, J. ruled that the plaintiff was entitled to recover, and a verdict was accordingly returned for him; and the defendant alleged exceptions.</p>

<p>Writ of entry. The demandant claimed title under a deed from Theodore A. Barry, dated May 28, 1859, and his title was derived through several mesne conveyances from Charles Brown, who owned the premises from 1840 to 1847.</p> <p>Upon the trial in the superior court there was evidence that in 1840 Brown built a house upon the premises, and the tenant with her husband, who was Brown’s brother in law, moved into it, and occupied it with her husband until his death in 1852, and has since occupied it with her family. She never paid rent, and for six years prior to December 1860 paid the taxes and repairs, and claimed title to the premises. Neither the demandant nor her immediate grantor have been in possession of the premises.</p> <p>Upon this evidence, Brigham, J. ruled that the action could not be maintained, and the jury returned a verdict for the tenant. The demandant alleged exceptions.</p>

<p>Tort against the sheriff of Middlesex county, for the default of his deputy.</p> <p>The facts which appeared at the second trial in the superior court were substantially the same as those which appeared at the first trial, reported in 1 Allen, 350. The objection heretofore taken, that the present action could not be maintained, because the plaintiff did not enter his action against Stoddard, the defendant in the original writ, was renewed; but Putnam, J. overruled it. The deputy returned a rescue upon the writ, and the defendant contended that this return was conclusive; but the judge ruled that it was not conclusive, but was evidence for the consideration of the jury.</p> <p>The judge also ruled, against the defendant’s objections, that certain depositions which had been read in evidence by the defendant should not be delivered to the jury when they retired to consider of their verdict.</p> <p>The defendant requested the court to instruct the jury that the officer, although he might call for aid in arresting Stoddard, the defendant in the writ, was not bound to do so. The judge declined so to rule, and instructed the jury that the officer had the power to call for aid, and it was for them to determine whether, under the peculiar circumstances of the case, he ought not to have done so, and whether if he had done so he could have succeeded in detaining Stoddard, and whether or not it showed negligence in not calling for aid.</p> <p>The defendant also requested the court to instruct the jury that he would not be liable for an escape provided the officer used all such reasonable and proper exertions as he deemed necessary to secure Stoddard. The judge declined so to rule, and instructed the jury that the defendant would not be liable provided the deputy used all such exertions as they should consider reasonable and proper under all the circumstances of the case.</p> <p>The defendant also requested the court to instruct the jury that if the hold taken of Stoddard by the officer was only for an instant, and Stoddard broke away from that hold by superior force, or was rescued therefrom by the interference of others, this would be a sufficient retaking by the officer to allow him to return a rescue. The judge declined so to rule, and instructed the jury that to enable the defendant to set up a re-arrest of Stoddard by the officer, the hold by the officer would not be sufficient unless Stoddard was held and stopped, or the officer had such a hold of him that it was in his power to stop him.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>A bill in equity for the abatement of a nuisance to a highway cannot be maintained by one whose land does not abut thereon, and who is only injured in common with others by being deprived of the use of the highway, although his injury is greater in degree than that of others.</p> <p>A demurrer to a bill in equity for the abatement of a nuisance to a right of way will be sustained, if it appears on the face of the bill and by reference to an annexed plan that the easement which actually exists is of less extent than that which is therein averred ta exist, and that the existing easement is not injured.</p> <p>Under an ancient vote of a town that certain common lands bounding upon a pond and crossed by two highways, “ shall continue to lie unfepced as they are, for the use of the old parish, for highways, a training field, and burying-place, and the more common coming at the pond with flax and creatures, and also to accommodate the neighbors that live bordering on said lands for their more convenient coming at and improving their own lands and buildings; all the aforesaid lands to remain unfenced as they now are, and to the use of the old parish and neighborhood aforesaid forever, never to be disposed of for any other use whatsoever, without the consent of every freeholder in the parish,” the extent of the private easement of the owners of the adjoining lands is a right of passage over so much of the common lands as is reasonably sufficient for coming to their lands and buildings and for access to the pond.</p>

<p>As against a mere stranger, a levy of an execution under St. 1844, c. 107, is pnma facit sufficient evidence of title to sustain an action for a trespass, without proof that an action to recover possession of the land was brought within a year from the return of the execution on which the levy was made.</p>

<p>Writ of entry upon a mortgage. It was agreed, in the superior court, that the demandant conveyed a lot of land to James S. Tutlle, by deed dated August 19,1856, acknowledged August 20, and recorded August 21, and received back at the time of its delivery a mortgage of a portion of the land, to secure the payment of a part of the purchase money. The said Tuttle also executed another mortgage, dated August 21, 1856, of the same portion of the land to one Wyatt, who assigned it to the tenant, under which the tenant has entered, and claims to hold the premises. All of the above deeds were delivered at the same time and place, and were entered for record at the same time. Upon these facts, judgment was rendered for the demandant, and the tenant appealed to this court.</p>

Writ of entry to recover a piece of flats lying in a cove in Charlestown.

<p>One who, being in need of immediate relief and snpport, has received the same from tits town of his lawful settlement, is not, in the absence of fraud, liable to an action by the town therefor, although he was possessed of property at the time.</p>

<p>If a person is deprived by fraud of the possession of written instruments which belong to him, secondary evidence of their contents is admissible.</p> <p>An action to foreclose a mortgage which has not been discharged, but has been delivered up to the mortgagor together with the note which it was given to secure, may be maintained, by proving to the satisfaction of the jury that the note has never in fact been paid, and that such delivery of the note and mortgage was procured through the fraud of the mortgagor, in falsely representing that another worthless note and mortgage of real estate, delivered to and accepted by the mortgagee in exchange therefor, were good and sufficient.</p>

<p>Appeal from the decision of commissioners on the insolvent estate of George Thatcher, deceased, disallowing a claim for money paid on a bond executed by the plaintiff, by the request and for the benefit of Thatcher, to Walter Fessenden, the condition of which was as follows: “ The condition of this obligation is such that whereas George Thatcher, of Westford in said county, has this day conveyed by his warranty deed to said Fessenden a certain piece of land situate in the town of Mason, in the county of Hillsborough and the State of New Hampshire, which said land is particularly described in said deed, and also in the deed of the premises by George C. Shattuck to said Thatcher, dated March 2d 1855, to which deed reference may be had for greater certainty, now, if the said Thatcher shall forever fulfil the terms of his covenants in said deed by him made, and shall pay and discharge any and all claims which any person or persons shall have upon said conveyed premises, so that the title in said premises given by said deed of said Thatcher shall ever be perfect in said Fessenden, and the said Fessenden shall be kept harmless and indemnified from all expenses in defending said title to said premises, then the above obligation to be void; or else it shall be and remain in full force and virtue.”</p> <p>At the trial in the superior court, before Putnam, J., it appeared that Thatcher executed and delivered to Fessenden a deed of warranty of the land referred to, with covenants in the usual form, to warrant and defend the premises against the lawful claims and demands of all persons ; that the bond was executed, and delivered to him at the same time with the deed, and as a part of the same transaction ; that prior to the purchase of the land, Fessenden had heard that there was some doubt as to the title, and did not consider Thatcher as responsible, and required further security, and the bond was accordingly given. It also appeared that, after taking the deed, Fessenden was sued by Samuel Farrar in two actions in New Hampshire, one of which was a writ of entry to recover possession of the premises, and the other an action for trespass upon the same; that he notified Thatcher thereof, and requested him to take upon himself the defence of the actions, which Thatcher did not do, and Fessenden defended them, and judgment was rendered in his favor, (see 39 N. H. 268,) and the expenses of defending the actions amounted to $930.93, which sum had been paid to him by Bancroft on the bond. There being no dispute as to the facts, and no question that the sum paid was reasonable in amount, the judge ruled that the plaintiff was entitled to recover the whole amount of his claim, and the jury returned a verdict accordingly. The defendant alleged exceptions.</p>

<p>Scire facias against bail. The only question was, whether the defendant was discharged as bail by the filing of a new count in the original action, after entry, and without notice to him. The following facts were agreed:</p> <p>The original count in that action set forth that the defendants therein, Jenks & Underwood, for whom the present defendant was bail, entered into a written contract with the plaintiffs, a copy of which was annexed, dated June 28,1858, by which they agreed that the plaintiffs should have the exclusive right to manufacture certain sewing machines, and that the defendants would pay eight dollars for each machine delivered at the depot in Fisherville, New Hampshire ; and the plaintiffs were to manufacture the same in a certain manner therein specified ; and they accordingly manufactured, in the manner specified, and delivered at the depot in Fisherville, one hundred machines, and the defendants neglected and refused to pay for the same, and for the work and materials furnished by the plaintiffs to the defendant. A bill of particulars amounting to $538.47, which was not referred to in the declaration, was filed with the writ, containing various items for complete sewing machines, and work, materials and incidental expenses in making sewing machines, the first item being under date of June 26, 1858, for five days’ work. After the defendants’ answer was filed, the plaintiffs by consent, and without notice to the present defendant, filed an additional count, as follows : “ Also for that the said defendants owe them the sum of $538.47, for work done and materials found by the plaintiffs for the defendants, it being for the same cause of action; ” and they afterwards had leave to strike out the words, “ it being for the same cause of action.” That action was tried upon the writ so amended, and judgment rendered therein for the plaintiffs.</p> <p>On these facts, judgment was rendered in the superior court for the plaintiffs, and the defendant appealed to this court.</p>

<p>A justice of the peace may allow an amendment of a writ returnable before him, before trial, reducing the ad damnum to a sum which will bring the case within his jurisdiction, if he has jurisdiction of the parties and subject matter.</p>

<p>Writ of entry, to recover possession of a lot of land in South Reading. After the demandant had made out a prima facie case, at the trial in the superior court, the tenant introduced in evidence a collector’s deed of the premises, dated May 21, 1850, to Harris Pratt, who afterwards conveyed the same to the tenant. The collector’s deed recited, in substance, that a tax of $1.43 had been assessed against William Page, upon a lot of land, which was described; that the tax list was committed to him, and the tax was unpaid; that after due public notice by advertisements and otherwise, “it being my opinion that the said real estate could be conveniently divided, and a part thereof set off without injuring the residue, I offered so much of said real estate as is hereinafter described for sale, and the sum of seven dollars was accordingly bid therefor by Harris Pratt,” “ and no person having offered any higher sum, the said land was struck off to him and accordingly a lot, containing 18,344 square feet, being the demanded premises, and a portion of the land on which the tax was assessed, was conveyed to said Pratt. There was evidence tending to show that Pratt and the tenant were afterwards in possession of the premises, and paid taxes thereon.</p> <p>Upon this evidence, Morton, J. ruled that the tenant had failed to establish a title under the collector’s deed, and a verdict was returned for the demandant, and the case was reported for the determination of this court.</p>

<p>The owner of land over which a street has been laid out by the city council of a city under authority conferred upon them by the city” charter may maintain an action to recover the •damages awarded therefor, although the defendants have not entered upon or taken possession of the land for the purpose of constructing the street.</p>

Contract to recover for board and clothing furnished and services rendered to William Raymond, a brother of the defendant, and money paid for medical attendance upon him.

<p>Contract upon two promissory notes. At the trial in the superior court, before Morton, J., the plaintiff offered to prove that in 1857 the defendant, who was a married woman, was living apart from her husband, upon a farm, the owner of which had given to her a bond with condition to convey the same to her, to her own sole and separate use, free from the interference and control of her husband, upon the payment of certain sums; that she had made partial payments thereon, and applied to the plaintiff for a loan of money to enable her to make the final payment, and he accordingly lent to her for that purpose $133, taking her note for it, and went with her to make the payment, and she accordingly took a deed of the farm in the form provided in the bond; and that afterwards, while she was carrying on the farm on her own account, he lent to her $44, for the purpose of enabling her to pay debts contracted by her for matters necessary for the carrying on of the farm, taking her note for it. The judge ruled that, if these facts were proved, no action would lie upon either note, and directed the jury to return a ver diet for the defendant, which they did. The plaintiff alleged exceptions.</p>

Petition for a writ of certiorari, to quash the proceedings of the county commissioners for the county of Middlesex, upon the petition of the Proprietors of the Locks and Canals on Merrimack River, a corporation, for an abatement of the taxes assessed upon them in the city of Lowell for the year 1859.

Petition for a writ of certiorari, to quash the proceedings of the county commissioners for the county of Middlesex, upon the petition of the Lowell Manufacturing Company for an abatement of the taxes assessed upon them, in the city of Lowell, for the year 1859.

Tort. The declaration alleged that the defendants conspired together for the purpose of cheating him, by inducing him to buy an interest in a “ patent mill dresser.” At the trial in the euperior court, before Putnam, J., a verdict was returned for the defendants, and the plaintiff alleged exceptions. The material facts are stated in the opinion.

<p>It two partners sign a petition in insolvency, and one of them is killed before its presentation to the court, a warrant which is afterwards issued thereon, in ignorance of his death, may be treated as having been issued on the petition of the surviving partner, and will authorize and require the messenger to take possession of all the partnership assets, wherever the same may be found, but not of the private assets of the deceased partner.</p> <p>The question whether, under proceedings in insolvency instituted by a surviving partner, money found upon the person of a deceased partner, and mingled with other money which is admitted to be his own, is partnership or private property is a question of fact which if a dispute arises in reference to it, must be submitted to the jury.</p>

<p>Sureties on the bond of a deceased and insolvent guardian have the right to appeal from the decree of a judge of probate, settling an account of his guardianship, and" fixing an amount as due from his estate to the estate of the ward.</p>

<p>Contract. At the second trial of this case, after the facts reported in 1 Allen, 262, had been proved, the plaintiff offered in evidence a release of their several claims by the creditors of Richard Frost, and Richard testified that, after the release had been signed by the plaintiff and defendant, the latter procured the signatures of other creditors to the same, and delivered it to him, and he thereupon executed the assignment to the defendant. The defendant then offered to prove that he was Richard’s largest creditor; that the plaintiff, who was Richard’s son, requested him to aid in obtaining a settlement with Richard’s creditors, and promised to make no claim upon him for any part of the proceeds of Richard’s estate which might come into his hands as assignee, but to allow him to retain the plaintiff’s share for his services, and also to execute to him a promissory note for a further sum, if he would sign the release and procure the signatures of other creditors to the same; and that he, being induced by said promise, did sign the release and procure the signatures of other creditors to the same. Morton, J. rejected this evidence, and the jury returned a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>An action of tort to recover damages sustained by reason of being run over by the delendant’s horse, which had broken away from the defendant’s servants, can only be maintained by proof of a want of ordinary care on the part of the defendant or his servants; and the defendant may introduce in defence evidence of the directions and declarations of one of the servants to the other respecting the care and management of the horse, just before the time of his running away, for the purpose of showing that they were in the use of ordinary care.</p>

<p>Contract for contribution of one half of the amount paid by the plaintiff to take up the following note: “ For value received we jointly and severally promise to pay to Leonard Morse oi order the sum of two hundred and seventy two dollars, two years after date, without interest. Natick, July 17, 1854.</p> <p>“ Andrew J. Brown,</p> <p>“ Joseph A. Kemp,</p> <p>“ Joel W. Warner,</p> <p>“ Ralph G. Morrison.”</p> <p>At the trial in the superior court, the plaintiff testified that he signed the note as a surety, at the request of Brown; that the defendant was not present, and he never had any conversation with the defendant as to signing the note; that he did not know how much money Morse gave for the note, but he paid the balance due upon it, after deducting some indorsements, in April 1857. Morse, the payee, testified that he gave Brown and Kemp $200 for the note, $72 being included in the note for interest.</p> <p>Upon this evidence, Brigham, J. instructed the jury to deduct $48, the amount of the usurious interest, and then, after applying the indorsements, to return a verdict for one half of the sum thus ascertained, with interest; which they did. Upon these facts, the case was reported by consent for the determination of this court.</p>

<p>Fraud in inducing a person to accept a policy of insurance will not render an insurance company liable in an action of contract upon it, if by the terms of the policy such action cannot be maintained.</p> <p>If by the terms of a contract of insurance it is expressly provided that the application on which the policy is issued shall be held to be a warranty on the part of the assured, knowledge by the agent or officers of the company that certain answers in the application were not correct is no evidence of a waiver by the company.</p>

Tort by a tailor against a deputy sheriff for the conversion of a sewing machine, by taking and selling the same on an execution against the plaintiff, on the 27th of May 1859.

<p>An action may be maintained against a mortgagor to foreclose an unacknowledged and unrecorded mortgage, and in such action a bond which the mortgage was given to secure is competent evidence.</p> <p>One who has given a bond and mortgage to a “ Loan and Fund Association ” organized under St. 1854, c. 454, reciting in the bond that he is a member thereof, and recognizing the obligation of the by-laws, is estopped to deny that (he is a member, in an action to foreclose the mortgage, if there is no evidence that the bond and mortgage were taken with a view to evade the provision of the statute which prohibits loans to other persons than members.</p>

<p>9o action lies to recover damages for the obstruction of a highway, against a city which is bound to keep it in repair, by an individual whose place of business thereby becomes more difficult to reach, his business injured, the delivery of articles which he has sold and the gathering in of his crops more expensive, his houses less desirable for tenants, and his rents diminished in value, if other persons suffer damages from the same cause, similar in kind, though less in degree.</p>

Tort for the conversion of goods which had been stolen from the plaintiff’s shop, and carried to the defendant’s house, with bis knowledge, and left in his possession, and afterwards taken away and secreted by the same persons who carried them there.

<p>Contract upon an account for work and labor.</p> <p>At the trial in the superior court, a trial by jury was waived, and, upon facts which are stated in the opinion, judgment was rendered for the plaintiff, and the defendant alleged exceptions.</p>

<p>Appeal from the decision of the judge of insolvency, disallowing certain notes signed “ Foss & Swett,” presented by the plaintiff for proof against the estate of Asa Swett, an insolvent debtor.</p> <p>At the trial in the superior court, it was agreed that William H. Foss and Asa Swett were formerly partners, and gave the notes in question for a partnership debt; and by a bond dated November 3,1858, Swett, who had purchased the interest of Foss in the partnership property, executed to him a bond to pay all the debts due from the firm. On the 27th of the same month, a warrant was duly issued against the joint and separate estates of Foss & Swett, as insolvent debtors, and after the same was issued, but before the first publication of notice, the plaintiff, being the legal holder of the notes, gave a written notice to Foss & Swett, severally, of his election to take Swett as his debtor thereon, and to avail himself of the agreement by which'Swett became bound to pay the partnership debts. There was no joint estate.</p> <p>Upon these facts Putnam, J. affirmed the decision of the judge of insolvency ; and the plaintiff appealed to this court.</p>

<p>Contract. The defence was a discharge in insolvency. A trial by jury was waived in the superior court, and upon a hearing before Brigham, J., certain facts were found, of which the following are all that are now material:</p> <p>“ The schedule of creditors delivered by the defendant to the messenger to whom the warrant was directed in the proceedings in insolvency did not contain a full and true account of all his creditors, with the place of residence of each creditor and the sum due to each of them; the names of creditors, their residences and the amount due to each of them, although known to the defendant, were not stated in his schedule. At the second meeting of his creditors, the debtor did not ask or seek to amend said schedule, or to correct any mistake or omission made by him. Among the creditors whose names were thus omitted was John C. Nichols, brother of the defendant, whose residence was known to the defendant and not stated, and the amount of whose claim was known and not stated, and whose claim was about $4000, and was proved at the first meeting by one Henry A. Wilson, whose name did not appear in the schedule of cred-tors. It was found also as a fact that this debt to John C. Nichols was secured by mortgage to John C. Nichols, and was so returned on his schedule of property, and no release was made of said mortgage before the proof of said debt.</p> <p>“Seventeen creditors proved their claims, amounting to $6133.33. Nine of these creditors, whose claims amounted to $5162.44, assented to the defendant’s discharge.</p> <p>“Plaintiff proved the claim sought to be recovered in this action, and his claim was sworn to before Charles B. F. Adams, justice of the peace for the county of Suffolk, in said county, and the oath contained the allegation that the plaintiff resided more than five miles from the place of holding the first meeting of creditors. John M. Way signed the plaintiff’s assent to the discharge, under a written authority to him to act for the plaintiff.</p> <p>“The claim of the assignees of T. Lyman & Co. was sworn to on April 7, 1856, before S. C. Maine, commissioner of insolvency in Suffolk county. No meeting of creditors of said defendant was held on that day, nor was said claim sworn to at any such meeting. Said claim was upon a promissory note payable to the assignees of T. Lyman, and Alexander Fullerton proved and made oath to the same, as one of the assignees of T. Lyman & Co.</p> <p>“The claim of George E. Parker was upon a due bill, upon which the defendant acknowledged November 30 [no year] an indebtedness of $1462 to George E. Parker. This claim was proved by Frederick Richards, attorney of said Parker, and it did not appear by the oath of said Richards, or the certificate of the same, that said Parker was disabled by absence from the state, sickness or other cause from proving his claim.</p> <p>“George W. Hewes, the plaintiff, the assignee of T. Lyman & Co., and George E. Parker, were creditors who proved their claims and assented to the defendant’s discharge.</p> <p>“The presiding judge ruled that none of the foregoing facts were sufficient in law to avoid or defeat the effect of the defendant’s discharge in insolvency, and directed judgment to be entered for the defendant.</p> <p>“To the foregoing rulings and directions the plaintiff excepts.”</p>

<p>A bequest of the remainder after a life estate to the heirs at law of the testator will be construed as referring to those who are such at the time of his decease, unless a different intent is plainly manifested; and such intent is not to be inferred from the fact that those to whom the life estate is given are among his heirs at law, or that a bequest is given to another heir at law “ in full of any share she may be entitled to out of my estate.”</p> <p>The decree of a judge of probate, allowing a trustee’s account, after notice to all persons interested by publication in a newspaper of the county once a week for three weeks successively, if not appealed from, is conclusive, in the absence of fraud, as to' the amount with which he is chargeable.</p> <p>Reasonable costs of parties properly tiefore the court to litigate a question as to the proper disposition of a remainder under a will, where the right was doubtful, will be allowed out of the estate.</p>

<p>Tort to recover the value of a horse hired by the defendant of the plaintiff, which soon after his return sickened and died. At the trial in the superior court, before Putnam, J., a verdict was returned for the defendant, upon facts and under rulings which are stated in the opinion ; and the plaintiff alleged exceptions.</p>

<p>Contract upon a promissory note for $1200, given by the defendant for money lost in gaming, dated April 1, 1853, and payable to Thomas Bamford or order in six months from date.</p> <p>At the trial in the superior court, before Putnam, J„ the plaintiffs, in order to prove that the payee indorsed and delivered the note to them, testified that a man calling himself Thomas Bamford called at their place of business in Providence to purchase rubber goods, in which they were dealers, and bargained for goods to the amount of about $4000, agreeing to pay for them in certain notes, with about $400 in cash, and mentioning a note similar to the one in suit as one which he would send to them ; that he said he lived in London, and should go to New York and there receive the goods and ship them to England; that the goods were sent to New York at different times, in accordance with his directions, and letters were directed to him at New York in reference to them, answers to which were received, and notes against various parties were received from him, all of which were duly paid except the note in suit, which came into their possession with the name of Thomas Bamford upon it about the 21st of June 1853, and was received by them in good faith, in the usual course of business.</p> <p>There was no other evidence to identify Bamford, or to show his place of residence.</p> <p>One, of the plaintiffs was allowed, under objection, to testify that, from his knowledge of the handwriting of Bamford in the letters above referred to, he believed the indorsement upon the note to be Bamford’s genuine signature ; the judge ruling that the evidence was competent “if the witness had acted upon the faith that the signatures to the letters were genuine, and Bamford had acquiesced therein by replying to letters addressed to him on the faith of such signatures being genuine, provided the jury were satisfied of the identity of the person.”</p> <p>The defendant objected that there was no competent or sufficient evidence to prove the indorsement and delivery of the note by the payee to the plaintiffs; but, under instructions of the court authorizing them to do so, the jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

Contract on a policy of insurance for $1000, for three years, upon the dwelling-house of Patrick Healy of Newton, issued by a mutual insurance company “ under the conditions and limitations expressed in the rules and regulations ” annexed to it, “ $600 payable in case of loss to Priest and Parker, and the balance to the Charles River Mutual Loan and Fund Association.” The twelfth by-law and condition of insurance was, “ In case of loss, the insured shall as soon as possible…

<p>This court has power, under Gen. Sts. <?. 107, § 4, to declare a marriage void, into which a man was induced to enter by confiding in representations of the woman whom he took for his wife that she was chaste, when in fact she was with child by another man, if her husband repudiated her as soon as he had reason to know the fact.</p>