Volume 86 — Massachusetts Reports

<p>Petition by the bank commissioners of the Commonwealth, alleging that the Bank of Mutual Redemption had exceeded its powers and failed to comply with certain rules, restrictions and conditions provided by law, and praying for an injunction to restrain such violations. The following are all of the charges that are now material, to wit:</p> <p>That said bank hath not kept in its bank an amount of specie equal to fifteen per cent, of its liability for circulation and deposits, as required to do by Gen. Sts. c. 57, § 19. That said bank hath made contracts for the payment of money at a future day certain, contrary to § 63 of the same chapter; to wit, on the 4th of December now last past, said bank did make a contract with the President, Directors and Company of the Atlas Bank, a corporation duly established by law, having its usual place of business in said Boston, and not an institution for savings, for the payment of §40,000 in four days from that date; [here followed other similar specifications of instances.] And that said bank, on the 4th of December now last past, did issue certain notes and bills thereof, with the agreement and understanding that the Same should not be put into immediate and unrestricted circulation, and should not be returned to said bank within a limited time; to wit, did issue §40,000 of the bank-bills of said Bank of Mutual Redemption to the President, Directors and Company of the Atlas Bank, a corporation duly established by law, and having its usual place of business in said Boston, with the agreement and understanding that the same should not be put into circulation, nor returned to the said Bank of Mutual Redemption, within the time of four days ; contrary to the provisions of § 67 of the same chapter.</p> <p>The statute provisions upon which the petition was founded are copied in the margin.*</p> <p>Upon this petition, a temporary injunction was granted, and notice issued to the defendants, who duly appeared and moved that the injunction be dissolved ; and a hearing was had before the chief justice, who, upon facts in proof which are stated in the opinion, ordered the injunction to be continued, so far as it related to the first and third of the above charges, and dissolved as to the residue; and, at the request of the defendants, reserved the various questions arising for the determination of the whole court.</p>

<p>Writ of error, to reverse a judgment of the superior court accepting an award, under a submission dated December 1, 1854, entered into between the parties, both of whom were residents of Middlesex county, before a justice of the peace of Suffolk county, under Gen. Sts. c. 147, agreeing to submit the demands, a statement of which was annexed, to the determination of George C. Roundy, Samuel Rice, and Adam S. Cottrell, “ the award of whom, or the greater part of whom, being made and reported within one year from this day to the court of common pleas for the county of Suffolk, the judgment thereon shall be final.” The demands, a statement of which was annexed, were, a suit pending in Middlesex county in favor of Ricker against Sperry, and all matters in dispute between the parties growing out of certain contracts between them, which were referred to. An award in favor of Ricker was made by Cottrell and Rice, and entered in court at the November term 1855, which, on motion of Sperry, was set aside, and recommitted for a rehearing; and a second award was made and returned into court as follows :</p> <p>“ The undersigned, referees appointed by the within rule of court, having met the parties and fully heard them, all the referees and both parties being present, do award that said Jethro H. Ricker shall recover of the said Henry Sperry the sum of $2668.72, together with one half the cost of this reference, taxed at $45. All the referees were present when this award was agreed upon by the undersigned. Dated this Dec. 27, 1858. Adam S. Cottrell. Geo. C. Roundy.” This award was accepted, and judgment rendered thereon.</p> <p>The errors assigned were as follows : 1. Because the award was not made and returned to the court of common, pleas within one year from the date of the submission, as provided therein. 2. Because it does not appear from the said award that Samuel Rice, one of said referees, was present, or notified to be present, at the time the award purporting to have been made was signed by the other referees; and because the award does not show that he declined to sign it, or dissented from his associates. 3. Because the arbitrators had no jurisdiction of the subject matter submitted to them, nor of the parties; because both parties lived in Middlesex county. 4. Because the court to which said award was returned had no jurisdiction over the parties to said submission. 5. Because the award is uncertain, inasmuch as it does not appear therefrom whether one or both or neither of the matters included in the submission, and the statement annexed thereto, were considered by the said arbitrators, or passed upon by them. 6. Because the award does not include all the matters and things referred to the arbitrators by the submission; especially the suit therein mentioned.</p>

Award rendered upon a submission entered into before a justice of the peace, under Gen. Sts. c. 147, § 1, by which the amount due to the plaintiffs from the defendants under a policy of insurance was referred to John Field, Daniel W. Wilcox, and George A. Hall, and fixed by them at $1710.51. In the superior court, the plaintiffs moved to set aside the award, and the defendants moved to recommit the same.

<p>If in a real action the true position of the boundary line between the parties, as described in a deed from the demandant to the tenant, is in dispute, and the tenant pleads nul disseisin, and, in the specification of the grounds of defence, claims to own so much of the demanded premises as is covered by his deed, and disclaims as to the residue, he cannot be permitted to introduce evidence of adverse possession for twenty years, to establish a title in himself, independently of the deed.</p> <p>If a deed in express terms describes one of the boundaries of the land conveyed as a line parallel to and at a certain distance from a certain established line, evidence of measurements from other points, not referred to in the deed for the purpose of fixing that boundary, and of the extent of land embraced in a general description of the granted premises. ie inadmissible to prove its position, unless it is shown that the position of the established line referred to cannot now be ascertained.</p> <p>The t-rder of admitting evidence is within the discretion of the presiding judge; and if, in the exercise of this discretion, evidence is admitted which requires the introduction of further evidence to make it competent for the consideration of the jury, this is no ground for a new trial, unless it appears from the bill of exceptions that such further evidence was not introduced.</p>

<p>Bill in equity, in which the trastees appointed under the will of Jared Coffin, late of Brighton, ask the instruction and direction of the court in the execution of the trusts therein created. All the parties in interest under the will were made defendants.</p> <p>At the hearing, before Chapman, J., it appeared that Mr. Coffin died in May 1860, leaving a will executed June 23,1859, which was duly proved and allowed, and the material portions of which were as follows:</p> <p>“ In the name of God, Amen. I, Jared Coffin, of Brighton, in the county of Middlesex and Commonwealth of Massachusetts, do make, ordain and publish this my last will and testament, in manner following; that is to say: —</p> <p>“ All the estate, real, personal or mixed, and wheresoever situate, and in whose hands soever, and whereof I may die seised and possessed or entitled unto, I give, devise and bequeath unto Israel Whitney and Thaddeus Nichols, both of Boston, in the county of Suffolk and Commonwealth aforesaid; and Henry A. Kelley, of Brooklyn, in the county of Kings and State of New York; to have and to hold to them, the said Whitney, Nichols and Kelley, and the survivor of them, upon the trusts and for the purposes following; that is to say : —</p> <p>“ First, That they, the said Whitney, Nichols and Kelley, and the survivor of them, shall, during the lifetime of Mary F. French, Amelia A. French, William H. French and Anna K French, children of my deceased daughter Rebecca S. French, wife of William S. French, of Providence, Rhode Island, pay over to them respectively, in equal shares, the interest, rents, income, dividends and profits of one-seventh part of such my estate, real, personal and mixed, after deducting therefrom the note of their father William S. French, dated February 6th, 1853, for $16,864.32, payable to me, said Coffin, or order, without interest, with interest on the same from and after my decease; and on the decease of either of them, the said Mary, Amelia, William or Anna, shall distribute and divide one-fourth part of such portion of my estate to and among the children of such of them as shall so die, share and share alike; the descendants of any such child or children to take the share which his, her or their parent would be entitled to if living. In case either of them, the said Mary, Amelia, William or Anna, shall die, leaving no lawful descendants, then the share or portion of such interest, rents, income, dividends and profits, payable to such of ■them as shall so die, is to be paid to the survivor and survivors of them; and if they all die, leaving no children, or descendants of children, living at their decease, then the said portion of my estate shall be held by the said trustees, or the survivor of them, for the use and benefit of my surviving children, or the issue of their children, in the same way and manner as is herein provided for as in respect of the other portions of my estate which I have herein disposed of, and which the said trustees are to hold in trust in the way and manner herein set forth. In case either of them, said Mary, Amelia or Anna, shall marry, her share or portion of such interest, rents, income, dividends and profits shall be to her sole and separate use, and free from the control or interference of any husband.</p> <p>“ Second, That they, the said Whitney, Nichols and Kelley trustees, shall deliver over to my son Benjamin F. Coffin, of Nantucket, whatsoever promissory notes I may hold against him at my decease; which notes, witl out any interest, are to be reckoned as part and parcel of my estate and property, and are to be reckoned as part of the seventh part which I set apart for the benefit of my son Benjamin; and that they, the said Whitney, Nichols and Kelley, shall pay over to the said Benjamin, during the term of his natural life, the interest, rents, income, dividends and profits of such further portion of my estate, as, added to the notes aforesaid of Benjamin F. Coffin, shall equal and amount to one-seventh part of my said estate. [Here followed provisions in case of his death, similar, so far as appropriate, to those in article 1.]</p> <p>“ Third, That they, the said Whitney, Nichols and Kelley, and the survivor of them, shall, during the lifetime of my daughter Eliza S. Nevens, wife of David Nevens, of Brighton, in the said county of Middlesex, pay over to her, the said Eliza, the interest, rents, income, dividends and profits of another seventh part of my estate, to her sole and separate use, and not to be subject to the debts nor engagements of her husband; and her own receipt to be a sufficient release and discharge. [Here followed provisions in case of her death, similar, so far as appropriate, to those in article 1.]</p> <p>“ Fourth, That they, the said Whitney, Nichols and Kelley, and the survivor of them, shall, during the lifetime of my daughter Anna B. Kelley, wife of Henry A. Kelley, of Brooklyn, as hereinbefore stated, pay over to her, the said Anna B. Kelley, the interest, rents, income, dividends and profits of another seventh part of my estate, to her sole and separate use, and not to be subject to the debts nor engagements of her husband ; and her own receipt to be a sufficient release and discharge. [Here followed provisions in case of her death, similar, so far as appropriate, to those in article 1].</p> <p>“ Fifth, That they, the said Whitney, Nichols and Kelley, and the survivor of them, shall, during the lifetime of my daughter Sarah F. Baxter, wife of John N. Baxter, of Burlington, in the State of Iowa, pay over to her, the said Sarah F. Baxter, the interest, rents, income, dividends and profits of another seventh portion of my estate, to her sole and separate use, and not to be subject to the debts nor engagements of her husband; and her own receipt to be a sufficient release and discharge. [Here followed provisions in case of her death, similar, so far as appropriate, to those in article 1.]</p> <p>“ Sixth, That they, the said Whitney, Nichols and Kelley, and the survivor of them, shall, during the lifetime of George N. Hastings, William F. Hastings, and Henry B. Hastings, children of my deceased daughter Emeline Hastings, wife of Thomas Nelson Hastings, of Cambridge, in the said county of Middle-sex, pay over to them, respectively, in equal shares, the interest, rents, income, dividends and profits of one other seventh of my said estate, real, personal and mixed. [Here followed provisions in case of the death of either of them, similar, so far as appropriate, to those in article 1.]</p> <p>“ Seventh, That the said Whitney, Nichols and Kelley shall deliver over to my son Rowland G. Coffin, of West Newton, in the said county of Middlesex, whatever promissory notes 1 may hold against him at my decease; which notes, without any interest, are to be reckoned as part and parcel of my estate and property, and are to be reckoned as part of the seventh part which I set apart for the benefit of my son Rowland; and they, the said Whitney, Nichols and Kelley, shall pay over to the said Rowland, during the term of his natural life, the income, rents, dividends and profits of such further portion of my estate, as, added to the said notes of Rowland G. Coffin, shall equal and amount to one-seventh part of my said estate.” [Here followed provisions in case of his death, similar, so far as appropriate, to those in article 1.]</p> <p>“ Tenth, My will is, and I hereby order and direct, that all promissory notes or other securities given me, or which shall be given me, by any of my sons or sons-in-law, or by any of my daughters or daughters-in-law, notwithstanding their coverture, and notwithstanding the same may be barred by the statutes of limitation, shall be deemed, taken and reckoned as part and parcel of my estate; and for the purpose of doing exact justice, and producing perfect equality, I direct that the same respectively, with interest thereon, shall be deducted from and out of the respective shares of my estate heretofore ordered to be held and set apart by the trustees aforesaid for the benefit of my said respective sons and daughters, excepting that no interest whatever shall be computed on the notes signed by my sons, Benjamin F, Coffin and Rowland G. Coffin, respectively; and no notes shall be deducted or taken of the share or portion set apart for the benefit of the children of William S. French, except the note for $16,864.32 before mentioned.”</p> <p>The executors of the estate, on settlement, delivered to the trustees then acting, George B. Upton having been appointed in place of Kelley, who declined to act, the assets in their hands, including two notes of Rowland G. Coffin, amounting together to $33,547; five notes and a receipt of Benjamin F. Coffin, amounting together to $29,990; the note of William S. French, for $16,864.32, referred to in articles 1 and 10 of the will; a note of said French for $6683.66, together with, and as collateral security therefor, a certificate for fifty shares of the capital stock of the Providence Tool Company; a note of Rebecca S. French, for $500; a receipt of T. Nelson Hastings, for $500; two notes of Eliza S. Nevens, amounting together to $600; a note of Anna B. Kelley, for $500; four notes of Henry A. Kelley, amounting together to $37,181, together with two mortgages and a bill of sale of a share of a vessel as collateral security therefor; and a note of Sarah F. Baxter, for $1523.75. The form of the notes of Mrs. French, Mrs. Nevens, Mrs. Baxter and Mrs. Kelley was as follows: “ For value received, I promise" to pay to Jared Coffin, or order dollars on demand with interest, in* part payment of what I may inherit on my father’s decease, and to be charged to me.” The receipt of Mr. Hastings expressed that the sum was received “ in part payment for what my children, George, William S. and Henry B. Hastings, may inherit on the decease of said Jared Coffin.”</p> <p>The amount of the testator’s estate, including the property above mentioned, was $313,970.07. Kelley and French failed in business in 1857, and were insolvent or in embarrassed circumstances at the time when the will was made.</p> <p>The questions presented were reserved for the determination of the whole court.</p>

<p>Libel for divorce. The case was reserved by the chief justice for the determination of the whole court, upon facts which, are stated in the opinion.</p>

<p>Tort to recover damages sustained by reason of flooding the basement of the plaintiff’s house with drain water.</p> <p>At the trial in this court, before Hoar, J., it appeared that the plaintiff owns a house and a lot of land in Dover Street in Boston, which he holds through mesne conveyances from Edward Tuekerman ; and the estate is a part of the parcel of land described in the tripartite indenture referred to in the opinion, as belonging to said Tuekerman. This estate was formerly drained into the empty basin in the Back Bay, so called, through a sewer built jointly by the city of Boston and Tuekerman. In the year 1850 or 1851, the city of Boston built a common sewer in Tremont Street, extending both northerly and southerly from Dover Street, and also a common sewer connected with the one aforesaid, and running through Dover Street to the South Bay, emptying near the South Boston Bridge in Dover Street, which sewer cut off the former drain of the plaintiff. Ordinarily the only outlet to the sewer in Dover Street was into the South Bay, and at the depth of some feet below high water; but a waste weir was put into the sewer in Tremont Street, when that sewer was built, which opened into the empty basin in the Back Bay, and through which the water in the sewer would discharge into the empty basin, when the outlet into the South Bay was closed by the tide, and the water in the sewer had risen high enough to reach the waste weir. When this sewer was built, the drain of the plaintiff was connected with it by the city. Sometime subsequently to the building of the sewer in Tremont and Dover Streets, the house of the plaintiff, which had previously been perfectly drained, and never suffered from dampness, was flooded with drain water in the lower story, and has been so flooded several times a year, at different periods of the year, ever since ; which was repeatedly made known to the city officers by the plaintiff. The defendants admitted that the waste weir into the Back Bay was closed up by the Boston. Water Power Company at some period before the action was brought, by filling in against the sewer, and that a part of the damage done to the plaintiff was thus occasioned. The plaintiff waived any claim for damage from any other cause, and contended on the evidence that allowing the waste weir to be closed was, under the circumstances, such negligence on the part of the defendants as entitled him to recover in this action.</p> <p>The jury returned a verdict for the plaintiff, with $3245.69 damages ; and the defendants alleged exceptions to the rulings of the judge, which, with other material facts, are stated in the opinion.</p> <p>This case was argued in March 1860; in March 1861; and, on a single point, in March 1862.</p>

<p>Tort. The declaration alleged that the defendants were a corporation owning a railroad in the State of Maine; that, on the 12th of September 1851, George W. Palfrey was employed to run an express train thereon; that at about the time when said train was to reach the town of Eliot, the defendants caused a portion of their track in said town to be removed, without giving notice to the persons on the train, by signal or otherwise ; that in consequence thereof the engine and some of the cars were thrown from the track, and Palfrey killed; that the plaintiff was his wife; and the defendants, in consideration of the premises, and of her forbearance to sue them, promised to pay to her the sum of fifty dollars a month during her life; that said payments were made until September 1855, since when the defendants have refused to make further payments to her.</p> <p>In the superior court, Wilkinson, J. sustained a demurrer to the declaration, and ordered judgment for the defendants; and the plaintiff appealed to this court.</p>

<p>A city is not estopped from claiming land which it owns, by the wrongful act of its assessors in taxing it to a person who had no title to or possession of the same, or by a collector’s sale for non-payment of such tax.</p>

<p>A public officer, authorized by St. 1859, c. 239 to institute and prosecute complaints under the bastardy acts in certain cases, has no authority to take a note for a fixed sum, payable to himself, in settlement of such a complaint, under § 5 of that statute, which prohibits the withdrawal or settlement of such complaints without the consent of one of the public officers therein enumerated, unless provision is made to the satisfaction of the court for indemnity against past and future charges for the child’s maintenance, and the costs; and a note so taken is void.</p>

<p>In estimating damages for the breach of a contract, the jury are not bound by the evidence of one of the parties to the suit, although there is no other evidence before them to fix the amount.</p> <p>One who has failed to fulfil the terms of a special contract may nevertheless, in the absence of fraud, recover on a general count the value of a partial performance, which was accepted by the other party with full knowledge of the breach.</p> <p>In estimating damages in such action, it is proper for the jury to deduct the loss or damage which the defendant has sustained in consequence of the plaintiff’s failure to fulfil the terms of the special contract.</p>

<p>Petitions by the plaintiffs in two actions of tort, for leave to enter the same in this court.</p> <p>The actions were commenced by writs sued out of and made returnable to the superior court for the county of Suffolk, and were entered at the return term thereof. The defendant appeared and filed his request for the removal of the same to this court, with the affidavits prescribed by Gen. Sts. c. 114, § 8* This court was then in session. The actions were not removed, and the plaintiffs on or before the first day of the next term of this court filed the present petitions, which were heard before the chief justice, who reported the facts for the determination of the whole court.</p>

Contract on a recognizance dated January 21, 1861, taken before a magistrate of Middlesex county, under Gen. Sts. c. 124, § 10, with condition that the defendant Rogers, who had been arrested on an execution in favor of the plaintiff, should within 1 hirty days from the time of his arrest deliver himself up for examination, giving notice as therein provided, and making no default, and abide the final order of the magistrate thereon.

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

<p>Habeas corpus. The petitioner was confined in jail by the respondent, who was the deputy jailer, by virtue of an execution against him, and also by virtue of a mittimus issued by a commissioner of insolvency for an alleged contempt, in refusing to sign his examination as a poor debtor, under the circumstances stated in the opinion. At the hearing in the superior court, the petitioner was discharged by Russell, J., and the judgment creditors alleged exceptions.</p>

<p>Writ of review of a judgment recovered by Charles Merriam against William Ryan, without personal notice to Ryan, in the superior court of the county of Suffolk at May term 1858, founded on a prior judgment recovered by Merriam against Ryan, in the court of common pleas for the county of Suffoll in April 1853. Ryan admitted the recovery of the former judgment against him, but set up as a bar thereto a discharge in insolvency granted to him in proceedings afterwards instituted by him. At the trial in the superior court, before Brigham, J., Merriam sought to invalidate this discharge, and called as a witness Charles M. S. Churchill, who testified that he was both clerk, and assignee in Ryan’s proceedings in insolvency; and he stated various matters in relation to the record in the case, which are fully set forth in the opinion. A copy of the original petition for the benefit of the insolvent laws was put into the case, in which the petitioner was described simply as “ William Ryan of Milton, trader,” without any further averments of his residence or place of business.</p> <p>Ryan was allowed, under objection, to read in evidence the following interrogatory and answer of E. L. Pierce, in a deposition given by him : “ State what you know as to one John M. Way being the party in interest in this case. Ans. I heard him testify at the former trial of this case in May, a year ago, and he then testified that he was the party in interest as plaintiff.” The bill of exceptions did not show that Way was a witness at this trial.</p> <p>The jury returned a verdict for the plaintiff in review, and the defendant in review alleged exceptions.</p>

<p>The first of these actions was a writ of entry to recover certain real estate in East Boston, to which the demandants claim title under an indenture, the material parts of which are as follows :</p> <p>“ This indenture made this first day of July, in the year of our Lord eighteen hundred and fifty, between the Grand Junction Railroad and Depot Company, a corporation duly established by the laws of Massachusetts, of the first part, and Robert G. Shaw of Boston in the county of Suffolk and Commonwealth aforesaid, Franklin Haven of said Boston, and Ichabod Goodwin of Portsmouth in the State of New Hampshire, of the second part, witnesseth, That whereas said party of the first pari. .....are desirous of raising money by loan, not exceeding in amount $350,000; and in order to secure the repayment thereof have determined to issue their bonds, not exceeding three hundred and fifty in number, for the sum of one thousand dollars each, bearing even date with these presents, and payable in twenty years from their date to the bearers thereof, with interest thereon payable semi-annually,.......and to be of the form of the bond hereto annexed; now, therefore, the said party of the first part, in order to secure the payment of the said bonds and interest, and in consideration of one dollar, . . . have granted &c. . . . unto said party of the second part, their successors in the trusts hereby created, and assigns, the following described real estate situated in said Boston, viz:.........</p> <p>“ In case said party of the first part shall fail to pay the principal, or any part thereof, or the interest, or any part thereof, of any of said bonds, at any time when the same shall be demanded, after the same shall have become due and payable, according to the tenor thereof, then, at any time after ninety days from the time of such demand and default, and whilst such default continues, upon the written request of the holder of said bond, said party of the second part, their successors in the trusts hereby created, and assigns, may enter into and take possession of all or any part of said premises, and, as attorneys in fact or agents of said party of the first part, by themselves, their agents or substitutes duly constituted, have, use and enjoy the same, making from time to time all needful repairs, alterations or additions thereto, and, after deducting the expenses of such use, repairs, alterations and additions, apply the proceeds thereof to the payment of the principal and interest of all said bonds remaining due and unpaid, pro rata; or the said party of the second part, their successors or assigns, at their discretion may, and, at the written request of one half in amount of the holders of the bonds remaining due and unpaid, shall cause the said premises, or so much thereof as shall be necessary to pay and discharge the principal and interest of all such bonds as may then be due and unpaid, to be sold at public auction upon the premises,......and shall execute to the purchaser or purchasers thereof a good and sufficient deed of conveyance in fee simple of the same, which shall be a bar at law and in equity against the party of the first part, their successors and assigns, and all persons claiming under them, of all right, title, interest and claim in or to said premises, or any part thereof so sold and conveyed...........</p> <p>“ And it is further mutually agreed that, until breach of condition of the aforesaid mortgage, the party of the first part, their successors and assigns, shall remain in undisturbed possession and occupation of the premises hereby conveyed; and nothing herein contained shall be so construed as to prevent said corporation from improving said real estate, or making leases of such parts thereof as they may desire and have opportunity to make..........</p> <p>“ In testimony whereof, said party of the first part have caused these presents to be signed by their president, and their common seal to be hereto affixed, and said parties of the second part have hereto set their hands and seals, the day and year first above written. Sam’l. S. Lewis, President. (Seal.)</p> <p>“ Robert G. Shaw. (Seal.) Franklin Haven. (Seal.) Ichabod Goodwin. (Seal.)”</p> <p>The form of bond annexed was in the usual form of railroad bonds, and contained at the bottom the following certificate :</p> <p>“ I hereby certify that this bond is secured by mortgage on real estate in the city of Boston, dated July the first, one thousand eight hundred and fifty, for the sum of $350,000, to Robert G. Shaw, Franklin Haven, and Ichabod Goodwin, in trust for the bondholders.........One of the trustees.”</p> <p>On the 21st of December 1853, the Grand Junction Railroad and Depot Company executed a second indenture of mortgage of the premises and of certain other property to Thomas Hopkinson, William Whiting and Isaac Livermore, to secure bonds to the amount of $450,000.</p> <p>On the 1st of January 1857, the mortgagors failed to pay the interest on the bonds, and, on the 11th of April following, the present demandants brought an action to foreclose the mortgage to them, against the mortgagors, and Whiting and Livermore, the surviving trustees under the second mortgage; and recovered conditional judgment on the 6th of May 1859, on which an execution issued and formal possession was taken and delivered to the demandants on the 22d of the following July. The actual possession, however, was then and has since continued in the tenants, under the lease hereafter mentioned.</p> <p>On the 1st of May 1858, the mortgagors executed to the tenants, Nathaniel Adams and Jonas Fitch, a lease of the demanded premises, under which the latter claim title, and which is sufficiently described in the opinion. This lease covered a portion of the premises included in the mortgages above referred to. The surviving trustees under the second mortgage assented to this; and, as against the demandants, the tenants relied upon" the provision in the first mortgage, and upon an oral assent by the demandants, which they offered to prove, if evidence thereof would be competent.</p> <p>The second of these actions was also a writ of entry for another portion of the premises included in the mortgages above referred to, and which is claimed by the tenants under an indenture of lease executed to them by the mortgagors on the 1st of July 1853. A sufficient description of this lease is given in the opinion. In August 1858, the tenants entered upon the premises, and have since held and used the same.</p> <p>The facts in both of the above cases were agreed, and the cases reserved for the determination of the whole court.</p>

<p>Writ of error to reverse a judgment rendered in the police court of the city ,, of Boston against the present plaintiff, in favor of the present defendant. The facts are stated in the opinion.</p>

<p>Contract on a promissory note payable to the plaintiffs, and executed by the defendant during his minority.</p> <p>At the trial in the superior court, “ the plaintiffs testified that the defendant said he would pay the note the first he paid after paying a certain mortgage; also that in a second conversation the defendant told the plaintiffs he would pay $25 towards it, and pay the rest in instalments ; also that in a third conversation the defendant said he ought not to pay all, but would pay $25 for the note.” The defendant denied that he ever promised to pay the note since his majority, but admitted that at one time he promised to pay $25 for the note, and at another time said he would pay some part of the note rather than make any trouble, but always said he did not think he owed it. On cross-examination, the defendant testified that he had always admitted it was a debt, and that he would pay it when he could. Allen, C. J. instructed the jury that an acknowledgment of the debt by the defendant would not be sufficient to entitle the plaintiffs to recover, but there must be a promise to pay it; and if the promise was to pay the debt when the defendant should be able to do so, there must be proof of his ability to pay it, to entitle the plaintiffs to recover.</p> <p>The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions.</p>

Contract by the administrators of Jonathan H. Cheney, upon a policy of life insurance by which the defendants insured his life in the sum of $5000.

<p>Contract. The declaration contained various counts on acceptances by the defendants of drafts drawn by the plaintiffs in 1854, and a count on an account annexed, the items of which were for the acceptances referred to, and three consignments of lumber by the plaintiffs to the defendants in 1854. The writ was dated October 30, 1860.</p> <p>Vt the trial in the superior court, it appeared that the defendants were commission merchants, doing business in Boston until October 5, 1854, when they failed; and until that time they were in the habit of accepting drafts for the accommodation of the plaintiffs, who were merchants doing business in Calais, Maine, for which they were to receive 2j- per cent, commission, under an agreement by which the plaintiffs were to take up the drafts at maturity. No other business was transacted between the parties, except that the plaintiffs made three consignments of lumber to the defendants, the proceeds of which were received by the defendants prior to their failure, and credited to the plaintiffs. Two of the acceptances matured and were taken up by the plaintiffs in November 1854. Both the plaintiffs and the defendants entered upon their books all these transactions under one account, each acceptance being entered as an advancement by the defendants, and the payment of it by the plaintiffs as a payment to the defendants; and the defendants testified that they did this for convenience merely, and that the accommodation drafts had no connection with their other dealings with the plaintiffs.</p> <p>Allen, C. J. instructed the jury that if the drafts paid by the plaintiffs in November were accepted by the defendants for the accommodation of the plaintiffs as stated, the payment of them by the plaintiffs would not constitute a ground of action accruing against the defendants at that time; and if these were distinct and separate transactions from the other dealings between the .parties, and were entered in the general account in the books of the parties for convenience merely, as memoranda, the plaintiffs •could not avoid the effect of the statute of limitations by declaring as for a balance due on account.</p> <p>The jury returned a verdict for the defendants, and the plaintiffs alleged exceptions.</p>

<p>Contract to recover damages of the defendant for the breach of an agreement to render an account of sales of spirituous liquors consigned to him by the plaintiff, and to pay the value of the liquors sold, and return the residue. At the trial in the superior court, upon facts proved which are stated in the opinion, Vose, J. ruled that the plaintiff was not entitled to recover, and a verdict was returned for the defendant. The plaintiff alleged exceptions.</p>

<p>Action containing counts in contract and tort against the owners of the brig Boston, for the value of a cargo of lumber shipped on her at Portland for Buenos Ayres. At the trial in this court, the chief justice ruled that the measure of damages was the value of the lumber, if it had been carried and delivered at its port of destination, and admitted evidence to show such value. The jury returned a verdict for the plaintiffs, with damages in the sum of §4963.09; and the question of the correctness of the ruling was reserved for the opinion of the whole court.</p>

Tort to recover damages for an injury sustained by the female plaintiff by reason of a defective highway.

<p>Contract to recover for services as an attorney at law. The defendant relied upon payment, and having been sworn as a witness, at the trial in the superior court, testified to certain payments made by him to the plaintiff He then offered in evidence his cash book, (described in the opinion,) which he testified was the only book kept by him in his business, and contained entries of his daily cash transactions made at the time of their occurrence; but Lord, J. ruled that it was not a book of charges competent to prove payment. The defendant was permitted to testify that at the time of making the several payments he entered the same upon a book, and he read to the jury what he entered on the book, and his mode of entering it. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Contract upon a policy of insurance, issued by a mutual fire insurance company, and containing the following provision : “ No insurance shall take effect until the application has been approved by the president or two of the directors, and till the. terms of insurance fixed by the directors have been accepted by the applicant, and the cash premium been actually paid at the office of the company. And every insurance agent, broker or other person, forwarding applications or receiving premiums, is the agent of the applicant and not of the company.”</p> <p>At the trial in the superior court, before Morton, J., it appeared that the application was made through one Brown, an insurance agent, through whom several policies had been effected between the defendants and persons seeking insurance, and who received the policy in this case, delivered it to the plaintiff, and received from him the premium; but he did not offer to pay the premium over to the company until after the loss occurred, which was within eight days after the date of the policy. Brown testified that he was in the habit of settling a monthly account with the insurance offices with which he did such business, and that the defendants, on presenting to him his account, after the loss, did not include the premium received by him from the plaintiff, and he immediately called attention to the fact and tendered the amount to the defendants at their office, but they refused to receive it.</p> <p>Upon these facts, and others which are not now material, the judge directed a verdict to be returned for the defendants, which was done, and the case was reported for the determination of this court.</p>

<p>One who has taken and caused to be recorded a bill of sale of an undivided share of a vessel, absolute in terms, but intended only as collateral security for a debt, and has never taken her into his possession or control, or received any part of her earnings, or in any manner interfered in her management, is not liable for supplies ordered by the master, although they were for her permanent advantage.</p> <p>The fact that such bill of sale was intended only as collateral security may be shown by paroi, for the purpose of negativing any authority to procure supplies on the credit of its holder.</p>

<p>Contract upon three promissory notes,, signed by a firm of which the defendant is the surviving member, payable to the order of the Continental Insurance Company, and indorsed “ Continental Insurance Co., Geo. W. Colladay, Pres.”</p> <p>At the trial in the superior court, before Morton, J., the plaintiff offered in evidence the depositions of William Larzelare and George W. Colladay, of Philadelphia, for the purpose of proving the existence of the Continental Insurance Company as a corporation, and that Larzelare was secretary and Colladay president thereof, and had acted as such, and that Colladay had authority to indorse the notes. Both witnesses testified that the company was incorporated by a special act of the State of Pennsylvania, and a copy of the charter was annexed; that the president was in the habit of indorsing its notes, and had authority to do so; that the company had failed, and its records were in the hands of its assignee in insolvency. The defendant objected to this evidence, but it was admitted.</p> <p>Section 6 of the charter was in part as follows : “ The company shall have full power and authority.....to make, exe-</p> <p>cute and perfect such contracts, bargains, agreements, policies and other instruments as shall or may be necessary, and as the nature of the case may require ; and every such contract, bargain, agreement, policy or other instrument to be made by said company shall be in writing or in print, and signed by the president and secretary, or by such other officer or officers as the directors may appoint for that purpose.”</p> <p>The defendant asked the judge to instruct the jury that, under these provisions, the indorsements, to be legal, must be signed by the president and secretary ; or that, in any event, the only mode in which the directors could authorize the president to make them was by vote. The judge declined so to rule, and instructed the jury that if the directors, by vote or otherwise, authorized him to indorse the notes in suit, his indorse' ment would be the act of the company.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Appeal by the administrator of the estate of Newell Sturte vont from a decree of the judge of probate, ordering that he distribute to the heirs the balance of said estate remaining in his hands.</p> <p>At the hearing, it was agreed that the intestate died in 1856, and that Leonard Sturtevant was appointed administrator of his estate on the 22d of December of that year, and immediately gave the usual notice and bond. The intestate, at the time of his death, had a large undivided interest in the firm of N. Sturtevant & Co., which was appraised in the original inventory of his estate at §271,076, and which the administrator, on the 4th of February 1857, by consent of the heirs, sold to the surviving partners of the firm, who agreed to pay him partly in certain notes and mortgages, a portion of which were delivered over to him in June 1859 and a portion in December 1859. The administrator’s final account, approved in December 1860, showed a balance in his hands of §30,676.19, of which certain notes so delivered over to him composed a part. The intestate was possessed of property in Philadelphia, where a branch of the firm was established, and one Jones was appointed and is ancillary administrator of the estate in Pennsylvania. In March 1860 the administrator in this commonwealth received a letter from the attorneys of one Noble of Philadelphia, saying that he filed a bill in equity against the intestate, in his lifetime, and others, in the supreme court of the United States, which was still pending, and that he believed he should be able to show that the intestate was indebted to him in a very large sum, and warning the administrator against paying over money in his hands until the determination of the cause. The amount claimed in the suit was larger than the sum remaining in the administrator’s hands here, or in Philadelphia.</p> <p>On these facts, the decree of the judge of probate was affirmed, and the administrator appealed to the whole court.</p>

<p>A party to a suit cannot be permitted to read in evidence an unanswered letter from him self to the adverse party, for the purpose of proving the truth of facts stated therein although it was in reply to a letter to himself, which he has put in evidence.</p>

<p>Contract upon a guaranty, as follows : “ Boston, May 12th, 1858. Received of James Deshon his notes for ten thousand dollars payable in six months, on two cargoes of rough rice by the T. B. Hodgman and G. M. Smith from Wilmington, N. C., which rice, amounting to eleven thousand bushels, I promise to deliver the same into the Boston Rice Mill within three months from this date, (fire, explosion, or other unavoidable casualty excepted,) to be there subject of the order of the said Deshon, or to pay him back at the end of said time the aforesaid sum of ten thousand dollars or such part thereof as then shall be due on the same. As fast as the aforesaid rice is delivered into the possession of said Deshon, the amount shall be indorsed on this obligation, towards the liquidation thereof. Charles E. Parsons” “ For value received I hereby guarantee to James Deshon the performance on the part of Charles E. Parsons of the foregoing obligation. David Dyer.”</p> <p>The declaration, after setting forth the substance of the above contract of Parsons, alleged that the defendant, in consideration of the advancement and delivery to Parsons of the said promissory notes, and for other valuable considerations, executed the guaranty.</p> <p>At the trial in this court, before Chapman, J., the plaintiff offered evidence to show that Parsons, a son-in-law of the defendant, carried on a rice mill in Boston in 1858, and was importing cargoes of rice from North Carolina; that on the 19th of April in that year he applied to the plaintiff to lend him $10,000, which the plaintiff agreed to do provided he would procure the defendant’s guaranty; that Parsons replied that he needed the loan that day, and the defendant was out of town, and he applied to B. F. Copeland, who was present, for his assurance to the plaintiff that the defendant should execute the guaranty; and Copeland signed the following agreement: “ Boston, April 19, 1858. Whereas Charles E. Parsons has this day received of James Deshon his notes as follows, viz :</p> <p> </p> <p>and has agreed to procure and hand to said Deshon David Dyer’s guaranty of the punctual payment of the same to said Deshon, on the part of said Parsons; now, in consideration of one dollar to me paid, I hereby assure said Deshon the faithful performance of the above on the part of the said Parsons. B. F. Copeland.” There was contradictory evidence as to whether the first note was given, or, if given, whether it was not received back by the plaintiff prior to May 12th. On the 12th of May, Copeland prepared the form of the paper on which the action is brought, with the knowledge and assent of the plaintiff, and Parsons took it, copied it, signed the copy, wrote the form of guaranty, and procured the defendant’s signature to it. The defendant, when he signed it, made no inquiry as to the facts, and had no knowledge of Copeland’s agreement, and neither the plaintiff nor Copeland had any conversation with him respecting the matter. The plaintiff received the agreement and guaranty, but retained Copeland’s agreement, and still has it, and Copeland does not object to his retaining it.</p> <p>The defendant objected that Copeland’s agreement, and the evidence as to the transaction described above, were not admissible ; but the objection was overruled.</p> <p>The defendant requested the judge to instruct the jury that the agreement of Copeland was no consideration for the agreement of the defendant, unless it was given up by the plaintiff to Copeland for the agreement of the defendant; that the agreement of Parsons, of May 12th, and the defendant’s writing thereon, did not constitute any performance and satisfaction of Copeland’s agreement; that the delivery to Parsons of the notes on the 19th of April was no consideration for the agreement of the defendant, unless made at the defendant’s request; that if the plaintiff had no direct communication with the defendant, but drew the writing and got it executed by the defendant through Parsons, he was bound to inform the defendant of all facts within his knowledge, materially affecting the defendant’s contract; that it was a fraud on the part of the plaintiff to accept the agreement of May 12th, and the defendant’s guaranty, knowing it to be materially untrue in the statement of the time or amount of the advance, and the security therefor; that if, before May 12th, the plaintiff had taken back from Parsons any of the notes advanced on the 19th of April, or had delivered to him only five of the notes, it was a fraud on the defendant which would avoid the contract; that the contract of May 12th was to be construed only as a stipulation for a present advance, and, under the declaration, the plaintiff could only recover “ on proving the notes of April 19th delivered at defendant’s request, or new consideration from plaintiff to defendant at the time of execution of said guaranty.”</p> <p>The judge declined to give the instructions requested, and instructed the jury, 1. That if they believed that the notes were lent and Copeland’s agreement was given as above stated, there was a valid consideration for the guaranty, although the defendant did not know of Copeland’s agreement, or the other particulars of the transaction ; and the fact that the plaintiff did not give up Copeland’s agreement was immaterial, because the delivery of the defendant’s guaranty to the plaintiff was a performance of that agreement, and discharged Copeland from liability under it; but the defendant’s liability was limited to the amount of the notes actually lent by the plaintiff to Parsons. 2. That a person who claims that a guarantor shall pay a debt must deal with him in good faith, and practise no deception on him either by misrepresentation or concealment of material facts; that, if five notes instead of six were actually lent to Parsons, the recital of six notes in the guaranty would not be fraudulent unless made with a fraudulent intent; that it was not necessary for the plaintiff, before accepting the guaranty, to go to the defendant and state to him the particulars of the transaction, or to make to him any communication on the subject; that if, prior to May 12th, the plaintiff had taken back one of the notes, the transaction would not be in itself a fraud, if not done with a fraudulent intent.</p> <p>The jury returned a verdict for the plaintiff, for an amount which did not include the first note mentioned in the agreement, of April 19th; and the defendant alleged exceptions.</p>

<p>it is no defence to a wife’s libel for divorce, to prove that a divorce has already been granted in another state on the application of the husband, if it is proved that he was not a citizen of the state in which the divorce was granted, but went there from this commonwealth, of which he was a citizen, for the purpose of obtaining it, while she remained in Massachusetts, and did obtain it fraudulently. And in such case, the decree of the court granting the divorce is not conclusive evidence of his citizenship.</p> <p>For the purpose of proving that a husband, who has obtained a divorce on the ground of desertion, in another state, was not a citizen thereof, but went there from this commonwealth, of which he was a citizen, for the purpose of obtaining it, while his wife remained here, and did obtain it fraudulently, evidence is competent to prove by records that before leaving this commonwealth he twice instituted libels for divorce against her which were not sustained, and that he was compelled to pay and did pay the amount of a judgment against him for her board, for a part of the time during which, in his libel on which the divorce was granted, he alleged that she deserted him. And if such evidence is introduced, and other evidence is offered in support of her charges against him, it should be submitted to the jury.</p>

<p>Tort against a deputy sheriff. The case was submitted in the superior court upon the following facts:</p> <p>The plaintiffs sued out a writ against James M. Blake, and committed the same for service to the defendant, who made the following return thereon: “ Suffolk ss. November 7th 1855. By-virtue of this writ, I have attached a quantity of rum, brandy, gin and wines, to the value of $100, and appointed a keeper over the same, and on the following day I delivered to the defendant a summons for his appearance at court, and he gave a bond to dissolve said attachment.” The plaintiffs recovered judgment, and within thirty days requested the defendant to procure satisfaction of the execution, but no property of Blake could be found. After making the attachment, the defendant, without giving notice to the plaintiffs, or having the sureties thereon approved as provided by St. 1846, c. 122, took from Blake a bond with two sureties, and redelivered to him the property. The sureties were then and ever since have been insolvent ; and when the execution was issued neither Blake nor the sureties could be found in the Commonwealth. After the attachment was made, and before judgment was recovered, proceedings in insolvency were instituted by Blake, but no cer tificate of discharge was granted.</p> <p>On these facts, judgment was rendered for the plaintiffs, and the defendant appealed.</p>

Tort to recover damages for a personal injury sustained by the plaintiff, by the falling upon her head of an iron rod, which was part of a frame used to support an awning in front of a store occupied by the defendants on Washington Street, in Boston. The defendants in their answer admitted that they were lessees of the building to which the frame of the awning was attached, and were in possession of the frame.

<p>A witness called as an expert cannot be asked in cross-examination whether he considers himself as good a judge of the matter in dispute as other witnesses who have been called as experts.</p> <p>A claim against the insolvent estate of a deceased person which is partially secured by a mortgage may be proved for the excess of the claim over the value of the mortgaged property, and the amount of such excess may be determined by the jury.</p> <p>A claim payable absolutely may be proved before its maturity against the insolvent estate of a deceased person.</p> <p>It is too late after verdict to object to defects in a declaration which might have been cured by an amendment if the objection had been seasonabljr taken.</p> <p>If at the trial of a case in the superior court a party has omitted to claim all to which upon the facts he was entitled, the error cannot be corrected in this court on a bill of exceptions in which no question of law or fact in relation to the matter is presented.</p>

<p>Contract upon a promissory note for $150, given by the defendant to the plaintiff.</p> <p>At the trial in the superior court, before Tose, J., it appeared that the plaintiff obtained letters patent for a loose wheel for horse cars, and sold to the defendant and two other persons the right to make, use and vend the same in Massachusetts, and the note in suit was one of several notes given in payment therefor. About three months before the date of the note, the defendant manufactured four wheels under the patent for one Decatur, which were put upon a horse car upon the Dorchester Horse Railroad, where they have been occasionally in use since. At the time of the sale, the wheels had been in use in no other place, but there was evidence tending to show that at that time both parties thought the invention very valuable. The defendant was allowed to introduce evidence, under objection, that the invention was not useful, but was wholly worthless. The plaintiff contended that if the parties acted in good faith, and both then believed that the patent was valuable, the sale was a good consideration for the note; but the judge instructed the jury that if the wheel could be applied to any beneficial purpose, it might be deemed a useful invention ; but if it was not capable of some such use, and was wholly worthless, the transfer of a right to make, use and vend wheels under the patent would not be a valid consideration for the note.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>An injunction will be granted to restrain the owner of one half of an ancient solid paity wall, long used for the support of buildings erected on each side of it, from cutting away a portion of its face, and erecting a new wall upon his own land at a distance of two inches from that portion of the ancient wall which is left standing, and connected with it by occasional projecting bricks and ties.</p>

Petition filed April 28, 1860, under St. 1852, c. 312, § 52, to compel the respondents to bring an action to try their alleged title to a certain parcel of flats on First Street in South Boston. The respondents claimed to own a portion of the flats, and disclaimed all title to the residue.

<p>Contract on two policies of insurance, by which the defendants insured the plaintiffs’ bark Nautilus from ports in South America to the United States. Upon each policy the following indorsement was added: “ Liberty is given to deviate by going to port or ports in Europe, by paying an equitable premium therefor.”</p> <p>At the first trial, in the superior court of the county of Suffolk, before Huntington, J., it appeared that the vessel sailed from South America to Malta, and thence to Constantinople, where the master obtained a charter from the French Government to run between Constantinople and the Crimea, under which a trip was made to Kameish, in the Crimea, and the vessel returned to Constantinople, and sailed thence for Smyrna, where she took in a cargo for Boston, and sailed upon the voyage, and was lost off the American coast. A verdict was returned for the plaintiffs, and the defendants alleged exceptions to the rulings of the judge, and also filed a motion for a new trial on the ground that the verdict was against the weight of evidence. Upon this motion the following order was made : “ Motion for a new trial granted, for the purpose of submitting to another jury the question whether the voyage of the Nautilus from Constantinople to Smyrna, and thence to her port of discharge in the United States, was within the terms of the policies of insurance and deviation clauses, involving the question whether Smyrna, in a commercial sense and by commercial usage, was a port in Europe, and whether such usage, if proved and found, would be a good or bad usage. For the purposes of the new trial, all other matters of fact and law necessary to maintain the action, and to entitle the plaintiffs to recover, are to be taken as established in their favor.”</p> <p>A new trial was had in the superior court, pursuant to the above order, and the jury disagreed. A third trial was had, before Lord, J., at which the defendants requested the judge to allow a trial on all the issues raised by the pleadings; which the judge declined to do, and limited the trial to the order.</p> <p>The plaintiffs’ witnesses testified that Smyrna is a port in Asia, some three or four hundred miles from Constantinople, and from thirty to fifty miles out of the direct course of vessels going from Constantinople to the United States. The defendants, under the order above referred to, objected that no other evidence was admissible except that Smyrna was a port in Europe, by usage; but the judge ruled otherwise. Some of the witnesses were asked by the plaintiffs’ counsel whether or not, before the date of the policies in suit, if a vessel was at Constantinople, bound to a port of discharge in the United States, it was the usual and ordinary course of the voyage to go into Smyrna for a part or the whole of a cargo, and then home to her port of discharge, unless there was some special order or charter to go elsewhere; and some of the witnesses answered that question affirmatively.</p> <p>A verdict was returned for the plaintiffs, and the defendants alleged exceptions.</p> <p>The defendants claimed the right to be heard upon their exceptions taken in the first trial, and the facts and circumstances under which the order was made setting aside the verdict then rendered were reported to the court by a commissioner appointed for the purpose.</p>

Tort against a deputy sheriff for the conversion of certain West India goods and groceries. At the trial in the superior court, the principal question was, whether the articles, which were admitted to have been taken by the defendant on an execution against the plaintiff, were exempt from seizure, under St. 1857, c. 235.

<p>Contract on a charter party executed on the 20th of August 1859, between Edward Baker, master and agent for the owners of the bark Wyman, and Tal. P. Shaffner and Daniel K. Pratt, “ for a voyage from Boston to Labrador, Greenland, Iceland, Faroe Islands, and thence to Scotland and back to the United States.” No service was made upon Shaffner, and the suit was prosecuted against Pratt alone.</p> <p>At the trial in this court, before the chief justice, it appeared that the vessel sailed from Boston on the 29th of August, with Baker as master, and Shaffner, and arrived at Labrador, and thence sailed to Greenland, making a port in each of those places, and remaining ten or twelve days on the coast of Labrador, and twenty-one on the coast of Greenland, sometimes at anchor and sometimes endeavoring to make ports. She sailed from Greenland for Iceland on the 11th of October, and soon encountered a series of gales, fogs, snows and bad weather, during which they could get no observations, and much of the time were lying to and drifting with the winds and currents until the 28th, when, as nearly as they could make out, being in latitude 61° 36', and longitude 20° west, the following entry was made in the log-book: “ Rec’d orders from Mr. Shaffner to keep the ship away for Glasgow, the captain deeming it inexpedient from the lateness of the season to visit Iceland, but saying he held himself in readiness to make further effort to do so, if required.” The vessel was then put away for Glasgow, and the next day the above entry was copied upon the charter party, and signed “ Tal. P. Shaffner, Edward Baker.” On reaching Glasgow the agreement copied in the margin * was signed, and a cargo taken on board which was carried to New York.</p> <p>The defendant introduced evidence to show that the object of the voyage was to make surveys, soundings and explorations for a line" of oceanic telegraph, by way of Labrador, Greenland, Iceland and the Faroe Islands to Scotland; and that it was essential to the purposes of the voyage that the vessel should go to each of the places named in the charter party. Evidence was also introduced relative to the severity of the storms, the practicability of reaching Greenland, and the circumstances under which the memorandum upon the charter party was signed, which it is unnecessary to recite in detail. The defendants contended that the voyage was terminated by necessity, and by circumstances which defeated the right of the plaintiffs to recover, notwithstanding the memorandum; and the chief justice ruled that the voyage described in the charter party was an entire voyage from Boston to Glasgow; that, as the bark did not go to Iceland, it was immaterial for what reason she failed to go there ; and that the plaintiffs could not recover unless the memorandum upon the charter party was an agreement to release them from that part of the voyage.</p> <p>The defendant then requested the court to rule that if, before Shaffner signed the memorandum, or assented thereto in any form, it had become impracticable to go to Iceland or the Faroe Islands, by reason of storms and perils of the sea, so that it would have been useless to attempt it further, and the putting away for Glasgow was the act of a prudent and skilful navigator, and the only course proper to be pursued under the circumstances existing, then the voyage to Iceland, &c., was defeated by perils of the sea; and the fact that Shaffner gave or assented to the order, under these circumstances, would not affect the rights of the parties under the charter party; that the memorandum was not an agreement to abandon any part of the voyage, but a recognition of certain facts then existing and making it impossible then to go to Iceland, and could not affect the rights of the parties otherwise than if Shaffner had been master, under the charterers, and given the order; and that if the only prudent and proper course was to put away for Glasgow, it would be the duty of the master to do so, and an agreement that he might do so would be without consideration.</p> <p>The chief justice declined so to rule, and ruled that the memorandum was an agreement to abandon going to Iceland, &c., and that it would bind Pratt if Shaffner had authority, express or implied, from him to make it, and, in that case, the plaintiffs might recover on the charter party.</p> <p>The defendant then requested the court to rule that the memorandum, not being in terms executed by Shaffner as agent, and not assuming to bind Pratt, bound Shaffner alone; but the chief justice ruled otherwise.</p> <p>The defendant then offered in evidence the paper executed at Glasgow, and contended that it was an agreement that the rights of the parties should be settled as they would be at law, and waived or controlled the memorandum ; but the chief justice excluded it.</p> <p>The jury found specially that Shaffner was authorized by the defendant to sign the memorandum indorsed on the charter party; and the case was thereupon reserved and reported for the determination of the whole court.</p>

<p>If the only officer of a corporation who has any property has been adjudged liable as a stockholder, in a suit against the corporation for a debt, and judgment has been rendered and execution issued accordingly, he cannot maintain an action against a deputy sheriff for seizing his property upon the execution, after demand made upon the corporation, and refusal to pay the same.</p>

Contract against William Pulsifer, Ichabod Macomber and Stephen Miller, upon the bond which is copied in the margin.* The declaration alleged, among other things, that the defendants executed the bond to the plaintiffs ; and that the judgment therein referred to had been affirmed in full, as by the record thereof remaining in the same court appeared. An additional count, subsequently filed, alleged that Pulsifer was personally liable with the other defendants upon the bond.

<p>Petition for a jury to assess damages caused by taking a portion of a lot of land on North Street in Boston, for the purpose of widening that street.</p> <p>At the trial in the superior court, it appeared that about half of the whole lot was taken; and, to show special damage, the petitioner offered evidence that three windows have long existed on an adjacent estate, overlooking the premises; that the owner thereof claimed the right to maintain them ; and that the taking of a portion of the petitioner’s lot made the right claimed by the adjacent owner more injurious to the remainder than it had previously been. The petitioner did not prove or admit, however, that such right existed, and Vose, J. ruled that the evidence was therefore incompetent.</p> <p>To show the value of the land taken, the petitioner offered evidence of sales of several lots on North Street, with the prices paid for the same. One of these lots was at a distance of one hundred and seventy-six feet from the land taken. The judge excluded the evidence on the ground that the lots were too remote from the land of the petitioner.</p> <p>The jury returned a verdict assessing damages, and the petitioner alleged exceptions.</p>

<p>Contract upon two promissory notes, the defence to which was a discharge in insolvency. The facts, which were agreed in this court, are sufficiently stated in the opinion.</p>

Tort against a deputy sheriff for the conversion of certain boots and shoes and other personal property. The defendant justified the taking under a writ placed in his hands for service in favor of B. F. Doak against E. W. Hunt, dated March 4, 1858. The plaintiff claimed the goods under a mortgage to him from Hunt, dated February 24, 1858.

<p>This court cannot, on a bill of exceptions, revise the finding of a jury, unless, taking all the facts proved, the verdict is clearly against the law.</p> <p>A. formerly lived in Boston, and afterwards went to New Orleans, where he took up his residence, went into business, became permanently fixed as a merchant, and has had no other place of business since. He married at the south, had children, came to Boston with them, intending to return, bought a house, commenced housekeeping, and sent his children to the public schools. He was in the habit of coming to Boston every summer, and remaining there and in the vicinity for a few months. He left his family in Boston, for the benefit of his children's health, for two years, returned himself to his business in New Orleans, always styled himself as of New Orleans, exercised the rights and performed the duties of a citizen there, and in no other place, and intended that bis domicil should be there. Held, that this court ought not to set aside a verdict which found, upon proof of the above facts, that his domicil was in New Orleans.</p>

<p>A testator in his will gave to his wife his dwelling-house, furniture, silver plate, spoons notes, mortgages with the notes to the same, books, papers, &c.; appropriated a small sum to keep his lot in a cemetery in order; gave to his son E. $3000, “in one year, if it can be collected-by my demands, which can be demanded; they are due; ” to his ether sons various sums, to be paid at different times; provided that if his wife should marry again his real and personal estate should revert to his heirs at law; directed her from time to time to present gifts from him to his grandchildren'and to his sors, at her discre. tian; and finally gave to her for life all the residue of his personal an¿ veal estate. At the time of making this will, he had outstanding overdue notes» to v 2our,t of $8000, the makers of which were then and have ever since been insolvent. He left real estate to the amount of about $14,000, and personal estate, consisting entirely of notes, furniture and silver plate, to the amount of about $12,000; the notes, which were good, were all taken after the execution of the will. Held, that the legacies to his sons were all payable absolutely, out of the personal estate, and that to his son E. within such period, not less than one year, as should be found reasonably necessary to collect it from debts due to the estate.</p>

<p>Petition by the administratrix of Wright Chamberlin, deceased, for leave to sell his real estate, for payment of debts and charges of administration.</p> <p>At the trial in this court, before Chapman, J., the only question was, whether the account of William H. Clark, the particulars of which were annexed to the papers, was due from the estate. Clark was offered as a witness to prove the account, and excluded by the court. The petitioner contended that, having herself, as administratrix, admitted the debt in question as just and due from the estate, and having so represented and admitted at the court below, and at the trial in this court, the estate not being insolvent, such admission and representation were sufficient to establish the indebtedness, or, at least, were sufficient evidence, in the absence of fraud or collusion, to throw the burden upon the respondent to show cause why the petition should should not be granted. But the judge ruled otherwise.</p> <p>Upon the whole evidence, the residue of which became immaterial by the opinion of the court, the judge directed the jury to find for the respondent, which they did; and the case was reported for the determination of the whole court.</p>

<p>Contract, brought in this court by the widow of Thomas J. Lobdell against the administrators of her husband’s estate, to recover a portion of the price received by them upon the sale of certain real estate. The writ was dated June 14,1861.</p> <p>The case was reserved for the determination of the whole court, upon the following facts, which were agreed: Thomas J. Lobdell in his lifetime bargained with the city of Boston to purchase certain parcels of land, and received from the city two contracts, each dated September 16, 1846, covenanting that the city, upon payment of a stipulated sum, according to the terms of a certain bond, “ and upon the reasonable request of the said Lobdell, his heirs, executors, administrators or assigns, shall and will, by a good and sufficient deed, convey and transfer in fee simple to him or them, or to such person as he or they shall by any direction in writing made upon this instrument direct and order, the following parcel of real estate,” &c., “ it being understood that, if default shall be made in any one of the payments required to be made according to the tenor of the condition of said bond, for the space of sixty days after such payment shall have become due, the said city of Boston shall not be holden to make any conveyance as aforesaid.” The bonds were payable in instalments of one tenth of the amount of each respectively, on the 16th of September in each year. Lobdell entered upon the lands, built houses thereon, and continued in possession thereof until his death on November 11th 1853, at which time the instalments falling due September 16, 1853, were due and unpaid; and these, together with the last instalments, which were to become due September 16, 1854, were paid by his administrators to the city on the 6th of July 1854; and, on the 11th of the same month, the lands were conveyed by the city to James W. Rollins, who was appointed by the administrators, and received the conveyance as trustee for the benefit of Lob dell’s estate.</p> <p>On the 22d of May 1854, the administrators applied for and obtained leave from the probate court to sell all the real estate of Lobdell, for the payment of debts; and in the petition and license the above lands were specified. Before the sale, the following papers were executed:</p> <p>“ Boston, June 24, 1854. The administrators of the estate of T. J. Lobdell, my late husband, are hereby authorized to sell all the real estate belonging to said estate at public auction: and I agree to relinquish my right of dower in said real estate, upon receiving from the purchasers the amount which my dower would be, according to the tables, excepting the block of houses on Pembroke Street occupied by Talbot, Ayers and Emerson; and the house in the rear of said block, occupied by--. Sophia P. Lobdell.”</p> <p>“ Boston, June 26, 1854. N. A. Thompson, Esq., Auctioneer Dear Sir, — I hereby authorize you to sell and dispose at public auction, at the same time the sales hereinafter named are made, all my right, title, and interest in and to all the pieces of real estate which you have advertised to sell on Wednesday and Thursday next, June 28 and 29 instant, by order of the administrators of my late husband, Thomas J. Lobdell, in which I have a right of dower: and you will please give public notice, at such sale and otherwise, that I will release all my interest in said premises, being my right of dower therein ; I having agreed with the said administrators to take of the net proceeds of the sales, what, by the Wigglesworth tables, it appears my right of dower is, on such sales, worth in those estates in which I have a right of dower, calculating interest at the rate of five per cent, per annum. Respectfully yours, Sophia P. Lobdell.”</p> <p>At the sale, on the 28th and 29th of June 1854, the auctioneer read a paper containing the terms of sale, among which was a statement that the widow would release her dower, and that the title should be good, or no sale. The sale included the lands above referred to, and deeds were executed by Rollins, and the purchase money was received by the administrators at various times in June and July 1854, and in February 1855, and accounted for by them in the probate court.</p> <p>At the time when the above papers were executed by the plaintiff, the defendants were advised and believed, and informed the plaintiff, that she had no title to dower in the lands referred to, and that the license and mode of sale, as to them, were unnecessary; and she thereupon executed the papers, and made no claim for her dower in the premises, and tendered no release thereof, until April 13,1861.</p> <p>Certain facts affecting the question of the operation of the statute of limitations are omitted, as that question was not considered by the court.</p>

<p>The owners of a vessel may maintain a bill in equity to recover contribution from tne owners of the cargo, if the master, in order to avoid the danger of being driven, broadside on, upon a reef, sacrifices the chance of saving her from this peril, and runs her over the reef and upon the beach, and thus saves a portion of the cargo which would have been lost, if she had gone to pieces upon the reef.</p> <p>A claim for contribution may be maintained against, the owners of a cargo, although the vessel is totally lost.</p>

<p>Trustee process. In the superior court, the city of Boston, summoned as trustee, was discharged; and the plaintiff appealed to this court. The facts are stated in the opinion.</p>

After the decision of the questions formerly arising in this case, (1 Allen, 552,) a new trial was had in this court, before Chapman, J., at which the plaintiffs offered evidence tending to show that they had performed the work and incurred the expenses contemplated by Sts. 1856, c. 296, and 1857, c. 128, and had done everything required by the former statute to entitle them to maintain this action, to recover the proportion of the cost thereof which was authorized 'by those…

<p>Contract, alleging that in and by a certain deed executed by the defendant to the plaintiff, the defendant covenanted that the land conveyed was bounded on two sides by streets, whereas there was and is no street on either side thereof. The only material portion of the deed was as follows :</p> <p>“ Know all men by these presents, that I, Francis Alger, of Boston, in the county of Suffolk, merchant, in consideration of three thousand two hundred and thirty-five dollars to me paid by Samuel G. Howe, of said Boston, physician, the receipt whereof is hereby acknowledged, do hereby give, grant, bargain, sell and convey unto the said Howe, and his heirs and assigns forever, all that lot of land in South Boston, containing, by estimation, fifty-four hundred and sixty-two and one half square feet, with the buildings thereon, bounded north by Fifth Street, forty-seven feet six inches; west by land late of Stephen Glover, one hundred and fifteen feet; south by a street twenty feet wide, forty-seven feet six inches; and east by lot thirty-nine (39), on Alexander Wadsworth’s Plan of Mount Washington Association Lands, dated May 16th 1839, (see Suffolk Deeds, lib. 618, fol. ), one hundred and fifteen feet.”</p> <p>It was agreed in the superior court that the lot so conveyed was originally part of a large tract which in 1839 was owned by the Mount Washington Association, and by them laid out into lots and streets, and said plan thereof made and recorded by them. The defendant never owned the land described as Fifth Street, or that described as “ a street twenty feet wide,” except so far as he acquired title thereto by the mesne conveyances from the Mount Washington Association to him, which were substantially similar in form to his deed to the plaintiff. At the time of making the defendant’s deed to the plaintiff, the land called Fifth Street was open and used as a street in front of said lot, and extending to G. Street, and so continued until the decision of this court in Glover v. Boston, 14 Gray, 282; since when it has been shut up by Glover in front of his premises, and the access to G. Street cut off. Neither Fifth Street nor the “ street twenty feet wide ” has ever been laid out by public authority ; and there is no access from the lot conveyed to any highway except by passing over private property.</p> <p>Upon these facts, judgment was rendered in the superior court for the defendant, and the plaintiff appealed.</p>

<p>Bill in equity, praying that the defendant, who is administrator of the estate of Augustine Wills, deceased, may be decreed to pay to the plaintiffs the balance due on account of certain freight money. The following facts were agreed :</p> <p>In October 1856 the plaintiffs, being the owners of the ship “ Bold Hunter,” chartered her to Tuckerman, Townsend & Co., merchants, of Boston, for a voyage from Boston to Calcutta, and thence to Boston, at the rate of fifteen dollars and fifty cents per ton on whole packages, and half rate on loose or broken stowage, on the cargo laden on board at Calcutta, “ charter payable one half in five, balance in ten, days after discharge in Boston ; said credit in payment of charter not to impair ship owners’ lien on cargo for freight.” The charter party also contained a provision that the freight or merchandise to be laden should be bound for the covenants and agreements of the charter party.</p> <p>On arrival in Calcutta, the agents of the charterers did not think it expedient to load the ship on their account, and transferred the charter party to Wills & Co., who signed an agreement on it to load the entire capacity of the ship, except for fifty bales of hides, hereinafter mentioned, at eleven dollars per ton, all the other conditions to be in accordance with the terms of the charter party. Under this agreement, Wills & Co. shipped goods for account and risk of divers persons, and amongst others for account and risk of Augustine Wills, the defendant’s intestate, for whom they were agents in Calcutta, to the amount of about $150,000. The master of the ship consented to this arrangement, and signed bills of lading, at eleven dollars per ton, on the execution and delivery to him, by the agents of the charterers, of an agreement to put sufficient goods on board to cover any deficiency between the said rate of freight and the rate of the charter party. In pursuance of this agreement, the agent shipped fifty bales of hides on account of Tuckerman, Townsend & Co.; the residue of the cargo being furnished by Wills & Co.</p> <p>On the 12th of October 1857 the ship arrived at Boston, and Tuckerman, Townsend & Co. passed over the bills of lading of the merchandise on freight to the owners of the ship, in part settlement of the charter money, the plaintiff Sears undertaking to collect the same. Soon after her arrival, and while Augustine Wills was living, the discharge of the cargo was begun, under the direction of the defendant, as his agent, and was completed on the 7th of November. All the goods consigned to Augustine Wills were delivered to the defendant, as his agent during his life, and as the representative of his estate after his death, which occurred on the 2d of November; and the larger portion thereof, amounting in all to about $100,000, were discharged, by his request and with the consent of the plaintiffs, into a ship bound to London, which was hauled alongside of the Bold Hunter, the owners being informed that these goods were to be shipped therein to London. During the discharge and delivery, no intimation was given by the master or owners to the defendant of an intention to rely upon a lien on the goods for the payment of freight; and no mention was made of any understanding or agreement touching a lien thereon. Augustine Wills was then in good credit; and, on October 26th, upon a representation by Sears that it would be an accommodation, the defendant paid to him $5000, as an advance on account of freight. After the expiration of five and ten days from the discharge of the cargo, the plaintiffs repeatedly applied to the defendant for the payment of the balance due for freight, at the reduced rate of freight, which amounted to $9948.57. This was refused at first on the ground that nothing could be done until administration was taken out, and afterwards, that the estate might prove insolvent. The estate was afterwards declared insolvent.</p> <p>Upon these facts, and others which are now immaterial, the case was reserved, by Merrick, J., for the determination of the whole court.</p>

<p>A policy of insurance which contains a provision that if the assured “ shall hereafter make any other insurance on the property hereby insured, and shall not obtain the consent of this company thereto, or have such consent indorsed upon this policy, then this insurance shall be void and of no effect,” is not defeated by the taking of a subsequent policy upon the same and other property, which is invalid by reason of a failure to disclose certain essential facts, although such consent is not so indorsed upon it, or obtained of the company. And the assured may set up the invalidity of the second policy, although, after the loss, they had the defendants’ consent thereto indorsed upon another sim.lar policy issued by them, upon the other property which that policy covered, and although they received the full amount of it from the insurers.</p> <p>It an application for insurance to a mutual fire insurance company is expressly made a part of the policy, and contains a clause inserted after the printed questions by which the applicant covenants that “ the foregoing is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property to be insured, so far as the same are known to the applicant, or are material; and or all the facts inquired for;” the omission to disclose several buildings within one hundred feet of the property insured, in reply to a question, “ What is the distance and direction from each other, and from other buildings within one hundred feet, and how are such other buildings occupied? Make plan on back hereof, showing the relative position of all the buildings,” will avoid the policy, although such omission is not material, and the application also contains a provision that the applicant further agrees that u the misrepresentation or suppression of material facts shall destroy his claim for damage or loss,” and an article of the by-laws, subject to which the policy was issued, provides that “ any policy issued by this company shall be void, unless the assured shall have made in his application for insurance a true representation of the risk.”</p>

Contract, with a prayer for relief 4n equity, and that the defendants may be decreed to account with the plaintiffs, and pay over to them such sums as may be found to be justly due.

<p>A creditor of a corporation established in New Hampshire, the stockholders of which are individually liable for its debts under the statutes of that state, by reason of the failure to pay in the whole amount of the capital stock, cannot maintain a bill in equity in this commonwealth to enforce his claim against the stockholders, although some of them live here, and the bill is alleged to be brought in behalf of all the creditors.</p>

<p>Under Rev. Sts. c. 38, § 31, a creditor of a corporation cannot maintain a bill in equity against stockholders, who are not officers thereof, to compel payment of his claim, until he has recovered judgment thereon in an action at law against the corporation, although the corporation is joined as a party defendant in the bill.</p>

<p>Two actions of contract to recover for carrying a cargo of ice from Boston to New Orleans. The facts were agreed in this court; of which the following are all that are material, in addition to those stated in the opinion :</p> <p>The plaintiffs, being the owners of the ship Abselino, entered into the following contract with the defendants in the first action : “ Memorandum of an agreement made this 19th day of March 1861 between Addison Gage & Co. and the owners of the ship Abselino of Boston. Addison Gage & Co. hereby agree to load the said ship at East Boston or Charlestown with a full cargo of ice for New Orleans, say to fill the lower hold, and to load as much in the between decks as the owners of the ship require; but give the owners the privilege at their option to load other goods in the between decks instead of ice. Addison Gage & C^ hereby agree to pay at the rate of five dollars per ton on the quantity of ice shipped, payable in cash upon the delivery of the cargo of ice at New Orleans, and to load and unload the ice and fixings. If other merchandise than ice is to be loaded in the between decks, it shall not detain the ship over four days. The owners of said ship hereby agree to the above price and conditions.”</p> <p>The bill of lading stated that the ice was shipped in good order and condition, and that it was “ to be delivered in like good order and condition (excepting what may be lost by the natural waste of the article) at the aforesaid port of New Orleans, (the dangers of the seas only excepted,) unto Messrs. A. W. Bos worth & Co. or to their assigns, he or they paying freight for the said ice, five dollars per ton, with average accustomed.”</p> <p>After the capture of the vessel and the subsequent judicial proceedings, as recited in the opinion, the master made and signed his protest before a notary public, and demanded the freight money of the consignees. The first of the present actions was against the owners and consignors of the ice; and the second was for the same cause against the consignees. The two cases were argued together.</p>

<p>A bill in equity may be maintained to enforce the specific performance of a written contract for the conveyance of land, although the entire consideration is not named therein, if the plaintiff is willing and ready to pay the whole consideration orally agreed upon by the parties, and he has been guilty of no misconduct. And the bill in such case need not set forth that part of the consideration which was omitted in the written contract.</p> <p>If the defendant in a suit in equity for the specific performance of a contract sets up in defence that the contract was obtained from him by misrepresentation, the burden of proof is on him to establish it.</p> <p>A decree for specific performance of a written contract for an exchange of lands will not be refused on account of the inferior value of the land which the plaintiff agreed to convey to the defendant, where the parties have fixed their own estimate of the value of the respective lands, and there has been no fraud, and the difference in value does not appear to have been unconscionable.</p> <p>Specific performance of an agreement by a married man to convey land with release of dower and homestead may be enforced, so far as he personally can execute the same, and compensation in damages decreed if his wife refuses to release dower and homestead.</p>

<p>Contract against a ship-builder, to recover damages for a breach of contract in building and completing a ship, which, when partially built, the plaintiffs agreed to purchase. The agreement for the purchase was contained in letters, only the material portions of which are here given. On the 17th of August 18-52 J. M. Forbes wrote to the defendant as follows: “ Having been a week or two in the mountains, I have gathered courage to make you an offer for the new ship, if still unsold ; which we must try and finish up to-morrow, as I go to Nashon next day. If you will finish her in the same style with the Polynesia, adding the six inches depth and seven and a half feet length, I will give you $58,000 for her, payable on the same terms as * Polynesia ’ contract. [Then followed certain specifications, which are not now material.] I dare say there may be other things which ought to be settled now, and which you can tell me about; but in the main my notion is that, as I know nothing about ships, and have no captain in view to superintend her, I have to depend upon you to see that she is just right in all respects.” The next day, a memorandum signed by Mr. Forbes and the plaintiffs, respecting the ship, contained the following provision: “ General specifications and style same as ‘ Polynesia.’ ” On August 18th, the defendant replied to Mr. Forbes as follows : “ Your favor of the 17th instant has been received ; and, in reply, I shall accept the offer therein contained for the new ship now being built by me at East Boston, agreeable to the specifications therein named.”</p> <p>At the trial in this court, before Chapman, J., it appeared that at the time these letters were written the frame of the ship was partly up, but no planking or calking had been done. The details of the evidence respecting the defects relied upon as constituting a breach of the contract, and the instructions of the judge in relation thereto, are sufficiently stated in the opinion.</p> <p>It appeared that the plaintiffs had originally brought a libel in personam against the defendant in admiralty, in the United States district court for the district of Massachusetts, for the same cause of action, and recovered a decree for damages therefor, which was reversed by the circuit court on appeal, on the ground that the cause of action was not within the jurisdiction of a court of admiralty; and many depositions were taken in those courts by the plaintiffs, of witnesses who were cross-examined by the defendant. The certificates upon these depositions did not show that the oath was administered to the deponents in the form required by the statutes of this commonwealth; and the judge excluded them, although proof aliunde was offered that they were taken in the manner in which depositions used in the state courts are taken. One of the depositions so offered was taken by the defendant, but used in the United States court by the plaintiffs.</p> <p>A deposition of Thomas Hunt, who surveyed the vessel after her first voyage, taken and used in the United States district court, was admitted, under the following agreement signed by the counsel of the parties: “ It is agreed that the deposition of Thomas Hunt, taken by the libellants .... may be used in a suit at law between said parties,” &e. This witness testified that he surveyed the vessel at Whampoa, and made written reports thereof, which were true. These reports were annexed to his deposition, and were signed by himself and one Wilson, who was not a witness. The plaintiffs offered to read them to the jury; but the judge excluded them.</p> <p>The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions.</p>

<p>Bill in equity against the Boston Water Power Company, John B. Neale, William W. Keith, Joseph W. Davis, William H. L. Smith, and Clark, Cheney & Co., to compel them to procure for the plaintiff a certificate of one hundred and fifty shares of the capital stock of the Boston Water Power Company, in place of shares formerly belonging to him and transferred under the circumstances stated in the opinion; and to compel the Water Power Company to pay to him a dividend thereon of five dollars per share, which had been declared by them. The case came on to be heard before Chapman, J., upon the bill answer and evidence taken by consent of parties before a mas ter, and was reserved for the determination of the whole court.</p>

<p>The negligence of a parent or other person who has the care of a child of tender years has the same effect in preventing the maintenance of an action by the child for an injury occasioned by the negligence of others that his own want of due care would have, if the plaintiff were an adult. And to entitle the plaintiff to recover in such case, it is incumbent on him to prove that there was no other culpable cause of the injury than the negligence of the defendants.</p> <p>The fact that a child of two years old is passing unattended across a public street, in a city, traversed by a horse railroad is, in and of itself, necessarily, prima facie evidence of neglect in those who have it in charge.</p> <p>In an action against a horse railroad company to recover for a personal injury caused by their running over with a car a child of two years of age in a public street, in a city, in which the evidence shows that the child was passing across the street unattended, it is sufficient ground for a new trial, after a verdict for the plaintiff, if, in reply to a request by the defendants for an instruction that it is negligence to permit a child of this age to go on a public street, the judge instructs the jury that, if the parents, knowing the position of the child and its danger, had the means of preventing the injury and neglected to use them, and permitted the child to remain in danger, the plaintiff cannot recover; and that the mere fact that a child was passing across the street unattended is not, in and of itself, necessarily such evidence of fault or neglect as entitles the defendants to a verdict.</p> <p>In such action, the plaintiff may introduce in evidence a city ordinance, regulating and limiting the speed of cars upon horse railroads, which has been served upon the defendants, with proof that, at the time of the injury complained of, the defendants’ servant was driving at a greater rate of speed.</p>

<p>Contract, to recover the sum of $7000, as money had and received by the defendants to the plaintiff’s use.</p> <p>At the trial in this court, before the chief justice, the plaintiff offered evidence to prove that in March 1855 he carried on the business of a broker in Boston, and that William F. Davis, a clerk employed by him on a salary, had the principal charge thereof, and usually signed checks in his name; that on the 26th of said March, Thomas W. Hooper, the paying teller of the defendants, informed Davis that his cash was to be examined, and he wanted $7000, and requested him to leave that sum until the next day; that Hooper did not, on that day, make to Davis any suggestion or statement as to the place where, or method by which, the money could be obtained; that Davis accordingly drew a check for $8000, in the plaintiff’s name, or. the Grocers’ Bank, where the plaintiff kept an account, and took it to the Atlantic Bank, and received the amount from Mr. Ward, the teller, $1000 of which he used in the plaintiff’s business, and delivered $7000 at the defendants’ counter to Hooper, who put it into a drawer where money of the defendants was usually kept; that on the 22d day of the same March there had been a similar transaction between the same parties, and on that occasion Hooper had informed Davis that he expected an examination in a day or two, and wished for $7000, to which Davis replied that the amount was more than he could arrange, and Hooper told him to “ take his check, and fix it, and he could probably arrange it with Ward,” and that this was accordingly done, but the examination not being then made, Hooper returned the money, saying that he should probably want it again in a day or two, of which Ward was informed; that on the afternoon of March 26th, and after the money now in suit was received by Hooper, there was an examination of his cash by the president and one of the directors of the Merchants’ Bank; that the money was received by them from the receiving teller, and counted, and found to be of the right amount, and returned to Hooper’s custody ; that the receiving teller kept a debit and credit account with the paying teller, charging the latter with the amount of bills delivered to him in the morning, and entering to his credit the amount received from him at the close of business, each day; that on the 26th of March, Hooper was in fact a defaulter to the bank to a large amount, and, on the next morning, cora- " mitted suicide ; that Davis had formerly been a member of the firm of Willis & Co., brokers, who failed the year before ; that the plaintiff was ignorant of the above transactions of Davis until after March 26th, and never consented to the same; and that he paid the check for $8000, and on the 4th of April 1855 he demanded the $7000 of the defendants, but they have not paid the same.</p> <p>Upon the foregoing evidence, with other evidence which is now immaterial, the defendants stating that they preferred to offer none, the case was taken from the jury, with the consent of the parties, and reserved for the determination of the whole court.</p>

<p>Indictment for the murder of Rhoda M. Wilkins, by administering arsenic to her at Lowell, in February and March 1861.</p> <p>At the trial in this court, before Bigelow, C. J., and Metcalf, Merrick and Chapman, JJ., several witnesses, called on the part of the Commonwealth, were allowed to testify to certain statements made to them by the prisoner in April 1861, in relation to the cause of the death of Mrs. Wilkins, and also to her admissions that arsenic might be found in Mrs. Wilkins’s stomach, and that the husband of the deceased might have got the arsenic at Lawrence and given it to her, and that she might have administered it in a trance state, although she was unconscious of so doing. The prisoner’s counsel objected to this evidence, because, at a different time from those testified of, she had been interrogated under oath before the coroner’s jury concerning the same matters, and her answers had been taken down and subscribed by her, and were in the possession of the officers of the government.</p> <p>Evidence was introduced of certain acts of intimacy between the prisoner and the husband of Mrs. Wilkins, tending to show, as contended by the government, a sufficient motive and inducement for her to commit the crime. The prisoner’s counsel contended that the same evidence tended to show that the husband had an equally strong motive to commit the same offence, and that the poison might have been administered by him. The chief justice, in charging the jury, submitted it to them to determine whether, on all the evidence, the prisoner or the husband of the deceased committed the offence charged in the indictment, having regard to the alleged motive and all the other facts in proof. After the charge was concluded, the pris • oner’s counsel requested the court to instruct the jury that, on the evidence in the case, the husband had an equally strong motive with the prisoner to commit the alleged crime; but the court declined to add anything to the instructions which had already been given.</p> <p>. When the attorney general had nearly finished his closing ai gument, the prisoner’s counsel gave notice to the court of certain evidence which had then for the first time come to their or he, knowledge, and requested leave to introduce it, on the ground that it was new and material; but, after hearing the evidence thus offered, and after consideration, the court refused to permit it to go to the jury.</p> <p>The jury returned a verdict of guilty of murder in the first degree ; and the prisoner alleged exceptions.</p>

<p>Indictment, charging in the first count that the defendant uttered and passed as true to George W. Witham a counterfeit bank bill, with the intent to injure and defiraud the said Witham; and in the second count that he did the like to Joseph H. S. Fox.</p> <p>At the trial in the superior court, before Wilkinson, J., the government were allowed to introduce in evidence, under objection, for the purpose of showing that the defendant had made contradictory statements as to the person from whom he received the bills, two affidavits made by the defendant at previous terms of the court, setting forth that an absent witness would testify, if ]¡resent, that he lent to the defendant some bank bills, among which were the bills described in the indictment, and fhat so far as he knew the defendant was ignorant of the fact that they were counterfeit.</p> <p>The evidence in the case tended to prove that the two counterfeit bills, were passed, as alleged in the indictment, to the two persons therein named. It further appeared that both of those persons were acting merely as servants in taking the bills, in payment for articles belonging to their employers, and that they made change to the defendant in money of their employers, and sold the articles to the defendant in the ordinary course of business, and that neither of the employers was present at the time, and there was no evidence that the defendant knew either of them. The defendant requested the court to instruct the jury that there was a variance between the allegations and the proof and that the indictment should have alleged that the bills were passed to the employers; but the judge declined so to rule. The defendant then requested the court to instruct the jury that the defendant could not have intended to defraud Witham and Fox as alleged, and that, as the indictment alleged only a special intent to defraud them, it could not be maintained. The judge declined so to rule, and instructed the jury that the intent must be proved as alleged; that it would not be sufficient to prove an intent to cheat and defraud generally, or to cheat and defraud other persons than Witham and Fox; that whether the defendant had the particular intent to defraud Witham and Fox was a question of fact for them to determine, bearing in mind that he could not have intended to defraud them unless he supposed at the time that they had some interest in the property or money given in exchange for the counterfeit bills.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>Indictment containing two counts, each of which charged that the defendant “ did utter and pass as true ” a certain false, forged and counterfeit bank bill. At the trial in the superior court, before Wilkinson, J., the defendant was convicted and alleged exceptions. The facts sufficiently appear in the opinion.</p>

<p>Indictment for larceny of several hundred “ cubic feet of illuminating gas, each cubic foot being of the value of three mills, of the property, goods and chattels of the Boston Gas I light Company.”</p> <p>At the trial in the superior court, before Wilkinson, J., it appeared that the defendant occupied a house in Ashland Street in the city of Boston, and that a service pipe of the Boston Gas Light Company led from their main pipe in that street to within a short distance of a gas meter owned by them and placed under the front steps outside of the wall of the house, but upon the premises occupied by her, and the defendant made the usual connection from the service pipe with the inside supply pipe by short pieces of lead pipe belonging to her, through which the company had supplied her with gas; but, upon non-payment of the gas rates, the company removed the meter and shut off the gas by closing a stopcock in the service pipe, upon the premises occupied by her, and gave her notice thereof; after which she, without the consent or knowledge of the company, and to avoid paying for the gas, made a connection by means of lead pipe between the service pipe and the pipe inside of the house, and turned the cock in the service pipe, and received and consumed gas belonging to the company. There was no question that the company was legally incorporated.</p> <p>The defendant requested the court to instruct the jury that no conviction could be had under this evidence ; but the judge instructed the jury that, if they were satisfied that the defendant took the gas with a felonious intent, she was guilty of larceny. The jury returned a verdict of guilty, and the defendant alleged exceptions to this ruling, as well as to an order of the judge overruling a motion in arrest of judgment on the ground that the indictment was insufficient in law.</p>

<p>Indictment for larceny of money in the shop of Edward F. Porter, in Boston, on the 2d of October 1861.</p> <p>At the trial in the superior court, evidence was introduced to show that on the day of the larceny George Doherty, one of the defendants, went into the counting-room of Porter and asked a clerk if Charles Wallace was employed there. The clerk replied that he was not. Further conversation passed between them, when Griffin, the other defendant, came in and asked to buy liquors, and went with the clerk into the sample room adjoining, and when they returned Doherty had left. It was soon after found that money was missing. It was contended by the government that these acts were in pursuance of an agreement between the defendants and another person whose name was unknown, who was to keep watch outside, while Griffin should distract the attention of the clerk, and Doherty should steal the money. And evidence was introduced, under objection, to show that within an hour before the larceny the defendants, with the other person, were seen walking in the street together towards the building in which the larceny was committed, and were also seen with that person in the street the morning after; and that Griffin, on the 30th of March previous, gave his name as Charles Wallace, in a store on Washington Street, in Boston.</p> <p>The jury returned a verdict of guilty, and the defendants alleged exceptions.</p>

<p>The indictment in this case, which has already been twice before this court on exceptions, (14 Gray, 402; 2 Allen, 148,) charged that the defendant, at a time and place named, and with unlawful intent, falsely pretended to William R. Huston that a certain promissory note for $500, dated May 25, 1859, and purporting to be signed by R. W. Blackwell, “ then and there produced by the said Abby A. Goddard and offered by her to the said William R. Huston in exchange for five hundred dollars, was a good and valid promissory note,” and that it was signed by Blackwell, who was rich, and lived in Boston, and had a place of business on India Wharf; “and the said William R. Huston, then and there believing the said false pretences and representations so made as aforesaid by the said Abby A. Gardner, and being deceived thereby, was induced by reason of the false pretences and representations so made as aforesaid to deliver and did then and there deliver to the said Abby A. Goddard his, the said William R. Huston’s check,” for $500, which the said Goddard received; and that the promissory note was not signed by Blackwell, and Blackwell was not rich, did not live in Boston, and had no place of business on India Wharf.</p> <p>After the exceptions taken upon the second trial were overruled, the defendant moved in arrest of judgment, assigning amongst other reasons that the indictment did not allege that the defendant delivered to Huston the .note described, or that he received the same from her, or that he gave to her the check in exchange therefor. This motion was overruled in the superior court, and the defendant appealed to this court.</p>

<p>A complaint which charges that the defendant, on a day specified and on divers other days and times between that day and the day of making the complaint, was a lewd, wanton and lascivious person in speech and behavior, does not set forth two offences, but is good, under Gen. Sts. c. 165, § 28.</p> <p>In a complaint under Gen. Sts. c. 165, § 28, for being a lewd, wanton and lascivious person in speech and behavior, it is not necessary to allege that the offence was committed to the common nuisance of the people of the Commonwealth.</p>

<p>Indictment for adultery with Susannah Miller.</p> <p>At the trial in the superior court, John W. Marshall testified that, in September 1861, having heard that Susannah had recently given birth to a child, he asked the defendant if it was true that he was the father, to which the defendant replied that it was true, and added that in April 1860 they came in the same vessel from Cape Breton, and afterwards lived for some months at his father’s in Rockport, and frequently occupied the same bed. A physician also testified that in September 1861 the defendant informed him that his wife was about to be confined, and requested his professional assistance, and afterwards summoned him to attend upon her, and he accordingly went to the house of the defendant’s father, where Susannah resided, and attended upon her at her confinement. It was also proved or admitted that the defendant was previously married, and that his wife was living.</p> <p>Evidence was introduced in defence tending to show that the defendant and Susannah did not come at the same time to the house of the defendant’s father, but that she came alone in October 1860, from Gloucester, and had ever since made it her home there, and that she and the defendant’s mother always slept together; and Susannah testified that the defendant never had carnal intercourse with her.</p> <p>The defendant requested the court to instruct the jury that mere confessions of the defendant were not sufficient to warrant a conviction, without evidence aliunde that the crime had been committed; but Ames, J. declined so to rule, and instructed the jury that the confessions were competent, and if the jury, on all the evidence, were satisfied that the defendant spoke the truth in making them, they might find him guilty.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>Complaint for assault and battery upon James T. Joslin.</p> <p>At the trial in the superior court, evidence was introduced in behalf of the Commonwealth to show that one Chapin and his wife agreed with one Greenarch to cultivate certain land belonging to Chapin’s wife on shares, and both men labored upon it accordingly until the harvest; that while Chapin and his servants, amongst whom was the defendant, were gathering the corn and potatoes which grew upon the land, Joslin came there and informed Chapin that he came as the agent of Greenarch to take his share of the crops; that Chapin ordered him to leave the premises, which Joslin refused to do, but proceeded, with those who were with him, to a cart upon the premises, in which Chapin and his servants had deposited the corn and potatoes which they had gathered, for the purpose of taking and carrying away Greenarch’s share, and thereupon Chapin ordered the defendant to remove Joslin from the premises, which the defendant did. It was not contended that the defendant used any more force than was necessary to remove Joslin.</p> <p>Upon this evidence, the defendant requested the court to rule that the complaint could not be maintained ; but Morton, J. refused so to rule, and instructed the jury that if they were satisfied that Joslin entered upon the premises as the agent of Greenarch, being duly authorized by him, for the purpose of removing his share of the crops, the defendant was not justified in ejecting him from the premises. The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>One who has been appointed under the laws of another state to be the guardian of a child whose legal domicil is in that state, has no absolute right to the custody of the person of his ward in this commonwealth; but his office of guardian will be considered by the court as an important element in determining to whom the custody of the child shall be granted.</p> <p>The appointment in this commonwealth of a guardian over a child whose legal domicil is in another state, and who has a guardian appointed under the laws of that state, does not deprive this court of the power, in its discretion, to decree the custody of the child to the foreign guardian.</p>

<p>Contract, to recover for the support and education of two wards of the defendant.</p> <p>At the second trial of this case in the superior court, before Ames, J., after the decision reported in 2 Allen, 206, it was agreed that on the 1st of November 1858 the plaintiff received from the defendant a letter saying that the detention of the children from him by her was wrong, and in violation of his rights as guardian, and demanding their return to him, and saying that he would not be responsible to her for their keeping, or for any expense on their account, after the reception of the letter. The case had been referred to an auditor, who reported that there was no understanding on the part of the defendant that the children were to remain in the plaintiff’s care for any fixed period of time, but temporarily and subject to his control, and that no price was agreed upon, and there was no express contract other than as above stated ; that, at the time when the letter above referred to was received, the children were both sick and unable to be removed, and the defendant did not then provide any method or means of removal, nor has he since done so, nor did it appear that he was requested to do so. The auditor also stated an account, made up with reference to the different dates at which it was contended that the liability of the defendant was terminated. The judge ruled that the plaintiff was entitled to recover for charges after the letter was received, as well as for those before that time, and, a trial by jury having been waived, found the damages accordingly. The defendant alleged exceptions.</p>

<p>Upon a bill of exceptions which reports all the evidence in a case, this court will not revise the decision of a judge of the superior court in submitting the case to a jury, unless the whole evidence, if believed and taken with all the inferences which may he drawn from it, is plainly insufficient to warrant the verdict which was rendered.</p> <p>Glass in plates of three or four feet square, and from half an inch to an inch in thickness, some of which is boxed in boxes of five hundred or six hundred pounds each, and some of which remains unboxed in the factory, and requires skill to remove it safely, and which cannot be removed except at unreasonable expense and considerable risk, may be attached in the manner provided in Rev. Sts. c. 90, §§ 33, 34; and a deputy sheriff who has so attached it, and has not taken it into his actual care and custody, may maintain an action for the conversion of it against a corporation whose officers, knowing of the attachment, have wrongfully caused it to be removed and sold within thirty days after the attachment.</p> <p>Tn an action by a deputy sheriff against a corporation for the conversion of a quantity of glass attached by him upon a writ against a glass manufacturing company, the plaintiff introduced evidence tending to show, amongst other things, that, after the attachment, the defendants, who were creditors of the glass manufacturing company, knowing that the attachment had been made, and for the purpose of preventing the plaintiff in the writ from receiving the benefit of it, and of securing a claim which they held against the same company, entered into an arrangement with the officers of the company, in pursuance of which money was advanced by the defendants to the latter to aid them temporarily in their business, and they sent away and sold the glass which was attached, and delivered the avails thereof to the defendants in payment of the money so advanced, and meanwhile continued the manufacture of glass, and the new supply, so manufactured, was taken on execution by the defendants in satisfaction of their claim. Seldy that this evidence was competent and sufficient to be submitted to a jury, and that their verdict upon it, for the plaintiff, could not be set aside on exceptions.</p> <p>An officer’s return is competent evidence to show that property attached by him in the manner provided in Rev. Sts. c. 90, §§ 33, 34, was such as might properly be so attached.</p> <p>A deputy sheriff who has attached personal property in the manner provided in Rev. Sts. c. 90, §§ 33, 34, and resigned his office and removed from the Commonwealth before judgment was recovered, may maintain an action in his own name for a conversion of the property before the recovery of the judgment, if the execution which issued thereon was delivered to another deputy sheriff, who, being unable to find the property, demanded the same of the sheriff of the county, and returned the execution wholly unsatisfied; and it is not necessary that the return upon the execution should set out the demand upon the sheriff.</p>

<p>Tort for the conversion of a cow.</p> <p>At the trial in the superior court, before Rockwell, J., it appeared that on the 6th of April 1861 the plaintiff owned the cow, and bargained to sell her to William K. Palmer; and there was evidence on the part of the plaintiff that the sale was not to take effect until payment of the price, and on the part of the defendant that the sale was on credit. There was also evidence to show that Palmer conspired with Edward Moore, a creditor of the plaintiff, to purchase the cow on credit, in order that the price might be attached on a trustee process which was instituted in favor of Moore against the plaintiff, and delivered to the defendant as an officer for service; and that, while the negotiations were in progress, the defendant took the cow from the possession of the plaintiff’s son, though not by way of attachment on the writ, and tied her up in the barn of Palmer, by whom she was thereafter retained. No exceptions were taken to the instructions of the judge to the jury as to what constitutes a conversion, but the defendant requested him to instruct them that “ if they believed there was a conspiracy on the part of Palmer and Moore, they must further find that defendant was knowing to said conspiracy and participated therein, in order to make what he did in regard to the cow such a conversion or intermeddling with the same as to render defendant liable in this action.” The judge declined so to rule, and the jury returned a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>The assignee of an account for goods sold cannot maintain an action thereon in his own name; and in an action brought upon such an account in the name of the vendor, who had sold and assigned the same to a third person, if it appears that the amount is justly due, the question whether the vendor has repurchased it is immaterial.</p>

<p>In an action by the indorsee against the maker of a promissory note, it is no defence to prove that the plaintiff procured the indorsement by undue influence from the payee, when he was of unsound mind and incapable of making a valid indorsement, if the payee or his legal representatives have never disaffirmed it; or that the payee, for a valuable consideration, had agreed to give up the note at his death to the maker, reserving meanwhile the right to collect the interest thereon.</p>

<p>An administrator may maintain a bill in equity to compel the delivery to him of notes against several distinct parties, which were formerly held by his intestate, and an indorsement and delivery of which were obtained from him by one of the defendants by fraud; and to restrain such defendant and his attorneys from prosecuting suits at law thereon, or parting with the possession of them; and in such bill the makers of the notes may properly be joined as parties. But if the administrator has also commenced an action at law to recover the value of the notes, he must elect which remedy he will pursue, and discontinue the other.</p>

<p>A judgment in favor of a husband and wife for a legacy given to her by a will proved before the passage of St 1857, c. 249, with no words to show that the same was for her sole and separate use, and an actual payment of the amount of the judgment by the executor to the attorne3e of the husband and wife, constitute a reduction of the legacy to the possession of the husband, so that the amount in the hands of the attorney is liable to be attached on trustee process by the husband’s creditors.</p>

Contract upon promissory notes. At the trial in the superior court, before Rockwell, J., a verdict was returned for the plaintiff, and the case reported for the determination of this court. The facts are stated in the opinion.

<p>After the repeal of St. 1855, c. 238, and before the enactment of the General Statutes, the levy of an execution upon land subject to a right of homestead acquired under the former statute might properly be made by deducting from the appraised value of the land the sum of eight hundred dollars for the right of homestead, and applying the residue to the satisfaction of the execution.</p> <p>If, since the repeal of St. 1855, c. 238, and before the enactment of the General Statutes creditors have levied their execution upon land subject to a right of homestead acquired under the former statute, this court has authority in equity to appoint commissioners to set off the right of homestead by metes and bounds, and to put the creditors in possession of the residue.</p>

<p>Contract against the makers and indorser of a promissory note, payable at the Housatonic Bank, in Stockbridge. The action was defended by the indorser, William B. Hall, alone.</p> <p>At the trial in the superior court, before Russell, J., it appeared that on the last day of grace, the note being unpaid, the cashier of the bank deposited in the post-office at Stockbridge a notice of the non-payment, addressed to the indorser at Curtisville, a distinct village within the town of Stockbridge, where the indorser lived, and where there was a post-office at which he usually received his letters, and that this notice was received by the indorser upon the following day. The judge ruled that upon these facts the plaintiff was entitled to recover, and a verdict was returned accordingly ; and the defendant Hall alleged exceptions.</p>

<p>Parties to a promissory note are liable to each other according to the legal effect of the in* strament, in the absence of an express agreement to the contrary; and, in an action by an indorser against the several makers of a note, one of whom signed as surety, to recover for money paid upon it, the burden of proof is upon the latter to show that the relation between himself and the plaintiff was in reality that of co-sureties.</p> <p>Tn an action by an indorser against the several makers of a note, one of whom signed as surety, to recover for money paid upon it, the latter does not establish a defence merely by showing that it was given to raise money to pay a former note upon which he and the plaintiff were the first and second indorsers respectively, and that, upon the request of the makers thereof, the plaintiff agreed that, if they would get the defendant to indorse it, he also would indorse it, and the note was made and indorsed accordingly.</p> <p>The relation of co-sureties between successive indorsers upon a promissory note is not established by showing that the second indorser used language which led the first indorser to believe that he intended to stand in that relation, and the first indorser was thereby induced to indorse it, if the second indorser did not in fact agree or intend to stand in that relation.</p>

Contract upon the following promissory note : “ $107. Six months from date, for value received I promise to pay Stephen E. Avery or bearer one hundred and seven dollars with use. Lee, December 1, 1860. Albert J. Taintor.” The note bore the following indorsement: “ Pay E. A. Bliss, cashier, or order.

<p>Contract brought in this court against a manufacturing corporation and several persons summoned as trustees. The writ was served upon the defendants in February 1857, by leaving a copy with the plaintiff, the president of the corporation, as appears by the portion of the officer’s return which is copied in the opinion. At May term 1862 the plaintiff moved that the defendants be defaulted ; and Riley Watkins, one of the supposed trustees, who had not been discharged, objected to the entry of a default, for want of sufficient service on the defendants. Dewey, J. overruled the objection, and directed the defendants to be called ; and Watkins alleged exceptions.</p>

<p>An administrator cannot maintain a petition for leave to sell real estate for the payment of debts of his intestate, if there are no debts due from the estate which can be enforced at law.</p>

<p>Contract to recover the price of spirituous liquors.</p> <p>After the former decision in this case, reported in 2 Allen, 228, a new trial was had in the superior court, before Russell, J., at which there was evidence tending to prove that an arrangement existed between the plaintiff and one Winslow, that on all orders for liquors which were obtained by the latter and accepted and filled by the plaintiff, one half of the profits on the sales should be paid to Winslow by the plaintiff as a commission; and that in pursuance of this arrangement the order for the liquors in question was obtained from the defendant by Winslow at Great Barrington, and was sent to the plaintiff, and that thereupon the liquors were sent by the plaintiff to the defendant at Great Barrington, and were there received by the latter. The judge instructed the jury, amongst other things, that “ the mere fact that Winslow had a commission upon the orders he procured, and which the plaintiff accepted, would not of itself make him an' agent to sell, or partner, but was evidence bearing on the question of his agency, and to have such weight as the jury might think it should have on that point.”</p> <p>The defendant asked the court to instruct the jury that if they were satisfied that an arrangement existed, as above set forth, and that in pursuance thereof Winslow obtained the order from the defendant for the liquors sued for, and the same were sent to the defendant in Great Barrington and were there received by him, the sale was made in Massachusetts ; “ and further, that if the jury are satisfied that Winslow as a matter of profit to himself received from Merchant and transmitted an order obtained in Great Barrington to Merchant, which was filled by Merchant, and liquor sent’to Great Barrington, the contract was made in Massachusetts.”</p> <p>The judge declined so to rule. A verdict was returned for the plaintiff, and the defendant alleged exceptions.</p>

<p>Complaint under Gen. Sts. c. 72, relating to the maintenance of bastard children. The complaint, accusation and examination were taken before a justice of the peace in the town of Adams, on the 8th of March 1861, in which it was alleged that the child was begotten in Lee on or about the 15th of May 1860, and born in Adams on the 7th of February 1861, and that the complainant removed from Lee to Adams in September 1860, and has since lived in the latter place. The warrant was made returnable before the police court of Adams, in which the defendant was ordered to give bond for his appearance at the superior court. At the trial in the superior court, the defendant contended that the police court of Adams had no jurisdiction of the case, but that the warrant should have been made returnable to the police court of Lee; but Ames, J. ruled otherwise. A verdict of guilty was returned, and the defendant alleged exceptions.</p>

Bill in equity, averring that at September term of this court 1859, at Lenox, judgment was recovered against John W. How-land, Russell C. Brown and the plaintiff for “ about $1500 and costs,” for the default of Howland as collector of taxes for the town of Cheshire, Brown and the plaintiff being the sureties on his bond, “ which said sum of money said Brown and Wolcott have been compelled to pay; ” that Howland is insolvent, and has recently obtained his discharge in…

<p>The assignee of a first mortgage may maintain a bill in equity to restrain the prosecution of a writ of entry against him in the superior court to foreclose a subsequent mortgage which embraces another lot now owned by the assignee of the second mortgage, and liable to contribute towards the payment of the mortgage debt.</p>

Tort for the conversion of one hundred cords of hemlock nark.

<p>Petition for partition. The bill of exceptions, in addition to those facts which are sufficiently stated in the opinion, recited that “ the respondents, in order to show that in January 1809 Conrad Van Deusen distributed all his real estate in Great Barrington, offered a deed from said Conrad to Jacob Van Deusen, dated January 6, 1809; also his deed of the same date to John Van Deusen ; said deeds conveying land not in dispute. The court rejected the evidence.</p> <p>“ The respondents offered the book of valuations in Great Barrington (in which the premises were situated) to show that Conrad Van Deusen was taxed for no real estate in said town from 1809 to 1818, the date of his death ; but the court rejected the evidence. The respondents’ counsel offered to prove that work had been done on the premises by persons employed by Isaac Van Deusen from 1809, without objection from any one; and, being asked for what purpose this was offered, stated that it, was to show that no claim adverse to Isaac Van Deusen was set up. The court excluded the testimony. The respondents did not set up any claim by prescription.”</p> <p>“ The petitioners introduced, the respondents objecting, a deed from Ralph Taylor to said Isaac Van Deusen, and one from Jacob Van Deusen, son of said Conrad, deceased.”</p> <p>The trial in the superior court was before Russell, J., who, against the respondents’ objection, allowed various records and documents, which had been read in evidence, to be taken by the jury when they retired to deliberate on their verdict. The verdict was for the petitioners, and the respondents alleged exceptions.</p>

<p>Contract upon a promissory note given by the defendant to the plaintiff, as treasurer of the Farmers’ Company, an unincorporated trading association in Monterey. The defendant filed an account in set-off, embracing, among other items, claims for goods which, upon a division of the property of the company, were assigned to two shares in the company owned by him.</p> <p>A trial by jury was waived in the superior court, and the case was heard before Ames, J., who found that in June 1860 the defendant received notice that the company had decided to close its business and divide its property among the members, and, the property on hand having been divided into separate parts, one lor each share held in the company, the defendant attempted to remove the goods assigned to his shares, but was forbidden to do so unless he paid for them in money, or gave a note with surety for the payment of his proportion of the debts of the company, if any assessment should be made for them ; and accordingly, these terms being refused, the goods never came into his possession, but were sold and converted into money by the company. Debts to and from the company still remained due. The judge ruled that the defendant was not entitled to be allowed for these items of set-off, and found for the plaintiff. The defendant alleged exceptions.</p>

<p>Contract against “ Mary Swan, wife of Charles Swan, of Sheffield, in said county, the said Mary being liable to be sued in this action the same as if she were sole and unmarried.” The declaration was as follows: “ And the plaintiff says the defendant owes him one hundred and sixty dollars according to the annexed account, and interest on said sum.” The annexed account was for “ commission on sale of house and lands on Staten Island to Mr. Joseph Hyde, in August 1860, for the sum of $16,000; 1 per cent., $160.” The defendant demurred to the declaration, assigning as cause that it did not state that the property sold was the sole and separate property of the defendant, or any facts which constitute a legal cause of action against her ; but Putnam, J. overruled the demurrer.</p> <p>At the trial in the superior court, before Rockwell, J., the plaintiff, in opening his case, contended that it was not incumbent upon him to prove that the services mentioned in the declaration were actually performed, or that they were of the value alleged, under the answer; but the judge ruled otherwise. The plaintiff then introduced certain evidence which was set forth in the exceptions; and, under the direction of the judge, a verdict was returned for the defendant. The plaintiff alleged excep tians.</p>

<p>Tort against certain town officers of Washington for the conversion of a cow. The conversion alleged was by taking and selling the cow on a tax warrant.</p> <p>At the trial in the superior court, it appeared that in 1857 the assessors of Washington, where all the parties lived, assessed upon the plaintiff in addition to his money taxes a highway tax of $19.40 ; that this assessment was legally made and duly committed to one Crane, the highway surveyor for the district in which the plaintiff lived, to be collected in labor, according to law and the vote of the town; that Crane gave due notice to the plaintiff in that year to work out his tax, and afterwards, claiming that the plaintiff had not done so, rendered to the assessors, in the spring of 1858, a list of the highway taxes in his district for 1857, on which the name of the plaintiff was borne, and was not marked as paid; that in the year 1858 the plaintiff, one Manley and one Abbott were assessors, and the plaintiff, in April 1858, presented to the board a bill of work which he claimed had been done by him, in compliance with the request of Crane, upon the roads in his district, amounting to $19.40; that the board were then satisfied that the plaintiff had worked out the tax, and one of them crossed it off, on the list, with the assent of the others; and the assessors of 1858 did not do anything further in relation to it.</p> <p>In 1859, Charles Crozier, one of the defendants, was one of the board of assessors, and the defendant Johnson was the collector. The tax list was delivered to the collector in June or July, and in September, after he had collected a portion of the taxes, the assessors added to the list the said highway tax, as a money tax to the plaintiff, as follows: 11 Highway tax for 1857, Philip Eames, $19.16.” The warrant was also altered so as to direct the collection of a certain sum for overlayings and deficiencies on the highway taxes “ for 1857 and 1858,” instead of “ for 1858,” as it had originally been written. This tax, however, remained uncollected until the summer of 1860, when the board of assessors for that year, consisting of Crazier and two others, who were made defendants in this action, directed Johnson to collect it by seizing and selling property of the plaintiff, and thereupon Johnson proceeded to seize and sell the plaintiff’s cow, and applied the avails, so far as necessary, to the payment of the tax.</p> <p>There was conflicting evidence as to whether the plaintiff actually worked out the tax in 1857; but Rockwell, J. ruled that this question was immaterial, and that the plaintiff was entitled to recover against all the defendants. A verdict was returned accordingly, and the defendants alleged exceptions.</p>

Two actions of replevin of hay. The cases came up together, upon an agreed statement of the following facts : The land from which the hay was cut was formerly owned in part by the defendants as tenants in common, and in part by the defendant Cole in severalty; and on the 27th of June 1860 the plaintiff purchased at a sheriff’s sale the equity of redemption thereof, and received deeds accordingly.

<p>Mere negligence on the part of a person insured, which is the direct cause of a loss by fire, is not a defence to an action upon the policy, if he acted in good faith, and his negligence did not amount to recklessness and wilful misconduct.</p>

<p>Tort, brought against Jeremiah Osborn in his lifetime, under Gen. Sts. c. 142, for making false answers in his examination in an action in favor of the plaintiff against John Hitchcock, in which Osborn was summoned as trustee. Osborn died after the commencement of the action, and the defendant, who was •the administrator of his estate, was summoned in to defend it; and, objection being made, Rockwell, J. ruled that the action did not survive, and ordered it to be dismissed. The plaintiff alleged exceptions.</p>

Bill in equity by daughters of Willard B. Sherman against his wife and sons, and the trustee under the will of W. Bissell Sherman, praying that the said wife and sons may be ordered to pay over to the plaintiffs certain legacies left to them in the will of W. Bissell Sherman, or, in default thereof, that the trustee may be ordered to sell so much of the real estate upon which the legacies were charged as should be sufficient to raise money to pay the legacies, expenses and…

<p>A deed of a mill site described by metes and bounds gives no right to the use of a reservoir dam above, which is owned by the grantor, although the stream is small and the use ot the reservoir dam is necessary to the beneficial use of a mill upon the granted premises.</p> <p>If the owners of different mill sites upon the same stream join in the erection of a reservoir dam for their common benefit, and the titles to- the different privileges afterwards become united in the same person, a conveyance by him of the lower mill site by metes and bounds gives no right to the use of the reservoir dam.</p> <p>If the mortgage of a mill site does not include the right to use a reservoir dam upon the stream above, the mortgagee cannot avail himself of a right to use the same obtained by the mortgagor and his grantors by prescription, if he does not show a conveyance of such right to himself.</p> <p>A deposition in perpetuara, taken at the request of owners of different mill sites upon a stream, for the purpose of establishing the right to flow land by means of a reservoir dam which was used jointly by them, is not admissible in evidence for the purpose of establishing a right- to use the reservoir dam in one to whom the lower mill site was afterwards conveyed by a deed which did not include such right.</p>

<p>Contract upon a judgment recovered against a corporation. James N. Richmond was summoned as a stockholder, and, the corporation being defaulted, the action proceeded against him alone. At the trial in the superior court, it appeared that Richmond was a stockholder of the company at the time when the original debt was contracted, but ceased to be so more than a year before the recovery of the judgment now declared on, and that he was not summoned as a stockholder in the action on which that judgment was rendered ; and Rockwell, J. ruled that he could not be held liable in this action. The plaintiff alleged exceptions.</p>

<p>Liability as a stockholder for a judgment debt of a corporation is not established merely by proof that in the suit in which the judgment was recovered, the person sought to be charged as a stockholder was summoned and failed to appear.</p>

<p>Under Gen. Sts. c. 156, § 6, the plaintiff in an action of contract is not entitled to costs, if his claim is overbalanced by a set-off, and a verdict is returned for the defendant.</p>

<p>Contract upon the following promissory note : “ Lee, April 16, 1858. One year from date, for value received, we, the prudential committee for and in behalf of the Baptist Church in Lee, agree to pay William Morell or bearer one hundred dollars with use.</p> <p>“ Hosea Codding,</p> <p>“ Moses E. Culver,</p> <p>“ Francis Dillingham.”</p> <p>The defendants demurred to the declaration, assigning for cause that the note was not the note of the defendants, but of the Baptist Church in Lee. The demurrer was sustained in the superior court, and the plaintiff appealed to this court.</p>

<p>After proof from the records in the clerk’s office of the recovery of a judgment and the Is suing of an execution thereon, the contents of the execution and of the officer’s return showing a levy thereof upon land may be proved by a copy from the records in the registry of deeds, if the execution has been lost after having been duly returned.</p> <p>If the agent or attorney of a judgment debtor neglects, upon notice, to appoint an appraiser, the officer may appoint one for him, and the officer’s return is conclusive evidence that a person therein named as such agent or attorney is such in reality; and in setting forth the appointment of two appraisers by the officer, in consequence of the neglect of the agent or attorney of the judgment debtor, upon notice, to appoint one, it is unnecessary to mention which of them was appointed in behalf of the judgment debtor. One who has taken and still relies upon a conveyance of land from a company which assumed in giving it to act as a corporation, cannot deny their legal existence as a corporation in an action against him to recover possession of the land by another person who has attached the same in an action against the company as a corporation, prior to the recording of the deed, and has subsequently levied his execution thereon.</p> <p>Proof of open occupation, possession and cultivation of land by one who has an unrecorded deed thereof is not sufficient to warrant- the inference that a third person has actual notice of such deed.</p>

Contract by a deputy sheriff, upon an accountable receipt in the usual form, executed by the defendant for property attached by the plaintiff upon a writ against Edward Dorr.

<p>Under St. 3845, c. 208, § 2, an ante-nuptial contract is absolutely void, if not recorded as therein required in the county in which the husband resides, if he is resident within this commonwealth.</p> <p>Neither St. 1855, c. 304, nor St. 1857, c. 249, enables the bearer of a promissory note given by a husband to his wife, for a valuable consideration, and payable to her or bearer on demand, to maintain an action thereon against the maker.</p>

<p>Writ of entry. At the trial in the superior court, upon facts which were not in controversy and which are stated in the opinion, Morton, J. ruled that the demandants were not entitled to recover; and, a verdict having been returned for the tenant, reported the case for the determination of this court.</p> <p>G. T. Davis & S. O. Lamb, for the demandants. 1. The deed of Alfred to Levi Steel must be treated as an absolute deed, there being no words providing that in any event it should be void. Shep. Touchstone, 126, 128, 371. Freeman's Bamk v. Vose, 23 Maine, 98. Abbott v. Pike, 33 Maine, 204. Leavitt v. Lamprey, 13 Pick. 382. 2. The levy was invalid. It does not appear to have been made on the estate of Alfred Steel, but on that of the administrators. The judgment itself, being upon a note which bad been cancelled, was a fraud upon Alfred’s estate. 3. The deed of Levi Steel to the demandants conveyed at least a life interest to the demandants, on the re-marriage of Almina. The provision that the time of its taking effect should be postponed is inoperative. Bac. Ab. Grant, I. Germain v. Orchard, 1 Salk. 346. Com. Dig. Fait, E. 7. Wallis v. Wallis, 4 Mass. 135. Brewer v. Hardy, 22 Pick. 376. Coley v. Coley, 19 Conn. 114. Jackson v. Swart, 20 Johns. 85.</p>

<p>An uninterrupted and exclusive occupation, by a married woman, of real estate for more than twenty years as her own, vests in her a valid title, and her husband may avail himself thereof in defence to a writ of entry brought against him by the heirs of one to whom, within the twenty years, he has executed a deed of release thereof.</p>

<p>Appeal by the guardian of a spendthrift from the decree of the judge of probate, disallowing certain items of his account. The case came up upon the report of an auditor, and it was agreed that the facts found therein might be taken as true. The auditor found, in reference to the securities taken by the guardian, which are referred to in the opinion, that the guardian had reasonable cause to believe that the notes of Sinclair were secured by the mortgage which he took for that purpose upon the equity of redemption of the farm ; that Sinclair represented himself and was reputed to be worth some four or five hundred dollars, and the guardian had reasonable cause to believe that the notes signed by Sinclair and Conant were good and would be paid at maturity; that Morse, at the time when the note signed by him and others was taken, was reputed to be very wealthy, and his note was considered abundantly good-, and the guardian had reasonable cause to believe that the note taken by him was good, but soon after that time Morse became involved in difficulties which caused him to leave for parts unknown.</p> <p>The other material facts are sufficiently stated in the opinion. The case was reserved by Dewey, J. for the determination of the whole court.</p>

<p>The owner of a dog which has inflicted an injury on a child cannot exempt himself from the liability imposed by statute because it appears that the child did not act with the discretion and judgment of a person of mature years; but he is liable, if the child was bitten while using such care as is usual with children of its age, and there was no want of ordinary care in the person having the care of the child.</p> <p>If, in an action to recover for an injury inflicted upon a child by a dog, the case is submitted to the jury under instructions requiring them to find that neither the fault of the child nor of the mother, who had the care of the child, contributed to the injuiy, a verdict for the plaintiff will not be set aside because the judge refused to instruct the jury, at the request of the defendant, that it is prima facie evidence of want of care for a mother to allow her child to play with a strange dog.</p> <p>If the father and next friend of an infant, who is plaintiff in an action to recover for an injury inflicted by the bite of a dog, enters into a submission reciting that there is a controversy in relation to damage sustained by his child, by a dog belonging to the defendant, and agreeing to refer the whole subject in dispute to arbitrators, and signs the same with his own name, an award of the arbitrators finding that the defendant shall pay a certain sum to the father and another sum to the child is no defence to the action.</p>

<p>Proof of repeated sales by a defendant, at his tavern and grocery, of brandy, rum and whiskey, which were drunk upon the premises, is sufficient to sustain an indictment for being a common seller of intoxicating liquors, without direct proof, under Gen. Sts. c. 172, § 10, that the persons to whom such sales were made were not druggists, apothecaries or physicians.</p>

Complaint under Gen. Sts. c. 72, relating to the maintenance of bastard children. At the trial in the superior court, before Lord, J., it appeared that the child was born on the 1st of August 1860, and the complaint to the magistrate alleged that it was begotten on or about the 25th of October 1859.

<p>Under Gen. Sts. c. 208, §§ 2, 3, a mortgage of the land of a married woman held by her to her sole and separate use, executed without duress by her and her husband jointly, to secure a debt of her husband and a third person, is valid; and the fact that she signed a note for the same debt as surety for them is immaterial.</p> <p>If a married woman has jointly with her husband executed a deed of land held by her to her sole and separate use, the effect of the words of grant in the early part of the deed is not controlled or varied by a statement in the last clause that she signs in token of héi release of dower.</p>

<p>if a sucking colt, while following its darn which is led by her owner in a highway, is kicked and killed by a horse which has been turned loose in the highway without a keeper, the owner of the colt, if found by the jury to have been in the exercise of reasonable care, may recover damages of. the owner of the horse, although the horse was not vicious.</p>

<p>Tort for the conversion of a horse and wagon.</p> <p>The bill of exceptions, signed by Brigham,, J., set forth that at the trial in the superior court various questions ¿rose as to the title to the property, respecting which rulings were made which were set forth in the bill of exceptions, but are unnecessary to be stated here. Among other rulings requested by the defendant was the following: “ That no recovery can be had in this action against the defendant, unless it shall appear that before the demand and refusal he actually converted said property, or that at the time of the demand and refusal he had it in his power to give up the property.” The judge gave instructions upon the various other matters requested, but omitted to comply with the above request, or to instruct the jury upon that subject. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p> <p>An amendment to the bill of exceptions was offered, under the circumstances stated, in the opinion.</p>

<p>Contract upon a note of $130, bearing the name of Thomas Crafts as joint maker with Martin Crafts, and three drafts, one of $130, and the other two of $100 each, drawn by Martin Crafts and bearing the name of Thomas Crafts as indorser, falling due November 26, December 8, 16 and 22, 1860, respectively. The action was originally commenced against Thomas Crafts, and after his death his executors appeared and took upon themselves the defence, which was that the signatures of his name were forged.</p> <p>After the former decision in this case, reported in 2 Allen, 269, a new trial was had in the superior court, and a verdict rendered for the plaintiffs, which was set aside as not supported by the evidence. A third trial was had in the superior court, before Morton, J., at which it appeared that the signatures of the name of Thomas Crafts were not made by him personally, but that all of the paper was presented to the plaintiffs for discount by his son, Martin Crafts, who lived in Malden. There was no direct evidence of any express authority in him to use his father’s name; and Thomas Crafts testified, by deposition taken before his death, that his name was signed without his authority or knowledge ; that so far as he had any knowledge the signatures were forgeries; that he never authorized Martin or any other person to use or sign his name to any notes, acceptances or drafts, and had not himself indorsed any paper for Martin within two or three years of the date of the paper in suit.</p> <p>The plaintiffs however sought to recover upon the following grounds : 1. That the signatures of Thomas Crafts were placed upon the paper by Martin with his express or implied authority or consent. 2. That, as to the note and the two drafts first due, the signatures of the name of Thomas had been ratified and adopted by him. 3. That, as to the note and two drafts, Thomas Crafts had misled the plaintiffs into the belief that the signatures were genuine, so that he or his representatives could not now deny the same.</p> <p>There was no dispute that the drafts were duly protested and notice thereof given to Thomas Crafts.</p> <p>Upon the second and third grounds of the plaintiffs’ claim, the evidence relied upon by them tended to show that, after sending to Thomas Crafts a duplicate notice of the protest of the draft first due, the plaintiffs’ cashier, Edmund W. Russell, addressed to him a letter, on the 13th of December, informing him of the overdue paper then held by the bank (to wit, the note and the draft first due) and requesting his immediate attention to the same, to which he received no reply; that notice of the protest of the second draft was shortly after received by the plaintiffs, whereupon, on the 17th of December, Russell went to see Thomas Crafts, who admitted the receipt of Russell’s letter to him, and the notice of the protest of the first draft, and Russell told him of the receipt of the notice of the protest of the second draft, which also had been forwarded by mail; that Thomas Crafts said he knew the notes were overdue and ought to have been attended to, that he expected Martin up to see to them, that he or his son, James M. Crafts, had written to Martin and they expected him very soon, that either Martin or James should come to Greenfield in a day or two and it should be arranged or settled, and that he had property enough to pay all the notes, but had not the ready money; that Russell told him if he wanted time there would be no difficulty about that; and that Thomas Crafts did not say or intimate that the note and drafts were not genuine. Russell did not have any of the paper with him at the time, and did not inform Thomas Crafts of two other similar drafts not then due which were held by the bank. The evidence also tended to show that the plaintiffs had no knowledge that the signatures were not genuine, and that their genuineness was not questioned till the 19th of December, when James M. Crafts went to Greenfield to ascertain the amount of paper bearing the name of Thomas Crafts held by the plaintiffs and another bank, and, on the next day, after ascertaining that there was similar paper at other banks, he wrote to the plaintiffs that Thomas Crafts would not pay any of the paper so signed; whereupon the plaintiffs’ president at once started for Malden, with a writ of attachment, and reached there on the morning of December 21st, and made an attachment of certain property of Martin’s, but was unable to find him, he having left on the day before. It did not appear that Martin had made any conveyance or concealment of his property between the 17th and the 21st of December. Martin Crafts was afterwards arrested for forgery of his father’s name upon similar paper on a complaint by another party, and at the time of the trial was held in jail. Thomas Crafts was about eighty years of age and quite infirm at the time of these transactions.</p> <p>Among other evidence tending to prove authority in Martin Crafts to sign his father’s name, the plaintiffs introduced evidence tending to show that on three occasions within three years before they took any of the paper in suit, other similar paper to that in suit, on which Martin had signed his father’s name, and which was held by other parties, was protested, and notices of the protests sent to Thomas Crafts by mail, prepaid, addressed to him at Whately, where he lived and usually received his letters, and that no reply or disavowal in any form of the right of his son so to use his name was received from or made by him. There was evidence tending to show that in fact the notices were not received.</p> <p>The defendants requested the court to instruct the jury that if they were satisfied that the signatures of the name of Thomas Crafts, when made, were forgeries, the defendants could not be held liable upon the ground that they were ratified and adopted, unless upon proof of such facts as would amount to an estoppel in pais; that, to constitute such an estoppel in this case it was incumbent on the plaintiffs to prove that the delay of two or three days after December 17th prejudiced their means or chances of obtaining payment from Martin ; and that all the facts proved and relied upon by the plaintiffs were insufficient to amount to such an estoppel, or to show such an adoption of the signatures by Thomas Crafts as would warrant a verdict for the plaintiffs. The judge declined to instruct the jury in accordance with the first and third of the above requests, but instructed them that the evidence was competent for their consideration upon the question whether Thomas Crafts had ratified or adopted the signatures as his own, and such ratification or adoption, if proved, would be equivalent to a previous authority • and upon the question what would constitute such ratification or adoption, the judge gave such instructions as would be applicable to an ordinary case of apparent or assumed agency, and no objection was' made that the instructions were not proper as applied to such a case. Upon the third ground of the plaintiffs’ claim, the judge instructed the jury substantially as prayed for in the second clause of the defendants’ prayer.</p> <p>The plaintiffs requested the court to instruct the jury that the presumption js that a letter, deposited prepaid in a post-office, addressed to a person living and receiving his letters usually at the post-office at which it is addressed, reaches him. The judge declined so to rule, and instructed them that there was no conclusive presumption of law that the notices were received, but it was a question of fact for the jury, upon all the evidence in the case, and that it was for the plaintiffs to establish that the notices were received before they would be at liberty to draw any inferences from a neglect to reply to them.</p> <p>The jury were also instructed that if they found for the plaintiffs upon the first ground, they should return a verdict for the full amount of the note and the three drafts ; but if upon either of the other grounds, they should return a verdict for the note and the two drafts first due. Their verdict was for the plaintiffs, for the amount of the note and the two drafts first due. Both parties alleged exceptions.</p>

<p>The legislature have power to pass a statute providing that the validity of existing marriages shall not be questioned in the trial of collateral issues, on account of the insanity or idiocy of either party.</p> <p>The St. of 1845, c. 222, providing that the validity of a marriage shall not be questioned in the trial of a collateral issue, on account of the insanity or idiocy of either party, applies to marriages existing at the time of its passage; and, in an action to recover for expenses incurred in support of a pauper, against a town in which his settlement is sought to be established by reason of a marriage existing before the passage of that statute, it cannot be shown in defence that the marriage was invalid, by reason of the insanity of one of the parties.</p> <p>The children of a woman who marries a pauper follow his settlement.</p>

<p>Contract by the guardian of Isaac Sheldon, a minor, to re cover back the amount of taxes assessed upon the property of Isaac by the defendants in 1859, and paid by the plaintiff under protest. The following facts were agreed in the superior court: Isaac was born in 1845, and has been blind for many years. His father died in 1852 and his mother in 1854, both having their domicil in Northampton. His paternal grandfather resides in Northampton, but has had no wife for many years. His maternal grandfather and grandmother reside in Whately. Until his mother’s death, the family of his father lived in the same house with his paternal grandfather, but after her death, the grandfather having no family except hired help, he ceased to live there. Controversies arose as to where he should remain, and suits as to matters connected with his estate. In April 1857 these controversies were arranged, and Isaac by his guardian’s direction was brought to his grandfather’s house in Whately, where he has ever since remained, considering it as his home. The guardian has regularly paid for his board there. Since the death of his mother, he has had no place in Northampton to which he has habitually resorted or gone as a home, but occasionally has been to see his relations there ; and the guardian has not reserved or provided for him any boarding place or rooms at Northampton, or had any such place in his mind. His friends and attachments are almost entirely in the family of his grandfather in Whately, and he has been living there without any plan or expectation of removing to any other place. He owns real estate to a large amount in Northampton, which is managed by the guardian ; and the guardian has been taxed in Northampton every year since his" appointment, in 1853, for personal estate of Isaac, and has paid the taxes without objection till last year. He has also been taxed in Whately since 1859, but has paid no tax there, except under protest. When Isaac first went to Whately, the guardian intended that he should merely make a visit of a few months there, and afterwards go to some school out of Whately, and so informed him, and afterwards endeavored at various times to induce him to go to some such school, but without success. The guardian has allowed him to remain in Whately, because Isaac wished it; and has no definite intention to allow him to remain, or to remove him.</p> <p>Upon these facts, judgment was rendered in the superior court for the defendants, and the plaintiff appealed to this court.</p>

<p>fhe legislature have power to pass an act empowering this court to authorize executors administrators, guardians and trustees to adjust by arbitration or compromise controversies that may arise between different claimants to the estate in their hands, to which they and all other parties in being, claiming an interest in such estate, shall be parties; and providing that such arbitration or compromise, if found by this court just and reasonable in relation to its effects upon any future contingent interests in said estate, shall be valid and bind such interests as well as the interests of the parties in being; and giving authority to the court to appoint some suitable person to represent such future contingent interests.</p> <p>Under St. 1861, c. 174, § 1, empowering this court to authorize executors, administrators, guardians and trustees to adjust by arbitration or compromise controversies that may arise between different claimants to the estate in their hands, to which they and all other parties in being, claiming an interest in such estate, shall be parties, and providing that such arbitration or compromise, if found by this court just and reasonable in relation to its effects upon any future contingent interests in said estate, shall be valid and bind such interests, parties in being, having only future contingent interests, need not be parties to an agreement of compromise.</p> <p>Under Gen. Sts. c. 109, § 13, if a person liable to be put under guardianship resides without this commonwealth, and his estate in this commonwealth consists in part of personal property which is held in trust for him, the probate court of the county where the trustee resides has jurisdiction to appoint the guardian.</p> <p>Under a devise of real and personal estate in trust, with directions to pay over the rent and profits of the real estate and the dividends and income of the personal estate to the testator’s several sons for life, and upon the death of any of them to pay over the proportion which he would have been entitled to receive to his legal heirs, until the death of all of said sons, and then to convey and assign all of the real and personal estate to then legal heirs, the word “heirs,” if there is nothing in the will to show that the testator intended otherwise, will be construed according to its common law interpretation, and will not include those who would be entitled to a share of the personal estate under the statute of distributions; and such persons need not be made parties to an agreement of compromise, under St. 1861, c. 174, § 1, of a controversy arising between different claimants to the devised estate.</p>

<p>Contract against the indorser of a lost note of $>5Ü0, signed by one Pritchard and given by him as a business note to the defendant, to whose order it was payable, and by whom it was indorsed to one Newell, who transferred it to the plaintiff before its maturity. At the trial in the superior court, before Morton, J., various questions arose which are not now material. The judge directed a verdict to be returned for the plaintiff, and reported the case for the determination of this court.*</p>

<p>Trustee process. The Conway Fire Insurance Company, a corporation established in Boston, was summoned as one of the trustees, and it appeared that on the same day, and two or three hours after the time, of the service of the writ upon the secretary of the company in Boston, their vice-president, under circumstances stated in the opinion, drew and delivered to the defendant Rowland the following order, in Worcester, a distance of about forty-five miles from Boston: “ $500. Worcester, January 18th 1861. At sight, pay to the order of Dan. Rowland five hundred dollars in payment of loss on policy No. 583, and charge to account of Conway Fire Insurance Company, and oblige yours respectfully, Jas. D. Kent, Vice-Pres. To D. C. Rogers, Esq., Sec. Conway Fire Ins. Co., Boston, Mass.” Upon receiving this order, Rowland surrendered the policy, and indorsed upon it the following receipt: “ Boston, Jan. 18th 1861. Received of the Conway Fire Insurance Company five hundred dollars in full satisfaction for all loss and damage to property insured under this policy by fire on the morning of the 17th inst., and this policy is surrendered. Dan. Rowland. Witness: Aug. N. Currier.” At the hearing in the superior court, the company was discharged, and the plaintiffs appealed to this court.</p>

<p>Petition for a writ of certiorari, to quash the proceedings of the mayor and aldermen and common council oeing the city council, of Springfield, in locating anew a road called Chestnut Street, in Springfield. The facts are stated in the opinion.</p>

<p>In the trial of a complaint against a mrm for an assault and battery upon his wife, she is a competent witness in his favor.</p>

<p>In order to sustain a defence, under St. 1855, c. 215, § 37, to an action upon a promissory note given for the price of intoxicating liquors sold in another state to an inhabitant of this commonwealth, it is not sufficient simply to prove that the plaintiff had reasonable cause to believe that the purchaser intended to sell the liquors in Massachusetts, in violation of law; but it must be proved that the purchaser actually entertained such intent.</p> <p>After a verdict for the defendant, in an action upon a promissory note given for the price of intoxicating liquors sold in Connecticut to an inhabitant of this commonwealth, a new trial will not be granted because the defendant was allowed to show, by cross-examination of the plaintiff, that the latter had long been an extensive dealer in liquors in Connecticut, and had employed counsel in legal business in this commonwealth, though not in relation to the sale of liquors.</p>

<p>Tort for the obstruction of a natural stream of water, by means of a dam.</p> <p>At the tidal in the superior court, before Vose, J., there was evidence to show the uses which the plaintiffs have heretofore made of the water of the stream, where it crosses Main Street in the city of Springfield, below the defendant’s land, and the method in which the defendant has used and obstructed the same; and it was a question in dispute whether the plaintiffs had established a title to Main Street. Upon the evidence in respect to the latter question, the facts not being denied, the judge ruled that the plaintiffs had not made out their title, and he directed the jury to return a verdict for the defendant, and also to answer the two following questions: “ 1. Is the dam of the defendant of such magnitude as is adapted to the size and capacity of the stream, and to the quantity of water usually flowing therein ? 2. Is the mode of using the dam by the defendant, by closing the gate at night for the purpose of letting the pond fill, an unusual and unreasonable use, according to the general custom of the country in cases of dams upon similar streams?” The judge instructed the jury that, in answering these questions, they were to decide as practical men, upon the evidence in the case, with their judgments aided by the testimony of the experts, and the evidence relative to the general usage or custom of the country, or to dams upon similar streams, and by their own view of the premises, and that they were not to take into view the rights claimed by the plaintiffs in determining the facts involved in these inquiries.</p> <p>The plaintiffs made no objections to these instructions, and did not ask for any others; and the jury answered the first question in the affirmative, and the second in the negative.</p> <p>To the ruling of the judge directing the jury to return a verdict for the defendant, the plaintiffs alleged exceptions.</p>

<p>Contract brought against the defendant by Calvin Skinner and Seth B. Tice. The declaration alleged that Skinner and Marcus Tupper entered into a written contract with the defendant, by which they agreed to manufacture for him one million of brick upon certain terms and conditions to be observed and performed by each party; that, after certain preparations had been made for the fulfilment thereof by Skinner and Tupper, it was mutually agreed that Tupper should be discharged by the defendant from the obligations of the contract, and that Tice should be substituted in his place, and that Skinner and Tice should fulfil the same according to the terms thereof; and that they accordingly proceeded to do so, but the defendant failed and refused to perform the stipulations on his part. The answer denied various of the allegations in the declaration; and a declaration in set-off was also filed, for various cash items and a promissory note.</p> <p>At the trial in the superior court, before Vose, J., the defendant asked the court to rule that evidence of the above facts would not enable the plaintiffs to maintain the action in their own names. The judge declined so to rule, and instructed the jury that if, with the consent of the defendant, Tupper sold out his interest in the contract to Tice, and Skinner and Tice agreed with the defendant to manufacture the brick for him on the terms mentioned in the contract, and Tupper with the consent of the defendant left the work, and Skinner and Tice proceeded to make the brick upon those terms, they might maintain the-action.</p> <p>The defendant offered to show, by one Knox, that he made and furnished to the plaintiffs six thousand unburnt brick, which were set in the first kiln, and afterwards counted out to him under the contract; but the evidence was excluded.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>Tort for an assault and battery.</p> <p>At the trial in the superior court, before Vose, J., it appeared that at a public meeting in Wales in May 1861 resolutions were adopted to “ take such measures as shall suppress every word or act that shall have a tendency to countenance or in any manner encourage the disunion of our country;” and a committee was appointed “to visit those suspected of being disloyal.” The defendant, who was one of the selectmen of the town, participated in these proceedings. The committee visited the plaintiff, a crowd following, and, upon his refusal to satisfy them of his loyalty, he was taken forcibly from his house, put upon a horse, driven through the streets, and subjected to various annoyances. The defendant testified that he was merely a spectator of these latter proceedings, and did not aid or encourage them in any manner.</p> <p>The judge instructed the jury that if it formed no part of the purpose of those present and taking part in the meeting to inflict violence and rudeness upon any one, and no such purpose was contemplated or avowed or suggested at such meeting, a mere participation in the proceedings of the meeting would not make the defendant liable for any force or violence subsequently inflicted by other persons on the plaintiff, in consequence of his refusal to accede to the request of the meeting; but if it formed any part of the purpose or plan of those engaged in the meeting to commit any act of trespass or violence upon the property or persons of any who might refuse to accede to the wishes of the meeting, and such purpose was known to the defendant, and the violence subsequently inflicted on the plaintiff was in pursuance of such purpose, then the defendant would be liable, though he did not actively participate in it; that in order to make the defendant liable in this action, the jury must be satisfied either that he actively and forcibly aided and participated in the violence and outrage done to the plaintiff, -which was not claimed to be the fact upon the evidence, or that he was present at the commission of the acts of trespass, encouraging or exciting the same by words, gestures, looks or signs, or by countenancing and approving the same by some way or means, and that his being present without disapproving or opposing the violence was evidence from which, in connection with the other facts in the case, it was competent for them to infer that he assented thereto, lent to it his countenance and approval, and thereby aided and abetted it; that the burden of proof was upon the plaintiff to satisfy them that the.defendant was thus present, aiding, encouraging or exciting the commission of the unlawful acts; that mere presence" at the commission of the violence would not render the defendant liable ; that if he was there as a mere spectator, without any unlawful intent, and doing no act to countenance or approve those engaged in it, he was not to be held liable on the ground that he was there as a looker on merely, and did not use active endeavors to prevent the commission of the unlawful acts; and that, although it was the duty of the defendant, as one of the selectmen, to suppress and disperse all riotous assemblies, and although he was liable to punishment by a penalty if he neglected so to do, yet he would not thereby be rendered liable, as a participator in the riotous proceedings, to any party injured, and that such neglect would not of itself make him liable in this action, although the jury might take the fact into consideration, with all the other facts and circumstances, upon the question whether he did in fact participate, or approve and acquiesce in the unlawful proceedings.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

Tort against a deputy sheriff for the conversion of various articles of furniture and several hundred pounds of pork. The defendant justified the taking of the articles on the ground that he attached them on writs against Ann McGough, to whom they belonged.

<p>The writ in this case averred that the action was “ an action of contract, or an action of tort, both being for one and the same action.” The declaration contained but one count, setting forth that the defendants, who were agents for lending money in Lyons, Iowa, undertook to collect for the plaintiff a note for $2500, given for money lent by him in Iowa through their agency, and by their fraudulent, wrongful and negligent conduct succeeded in collecting only $2250 thereof, and refused to pay to him that sum, though requested. The action was tried as an action of tort.</p> <p>At the trial in the superior court, before Vose, J., the defendants were allowed to read in evidence from a pamphlet purport ing to be the “ Acts, Resolutions and Memorials, passed at the regular session of the Fourth General Assembly of the State of Iowa,” having upon it “ the certificate of the secretary of state of Iowa,” for the purpose of showing that the money for which the note was given was lent upon a usurious rate of interest, and that a penalty was imposed by the laws of Iowa upon such loans, and that they acted discreetly and prudently in the arrangement and settlement made by them, by which they received the $2250. The plaintiff objected to the admission of this evidence on the ground that the pamphlet purported to contain the acts of a single session merely; but the objection was overruled.</p> <p>The judge instructed the jury that the plaintiff was not entitled to recover in this action the sum of $2250 collected by the defendants, and in their hands as the plaintiff’s agents.</p> <p>The jury returned a verdict for the plaintiff, with a small sum as damages; and he alleged exceptions.</p> <p>At the opening of the argument in this court, Bates applied to the court for leave to amend the exceptions by making certain changes therein, which were agreed to in writing by the defendants. Bigelow, C. J., after consultation with his associates, stated that the amendment could not be allowed, unless made by or with the consent of the judge who presided at the trial; because the alteration of a bill of exceptions which had been allowed by him might change the whole aspect of the case, and do injustice to him.</p>

<p>An action for money had and received may be sustained by proof that money was received by the defendant for the price of property which was delivered to him by the plaintiff to sell, with the agreement that upon the sale, and the receipt of the price, he should pay a certain sum to the plaintiff; although the plaintiff executed an absolute bill of sale of the property to the defendant, in which the receipt of the price was acknowledged.</p>

<p>Writ of entry. Upon agreed facts, which are sufficiently stated in the opinion, judgment was rendered in the superior court for the tenants; and the demandant appealed to this court.</p>

Whit of dower, to recover the dower of the female plaintiff as the widow of Aretas Fowler in certain land in Southwick. In the superior court, a jury trial was waived and the case was heard before Ames, J. It appeared that Levi W. Humphrey by deed dated April 22,1847, acknowledged April 29, and recorded April 30, conveyed the premises to Fowler, who executed a mortgage thereof to said Humphrey, dated and acknowledged on April 39th, and recorded on April 30th.

<p>Two appeals from the decree of the judge of probate, disallowing petitions for distributive shares of the estate of James Dimmick, deceased.</p> <p>At the trial in this court, before Dewey, J., it appeared that the petitioners were sons of said Dimmick and Hannah Converse, bom out of wedlock, and that the parents subsequently, in 1840, intermarried, and the father acknowledged the petitioners as his children; and on the 12th of July 1858 Dimmick executed his last will, making no provision for or mention of the petitioners therein.</p> <p>In order to show that this omission was intentional, the respondents were allowed to introduce evidence of declarations by the testator, made at various times within twenty years, that he had provided for the petitioners by a marriage contract with said Hannah, and should give them nothing more; and Benjamin G. Hyde testified that from fifteen to twenty years ago, in a conversation with Dimmick about another matter, Dimmick told him that he had a wife and three children, James Dim-mick, Jr., Elfleda Pendleton and William Dimmick, and that these three would have all his property; that his wife, Hannah, would have $1000, and would not spend it, and when she died it would go to Henry and Edwin Converse. Several former wills, in which no provision was made for the petitioners, were also introduced in evidence and read to the jury.</p> <p>The judge instructed the jury that it was incumbent on the respondents to show that the omission by the testator to make provision for the petitioners was intentional, and not occasioned by accident or mistake; that this question was solely in reference to the will of July 12th 1858, and all the evidence as to former wills or as to the testator’s declarations was immaterial, except as it had a bearing in connection with the making of the last will, to satisfy them of his purpose and intention at that time.</p> <p>The jury returned a verdict for the respondents; and to the admission of the above evidence the petitioners alleged exceptions.</p>

<p>Neither the subsequent declarations nor the subsequent acts of one who has sold goods to another are competent evidence to defeat or impair the purchaser’s title, on the ground that the sale was in fraud of creditors.</p>

<p>Bill in equity to redeem land from a mortgage.</p> <p>At the hearing in this court, before Dewey, J., by whom the case was reported for the determination of the whole court, it appeared that on the 13th of March 1856, Charles A. Young, who then owned the premises, which were subject to a right of homestead in him and his family, executed a mortgage thereof, jointly with his wife, to Edward B. Gillett, containing a power of sale authorizing Gillett, in case of default in performance of the condition, to sell the premises; but providing that he should make affidavit of his proceedings under the power, and that the affidavit should be so made and recorded in the registry of deeds for the county of Hampden within one year after the sale. Under this power, Gillett sold the premises on the 23d of April 1859 to William Provin, and made an affidavit of his proceedings on the 21st of April 1862, which was recorded on the foiloxring day. On the 2d of April 1858, Young executed a mortgage of the premises to the plaintiff, in which his wife did not join.</p> <p>Various other facts were stated in the report of the case, respecting the sale, and other deeds of the premises, all of which became immaterial in the final decision of the case.</p>

<p>If anything remains to be done by the consignor of goods or his agents after their delivery to a railroad company, before the are ready for transportation, the company are only responsible for them as warehousemen, and not as common carriers.</p> <p>If an arrangement or course of business exists between two railroad companies whose roads are upon the same general route, but do not actually connect with each other, by which goods, which have been carried to the termination of one road, and are destined to some point upon or beyond the line of the other, are delivered to the second company with a bill of the expenses already incurred, from which, if found to be correct, a way bill is made out, the second company are only responsible as warehousemen, and not as common carriers, for goods so received and stored by them, until the delivery of the bill of expenses.</p>

<p>Tort, to recover damages for trespass quare clausum, and erecting a fence upon the plaintiff’s land.</p> <p>After the former decision in this case, reported in 2 Allen, 312, a new trial was had in the superior court, before Vose, J., at which it appeared that the plaintiff derived his title to the premises under a deed from Frederick Dwight, and that the defendant claimed title thereto under a prior deed from Dwight to himself. The plaintiff contended and offered evidence to prove that there was a misdescription of the premises conveyed in the latter deed, and that the same was fraudulently inserted therein by the defendant, so as to cover a piece of land designed by Dwight for a street adjoining the land agreed to be conveyed, and that upon discovery of the fraud Dwight entered upon the piece of land so fraudulently included in the deed, and avoided his deed as to the same, before making his deed to the plaintiff.</p> <p>For the purpose of proving these facts, the plaintiff was permitted to show that agents of Dwight, acting under his general directions, shortly before the execution of the deed to the defendant, made a plan of his land, of which the premises described were a Dart, showing that a street was laid out over the land which he alleged was so fraudulently included in the deed, and that, after the deed had been executed by Dwight, the defendant sent it to be executed by Mrs. Dwight at a time when Dwight was not present.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Tort, to recover damages for trespass guare clausum. It was agreed in the superior court that the selectmen of Montgomery laid out a private way over the plaintiff’s land, the location of which contained this provision: “ The way so laid out to be used only during the time of sleighing.” The defendant after-wards travelled upon said way, as one of the persons for whose benefit it was laid out. Upon these facts, judgment was rendered for the plaintiff, for the agreed sum of one dollar; and the defendant appealed to this court.</p>

<p>An emancipation of a minor child by paroi agreement and without consideration is revocable, until acted upon.</p>

<p>Contract upon a promissory note for $51083.79, da+ed April 19,1856, given by the defendant to the plaintiffs. The answer admitted the signing of the note, but averred, amongst other things, that if any consideration ever existed, it was illegal and void ; that the plaintiffs and other parties were creditors of F. W. Kibbe, who instituted proceedings in insolvency and was examined touching the disposition of his estate; and David Clark, one of the plaintiffs, alleged that in his examination he had committed perjury, and commenced a prosecution against him therefor in the police court of Springfield and took out a warrant for his arrest; and before the arrest was made represented to the defendant, who was the father-in-law of Kibbe, that if he would sign the note in suit the criminal proceedings should be discontinued and suppressed, but otherwise should be carried on, and every means possible employed to procure Kibbe’s conviction, and the defendant was thereby induced to sign the note, and in consideration of his signing it, Clark agreed to discontinue and suppress the criminal proceedings, which was accordingly done.</p> <p>At the trial in the superior court, before Vose, J., there was conflicting evidence in reference to the matters set up in the answer. The defendant testified in substance that the variousaverments were true, and that the warrant for Kibbe’s arrest was exhibited to him before he signed the note; and he was then asked whether or not, if the warrant had not been exhibited to him, and Clark had not stated that he should have Kibbe arrested on it unless the note was given, he would have signed the note. But this evidence was excluded.</p> <p>The defendant asked the court to instruct the jury that if the warrant for perjury was made use of by Clark in any manner to procure the execution of the note, the note was void. The judge declined so to rule; and instructed the jury that, whatever use may have been made of the warrant to procure the execution of the note, such use of it under the answer in this case would not avoid the note unless it was accompanied with a promise not to serve the warrant if the note was given ; and that it was not enough that the defendant may have hoped or expected that the warrant would be suppressed, or that Clark may have intended to stop the prosecution if the note was given but that there must have been an agreement between the parties to that effect, and the note must have been given wholly or partly in consideration of such agreement, though the agreement need not be in writing, or in any particular form of words.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>If, in a suit in equity to redeem land from n mortgage, the defendant in his answer has expressly waived all objections to the redemption thereof by the plaintiff, upon the payment of all such sums as shall be found due, he cannot afterwards be allowed to insist that the mortgage had been foreclosed before the commencement of the suit.</p> <p>In ascertaining the amount due to a mortgagee in a suit in equity to redeem land from a mortgage, the burden of proof is on the defendant to establish payments for which he claims allowance.</p> <p>If the holder of a mortgage upon land who has entered and taken possession thereof for the purpose of foreclosure has agreed with the holders of other mortgages to waive his entry and possession, and that the parties shall occupy the land as joint property for the security and payment of their several debts, and that the land shall not be sold for five years without the consent of the mortgagor, the declarations of the holder of one of the subsequent mortgages are not thereby made competent evidence, after his death, in behalf of the others, to establish pajunents or expenditures for which they claim allowance under their mortgages; nor is he thereby authorized to bind the mortgagor by payments or expenditures for or on account of the land, which would otherwise be unauthorized.</p> <p>A mortgagee who has paid a claim upon which he was a surety of the mortgagor, and which the mortgage was given to secure, may be allowed for the whole sum so paid, in accounting with the mortgagor, although he has afterwards received contribution of a portion thereof from a co-surety.</p> <p>A mortgagee in possession of mortgaged premises is accountable for rents and profits which he might have received by the exercise of reasonable care and diligence, and cannot be allowed for payments for any purposes not strictly embraced within the provisions of the statute.</p>

<p>Bill in equity, alleging that on the 1st of July 1861 the plaintiffs were appointed assignees in insolvency of Nourse, Mason & Co., a firm doing business in Boston; that Nourse, Mason & Co. were insolvent, and had stopped payment on the 1st of June 1861; that Graham, Emlin & Passmore, a firm doing business in Philadelphia, Pennsylvania, were indebted to them in the sum of $3000; that the defendants Calvin Foster & Co. then were and still are creditors of Nourse, Mason & Co. to the amount of $2200, that they were and are citizens of this commonwealth, and their debt was contracted and payable here; that they knew that Nourse, Mason & Co. had stopped payment and were insolvent, and had reason to believe and did believe that proceedings in insolvency were about to be instituted by or against them ; and that, with intent to obtain a preference over other creditors, and to avoid the operation of the insolvent laws, Foster & Co. on the 1st of June instituted a suit in Philadelphia against Nourse, Mason & Co., and caused the debt of Graham, Emlin and Passmore to be attached by the process of foreign attachment, which suit and attachment are still pending. The prayer was that Nourse, Mason & Co. might be ordered to assign the said debt to the plaintiffs, and that Foster & Co. might be restrained from proceeding with their suit and attachment, and for other relief. To this bill, the defendants Foster & Co. filed a general demurrer.</p>

<p>A town is not responsible in damages if a horse, being frightened by an accident, breaks away from his driver and escapes from all control, and afterwards while running at large meets with an injury through a defect in a highway.</p>

<p>Writ of entry to foreclose a mortgage. The defence was that the note and mortgage were obtained by duress and fraud, and were given for an illegal consideration. For the purpose of obtaining a decision upon the questions of law arising in the case, Allen, C. J., directed a verdict for the plaintiff, in the superior court, upon evidence which is sufficiently stated in the opinion ; and the defendant alleged exceptions.</p>

<p>Under a will which, after various specific devises and bequests, contains the following provision: “ If anything remains, my will is that the residue shall be deposited in the Worcester Savings Bank, and to be appropriated by my executors to the relief of my heirs, if they at any time shall need pecuniary assistance; ” the entire beneficial interest in the residue vests in those who are the heirs at law of the testator at the time of his death, and, if they all desire it, and the executors consent, the trust may be annulled, and the property distributed amongst them, upon their executing a release to the executors.</p>

<p>A contract by an infant, if ratified by him after he becomes of age, is valid, although at the time of the ratification he did not know that he was not legally liable to pay the debt.</p>

<p>A person does not acquire a settlement by residing in a town for ten years together and paying all taxes assessed upon him for five years within said time, if during that time the town has paid for his support while confined in its workhouse, on conviction for a criminal offence.</p> <p>A town which has paid money for the support of a criminal in its workhouse cannot maintain an action to recover the same from the town where lie had his settlement.</p>

<p>Contract upon a judgment recovered by the plaintiff against the defendants in September 1858. Francis H. Dewey and Edmund Freeman were summoned as stockholders in the defendant corporation, the writ containing, at the end of the declaration, a recital and direction as follows : “ And whereas said corporation has failed to comply with the laws of this commonwealth concerning corporations, whereby the stockholders of said company have become individually liable for the debts of the corporation, you are hereby commanded to attach the goods or estate of Francis H. Dewey of Worcester in said county of Worcester, and Edmund Freeman of Springfield in our county of Hampden; who now are, or at the time of contracting the debt in the plaintiff’s declaration mentioned were, stockholders in said corporation,” &c.; and each of them filed an answer denying that he was a stockholder, or that he was in any way liable to the plaintiff for his claim against the corporation.</p> <p>At the trial in the superior court, before Rockwell, J., it was in dispute whether Dewey was ever a stockholder in the corporation, but it appeared and was specially found by the jury that he was not a stockholder at or after the time when the judgment was recovered. There was evidence tending to show that Freeman had been a stockholder for several years past. There was no evidence that the corporation had failed to comply with the provisions of Rev. Sts. c. 38, § 22; and the judge instructed the jury that, in order to warrant a verdict against either of the alleged stockholders, they must be satisfied that there had been some act or omission by the corporation which would render its stockholders liable, under the statutes of this commonwealth, and the burden of proof was on the plaintiff to show this.</p> <p>The jury returned several verdicts for Dewey and Freeman ; and the plaintiff alleged exceptions.</p>

<p>Contract upon a promissory note and account annexed, against a corporation established under the laws of this commonwealth. Several individuals were also summoned as stockholders.</p> <p>At the trial in the superior court, before Rockwell, J., it appeared that the plaintiffs were residents of Providence, Rhode Island, and that the contracts in suit were made in that state. The defending stockholders asked the judge to rule that their liability depended on the laws of Rhode Island, and that the plaintiffs could have no claim upon them personally on account of a want of compliance by the corporation with the provisions of the statutes of this commonwealth; but he declined so to do.</p> <p>The jury returned a verdict for the plaintiffs, and found specially that the defending stockholders were liable ; and the latter alleged exceptions.</p>

<p>Complaint, alleging that the defendant on the 3d of October 1861 owned and kept a dog, “ without causing the said dog to be numbered, collared, registered and described according to law,” &c.</p> <p>At the trial in the superior court, the defendant admitted in open court that on or about the 1st of June 1861 he purchased the dog, and was the owner and keeper of him, as alleged, until the 3d of October, and did not cause him to be licensed, or know that he was licensed. Rockwell, J., instructed the jury that, upon the admitted facts, they would be authorized to return a verdict of guilty, which they accordingly did ; and the defendant alleged exceptions.</p>

<p>An officer’s custody of a prisoner whom he has arrested upon a warrant and brought before a court for trial does not cease until the prisoner has been discharged, or a warrant of commitment made out.</p> <p>Informality in a complaint or in a sentence which has been orally pronounced affords no justification to one who has forcibly aided a prisoner held upon a valid warrant to escape.</p>

<p>One to whom money has been delivered in exchange for intoxicating liquor belonging to a third person cannot be allowed, in the trial of an indictment against him for selling the liquor in violation of law, to prove that several days afterwards he returned the money to the person from whom he received it, with a letter saying that the person for whom he acted did not sell liquor and wished the money to be given back.</p> <p>Assuming without authority to act as agent for the owner does not exonerate one from criminal responsibility for selling intoxicating liquor; but merely acting as messenger, and transmitting the liquor from the seller to the buyer, and the money from the buyer to the seller, does not render one criminally responsible.</p>

<p>Ir the trial of an indictment for a nuisance, under Gen. Sts. c. 87, § 6, a request by the defendant for an instruction to the jury that “ the government must show that the defendant was not authorized to keep and sell the liquor (if any) which it was proved that he did keep and sell in the building described,” is substantially complied with by an instruction that the burden of proof is upon the government to prove beyond reasonable doubt that the tenement ivas used and maintained by the defendant for the illegal keeping or sale of intoxicating liquors.</p> <p>An indictment which alleges that the defendant kept and maintained “ a certain tenement, to wit: in a building (which is described) then and there used for the illegal sale and for the illegal keeping of intoxicating- liquors, said tenement, so used as aforesaid, being then and there a common nuisance,” sufficiently alleges that the tenement was used for the illegal purposes specified.</p>

<p>Indictment for keeping and maintaining a nuisance, under Gen. Sts. c. 87, § 6, from May 18, 1860, to the time of finding the indictment.</p> <p>At the trial in the superior court, before Rockwell, J., before the jurors were sworn, the defendant objected to them for the reason that they had previously and at the same term of court convicted him under another indictment charging him with keeping and maintaining the same building as a nuisance down to the second Monday of May 1860. There was at the same time another jury in court before whom this case might as well have been tried, and the defendant, being ready and willing to be tried by that jury, objected to being tried before the jurors who actually sat in the case, for the reason that such trial would be in violation of the 29th article of the Declaration of Rights. The judge overruled the objection, and the defendant, having been convicted, alleged exceptions.</p>

<p>A complaint under Gen. Sts. c. 86, § 42, which avers that certain intoxicating liquors are kept and deposited by A. and B. in a certain building occupied by them, “which liquors are intended by the said A. and B. for sale in this commonwealth, said A. and B. not being authorized to sell the same in this commonwealth,” sufficiently alleges an intent to sell the same in violation of law.</p> <p>A record of a seizure of liquors upon a complaint under Gen. Sts. c. 86, § 42, which states that “ in the opinion of the court the liquor so seized and the vessels containing the same is valued at more than twenty dollars,” sufficiently shows that in the opinion of the court the value of the liquor seized with the vessels containing it exceeds twenty dollars.-</p> <p>If various original documents, in a case of seizure of intoxicating liquors under Gen. Sts. c. 86, § 42, show clearly that a notice to the persons complained against as keepers of the liquor seized, and all other persons claiming any interest therein, was issued within twenty-four hours after the seizure, an error in the record of the court by which a later date is inserted as the time of issuing the notice is immaterial.</p> <p>The issuing of the notice provided for in Gen. Sts. c. 86, §§ 46, 54, is merely a ministerial act, and need not be recorded.</p> <p>A complaint under Gen. Sts. c. 86, § 42, may be maintained, although founded upon evidence obtained by means of former proceedings instituted for the purpose of gaining possession of the building in which the liquors were kept, and without any actual knowledge on the part of the complainants in the former proceedings as to the liquors or the vessels containing them.</p> <p>Unless a final judgment of forfeiture has been rendered in the superior court, in a case of seizure of liquors upon a complaint under Gen. Sts. e. 86, § 42, it is immaterial whether a bill of exceptions to rulings at the trial shows that the liquors seized were the same which were described in the complaint.</p>

<p>Complaint to the justice of the police court of Worcester, alleging that the complainants have reason to believe and do believe that certain intoxicating liquor, which was described, is kept and deposited by Patrick McSweeney in a certain building, &c. At the trial in the superior court, before Ames, J., an issue was framed to be passed upon by the jury, and they returned a verdict that the liquor described was owned or kept by McSweeney, as alleged in the complaint. Other objections similar to those in the preceding case were also taken.</p>