Volume 87 — Massachusetts Reports

<p>Contract to recover the price of about 75,000 pounds of wool. The declaration contained six counts, three of which set forth an executory contract for the purchase of the wool, and three were for wool sold and delivered. The answer set up in defence, amongst other things, the statute of frauds.</p> <p>At the trial in the superior court, before Ames, J., the plaintiff proved that the defendant agreed to purchase the wool of his brokers, in the city of New York, and introduced in evidence the brokers’ note of the contract, which the judge ruled was insufficient in form to take the case out of the statute. The plaintiff then introduced evidence tending, as he contended, to show a delivery and acceptance of a portion of the wool, sufficient to satisfy the statute. This evidence was reported in full, and so much thereof as is now material is stated in the opinion. The defendant requested the court to rule, amongst other things, that, in order to entitle the plaintiff to a verdict, he must prove that there had been a delivery of the property sold to the defendant, and an acceptance of it by him ; and that there was no evidence to warrant the jury in finding either a delivery or an acceptance. He also contended that, assuming the testimony offered by the plaintiff to be true, the case ought nevertheless to be withdrawn from the jury, and a verdict directed for the defendant, or that the jury should be instructed that the defendant was entitled to a verdict, on the ground that the evidence was not sufficient, with all the inferences and deductions which could legitimately be drawn from it, to prove such a delivery and acceptance of the wool, or any part thereof, as to make him responsible upon the contract.</p> <p>The judge declined so to rule, or to withdraw the case from the jury, but submitted it to them under instructions requiring them to find a delivery and acceptance of a portion of the wool, in order to warrant them in giving a verdict for the plaintiff, and defining what would be a sufficient delivery and acceptance for this purpose.</p> <p>The jury returned a verdict for the plaintiff, with damages in the sum of $>10,639.71; and the defendant alleged exceptions</p>

<p>Contract by the indorsees against the indorser of the following promissory note : “ Boston, June 15, 1854. $9000. Four months after date, I promise to pay to the order of W. & D. D. Farnum at Granite Bank two thousand dollars, value received. (Signed) H. M. Holbrook. (Indorsed) W. & D. D. Farnum.” No service was made on Holbrook, and the action was prosecuted against Welcome Farnum alone.</p> <p>It was agreed, in the superior court, that Holbrook, who wras a citizen of this commonwealth, made the note, payable to the order of Welcome Farnum, under the name of W. & D. D. Farnum, and that Farnum indorsed the same before its maturity to the plaintiffs at their place of business in Rhode Island, the plaintiffs being a corporation established in that state. The note was duly presented at the Granite Bank in Boston, and, payment not being made, was protested. Farnum afterwards instituted proceedings in insolvency in this commonwealth, and obtained his discharge, the plaintiffs not proving their claim against his estate. Farnum’s assets did not pay fifty per cent, of the debts proved, and he did not have the assent of a majority in number and value of his creditors to his discharge, unless certain creditors were reckoned who made oath to their claims before a justice of the peace, and before the allowance thereof assented in writing upon the back of their claims to the granting of a certificate of discharge to him, and whose assents were never filed otherwise than by the filing of the claims with the assents written thereon ; and unless the assent of 8. O. Mead was included, who proved a claim of $15,189.36, and assented to the granting of the certificate only for the amount of $10,100, which was the portion of his claim which was proved for his own benefit, the residue having been proved by him for the benefit of another person, for whom he did not wish to act in relation to the matter of the discharge.</p> <p>Upon these facts, judgment was rendered in the superior court for the plaintiffs ; and the defendant appealed to this court.</p>

<p>In this case, upon the petition of the inhabitants of Mendon, a writ of certiorari was granted by this court, (2 Allen, 463,) commanding the county commissioners of Worcester to certify to this court their proceedings in approving and allowing a town way located by the selectmen of Mendon, after determining that the town had unreasonably neglected and refused to allow the same. At the former hearing, no answer had been filed; but before the writ was issued, it was agreed by counsel that an answer might be filed, and that the case should be considered by the court as if the writ had issued, and the case had been heard upon the writ and answer.</p> <p>The answer averred that due notice was given to the town and others interested, and due proceedings in other respects had, which were set out in detail; that the town did not appear, but two of the selectmen appeared, who stated that they were not authorized to appear for the town; that the commissioners viewed the route and examined two witnesses, whose testimony tended to show that it would be the shortest and most convenient route for travel from certain portions of Mendon to the neighboring towns; that at this stage of the proceedings the commissioners stated that they considered the burden of proof to be upon the town to show cause why the commissioners should not approve and allow the way, as located by the selectmen, and if no evidence was introduced in behalf of the town, and if the commissioners were not otherwise satisfied to the contrary, it would not be necessary for the petitioners to put in any further testimony; that the selectmen then said that they did not wish to call any witnesses ; that no points or questions were reserved, or exceptions taken ; and thereupon, the commissioners being unanimously of opinion, from the view of the route and the evidence introduced as aforesaid, that the town had unreasonably refused to approve and allow the way, and being of opinion that the burden of proof was upon the town to show cause why the same should not be allowed, proceeded to approve and allow the way.</p> <p>The petitioners filed a replication, averring that the answer contained matters and things not required to be reported by the order of the court passed upon the hearing of the petition for the writ of certiorari, denying the facts set forth by the respondents, averring that the answer did not contain all the material facts necessary to the determination of the case, and praying that they might be heard upon the facts. But Merrick, J. disallowed the replication, ordered the petition to be dismissed, and reported the case for the determination of the whole court.</p>

<p>If a petition, addressed to “ the Board of Mayor and Aldermen and Common Council of the city of Worcester,” and praying for an assessment of damages to an estate in the city of Worcester, caused by altering the grade of an adjoining highway, has been acted on by the mayor and aldermen, and damages refused, and thereupon on application to the county commissioners a warrant has been issued for a jury to determine the damages, and a trial had before them, and their verdict set aside, it is too late for the city, on an application for a new warrant for a jury, to object to the irregularity in the address of the original petition.</p>

<p>In an action for slander, the burden of proof is on the plaintiff to prove that the words were spoken within two years before the suing out of his writ*</p>

Tort for slander in charging the plaintiff with having burned a building, the property of the defendant and Edward Earle. At the Mai in the superior court, before Putnam, J., the speaking of the words was proved.

<p>Contract upon the following written instrument: “ Boston, Jan. 22, 1859. Three months after date, I promise to pay Lewis Thayer or order thirty dollars on demand, and if the said Connor should be removed from this building as used for a bird store then this note is null and void, and the said Thayer is to have the furnace in the cellar. James Connor.” The declaration, after amendment, stood as follows: “ And the plaintiff says that in the month of January 1859 he sold and delivered to the defendant the furniture in a store in Scollay’s building, so called, in Boston, and the furnace in the cellar under said store, and, in consideration of the sale and delivery of the said furniture and furnace by the plaintiff to the defendant, the said defendant agreed to pay the plaintiff the sum of sixty-five dollars therefor as follows : thirty-five dollars in cash, which the defendant paid, and the sum of thirty dollars according to the terms of an agreement, a copy whereof is annexed to the plaintiff’s writ. And the plaintiff avers that the said defendant has never paid said sum of thirty dollars, although the three months from the date of said agreement have long since elapsed, and the said plaintiff has demanded payment of said sum, to wit, on the first day of May A. D. 1859. And the said plaintiff says the said defendant was not removed from the building as used for a bird store, mentioned in said agreement.” The answer, amongst other things, averred that the money “ was made payable on the happening of a condition,” and that “ the condition never happened or came to pass,” and denied that the defendant was allowed to occupy said building.</p> <p>At the trial in the superior court, before Putnam, J., it became a question upon which party the burden of proof rested in reference to the condition of the agreement; and the judge instructed the jury that it was on the plaintiff to show that the defendant was not removed from the store referred to within three months.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

Contract brought by the executor of Kittredge Hill against the executor of Nathan Rice, upon a promissory note for $1000 signed by the latter. It was agreed, in the superior court, that Rice died in July 1859, and his executor filed his bond on the 2d of August 1859; that Hill died in December 1859, and his executor filed his bond in January 1860; and that this action was commenced on the 24th of September 1861.

<p>If several different creditors, acting separately, without concert, and without knowing that they were employing a common agent, have wrongful!}7 caused their debtor to be arrested on their several writs, by the same officer, who served the writs simultaneously, and by virtue thereof committed the debtor to jail, where he was confined upon all of them at the same time, they are to be regarded as joint trespassers; and full satisfaction received by the debtor from one of them is a bar to an action by him against the others.</p>

<p>Replevin of a carryall and chaise. The following facts were agreed in the superior court:</p> <p>In May 1860 S. W. Howe executed a bill of sale of the articles to the plaintiff, absolute in terms, and delivered them to him. It was agreed that the plaintiff should hold them as security for indorsing a note for the accommodation of Howe, which the plaintiff has since been compelled to pay. The plaintiff then left the carriages in Howe’s custody, telling him that he might let them to his most careful drivers; and Howe accordingly kept them and, let them to his customers. The plaintiff frequently visited Howe’s barn and saw them. In December 1860, while the carriages were in Howe’s custody, he sold them for a valuable consideration to the defendant, who had no notice of. the transaction between him and the plaintiff. It was not contended by the defendant that there was any fraud in the transaction between Howe and the plaintiff.</p> <p>Upon the foregoing facts, judgment was rendered in the superior court for the defendant, and the plaintiff appealed to this court.</p>

<p>Contract to recover $281, being the price of labor and materials. The answer, among other defences, set up that the defendant held a promissory note of the plaintiff, for $473, payable on demand to Lewis Smith or order, and indorsed by Smith to the defendant before the commencement of the action.</p> <p>At the trial in the superior court, before Putnam, J., it appeared that Smith indorsed the note of the plaintiff to the defendant for a good and valuable consideration, after the expiration of sixty days from its date, and before the commencement of this action, but that no notice of the transfer had been given to the plaintiff, and there was no evidence that the plaintiff had knowledge thereof, before the commencement of the action. The judge ruled that the note could not be set off against the plaintiff’s claim, and the jury returned a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>If attached property, of which due care is taken by the officer or keeper, is stolen, the officei is not liable for the loss.</p> <p>In an action against an officer to recover the value of attached property.which has'been stolen, if evidence has been introduced to show that in particular instances his keeper was careless in leaving the room in which the property was kept with the door unlocked, he may show in reply that it was the habit of the keeper to lock the door, when about to leave the room.</p> <p>If a judgment debtor whose property has been attached on mesne process has paid the amount of the judgment, and informs the officer thereof, and demands the return of his property before the expiration of thirty days from the rendition of the judgment, and the officer, without asking for delay or authority from the judgment creditor to deliver up the property, replies that it is lost and he cannot deliver it up, this is a waiver of any right which he might otherwise have had for farther time.</p> <p>An officer is not made liable for the conversion of attached property, by proof that it has been stolen from his possession.</p>

<p>If, upon the sale of attached property on a writ, the money received was put into the hands of the creditor, who, after obtaining judgment and taking out execution, refused to pay over the same to the deputy sheriff who had the execution, so that it could be applied thereon, and the execution was returned in no part satisfied, the lien obtained by the attachment is dissolved at the expiration of thirty days; and another creditor who subsequently attached the same property, subject to the former attachment, and has obtained judgment and execution in his suit, becomes entitled thereto, and may maintain an action against the sheriff, if, upon committing the execution to him for service, the property is not found, or the avails of it applied thereon.</p>

<p>Under Gen. Sts. c. 133, § 32, machines of simple construction, moved by the hand or foot, and used in the manufacture of boots, are exempt from attachment, although the owner employs a number of men under him in carrying on the business, by whom the machines are generally used.</p>

<p>It seems that a valid title to land is not acquired by the levy thereon of an execution which issued on a judgment in a suit in which no legal service of the writ was made upon the defendant, although after the rendition of the judgment he waived the want of legal service upon him; certainly not, if the evidence simply shows that, upon being informed of the judgment and levy, he made no objection, and said that he was willing the land should go to pay that debt, but does not show by whom he was so informed, or to whom he made the statement.</p>

<p>Under an agreement to indorse any paper which another person may give for purchases made, to a certain amount each month, no liability arises until the purchases have been made and the notes given or requested to be given, or unless notice of the purchases has been given to the contracting party within a reasonable time; and a delay of nearly four months is unreasonable.</p> <p>Such an agreement does not cover a claim for labor performed in rolling iron to prepare it to be manufactured in a wire mill, unless a general usage is proved to include such labor under that term; and evidence that in contracts of the kind in controversy, made for supplying a wire mill, such labor, according to the well understood and general usage of the business, is a purchase, does not show a use so general as to justify the assumption that parties guaranteeing the payment of purchases, intended to become liable for charges for such labor.</p>

<p>Contract, alleging that Edward L. Davis made a written contract with the plaintiffs, in the following terms : “ Hartford, 18th November 1846. For value received, I, Edward L. Davis, promise to pay to the Protection Insurance Company or their order my second instalment on thirteen shares of the stock of said company, being $325; and the same shall be paid in whole, or from time to time in part, as the same shall be required, within thirty days after demanded, or upon notification of thirty days in any newspaper printed at Hartford. E. L. Davis; ” that at the same time the defendant, by a written agreement indorsed on the same, guaranteed the performance of the promise of E. L. Davis, in the following terms: “ In consideration that the Protection Insurance Company accept the within note for the purpose therein mentioned, I, Isaac Davis, warrant the payment of the same according to the tenor thereof, until the expiration of forty-five days after notice is given by me that my responsibility shall no longer continue. Isaac Davis ; ” that payment of the whole instalment was duly required to be made at the plaintiffs’ office in Hartford on the 19th of October 1854, and notice given by publication made in a Hartford newspaper, and that due notice had been given to the defendant, but neither he nor E. L. Davis had ever paid any part of the amount.</p> <p>At the trial in the superior court, before Ames, J., there was evidence tending to show the circumstances under which the contract and guaranty were executed, and that payment had been required, and notice thereof given by publication in the newspaper, as alleged; but there was no evidence that any notice was given to the defendant, or that he had any knowledge thereof, until July 17th I860. The judge thereupon ruled that the defendant, in order to be made liable on .his guaranty, was entitled, within a reasonable time after the instalment was ordered to be paid, to notice that it had become due from, or was required to be paid by, Edxyard L. Davis, and that the notice of July 17th 1860 was not within a reasonable time, and that the plaintiffs were not entitled to recover.</p> <p>A verdict was accordingly returned for the defendant, and the plaintiffs alleged exceptions.</p>

<p>The equitable jurisdiction of this court does not extend to cases where the parties have a plain, adequate and complete remedy, either at common law, or under the statutes of ti e' Commonwealth.</p> <p>A bill in equity does not lie to compel a reconveyance of land by the grantee named in a deed, which has been fraudulently obtained of the grantor and put on record after the execution but before the delivery thereof.</p>

Bill in equity, alleging that the plaintiff, as guardian of Abigail T. Smith, an insane person, took from the defendant a bond with condition to support said Abigail; that the defendant executed a mortgage of certain real estate to secure the perform anee of the condition of the bond, and delivered the same, with the bond, to the plaintiff, who received the same, supposing the mortgage to have been acknowledged; that while the mortgage was in the plaintiff’s possession, the…

Bill in equity by the owner of the equity of redemption of a piece of land, against a mortgagee thereof, seeking to obtain an order that the latter should discharge the mortgage upon the record, or execute to him a release of his interest in the land. At the hearing in this court, upon facts which are stated in the opinion, judgment was rendered for the plaintiff, and the defendant appealed to the whole court.

Contract brought by the collector of taxes for the town of Boylston for 1860, to recover the amount of a tax assessed in that year on certain real estate in that town to George M. Davenport, the owner of the equity of redemption thereof.

<p>A devise of land and money in trust for the purpose of maintaining a “ school-house ana school, to be taught by a female or females, wherein no book of instruction is to be used to teach except spelling books and the Bible,” is valid.</p> <p>A trust under a will does not become extinguished by the failure of the hustee to accomplish its purpose within a reasonable time; but the trustee may be required to execute it, on a proper process by a proper party.</p> <p>If a suit in equity is heard by the court on the bill and answer, averments in the bill which are denied on oath in the answer will not be taken to be true.</p>

<p>Petition by the executors of the will of Cheney Rogers, asking the direction of this court as to the execution of the provisions thereof. The material portions of the will were as follows:</p> <p>“ Third, my will is, after the payment of my just debts and funeral charges, as to my worldly estate and all the property real, personal or mixed, of which I shall die seised and possessed or to which I shall be entitled at the time of my decease, I give, devise and bequeath all to my dearly beloved wife, Olivet S. Rogers; provided however, if she remains my widow and unmarried, for and during her natural life; provided further, if she should marry again after my decease, then my will is that she be paid and receive out of my estate the sum of six hundred dollars, and no more, together with six per cent, interest upon the aforesaid sum from the year one thousand eight hundred and forty-eight. Fourth, my will is, in case it becomes necessary, that my executors hereinafter named sell and convey the whole or any part of my real or personal property as in their judgment will be for the best interest of my estate. Fifth, my will is, on the decease of my beloved wife, or on the event of her marriage, that my executors or the survivor of them erect a suitable marble monument at my grave, with appropriate inscriptions thereon. And I direct that a suitable fence be built around the cemetery lot wherein my said executors hereinafter named shall bury me, which shall be used as a burying place for myself and my beloved wife; and I hereby appropriate the sum of one thousand five hundred dollars for cemetery purposes and the erection of the monument aforesaid, and for fencing and ornamenting and decorating the place of my burial; providing, however, there be that amount remaining at the decease or marriage of my beloved wife, after the appropriation and provisions hereinbefore mentioned have been complied with. Sixth, my will is, after the provisions hereinbefore mentioned have been complied with, that so much of my estate, whether real, personal or mixed, as shall remain at the decease of my beloved wife, I give, devise and bequeath to the American Board of Commissioners for Foreign Missions, for the promotion of the missionary cause, to be paid by my executors or the survivor of them as soon after her decease as shall by them be found convenient. Seventh, and lastly, I do nominate, constitute and appoint my dearly beloved wife, Olivet S. Rogers, and George S. Rogers, of Wales, in the county of Hampden, to be the executors of this my last will and testament.”</p>

<p>Those creditors of an insolvent debtor, whose claims accrued before the passage of the statutes creating a right of homestead, are entitled to have the whole amount which has been realized by the assignee from the sale of the right of homestead, applied towards the paj-ment of their claims, in priority to the general creditors, and to take a dividend with the othef creditors for the balance of their claims, if any. And the amount realized from the sale of the reversionary interest in the land, after the expiration of the right of homestead, is to be distributed among the general creditors.</p>

<p>Writ of entry to recover a lot of land in Blackstone.</p> <p>At the trial in the superior court, before Rockwell, J., it appeared that the tenant had a right of homestead in the premises under St. 1855, c. 238; and the demandant claimed title by virtue of a sale made under a power of sale in a mortgage executed by the tenant’s husband, now deceased, which was not signed by the tenant. The homestead had never been set out to the tenant, and the whole value of the premises was found by an assessor, to whom this question was referred, to be less than eight hundred dollars. The judge thereupon directed a verdict for the tenant, which was returned accordingly; and the case was reported for the determination of this court.</p>

<p>Bill in equity to redeem land from a mortgage.</p> <p>At the hearing in this court, before Merrick, J., it appeared by the report of a master to whom the matter had been referred that in 1844 Albert Fairbanks executed a mortgage of the premises to C. C. P. Hastings, which was assigned to Anna W. Hastings, by whom possession was taken for the purpose of foreclosure for breach of condition on the 23d of December 1857, and the mortgage and all her rights under the same were assigned to the defendant on the 18th of June 1858. On the 7th of March 1856 Fairbanks executed a second mortgage upon the premises to Anna Richardson, which contained no release of homestead rights ; and this mortgage was assigned to the plaintiff. Upon the premises there were three houses and other buildings ; and the mortgagor resided with his family in one of the houses until his death in December 1857, and occupied about two acres of land, and since then his widow has continued in the occupation thereof. In 1860 a portion of the dwelling-house was duly set out to her as a homestead, and the defendant, who was her brother-in-law, received rent from her to the amount of only $75 a year to the time when her homestead was set out to her, and after that time at the rate of $45 a year. The master found that $125 a year was a proper rent for the premises occupied by Mrs. Fairbanks, and $75 a year was a proper rent for that part thereof not included in the homestead set out to her. The master stated an account, made up in conformity with the different claims of the parties as to the liability of the defendant in accounting for rents and profits, and the judge held that the plaintiff was entitled to redeem upon payment of the sum due to the defendant after holding him accountable for the rent he might properly have received for the use of all the premises, including the homestead, and reserved the questions of law raised for the determination of the whole court.</p>

Bill in equity, seeking for a settlement of the partnership affairs between the plaintiff and the defendants, and averring that there was a balance of $7000 due from them to him upon such settlement. The bill was taken pro confesso, and at April term 1861 a decree was entered for the plaintiff, adjudging the said sum to be due to him, and awarding execution therefor; and the defendants appealed to the full court.

<p>The administrator of a cestui que trust, in a bill in equity seeking for an account and payment of moneys received by the trustee for timber cut from the land held in trust and sold by him, may properly aver, in addition to setting forth his office of administrator, that he is now the sole owner of the whole equitable interest in the land; and the bill is not multifarious by reason of such averment.</p> <p>The administrator of a cestui que trust may maintain a bill in equity against one to whom the fee in the remainder of land, after the expiration of a life estate in himself, has been devised in trust, and who has accepted the trust, to compel an account and payment of moneys received for timber wrongfully cut from the land and sold by him, before accepting the trust.</p>

<p>One who has been appointed administrator of the estate of his deceased wife, prior to tne discovery of her last will, and under the supposition that no will existed, is not entitled to charge in his account of administration, after her will has been established, the expenses of opposing the probate thereof. But he may be allowed for expenses incurred in good faith, during his administration, before the establishment of the will, in procuring ancillary administration to be taken out in another state, for the collection of debts due to the estate of the deceased therein, and in indemnifying the administrator so appointed for his expenses in collecting such debts; and also for services performed and expenses incurred in good faith, with the knowledge of and without objection from the heirs at law, in securing the growing fruits and crops, and taking care of the stock, upon her farm, for which he has duly charged himself in his account.</p>

<p>Contract to recover of the defendants as partners the amount due on an account annexed.</p> <p>At the hearing in this court, it appeared that on the 16th of February 1860, articles for the formation of a limited partnership were entered into by the defendants, by which it was agreed that Bryant should be the general partner, and Henry Goulding a special partner, and that Goulding had put into the firm the sum of $5000, and on that day a certificate was signed, acknowledged by them and recorded, reciting that Goulding had “ contributed to the common stock an actual cash payment, as capita], of the sum of five thousand dollars.” This certificate was duly published. Goulding contributed the amount of $5000 towards the capital of the firm as follows : On the 24th of February 1860, he paid in $2000 in cash, and delivered to Bryant a promissory note for $1000, signed by George Staples, dated January 1, 1860, payable on demand with interest to Betsey A, Clark or order, and not indorsed by her. He also delivered to Bryant two notes, signed by himself, for $1030 each, payable to Bryant or order six months after date. The firm commenced business on the 17th of February 1860. On the 27th of February 1860, the two notes of Goulding were indorsed by Bryant, and delivered to creditors of the firm, by whom they were received as cash in part payment for their claims. The note of Staples was paid by him to the firm on the 2d of April 1860. Both Staples and Goulding were possessed of large property.</p> <p>Upon these facts, Merrick, J. reserved the question whether Goulding was liable as a general partner for the determination of the .whole court.</p>

<p>Trustee process. John M. Daniels, the trustee, stated in his answer that he was assignee in insolvency of William H. Horton, and, having taken possession of certain personal property mortgaged by Horton to the defendant, the latter presented his petition to the judge of insolvency praying that the property might be sold and the avails of the sale applied towards the payment of his debt; and, in pursuance of an order of the judge to that effect, he sold the property, and held the avails thereof, which amounted to about $240. Upon this answer the trustee was discharged in the superior court, and the plaintiff appealed to this court.</p>

<p>Petition for partition, originally entered in the superior court, where the respondent appeared and filed an affidavit of defence, but no answer. Commissioners were accordingly appointed to make partition, and upon the coming in of their report the respondent filed objections thereto, and on an appeal from the decision of the judge as to the acceptance of the report the case was transferred to this court, where the respondent objected to the acceptance of the report on the ground that the commissioners had set off to the petitioners land of which he was seised in severalty; and an issue was framed and the question submitted to the jury, who found in favor of the petitioners. The report was thereupon accepted and confirmed. The petitioners then moved for judgment for the costs of the trial, and Merrick, J. reserved this question for the determination of the whole court.</p>

<p>A town is liable, under Gen. Sts. c. 44, § 22, to pay damages to a person who receives an injuiy by the fall of an awning projected over the sidewalk of a street by the owner o\ a building, if the awning has been, for the space of twenty-four hours before the happening of the injury, so frail that in the winds, rains and snows ordinarily occurring in this climate it was likely to fall, and did fall, from such cause, although the direct cause was snow which fell thereon less than twenty-four hours before.</p>

<p>In an action to recover damages for an assault and battery, committed by the son of the owner of a house, upon one who had wrongfully intruded into the same, but, in compliance with orders given to him, had left the house and was going away, evidence is incompetent to prove, in mitigation of damages, that the plaintiff was of bad repute in the community, and was accompanied by his paramour, who was also of bad repute in the community; although the plaintiff’s counsel, in opening his case, and throughout the trial, has claimed damages on the ground that the assault and battery were an indignity, calculated to injure the plaintiff’s standing and reputation in the community.</p>

<p>Under Gen. Sts. c. 108, $ 3, a married woman with the written assent of her husband may enter into a written executory agreement for the sale of her real estate, and specific performance thereof may be enforced in equity.</p> <p>It is no cause of demurrer to a bill in equity for the specific performance of an agreement for a conveyance of land to the plaintiff or to such other person as he might designate, that in bringing the bill the plaintiff describes himself as administrator, or that, in the agreement, the land to be conveyed was described simply as 11 the lot of land containing fourteen acres, more or less, which lies on the northerly side and adjoining the estate now or formerly owned by J. S., in the town of A.”</p>

<p>Under an answer to an action to recover the price of intoxicating liquors sold in another state, which sets forth that the liquors were sold in violation of law, the defendant cannot be allowed to prove that they were sold by the plaintiff in another state for the pur* pose of being brought into this state to be here resold by the defendant in violation o* law.</p>

<p>If a mortgagor of land makes a second mortgage thereof, which is fraudulent as to creditors, the interest described in the second mortgage may be seized on execution, although he has subsequently conveyed away the right to redeem both mortgages. And if the execution is for a less amount than the value of the interest described in the second mortgage, the creditor, under his levy, takes a title in precedence thereof, to the amount of his execution.</p>

<p>Contract, brought in the superior court. The defendant in his answer relied Upon a discharge in insolvency. The plaintiff replied, alleging that the discharge was invalid, by reason of various acts done by the defendant in violation of the insolvent laws. The plaintiff filed a long list of interrogatories, under Gen. Sts. c. 129, § 46, to be answered by the defendant on oath, relating to the matters set forth in the replication. The defendant declined to answer the same, and filed a statement of his reasons therefor, as follows :</p> <p>1. Because they are for the discovery of facts and documents not material to the support of the plaintiff’s suit; or if material, the defendant is not required to answer them by reason of the provisions of Gen. Sts. c. 129, § 53.</p> <p>2. Because they are for the discovery of facts which are alone material to the defendant’s case.</p> <p>3. Because they are for the discovery of facts which, if material to the plaintiff’s ease, create a forfeiture of the defendant’s discharge.</p> <p>4. Because they are in effect an examination of an insolvent debtor in a manner unauthorized by law.</p> <p>The plaintiff moved for a default, which Brigham, J. ordered and the defendant alleged exceptions.</p>

<p>Contract against common carriers, upon the following agreement : “ Sandwich, Jan. 18, 1859. Rec’d from Z. R. Hinckley, for the Wareham Bank, two notes bearing date Aug. 15, 1857, for six hundred dollars each, due July and August 1858, which T am to get George Stacy’s renewal or return same to said bank within reasonable time to transact said business for said Wareham Bank. Witherell Co. Exp. Wm. E. Boyden.”</p> <p>At the trial in the superior court, before Fose, J., it appeared that Z. R. Hinckley, being the owner of the two notes, which were signed by George Stacy, payable to his own order, and indorsed at that time by Ashley Hibbard and Frederick W. Henshaw, transferred them by indorsement to the plaintiffs, who held them at the time of their maturity. The notes were not paid, and due notice of their dishonor was given to the indorsers. Stacy, Hibbard and Henshaw lived in Montreal, Canada East; and, a previous arrangement having been made that the notes should be sent by the plaintiffs for renewal, they were delivered for that purpose to the defendants, who were common carriers between Hyannis and Boston, under the special contract above set forth. The defendants, by themselves and other expresses, carried the notes to Montreal, gave notice to Stacy, had a time fixed for their renewal, at the office of Hibbard, and, at the time and place so fixed, their agent delivered the notes to Hibbard for examination and comparison with the new notes, prior to the renewal, and while Hibbard had them, Henshaw, Stacy and an officer came in, and a process of foreign attachment, in which Henshaw was plaintiff, Hinckley defendant, and Hibbard and Stacy garnishees, was served upon Hibbard, who thereupon refused to sign the renewal notes or give up the old ones. The officer did not take possession of the notes. The writ was duly entered in court, and the plaintiff recovered judgment against the defendant and garnishees, which was paid by Stacy and Hibbard. The plaintiffs were duly notified of the pendency of the process of foreign attachment, but did not intervene or appear therein. The legal proceedings in the suit in Canada were set forth at length, but are not material to be recited here.</p> <p>The judge instructed the jury that, if the agent of the defendants at Montreal did not collude with either of the parties there to effect the attachment, but, acting in good faith towards the plaintiffs, delivered the notes for renewal to Hibbard, and the precept was served as above set forth, this service and the withholding of the notes by Hibbard from him were a sufficient excuse for the defendants’ failure to return them. The jury returned a verdict for the defendants, and the plaintiffs alleged exceptions.</p>

<p>The condition of a bond given by persons interested in the estate of a deceased person, to the administrator, for the purpose of preventing the granting of a license for the sale of real estate for the payment of debts, under Rev. Sts, c. 71, § 9,'is not broken until it has been ascertained, by an account settled in the probate court, that debts have been found due from the estate, and that the goods, chattels, rights and credits of the deceased are insufficient therefor.</p>

<p>Contract to recover for work done by the plaintiff under a contract with the defendants in building a road. The writ was dated September 4,1860. The 1st count alleged that the piaintiff agreed to build the road according to specifications furnished by the defendants, for a certain price, and that he comp eted the same according to the specifications, and it was accepted by the county commissioners, and there was due to the plaintiff one half of the whole sum agreed upon, to wit: the sum of $876.30. The 2d count alleged that the defendants owed the plaintiff the sum of $1752.60, for work done by him in building a road. The specifications of the county commissioners, under whose order the town undertook to build the road, were annexed to the declaration, and provided, amongst other things, as follows: “ The gravel on the whole distance, or any part thereof, must be on a regular inclined plane of not more than twelve inches in twenty feet. And the commissioners further order that the whole of said road be made hard, durable, safe and convenient, for travellers to pass over with their horses, teams, carts and carriages; and that it be so worked and made by said town of Scituate to the acceptance of the county commissioners, by the 1st day of November A. D. 1860.” The selectmen also made certain “ specifications in addition to those of the county commissioners,” in contracting with the plaintiff, and stipulated further that the road should be completed to the satisfaction of the selectmen, by the time named. The defence was, that the road had not been built according to the specifications ; that it had not been accepted by the county commissioners, and was not satisfactory to the selectmen.</p> <p>At the trial in the superior court, before Tose, J., it appeared that after the plaintiff had, as he considered, completed the road, he notified the county commissioners thereof, and desired them to view and accept it; whereupon Thomas Southworth, the chairman, went to Scituate for that purpose, stopping on his way at the house of Mr. Paine, one of the commissioners, who, being sick and unable to attend, informed the chairman that he would concur in any opinion which the chairman might form, and authorize the latter to give a certificate accepting the road. Paine had seen the road a few weeks before, while the plaintiff was working upon it. Southworth proceeded to Scituate, and there joined Mr. Prouty, another of the commissioners, who •ived in Scituate, and they, on the 4th of August, went over the road together, and South worth was satisfied with it, and made and signed a certificate as follows: “ To the selectmen of the town of Scituate: Gent: The highway in your town laid out on petition of Amos T. Curtis and others, and built by Mr. Albert Reed, has been graded and worked to the satisfaction of the county commissioners. Tho’s South worth, Ch’m C. C. Scituate, August 4th 1860.” This certificate was left with Prouty, who delivered it to the plaintiff. All of the selectmen of the town viewed the road on the 6th of August, and all were dissatisfied with the construction of it.</p> <p>There was more or less travel upon the road, by the inhabitants of the town and others, while the plaintiff was at work thereon, and after August 4th, when he alleged that he completed the same.</p> <p>The judge instructed the jury that, in order to recover on the 2d count, the plaintiff must prove that he had in good faith done what he thought to be a compliance with the contract, and had built a road of some value and benefit to the defendants, and that the defendants had adopted and accepted the road so built; that it was not necessary to show any formal vote or corporate act of the town, or of any agent specially authorized by the town, to accept it; but, if the road was opened for travel by the selectmen, prior to the commencement of this suit, or was ordinarily used for travel by the public, between the 4th of August and the 4th of September, with the knowledge and consent of the selectmen or the highway surveyors, this was a fact from which it was competent for the jury to infer that the town had adopted and accepted the road; and if the road was then used with the knowledge of the selectmen or surveyors, and they omitted to give notice to the public that the road was not a public highway, or to close the same against the public, these were facts from which the jury might presume their assent to such use of the road; and that the facts proved showed a valid, acceptance by the county commissioners.</p> <p>It was not contended by the plaintiff that the grades of the road were on a regular inclined plane of not more than twelve inches in twenty feet; and f^e judge instructed the jury that the specifications of the commissioners did not require that the grades should be worked down so that the rise or fall should not exceed one foot in twenty, but that they should be so worked that the road should be safe and convenient.</p> <p>The jury returned a verdict for the plaintiff, on the 2d count, with $760.82 damages; and, in reply to questions put by the judge, stated that they found specially that the road was not constructed to the satisfaction of the selectmen; and that it was adopted or accepted by the town, prior to the commencement of the action. The defendants alleged exceptions.</p>

<p>Contract upon a promissory note. The defence was a discharge in insolvency. The plaintiff replied that the discharge was invalid, because the defendant, within six months before the time of filing the petition in insolvency, being insolvent, and having reasonable cause to believe himself so, conveyed to Franklin Pool, in payment or part payment of a preexisting debt, a wagon of about the value of forty dollars.</p> <p>At the trial in the superior court, before Vose, J., Pool was called as a witness and testified that, within the time named, the defendant, being indebted to him in the sum of from thirty to forty dollars, about eight dollars of which was for necessaries, made a settlement with him, by which he bought of the defendant a wagon, and paid to him $37.50 beyond the amount of the account, and called the account paid; and that the wagon was called worth $75, which might have been high. The judge instructed the jury that it was incumbent on the plaintiff to satisfy them that the defendant, being insolvent, and having reasonable cause to believe himself so, delivered the wagon to Pool for the purpose of paying the preexisting debt; that there was an agreement or understanding between them to this effect; and that the actual or market value of the wagon was immaterial, if it was of sufficient value to discharge and pay the account, in addition to the money paid to the defendant by Pool, and was so regarded by the parties.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>A levy of an execution by a judgment creditor upon the real estate of an insolvent debtor, made after the first publication of notice of the issuing of the warrant, is not valid against the title of the assignee, although the assignee has not recorded the assignment-in the county where the land lies, and although the creditor has no actual notice of the insolvency.</p> <p>If a judgment creditor of an insolvent debtor has levied his execution upon the debtor’s reversion of real estate, after the first publication of notice of the issuing of the warrant, the assignee in insolvency may maintain a bill in equity to set aside the levy.</p>

Indictment charging the defendant with an escape from the custody of a police officer. At the trial in the superior court, before Russell, J., it appeared that the defendant had been duly convicted before a tidal justice of being a common seller of intoxicating liquors, that sentence had been passed upon him, and that he was placed in the custody of the officer, on a mittimus, to be conveyed to the bouse of correction, and while on the way thither escaped.

<p>Conteact upon a bond of indemnity executed in the usual form to a deputy sheriff.</p> <p>A trial by jury was waived in the superior court, and the case was heard before Russell, J., who found that the defendants commenced an action against Charles A. Macomber, and committed the writ for service to the plaintiff with directions to attach certain property, which he declined to do unless indemnified, and thereupon the bond was executed, and the plaintiff attached the property, and subsequently sold the same upon the execution which issued upon the judgment recovered in the action, and applied the proceeds in part satisfaction thereof. The attached property was claimed by Jonathan Howard, who, on the 30th of January 1861, commenced an action against the plaintiff for taking it, and afterwards recovered judgment therein, which the plaintiff has been compelled to pay. The defendants offered to show that they, being partners, commenced proceedings in insolvency on the 24th of January 1861, the first publication being made on that day, and that they have since obtained their discharge. The judge ruled that this evidence was not admissible, and found for the plaintiff. The defendants alleged exceptions.</p>

<p>If the maker of a note which is payable to his own order indorses it and employs an agen who sells it for him for less than its face, the transaction is usurious, although the purchaser supposes that he is merely purchasing the note in the market, and does not know that the seller is acting only as an agent.</p>

<p>Contract to recover for supplies furnished to a pauper. At the trial in the superior court, before Morton, J., upon facts which are sufficiently stated in the opinion, a verdict was rendered, under the direction of the judge, for the defendants, and the plaintiffs alleged exceptions.</p>

<p>A note, dated in this commonwealth, and first delivered in this commonwealth to the payee, who resided here, is to be deemed a contract made here, and to be construed according to the laws of this commonwealth, although actually signed in another state.</p> <p>A note is not barred by the statute of limitations, although overdue for more than six years, if it was given by a person who was once an inhabitant of this commonwealth, but has lived out of the commonwealth ever since the cause of action accrued.</p> <p>A defendant who has appeared and pleaded to the merits cannot afterwards object to the jurisdiction of the court, on the ground of the insufficiency of the service of the writ.</p>

<p>If an agreement for the purchase and sale of real estate has been made in good faith, and the purchase money paid, but the giving of the deed postponed merely for the convenience of the parties, the subsequent insolvency of the vendor will not prevent him from conveying a good title to the purchaser, by a deed executed before the institution of proceedings in insolvency, although the agent of the latter, who received the deed, had reason to believe that the vendor was then insolvent.</p>

<p>A judge of probate has no authority to revoke a decree passed by himself, making an allowance to a widow out of her husband’s estate, and to pass a new decree allowing to her a less sum.</p>

<p>Petition by the widow of Samuel Monk to the judge of probate for an order to set off to her an estate of homestead in the real estate left by her late husband. The judge of probate granted the petition, and an appeal was taken to this court.</p> <p>The following facts were agreed: Samuel Monk died in 1859, owing no debts, and leaving the petitioner, his widow, to whom he had been married for twenty-five years, a son by a former wife, and both real and personal estate. A portion of the real estate was owned and occupied by him as a homestead before the passage of St. 1855, c. 238, and until his death. Dower was assigned to the petitioner, and she received an allowance from her husband’s personal estate, by order of the judge of probate. In December 1859, after the death of Samuel Monk, William Capen attached all the real estate left by Samuel Monk as the property of the son, and afterwards had the same, subject to the dower of the petitioner, set off to him on the execution.</p> <p>Upon these facts, the case was reserved by Hoar, J. for the determination of the whole court.</p>

<p>Tort against a deputy sheriff for the conversion of certain iron bars, by attaching the same on a writ against Robert Stevenson.</p> <p>At the trial in the superior court, before Ames, J., it appeared that Robert Stevenson, who was a blacksmith, had purchased the iron to be used and wrought in carrying on his business; that its value was about $125; and that he afterwards executed a bill of sale thereof to the plaintiff. The defendant offered evidence to show that this bill of sale was made and received without consideration, and with intent to delay, hinder and de fraud the creditors of Robert. The plaintiff contended that the whole or a part of the iron was exempt from attachment, and that the bill of sale was valid. The judge ruled that if the plaintiff took the bill of sale without consideration, and with the intent alleged, he could not recover; and a verdict was returned for the defendant. The plaintiff alleged exceptions.</p>

<p>Appeal from the decision of commissioners on the insolvent estate of Moses D. Phillips, deceased. .</p> <p>At the hearing it appeared that Phillips was assignee of Charles B. Clark, insolvent debtor, and paid the funds which came to his possession as such assignee into the firm of Phillips, Sampson & Co., of which he was a member, keeping an account on the books of the firm with the “Estate of .Charles B. Clark.” After the death of Phillips, his surviving partners went into insolvency, and the plaintiff, who was the new assignee of Clark, was allowed without objection to prove against their estate the amount appearing on their books as due to the estate of Clark, and received dividends of seventy-six per cent, thereon. The estate of Phillips was also represented insolvent, and commissioners were appointed on the 14th of January 1860 to receive and allow claims against it, who allowed to the plaintiff the residue of the above claim, after deducting the dividends received by him. • The commissioners also made two lists, one of individual claims, and the other of partnership claims, including the claim of the plaintiff under the latter head.</p> <p>The plaintiff insisted that his claim should be allowed as an individual claim against the estate of Phillips; and this question was reserved by Hoar, J. for the determination of the whole court.</p>

<p>The maker of a note which is payable by instalments, at future times certain, with Interest, is entitled to grace both on the principal and interest; and the condition of a mortgage given to secure the payment of the same sums and interest at the same times is not broken until the expiration of the grace which is allowed upon the note.</p>

<p>Writ of entry by the assignees of William P. Hardwick, an insolvent debtor, to recover certain parcels of land in Quincy.</p> <p>At the trial in the superior court, before Ames, J., it appeared that on the 10th of March 1860 the Mount Wollaston Bank attached in two suits against Hardwick the demanded premises, which were then owned by him ; that shortly afterwards he mortgaged the same to the tenant; and on the 21st of April 1860 filed his petition in insolvency. The attachments were ordered to survive; the demandants appeared in the actions and prosecuted the same to final judgment and execution ; and the premises were duly set off to the demandants thereon. No objection was made to the regularity of any of these proceedings.</p> <p>The demandants also contended that the mortgage to the tenant was fraudulent and void ; and, in reference to this, it appeared that Hardwick xyas a manufacturer and trader in the boot and shoe business, and had no other business. Thé judge ruled that the demandants had made out a valid title to the premises under their levies of the executions; and that a general mortgage, by such a trader, of all or the greater part of his real estate, would be such a departure from the usual and ordinary course of his business as to be prima facie evidence that the tenant had reasonable cause to believe him insolvent, and that the mortgage was made with intent to delay or defraud his creditors.</p> <p>The jury returned a verdict for the demandants, and the tenant alleged exceptions.</p>

<p>Contract brought by the indorsee of two promissory notes against the administratrix of Fisher Gay, the maker. The defence was that the notes were barred by the statute of limitations.</p> <p>At the trial in the superior court, before Ames, J., it appeared that the notes were made by the defendant’s intestate, payable on demand with interest, to Sanford Gay, or order, and by him indorsed to the plaintiff. Each was dated more than six years before the commencement of the action, but bore indorsements of payments within that time. Zilpah Shaw testified, by deposition, that money was left with her by the wife of Fisher Gay to be paid to Sanford Gay. Sanford Gay was then called by the plaintiff as a witness. The defendant objected to his competency, upon the ground, which was, as the defendant contended, established by the examination of the witness upon the voir dire, that he was the real party in interest in this suit; but the judge permitted him to testify. He stated that the money referred to by Zilpah Shaw was paid to him by her. The plaintiff then inquired what she said at the time of making the payment. This was objected to, but admitted ; and he replied that she said it was money left for him by Fisher Gay, to be indorsed on his notes.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>A nonsuit in an action against a deputy sheriff for the wrongful attachment of property is no bar to an action against the sheriff for the same cause.</p> <p>An action against a sheriff to recover for a wrongful attachment of property by his deputy is not defeated by proof that the plaintiff has set up a claim for damages for the same act, in his answer to a suit by the attaching creditor against him, if it does not appear that the matter was adjudicated in that suit, or that evidence was introduced respecting it.</p> <p>If a debtor, who has a larger quantity of any kind of provisions than the law exempts from attachment, sets apart no portion thereof for the use of his family before it is about to be attached, and makes no claim to any portion of it when the officer is about to attach the wlule, he cannot maintain an action against the officer who takes the whole.</p> <p>The burden of proof is on a plaintiff who seeks to recover of an officer for attaching pro* visions which he claims are exempt from attachment, to prove facts which make them exempt.</p>

<p>Contract upon a promissory note of $100, payable to the plaintiff or order, and signed by Levi Mann as principal, and the defendant as surety,</p> <p>A trial by jury was waived in the superior court, and the case was heard before Ames, J. It appeared that one Rowell applied to the plaintiff for a loan of $100, saying that he had promised to lend that sum to Mann. The plaintiff consented, and Rowell went into another room to write a note. Meanwhile Mann came in and presented to the plaintiff the note in suit. The plaintiff said : “ No, Mr. Mann, I am not going to lend you the money. I shall not take the note.” Rowell, who had returned, said, “ Well, I will take it,” and gave his own note to the plaintiff, received from him the $100, which he delivered to Mann, and took from the hands of the plaintiff the note in suit. Rowell has since died, and this suit is prosecuted by his administrator, in the name of the plaintiff.</p> <p>The judge ruled that the note was deliverer^ so as to be a valid contract, and the delivery of it to Rowell, under the circumstances, amounted to an assignment of.it to him ; and found for the plaintiff. The defendant alleged exceptions.</p>

<p>The counsel for the plaintiff, in opening the case in the superior court, stated that in 1855 Samuel M. Phillips, Flavel Moseley, Frederick P. Moseley and George A. Phillips were copartners under the name of Phillips & Moseley. In June of that year said Frederick and George purchased the interest of Samuel M. Phillips in the stock and assets of the firm, and gave him in part payment therefor several promissory notes signed by them, amounting to $22,000. At or before the delivery thereof, the plaintiff, at the request of his son, said Frederick, put his name upon the back of one half of said notes as guarantor, upon the agreement of said Frederick that he would give to him as collateral security therefor the promissory note of said Phillips & Moseley, payable on demand, for $11,000; and simultaneously with the execution of said guaranty said Frederick, in pursuance of said agreement, and with the knowledge and consent of the firm of Phillips & Moseley, made and executed in the name of the firm a promissory note, dated July 1st 1855, for $11,000, payable to the plaintiff on demand. Said note was delivered to the plaintiff and remained in his possession for a short time, and was then deposited by him for safe keeping in the safe of Phillips & Moseley. In 1858 or thereabouts said Frederick, without the knowledge or consent of the plaintiff, destroyed said note, and at the same time made a new note of the same date, amount and tenor, in the name of Phillips & Moseley, and caused the same to be attested by one R. C. Gear as subscribing witness, and deposited the same in the safe of said firm in lieu of said destroyed note, where it remained until a short time prior to the suspension of said firm in January 1860, when it was received by the plaintiff without the knowledge of the change hereinbefore stated.</p> <p>In April of that year, Phillips & Moseley, upon their petition, were declared insolvent debtors by the court of insolvency for the county of Norfolk, a warrant was issued against their estate, and the defendants Oakes Ames and another were elected assignees. At a court of insolvency held in May or June 1860, the attested note was presented to said court for allowance by the plaintiff against the estate of Phillips & Moseley, his guaranty upon said notes to Samuel M. Phillips being still valid and outstanding, against him, .and at a meeting of the creditors of said firm held subsequently, said court rejected and disallowed said claim, and the plaintiff took an appeal from said decree in due form to this court.</p> <p>Brigham, J. ruled that if the statements made'by the counsel for the plaintiff in opening the case were proved, the plaintiff could not have proved the attested note against the estate of Phillips & Moseley in insolvency, but if he had any claim whatever upon the estate of Phillips & Moseley, it was upon the note destroyed as before stated; and thereupon a verdict was returned for the defendants, and the case was reported for the determination of this court.</p>

<p>Contract upon a promissory note of $5000, dated June 3, 1860, signed by the defendant, payable to the order of John C. Adams, and indorsed by him and by Samuel A. Way to the Bank of Commerce, and subsequently transferred to the plaintiff. The defence was usury and want of consideration.</p> <p>At the trial in this court, before Merrick, J., the signatures of the maker and indorsers were admitted. The defendant introduced evidence tending to prove that on the 31st of May 1859, at the request and for the accommodation of Adams, he signed a note for $5000 payable in eight months from date, which was discounted by Way, with knowledge of the circumstances under which it was given, upon a usurious consideration ; that when this note fell due, Way renewed the loan by taking another similar note for the same amount payable in four months from date, and, at the maturity of the second note, renewed it by taking the note in suit.</p> <p>The plaintiff introduced evidence in reply to this, and to show that Way, soon after taking the first note, procured it to be discounted upon his indorsement at the American Bank, which held it at its maturity; that when it became due the defendant called upon Way with the second note, and wished to raise money upon it; that he did not wish to renew the first note, but to pay it; that, at the request of the defendant and of Adams, Way indorsed the second note, and disposed of it, and delivered the avails to the defendant, who applied the same in payment of the first note at the American Bank.</p> <p>There was also evidence in the case that, at the maturity of the second note, the defendant executed and delivered to Adams the note in suit, for the sole and express purpose of being used in renewal thereof; that Adams carried it to Way, who, as indorser, had taken up the second note, and desired him to take it in exchange for and payment of the same; that Way said he would take it as collateral to the second note, to which Adams assented, and accordingly delivered the note to him; and that Way shortly afterwards indorsed it, and procured it to be discounted for his use at the Bank of Commerce. Before the maturity of this note, the defendant demanded the second note of Way, not offering at the time to pay either of them, and Way refused to ieliver it to him. On the trial of this action, Way offered the second note to the defendant’s counsel, and, upon their refusing to take it, placed it on file for the defendant’s benefit.</p> <p>The judge instructed the jury that, if the second note was sold by Way by the authority and direction of the defendant and Adams, for their benefit, as before stated, and if the defendant took the money so raised upon it, and therewith voluntarily paid and took up the first note, the defendant could not set up in defence of an action in favor of an indorsee upon the second note that usurious interest had been taken on the first note, if any was in fact taken, but that his only remedy, if he had any, was by an action against the party by whom the usurious interest had been taken or reserved, or to whom it had been paid; and that if Way, under these circumstances, had, at the maturity of the second note, in consequence of his having indorsed it, and of his thereby being liable to the indorsees to whom it had been negotiated and sold by the direction and authority of the defendant and Adams, paid and taken it up, the defence of usury on the first note, if there was any, could not be set up as a defence to the second note against him, whether he knew that both notes were made by the defendant and Adams merely for the accommodation of the latter, and without any other consideration, or not; and if the facts above recited, relating to the note in suit, were proved to their satisfaction, and no interest beyond the legal rate was taken, reserved or paid upon it, the plaintiff was entitled to a verdict, although Way, at the time of taking it, knew that all three of the notes had been made by the defendant for the mere accommodation of Adams.</p> <p>The judge, at the request of the plaintiff’s counsel, directed the jury to find specially whether the second note was made and taken as a renewal of the first, or whether the first note was voluntarily paid at its maturity by the defendant. The defendant objected to the submission of this question to the jury, and to the form of it. The jury found that the second note was not a renewal of the first, and returned a general verdict for the plaintiff for the amount of the note. The defendant alleged exceptions.</p>

<p>A letter to a woman, containing libellous matter concerning her suitor, cannot be justified on the ground that the writer was her friend and former pastor, and that the letter was written at the request of her parents, who assented to all its contents.</p> <p>One who has voluntarily and deliberately destroyed a written document, cannot be permitted to testify to its contents in a suit brought by himself and founded upon it, without first introducing evidence to rebut the suspicion of fraud arising from his act.</p>

<p>Contract upon the following covenants in a deed dated April 27th 1852, from Joseph Grant, the defendant’s testator, to the plaintiff: “ And I, the said Joseph Grant, for myself and for my heirs, executors and administrators, do covenant with the said Jenks Follett, his heirs and assigns, that I am lawfully seised in fee simple of the aforegranted premises; that they are free from all incumbrances; that I have good right to sell and convey the same to the said Jenks Follett, his heirs and assigns forever, as aforesaid, and that I will and my heirs, executors and administrators shall warrant and defend the same to the said Jenks Follett, his heirs and assigns forever, against the lawful claims and demands of all persons.”</p> <p>At the trial in the superior court, before Ames, J., the execution of the deed was proved, and it appeared that the plaintiff has ever since held and occupied the land conveyed, and he made no claim under the general covenant of warranty, never having been evicted. Upon the facts in proof, the residue of which are sufficiently stated in the opinion, the judge announced his intention to instruct the jury that if Joseph Grant, at the date of the deed to the plaintiff, had actual possession of the land, as of an apparent claim of right, as if it were his own, and adversely to the title of Ware, (in whom the record title to the premises stood, subject to mortgages given by him to Joseph Grant,) it was prima facie evidence, and, if not explained or rebutted, proof of seisin in fact on his part, so that his deed would pass whatever title he had in the premises to the plaintiff; that the assignment of the mortgages, under the circumstances which are stated in the opinion, had no tendency to qualify or rebut the evidence tending to prove actual seisin; and if Joseph Grant had a seisin in fact at that time, the plaintiff was not entitled to recover in this action, except upon the covenant against incumbrances, upon which he claimed nominal damages only. The plaintiff thereupon submitted to a verdict in his favor for one dollar, and the case was reported for the determination of this court.</p>

<p>If, in an action by a mortgagee of personal property against a deputy sheriff who has attached the same on a writ against the mortgagor, the defendant has agreed in writing that he will defend “ only upon the ground that the mortgage is invalid or has been settled,” the plaintiff is not bound to prove that he has made a statement and demand of payment of the money due to him, in accordance with Gen. Sts. c. 123, §§ 62, 63.</p>

Tort against mill-owners, to recover damages for flowing the plaintiff’s land, in violation of an award determining the rights of the parties, and judgment thereon.

<p>The administrator of an estate, the personal property of which is more than sufficient for the payment of debts, stands in no fiduciary relation to the heirs at law,* and they cannot maintain a bill in equity to compel him to give to them the benefit of a purchase of real estate by him from one who had orally agreed to sell the same to the intestate.</p>

<p>The guaranty by a firm of a private debt of one of the partners, if made in contemplation of insolvency, is not a debt which can be proved against the joint estate, by a creditor who knew that the firm was insolvent.</p>

<p>Appeal from a decision of the judge of probate, disallowing, pro forma, the petition of the widow of Hervey Sullings, deceased, claiming her distributive share in the personal estate left by him, and waiving the provisions of his will.</p> <p>At the hearing in this court, before Metcalf, J., it appeared that the petitioner was married to Hervey Sullings in July 1844, and that he died in December 1859, leaving real estate of the value of $24',000, and personal estate of the value of $39,000 and it was admitted that she would be entitled to the share, as claimed by her, but for an ante-nuptial agreement between the parties, the material portions of which are copied in the margin.* The execution of this agreement was not denied by the petitioner, but the agreement was objected to as inoperative to bar her claim. It was contended, among other things, that the terms of the agreement were not complied with by Hervey Sullings during the marriage, and evidence was taken upon this question ; but it became immaterial to the present case, by the decision. The case was reported for the determination of the whole court.</p>

<p>Before executing his will, a testator gave nptes, without consideration, to several of his children. His will, which professed to dispose of his 11 worldly estate,11 after various specific devises and bequests, contained the following clause:</p> <p>“ I give, bequeath and devise to my son Frederic 0. Smith, my daughters Charlotte E. and Grace E. Smith, an equal proportion with Charles W. Smith, George W. Smith, James J. Smith, Ann F. Wright, Mary B. Anthony, and Catharine E. Dunbar, and Martha A. Smith. <</p> <p>Each to have in the same proportion as I give in this will, together with the notes of this date, to Frederic O. Smith, Grace E. Smith, Charlotte E. Smith, and Martha A. Smith.11</p> <p>Held, 1. That this was a disposition of the residue of his estate. 2. That the notes referred to were to be deemed specific legacies to the several payees, chargeable on the residue of the property. 3. That the remainder of the residue, after payment of the notes, should go in equal shares to the ten persons named in said clause.</p>

<p>A testator in the body of his will gave and bequeathed one half of the residue of his estate to his daughter, and the other half to certain of the children of a deceased daughter, some of whom were minors, “ to be divided in equal shares between them,” and appointed certain persons “to be trustees to my grandchildren above named.” By a codicil, he gave and bequeathed to another child of his deceased daughter, who had been omitted in the former enumeration, “ such an amount of my property as shall make him an equal heir with his brothers and sisters ” mentioned in the will. Held, that one half of the residue should go to the testator’s daughter, and the other half to all of his grandchildren named in the will and codicil, to be divided in equal- shares among them; the legal title being vested in the first instance in the trustees, for the immediate distribution of their * respective shares to those of the grandchildren who have become of age, and to the others, when they shall become of age.</p>

<p>In an action against the owners of a whaling vessel, to recover the amount of a seaman’s wages which the plaintiff had attached on trustee process, and which their general agent had thereupon, with the seaman’s consent, retained and promised to pa}7- to the plaintiff, an entry by the agent upon the book in which he kept the accounts of the owners, and which was at all times accessible to them, is competent evidence to show the amount so retained.</p> <p>In such action, the general agent, who was also one of the owners, may be asked by the plaintiff, on cross-examination, if he has not frequently in the course of his agency, without objection from the other owners, accepted orders drawn upon the owners by seamen in favor of their creditors; and such evidence is competent, in connection with other evidence, for the purpose of showing the extent of his authority.</p> <p>Authority in an agent, who was one of the owners of a whaling vessel, to bind the other owners by a promise to pay the amount of a seaman’s wages, with his consent, to one of his creditors, who had attached the same on trustee process, may be inferred from proof of a general agency to act for the vessel, and to settle with the seamen, without proof of special authority.</p>

<p>Contract brought by the owner of a share of a whaling schooner against the agent of the vessel and her owners, to recover his share of the proceeds of a voyage. The only question was, whether the defendant, as agent of the schooner and her owners, or as assignee in insolvency of Loring Meigs & Co., had a right of lien upon the plaintiff’s share of the proceeds, under agreed facts, which are sufficiently stated in the opinion. Judgment was rendered in the superior court for the plaintiff", and the defendant appealed to this court.</p>

<p>Scire facias against the indorser of a writ. A trial by jury was waived in the superior court, and the case was heard before Morton, J. The execution for costs against the plaintiff in the original action, Elouise J. Swasey, a married woman who had not been within this commonwealth since the indorsement was made, was put in evidence, having upon it the return of an officer as follows: “ By virtue of this execution, I have made diligent search for the goods and chattels of the within named Elouise J. Swasey, and could find none within my precinct. I therefore return this execution in no part satisfied.” The defendant contended that the action could not be maintained, because the return did not show that the officer made any search for her, or for him, or any demand of payment upon either. But the judge ruled otherwise, and rendered judgment for the plaintiffs. The defendant alleged exceptions.</p>

<p>Tort for the conversion of a tub of butter. At the trial in the superior court, before Russell, J., it appeared that the plaintiff, who was the wife of Isaac Woodcock, carried on business on her own account as a trader in groceries in Fall River, Rhode Island, and with money acquired in her said business sent her husband into Massachusetts to buy a tub of butter to be sold again by her, and immediately upon his purchasing and paying for the same the defendant attached it on a writ against him. The judge instructed the jury that upon these facts the action could not be maintained; and a verdict was returned for the defendant. The plaintiff alleged exceptions.</p>

<p>Complaint under the bastardy act, made by the female complainant, before her marriage, dated March 12, 1857, and subscribed and sworn to before Tisdale Harlow, justice of the peace for Bristol county. The examination was taken and sworn to on the same day, before the same magistrate, but was not subscribed by her. The warrant was issued on the 21st of November 1860, and made returnable before Mr. Harlow, or some other justice of the peace in the said county; and was returned before Albert A. Rotch, trial justice and justice of the peace in said county.</p> <p>At the trial in the superior court, before Russell, J., the defendant was found guilty, and moved in arrest of judgment for irregularities in the proceedings. The motion was overruled, and the defendant alleged exceptions.</p>

<p>A claim for articles delivered to a firm cannot be excepted from the operation of a certificate of discharge in insolvency, on the ground that the articles were necessaries, actually used in the families of the debtors.</p>

<p>A new trial will not be granted because, for the purpose of showing that a conveyance of ' real estate was fraudulent as against creditors, and after evidence bad been introduced to show that the sale was upon credit and without security, and that the grantee was not reputed to be in good circumstances at the time, evidence has also been admitted to prove that he then owed a particular debt which had been long due.</p>

<p>Tort to recover damages for injury to the water in a well upon premises hired by the plaintiff, caused by an escape of gas.</p> <p>After the former decision in this case, (2 Allen, 524,) a second trial was had, and the plaintiff recovered a verdict, which was set aside in the superior court for an irregularity therein. A third trial was then had, before Morton, J., at which it appeared that during a portion of the time covered by the declaration the plaintiff and Joel F. Rainsford were partners in the business of keeping a livery stable upon the premises on which the well was situated, in Fall River, and during the rest of the time the plaintiff carried on the same business alone. No plea in abatement was filed, but the defendants requested the court to rule that the plaintiff could not join in one action a claim which accrued during his partnership with one which accrued to him after-wards ; that if the plaintiff introduced evidence of damage which occurred during the existence of the partnership he could not introduce evidence of damage which occurred after the dissolution thereof; and that for the time while the partnership existed he could only recover damages in proportion to his share in the firm. The judge declined to make any of these rulings, and ruled that the plaintiff might give in evidence and recover for the whole damage occurring both before and after the dissolution of the partnership.</p> <p>It appeared that the town of Fall River had duly adopted the St. of 1851, c. 319, relating to the erection and use of buildings for stables, and that the plaintiff had no license; and the defendants requested the court to instruct the jury that for this reason he could not recover. The judge declined so to rule.</p> <p>There was evidence tending to show that the water of the well was corrupted from other sources than the escape of gas complained of; and the defendants requested the court to instruct the jury that if they found that other causes over which the defendants had no control contributed towards rendering the water impure and injurious to horses, the plaintiff could not recover.</p> <p>The judge instructed the jury, (among other instructions not excepted to,) that the plaintiff was not entitled to recover in this action for any injury sustained by him to which his own negligence and want of ordinary care had contributed; and that if the plaintiff had given to his or his customers’ horses the water from his well to drink, after he knew that the same" was so corrupted by gas as to injure them, or after a man with ordinary care would have known this, for injury or damage flowing from such a use of the water, the plaintiff was not entitled to recover; and that, if other causes aside from gas had rendered the water of the well so impure as to be worthless, then the plaintiff was not entitled to recover in this action ; but that, although other causes rendered the water impure, yet if it remained fit for use, and was rendered unfit for use by the negligent escape of the defendants’ gas, the plaintiff might recover for the injury flowing from such escape of gas.</p> <p>The jury returned a verdict for the plaintiff, with $1555.43 damages ; and the defendants alleged exceptions.</p>

<p>The judge before whom a criminal case is tried has discretionary power to discharge the jury from their deliberations on the verdict at such hour as he sees fit. And if he has given orders to the ofiicer to discharge them at a certain hour in the night, if they have not then agreed, and the ofiicer at that hour ascertains that they have not agreed, and accordingly informs them that they are discharged, they have no authority to agres upon a verdict afterwards; and a verdict afterwards agreed upon will be set aside.</p>

<p>A judgment creditor, whose claim accrued before the passage of St. 1855, c. 238, by levying his execution upon his debtor’s right to redeem land, in which he has a right of homestead, fi*om a mortgage given after the passage of St. 1857, c. 298, and not executed in such form as to release the right of homestead, takes a title in priority to the right of homestead.</p>

<p>The remedy under Gen. Sts. c. 145, § 16, by an application for leave to file an information in the nature of a quo warranto to redress an injury to private rights or interests by the exercise by a private corporation of a franchise or privilege not conferred by law, does not deprive this court of its jurisdiction in equity in case of a private nuisance.</p> <p>Under a charter which fixes one terminus of a railroad at or near a certain point, a large discretion is conferred upon the railroad company in locating their road, the exercise of which will not be revised by this court unless they have clearly exceeded its just limits or acted in bad faith; and where a charter authorizes a railroad company to extend, locate, construct and maintain a railroad u from a point at or near the present terminus of its track in Fall River, in a southerly direction, to the line of the State of Rhode Island,” a location starting at a point 2475 feet, by the line of the railroad, northerly from the termination of the old track is authorized.</p> <p>An unrestricted grant of authority to construct a railroad from one designated point to another carries with it the authority to cross a navigable stream, if the railroad cannot reasonably be constructed without doing so.</p>

<p>Bill in equity brought by the plaintiff, a minor, by John S. Brayton, his guardian, to restrain the defendants, a railroad corporation established under the law of this commonwealth, and the directors thereof, from proceeding to act under St. 1861, c. 156, authorizing them to extend their railroad to the line of the State of Rhode Island, or under St. 1862, c. 149, authorizing their union with the Newport and Fall River Railroad Company.</p> <p>The bill alleged in substance that by sundry acts of the gen eral court the defendant railroad company were established as ? corporation and authorized to construct a railroad from Fall River to Boston ; that the plaintiff is the. owner of three hundred and thirty-nine shares of their capital stock; that they, in and by their business over their road, have accumulated a surplus fund of over $>700,000; that the plaintiff has a vested interest in his proportionate share thereof; that they have no right, without his consent, to divert their income or surplus fund, or employ it in a new and hazardous enterprise and speculation, different from that set forth in the acts establishing them as a corporation, or to lend their funds to or unite with another railroad company; that in conformity with a previous vote, and against his protest, they presented a petition to the legislature for authority to build a railroad from Fall River to Newport, Rhode Island; that the Newport and Fall River Railroad Company, a corporation established by the legislature of Rhode Island, were authorized to build a railroad in that state from Newport to the line, of Massachusetts, to connect with a railroad which might be constructed in Massachusetts to the same point; that in May 1860 the Newport and Fall River Railroad Company were authorized to unite with a corporation which might be empowered in this commonwealth to build such railroad; that thereafter St. 1861, c. 156, was passed, authorizing the defendant railroad company to extend their railroad to the line of the state of Rhode Island; * that this statute was accepted at a special meeting of their stockholders, the plaintiff protesting and voting against such acceptance; that they have filed the location of the extension of their road, under said statute; that, in conformity with a petition by them, St. 1862, c. 149, was passed, authorizing them to unite with the Newport and Fall River Railroad Company, and providing that if the two corporations should vote to unite and form one corporation, the directors of the defendant railroad company should forthwith cause a meeting to be called of the stockholders in the new corporation, for choice of officers; and that their directors have called a meeting of stockholders to act upon the question of accepting St. 1862, c. 149, and, under a vote of the stockholders, have issued bonds to the amount of $400,000, and with the proceeds thereof are now building the extension of their railroad not only to the line of Rhode Island, but to Newport, either by assuming the work themselves, or by lending their funds or credit. The prayer was for an injunction restraining the defendant railroad company from applying their funds or pledging then-credit for the purposes set forth, and from uniting with the Newport and Fall River Railroad Company, and restraining their directors from causing a meeting of the stockholders of such new corporation to be held for the choice of officers, and for further relief.</p> <p>The answer of the defendant railroad company alleged that their corporation was formed and created by a number of smaller railroads, chartered for shorter routes, being united for the public good into one, and that these unions were authorized by acts similar to the one now in controversy, and were effected by majority votes merely; that the bulk of the plaintiff’s shares were held by him by reason of his having been an owner of shares in one of said smaller railroads, and that the purchase of the residue was made with knowledge of the intention of the corporation to extend their road to Newport, and of proceedings pending for that purpose; denied any loan of their credit or funds to any other railroad company, or any intention to employ their funds in any hazardous enterprise, contrary to Law, or that the acts of the general court referred to depend for their validity upon the plaintiff’s consent; admitted the accumulation of a surplus fund, and the various corporate and legislative proceedings, as alleged, and • the issue of bonds to the amount of $219,000, but not of $400,000, and denied the alleged use of the proceeds thereof; admitted that they have aided the Newport and Fall River Railroad Company in constructing their railroad, but alleged that such aid has been rendered only in accordance with an indenture entered into between the two corporations, the material parts of which are copied in the margin,* in pursuance of which they have advanced the sum of $200,000.</p> <p>The railroad company also demurred to the bill for multifariousness, and the directors demurred on the ground that they were improperly joined as parties.</p> <p>The case was heard upon the bill, answer and demurrers, before the chief justice, and reserved for the determination of' the whole court. The arguments upon the questions of jurisdiction and pleading are omitted.</p>

<p>Bill in equity by the administrators with the will annexed, and trustees appointed by the will, of Dwight Boyden, praying for instructions in relation to the execution of their respective trusts. The two surviving sons of the said ' Dwight Boyden, and the widow and infant son, the latter of whom appeared by his guardian ad litem, and the administrator of the estate of Dwight Boyden, a son of the testator, were the defendants. The ease was reserved by Hoar, J. for the determination of the whole court, upon facts stated in the bill and answers, which sufficiently appear in the opinion.</p>

<p>Un Ter a bequest as follows: “ I give to my son A. $-10,000, of which one half is to be placed by my executors with the M. H. L. L Co., in such manner that my said son shall receive the interest and income thereof during his life, and, at his decease, the principal shall be paid to his lawful heirs,” the heirs of A. take directly as legatees under the will, and not as his representatives.</p> <p>The civil act of the free city of Frankfort on the Main, requiring marriages to be solemnized in a particular form, does not apply to foreigners temporarily residing there; but a marriage in that city, before the United States consul, between a citizen of Massachusetts and a woman not domiciled there is valid.</p> <p>Under a bequest, in the codicil to a will, of personal property to a person for his use during life, and at his death to his lawful heirs, the words “lawful heirs” will be construed according to their common law interpretation, and will not include those who would take under the statute of distributions, if the bequest is expressed to be in lieu of real estate, which had been devised to him in the will.</p>

<p>If, under a bequest of the residue of the testator’s property to trustees, with & general direotion to keep the same safely invested, and distribute the income to certain persons for life, with remainder over, an investment made by the testator in a limited partnership has been allowed by the trustees to continue, the profits arising therefrom after his death are not to be treated exclusively as income; but so much thereof is to be treated and invested as principal, as, if received and invested at the testator’s death, would amount, with interest, and making annual rests, to the profits actually received, at the time they were received, and the residue is to be distributed as income.</p> <p>An intention on the part of a testator that an investment made by him in a limited partnership should be continued after his death, and the share of the profits belonging to his es* tate should be distributed as income, under a general direction that his property should be kept safely invested, and the income thereof distributed to certain persons for life, with remainder over, will not be inferred from a clause in his will directing his executors not to avail themselves, unless they should see fit, of a provision in the partnership articles, authorizing him or his representatives to assume the management of the business, in case of the death of either of the general partners.</p>

<p>A mortgage of personal property, conveying a list of articles used in and about a hotel, u together with all other goods, effects, furniture, chattels, property, things of every name and nature now used, attached, situate and being in or about the hotel,” will embrace a schooner rigged sail boat, which is upon the water near the hotel, and used in connection with it, although four other schooner rigged sail boats are specially mentioned in the mortgage.</p> <p>The St. of U. S. of 1850, c. 27, requiring conveyances of ships and vessels of the United States to be recorded by the collector of customs, applies only to ships and vessels which have been enrolled, registered or licensed under the laws of the United States.</p> <p>The St. of 1851, c. 57, providing that it shall not be necessary to the validity of any mortgage of any ship or vessel, that the same shall be recorded by any city or town clerk, does not apply to a sail boat, of sixteen tons burden, kept and used in connection with a hotel, and which has not been enrolled, registered or licensed under the laws of the United States.</p> <p>The residence of a mortgagor of personal property cannot be shown to be in a particular town, in an action by the mortgagee against an attorney at law to whom the mortgagor subsequently sold the property, by evidence that in various writs against him before the date of the mortgage he was described as of that town, and that the defendant appeared for him in the suits, and filed no plea in abatement on the ground that his residence was misdescribed.</p> <p>If it becomes material to fix the residence of a mortgagor of personal property, in order to determine whether the mortgage has been duty recorded, in an action between the mortgagee and a claimant of the property under a bill of sale from the mortgagor, and the mortgagor has testified, in behalf of one party, that he always lived at the place described in the mortgage as the place of his residence, and the other party has been allowed to introduce evidence of a declaration by the mortgagor made at the time of executing the mortgage, that he had removed to a different town, no exception lies to the refusal of the court to allow the same party to prove a further statement by him, made at the same time, that it was not necessary to record the mortgage at the place from which he had removed.</p> <p>In an action of replevin by the mortgagee against a claimant of property under a purchase, no exception lies to the admission of evidence, in behalf of the latter, that the oral bargain for the sale to him was completed before the execution of the mortgage, although he took a bill of sale of the same subsequently to the execution of the mortgage.</p> <p>In an action of replevin of property against a claimant of the same under a purchase, the defendant may show the amount of expenditures made by him in improving the property, after the same came into his possession, for the purpose of proving his damages.</p> <p>If, in serving a writ of replevin of a sail boat, the officer has also taken the furniture on board of her, which belonged to the defendant, and has removed it to another town, evidence is incompetent to show that at the appraisal, several days after the taking, he offered to return the same to the defendant’s agent, without the defendant’s knowledge.</p> <p>As against a subsequent bona Jide purchaser, no title passes by an oral sale, without delivery, of a boat moored upon the water.</p>

<p>Bill in eouity to compel the specific performance of a written agreement, made on the 10th of July 1843, by which .the Eastern Railroad Company agreed to sell and convey to the plaintiffs, Russell and Standish, certain lots of land numbered from one to nine inclusive on a plan of lots in Boston, and also certain other lots in another row as exhibited on the same plan and numbered from twelve to twenty-seven inclusive, upon the terms and subject to the reservations and restrictions following, to wit:</p> <p>“ The said Russell and Standish are to pay to the said corporation for the said land at the rate of two dollars for each and every square foot of land contained in that part of the first described parcel which lies northerly of a line drawn parallel to and seven feet distant northerly from the top of the stone wall, the southerly line of the base of which runs upon and along a line parallel with and four feet southerly of the southerly boundary line of the said first described parcel of land, and at the same rate for each and every square foot of land contained in the second described parcel of land, on the first day of January next ensuing the day of the date hereof, without interest, unless they shall in the mean time have erected on the said land such a number of substantial stone or brick buildings as shall render a mortgage of the said land satisfactory to the said company ; and shall then secure to the said corporation the payment of the said sum by a mortgage of said premises, with interest from the said first day of January.”</p> <p>Various other provisions and stipulations then followed, which are now immaterial; and the agreement continued as follows:</p> <p>“ The said Eastern Railroad Company hereby covenant with the said Russell and Standish, and their heirs and assigns, that upon payment of the purchase money for the said land as aforesaid, on or before the first day of January next, without interest; or upon tender of a satisfactory note signed by the said Russell and Standish, payable in five years with interest, payable half-yearly, from said first day of January, secured by a mortgage of the said land, duly executed, with insurance upon the buildings erected on the said land, payable to said company in case of loss, they will duly execute and deliver to the said Russell and Standish a good and sufficient deed of conveyance of the said land, with the easements, rights and privileges, and subject to the restrictions and reservations above mentioned, but free from all other incumbrances, with the usual covenants of warranty.</p> <p>“ And the said Russell and Standish hereby covenant for themselves and their heirs and assigns with the said company and their assigns, that they will, on or before the first day of January next, pay to the said Eastern Railroad Company ox their assigns the purchase money for the said land, at the rate aforesaid, or will secure the same in the manner aforesaid by mortgage of the said premises; and that they will do and perform all things hereinbefore stipulated to be by them done and performed.</p> <p>“ And the said Eastern Railroad Company further agree, that before making a sale of either or any of the lots now reserved by the said company, and numbered twenty-eight, twenty-nine, and thirty on the said plan, they will first offer the same, for the space of six days, to the said Russell and Standish, on the same terms with the land hereby contracted to be conveyed; but in case the said Russell and Standish shall not, within six days after being notified in writing, signify their intention to purchase the same, and shall not within one month complete said purchase, the said company shall have the right to sell the same to other persons. And the said company further agree with the said Russell and Standish, that they will offer to them lots numbered ten and eleven on the said plan, on the same terms and in the same manner, in case the said lots shall not be used for an hotel.’-"</p> <p>In the present bill, the plaintiffs sought to compel the conveyance to them of the lots numbered ten and eleven, above referred to.</p> <p>At the trial in this court, before Hoar, J., the plaintiffs in opening their case conceded that the lots in controversy, numbered ten and eleven, had been used for a hotel for ten years ; but the bill alleged that the Eastern Railroad Company had recently sold the premises to the other defendant, William G. Weld, who by the terms of his deed took the same subject to the plaintiffs’ rights therein, and who has since changed the use thereof, and intends hereafter to apply them to other purposes. But the judge ruled that, as the Eastern Railroad Company did use the lots for a hotel, the plaintiffs could not maintain this bill; and reported the question for the determination of the whole court.</p>

<p>A corporation which owned a quantity of land which had been laid out into rows of building lots entered into a written agreement to convey to A. and B, the greater portion thereof, provided A. and B. should pay in cash a stipulated price therefor by the first day of January then next, or, if they should in the mean time have erected upon the lots such a number of buildings as to render a mortgage satisfactory to the corporation, should pay the same b)7 a note payable in five years and secured by mortgage; and before making a sale of either of the lots reserved in one row, to offer the same for six days to A. and B on the same terms with the other lots; and to offer to A. and B. the reserved lots in the other rows on the same terms and in the same manner, in case the same should not be used for a hotel. Several years afterwards the corporation made a conveyance of the reserved lots in the first row, without first offering the same to A, and B. Held, that such conveyance was no breach of the above agreement.</p>

<p>Contract brought to recover the price of six tons of coal and one cord of wood. The answer, amongst other things, denied “ that the said coal was ever duly weighed by a sworn weigher, and a certificate of said weigher delivered at the time of the alleged delivery of said coal to the defendant or his agent, as by law required.”</p> <p>A trial by jury was waived in the superior court, and the case was heard before Morton, J. The plaintiffs introduced evidence tending to prove the sale and delivery, and rested ; and the judge ruled that the plaintiffs had made out a prima facie case, and, in the absence of any evidence on the part of the defendant, were entitled to recover; and found for them accordingly. The defendant alleged exceptions.</p>

<p>The police court of the city of Boston, sitting for the transaction of criminal business, nas jurisdiction of cases arising under Gen. Sts. c. 72, concerning the maintenance of bastard children.</p>

<p>A clause in an agreement by H. to repair certain houses for the sum of $1500 and have them completed fit for occupancy by December 1st, which provides that “for each and every day’s delay in the completion of said houses after December 1st, said H. is to forfeit five dollars,” is to be construed as fixing the amount of liquidated damages and not ad * penalty.</p>

<p>Contract upon the following agreement: “ Boston, March 19.1859. This is to certify that I promise to pay P. Stewart, Jr. the sum of ten dollars for tuition to the gymnasium, from Sept. 1.1859, to Sept. 1,1860. J. C. Loring.”</p> <p>At the trial in the superior court, before Morton, J., it appeared that during the whole time mentioned in the agreement, the plaintiff kept open a gymnasium in Boston, and was ready to furnish the use of the same, with tuition, to the defendant ; but, solely by reason of illness, the defendant did not attend or use the gymnasium, or receive any tuition during that time. The judge ruled that the plaintiff was not entitled to recover. The j ury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>Tort for breaking and entering the plaintiff’s close in Boston, consisting of a dwelling-house and appurtenances.</p> <p>It was agreed in the superior court that the plaintiff owned the premises, which at the time of the acts complained of were occupied by a tenant at will to him ; and the defendant, Ebenezer Kenfield, claiming to hold a mortgage from the tenant, of personal property which was in the house, with the other defendant as an assistant, went upon the premises, and, the door being fastened, took off a blind from one of the windows, broke a pane of glass, reached in and unfastened the window, raised it, and went in. If on these facts the action could be maintained, it was agreed that nominal damages only should be recovered Judgment was accordingly ordered for the plaintiff, and the defendants appealed to this court.</p>

<p>An owner of land may maintain an action for the erection of a bay-window which extends over his line, by the adjoining owner, although that portion of his land which is covered by the bay-window has been laid out and is used as a highway; and evidence of a custom so to erect bay-windows is inadmissible.</p>

Contract to recover the amount of an award. A trial by jury was waived in the superior court, and the case was heard by Brigham, J., who found the following facts: The parties submitted to three arbitrators claims of the plaintiff against the defendant, for the taking and carrying away of certain articles of personal property, together with the damages to and loss of rent of a building, caused by the removal of the articles, “ and any and all questions growing out of a suit…

<p>If the defendant in an action to recover the price of goods sold and delivered relies upon false representations by the plaintiff in making the sale, the burden of proof is on him to establish this defence.</p> <p>After the introduction of evidence by a plaintiff to rebut that of the defendant, the latter cannot be allowed to introduce any evidence in reply, except such as tends to control the evidence in rebuttal.</p>

<p>Contract brought by several persons alleged in the writ to have been associated together under the name of the Pneumatic Drill Company. The 1st count alleged that the defendants agreed to build for the plaintiffs several pneumatic steam drills, within a reasonable time and for a reasonable compensation; and that the plaintiffs, from time to time, paid the defendants $1175, towards the same, but the defendants failed to make and deliver the same as agreed. The 2d and 3d counts were on an account annexed, and for money had and received, respectively. The answer of the defendants denied all the averments of the declaration, and alleged that the said sum was paid for labor and materials furnished at the request of the plaintiffs, and used and expended while in their employment in making the drills.</p> <p>At the trial in the superior court, before Morton, J., there was conflicting evidence as to the contract under which the work and materials were furnished; and it appeared that, before the drills were completed, the works of the defendants burnt down, and the unfinished drills were destroyed. During the trial, the plaintiffs’ counsel contended that, the evidence tended to show that no association or partnership had ever been formed between the plaintiffs, and moved for leave to amend the writ by striking therefrom the names of all but one of them; but the motion was overruled. The defendants were allowed to introduce evidence, under objection, tending to show that the work done by them was carried on under the superintendence of one of the plaintiffs, and that many alterations were made in the drills by his orders.</p> <p>The jury returned a verdict for the defendants ; and the plaintiffs alleged exceptions.</p>

<p>The Gen. Sts. c. 140, § 43, do not require the affidavit of acts done in selling real estate, under a power of sale contained in a mortgage thereof, to state that the mortgagee has rendered an account to the mortgagor, or how he has disposed of the purchase money.</p> <p>The owner of an equity of redemption is not entitled, as against the mortgagee, to be allowed for improvements made upon the premises.</p>

<p>No exception lies to the admission in evidence of a deposition taken out of the Common • wealth on commission, although the certificate of the magistrate before whom it was taken does not show that the oath was administered to the deponent in the proper form.</p> <p>The simple verification of a signature by a witness does not entitle the adverse party to see the document or to cross-examine the witness upon it, until it is offered in evidence.</p> <p>If the title to property is in controversy, a claimant who is alleged to have purchased it, knowing that the title which he took was invalid, and without paying a valuable consideration therefor, may prove the conversation concerning the title, which took place at the time of the purchase under which he claims, although the other party to the suit was not present.</p>

<p>A surety upon a bond given to dissolve an attachment is discharged by an amendment of the writ, after its entry in court, by joining and summoning in a new party as a defendant, and the discontinuance of the action as to one of the original defendants, without notice to the surety.</p>

Tort for deceit in the sale of a quartz lode and quartz mill.

<p>If the power of the treasurer of an association, incorporated for the purpose of erecting and maintaining a monument, is expressly limited in the by-laws to the payment of such billa . as have been approved by the directors in a particular form, he cannot bind the corporation by a negotiable promissory note on demand, given in part payment for the monument, although the directors have authorized a committee to contract for the same and draw on the.treasurer for the price, and the committee have accordingly contracted for the same, and the monument has been erected and approved bjr the corporation, and the committee have verbally authorized the treasurer to pay the price, and he thereupon, not having m hand sufficient money for the purpose, has executed the note.</p>

<p>In an action by the indorsees against the maker of a promissory note, it is not erroneous to refuse to instruct the jury that “if the note was without consideration, as between the payee and the maker, and the plaintiffs had notice of this fact when they received the note, the equities, as between the original parties thereto, are open to the defendant,” if there is evidence in the case tending to show that the note was an accommodation note.</p>

<p>Contract upon a promissory note signed by the defendant, payable to the order of Oliver P. Fernald, and indorsed to the plaintiffs. At the trial in the superior court, before Putnam, J., the jury returned a verdict for the plaintiffs ; and the defendant alleged exceptions. The facts are stated in the opinion.</p>

<p>Contract brought in the name of the plaintiff by James M. Stevens, upon the following order: “ Medford, March 31, 1857. Messrs. Benjamin Parker and Obadiah George. Gentlemen: For value received, please pay to James Stevens or order any sum or sums that you may receive upon the sale of thirteen holes of brick mortgaged by me to you on the 3d of November A. D. 1856, for seven hundred dollars and the interest that may accrue thereon, after deducting from the net proceeds of the sales of said brick the amount that may be due you upon said mortgage as aforesaid, and his receipt shall be your discharge therefor, and oblige your very obedient servant, John Friend. Accepted : Benjamin Parker. Obadiah George.”</p> <p>After the former decision in this case, (3 Allen, 256,) the case was tried again, before Russell, J., in the superior court; and, after evidence had been introduced tending to prove that the plaintiff assigned the accepted order to James M. Stevens, in December 1858, as collateral security for $400 money borrowed, evidence was introduced, on the part of the defendants, tending to show that the order was drawn without consideration, to prevent the property of the drawer from being attached, and that after its acceptance by them the plaintiff said to them that it would remain in the drawer’s hands, unless his property mentioned therein should be attached, and that the plaintiff had no interest therein whatever; and that the plaintiff at the same time told them to pay the amount to the drawer, precisely as if they had riot accepted the order, unless the property should be attached. There was also evidence that the defendants received $1300 from the sale of the bricks, and that the order was seen in the drawer’s hands in September or October 1857; and the defendants then offered evidence of declarations by the drawer, made after the plaintiff’s statements to the, defendants, as above recited, and both before and after September 1857, to show payment to the drawer, and fraud committed by the plaintiff. The plaintiff’s counsel then stated that he waived all claim to recover anything more than the interest of James M. Stevens in the acceptance, and thereupon the evidence was excluded. The defendants then put in a general release, under seal and dated March 12, 1859, by James Stevens to Benjamin Parker, of all demands and causes of action whatever, the consideration of which was expressed to be one dollar.</p> <p>The judge, among other things, instructed the jury that if James Stevens and Friend and the defendants agreed on a fraudulent transaction for the purpose of defrauding the creditors of Friend, and if it was agreed by all these parties, as a part of this transaction, that the order above named should remain in the hands of Friend, and be paid to him, if his creditors did not trouble him; and if the debt was so paid by the defendants, in pursuance of that direction ; and if the order afterwards came into the hands of James M. Stevens for a good consideration, in good faith, and without knowledge of the transaction or of the payment, then the plaintiff could recover, to the extent of the interest of James M. Stevens, for his benefit.</p> <p>The judge submitted the following questions to the jury for special findings, and they were answered as follows:</p> <p>1. “ Was the original purpose of Friend in giving his order, to defraud or delay creditors ? ” Answer. 11 Yes.” 2. “ If the above question is answered in the affirmative, did James Stevens participate in the fraudulent purpose ?” Answer. “ Yes.” 3. “ If the above questions are answered in the affirmative, did James M. Stevens receive the order in good faith, without knowledge of the fraud, and for valuable consideration ? ” Answer. “ Yes.” 4. “ At the time of Stevens’s release to Parker, had Parker received notice that the order had been transferred to James M. Stevens ? ” Answer. “ Yes.” 5. “ Did the order remain in the possession of Friend with the assent of James Stevens, until January 1859 ? ” Answer. “ No.” 6. “ Did the defendants pay Friend, before the transfer to James M. Stevens, the balance due for the bricks, beyond the mortgage ? ” Answer. “ No.”</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>\ note in this form, “ $631.46, Boston, Nov. 12, 1860. Six months after datz;, we promise to pay to the order of A. B. six hundred and thirty-one dollars, value received. Mass. Steam Heating Co. L. L. F., Treasurer,” is the note of the company, and does not bind L. L. F. personally.</p>

<p>An indorsement of a draft by a husband to his wife, and her subsequent indorsement oi it with his assent to a third person, are sufficient to vest in the latter a valid title.</p> <p>A draft in this form —“Office of the P. L. Manuf. Co., Hancock, Mich., June 5th 1861. E. T. L., agent. At four months sight, pay, &c., and charge the same to account of this company,” signed “ I. R. J., agent,” and accepted by “ E. T. L., agent,” binds the acceptor personally.</p>

<p>If money has been paid for the good will of a business, with an agreement by me venuoi to endeavor to induce his customers to patronize the purchaser, proof that after the lapse of over a year the vendor again engaged in a similar business in the vicinity will not sustain an action to recover back the money so paid. The remedy, if any, is by an action on the contract for damages.</p> <p>A bill of sale of a stock of goods in a store and “ the good "will of the vendor’s trade and all the advantages connected with the store ” does not import an agreement by the vendor not to engage again in a similar business; and parol evidence is incompetent to prove such an agreement, as a part of the consideration for the price named in the bill of sale.</p>

<p>In an action on a replevin bond, to recover the value of the replevied property, evidence is inadmissible in defence to show the appraisement of the value of the property by the appraisers in the replevin suit.</p> <p>It is no defence to an action on a replevin bond, in which the plaintiff seeks to recover the value of the replevied property, to show that he took out and collected an execution for costs on the judgment in his favor in the replevin suit.</p>

<p>Contract to recover the amount of a reward offered on the 1st of January 1854, by the owners of the British and North American Royal Mail Steam Packet Company, for information to the agent or officers of their ships, of goods smuggled or concealed, or intended to be smuggled therefrom. The terms of the offer are copied in the opinion.</p> <p>The following facts were agreed in the superior court: Prior to the offer of the reward, ships of the defendants had been seized by the collector of customs at Boston in two instances, on the allegation that goods of the value of more than $400 subject to duty, had been smuggled and landed, without a permit, from on board of them, and upon petition of the defendants by their agent, forfeiture of the vessel was in each instance re mitted by the secretary of the treasury upon payment of a fine and costs. Soon after, the agent of the defendants represented to the collector that he was authorized by the defendants to offer a reward for the detection of smuggling, and suggested that, if such reward was offered, and they used all the means in their power to prevent and detect smuggling, and disclosed it when detected, it ought to be considered in regard to further seizures of the ships. The collector replied that if the defendants took such extra precautions it would be considered, so far as consistent with official duty; and thereupon a printed handbill, offering the reward, was posted up in various places, where the plaintiff saw"and read them. These precautions were favorably considered at the custom-house; and though afterwards several acts of smuggling were detected, including those hereinafter named, no seizure was afterwards made of the defendants’ ships.</p> <p>On the 12th of May 1854, the Canada, one of the defendants’ ships, arrived at her wharf in East Boston, in the night time. The plaintiff, who was a day inspector duly appointed under the general laws regulating such officers, was not assigned to this ship at that time, four other inspectors having been so assigned, which was the complement required. The plaintiff at that time was assigned as a day inspector to another vessel. At this time, it was no part of the ordinary official duty of day inspectors to take charge of vessels in the night time, or to give information of smuggling to the agent or officers of the defendants’ ships; and there were no treasury regulations permitting passengers to land without a permit; but for the accommodation of the defendants and their passengers the collector allowed 1 passengers to land, before entry at the custom-house, with their luggage, without a permit, provided such luggage contained no dutiable goods. The plaintiff went on board of the Canada upon her arrival, and his attention was attracted by the conduct of three of the passengers, whom he examined, and found concealed upon their persons and in their luggage a quantity of dutiable goods, which were not entered upon the ship’s manifest, and of the value of more than $400. These goods were secured until the next day, when they were seized by the chief inspector assigned to the ship, and the persons who had concealed them were arrested and afterwards tried and convicted for smuggling, and the goods forfeited. The plaintiff was a witness at the various trials, and received no share of the proceeds of the goods as informer.</p> <p>In mating these examinations and in stopping the luggage, the plaintiff acted with all the authority of an inspector of customs, being voluntarily present, and acting with a view to the reward offered by the defendants. The next morning, and before any legal process had issued against the goods or passengers, he gave information to the defendants’ agent of the facts, and informed him that he should claim the reward in each case, and showed to him the goods; and subsequently he made a formal demand therefor in writing.</p> <p>Upon these facts, judgment was ordered in the superior court for the defendants; and the plaintiff appealed to this court.</p>

<p>In an action for trespass to real estate, in which the defence is a denial of the plaintifi’s title and a claim of title in the defendant, either alone orwith others, an award of an arbitrator to whom the case had been referred, finding that the plaintiff has shown a title sufficient to support the action, and that the defendant has not shown a title equal to that of the plaintiff, or which would justify the acts done by him, and assessing damages in favor of the plaintiff, is valid; it not appearing that the defendant introduced evidence to justify his acts under the title of other persons.</p> <p>Under a submission of an action to an arbitrator, with an agreement that he may pass upon all questions of costs, an award fixing the amount of costs in gross is prima facie valid.</p>

<p>Bill in equity alleging that on the 6th of October 1856 the defendant, being then the sole owner of the ship Anna Kimball, sold to the plaintiff, who was a master mariner, one twelfth part of her for $4000; that the ship was then undergoing repairs, and that it was agreed that the title should not vest in the plaintiff until their completion, and that the defendant also made a further and independent agreement that he would pay the expenses thereof; that the defendant was the managing owner, and since the plaintiff’s purchase the ship has performed two voyages, in the first of which, from New York to Melbourne, Australia, thence to Calcutta and back to Boston, under a charter for $35,750, the plaintiff acted as her master, under an agreement that he should receive for his services five per cent, of her gross earnings; that the defendant agreed to keep the plaintiff’s interest insured; that the defendant has received her earnings, and large sums for insurance, and refused to render an account to the plaintiff, or to pay to him the sum to which he is entitled.</p> <p>The answer denied the making of the agreement for a delay in the vesting of the title to the plaintiff’s share, or as to the repairs, and alleged that the plaintiff was responsible for his portion of the expenses of the repairs; denied that he faithfully performed the duties of master; alleged that he withheld moneys received by him on the ship’s account and was still largely indebted to the ship; denied that the defendant agreed to keep the plaintiff’s interest insured, or that he has ever refused to-render an account; and alleged that a portion of the charter money was still in litigation, and that various trustee suits had been brought, and were still pending, attaching any funds of the plaintiff which might be in the defendant’s hands. And the defendant annexed to his answer, 1. The account of the ship with the plaintiff as master; 2. The account of the ship with the plaintiff as part owner, during the time that he acted as master; 3. The account of the ship with the plaintiff as part owner, since he ceased to act as master.</p> <p>The case was referred to a master, from whose report it appeared that on the 6th of October 1856, while the ship was undergoing repairs, the parties entered into the following agreement :</p> <p>“ It is agreed between Edmund Kimball, Esq., owner of the ship Anna Kimball, and Thornton B. Fennell, that, for the sum of four thousand dollars, one twelfth of the said ship Anna Kimball will be and is sold to Thornton B. Fennell, who is to command her; and it is further agreed that the pay of the said master, Thornton B. Fennell, is to be five per cent, on the gross earnings of the ship, and that his boarding expenses, while in port, will be paid by the owners of the ship. It is understood by the parties, that if any charges, any commissions, on this sale Capt. Fennell is to pay the same.”'</p> <p>On the same day, a bill of sale of one twelfth of the ship was executed in the usual form. There was a conflict in the evidence as to the progress which had then been made in the repairs ; but the master reported that the point was not material.</p> <p>There was also a direct conflict in the evidence whether the parties agreed that the title should not vest in the plaintiff until the completion of the repairs, and whether the defendant promised to pay the expenses thereof. In reference to this, however, evidence was introduced of the value of the ship, and the amount of insurance obtained upon her; and one witness, who had been a ship broker for thirty years, testified that it was very unusual for a master to buy a “ master’s interest” in a vessel undergoing repairs, and that it would be an unheard of case to sell such an interest to a master, and he to pay his contributory share of the expenses of the repairs. Upon this point, there was evidence contradicting the above. Upon the whole evidence, the master reported that he found that the agreements set forth in the bill were proved ; and he also reported the amount paid for repairs, and that paid for outfits.</p> <p>The defendant made all the purchases for the ship, and paid the bills; and the master allowed to him his charge of two and one half per cent, as commission thereon.</p> <p>On the 4th of July 1856, the defendant chartered the ship to G. T. and W. P. Lyman, “for a voyage from New York to Melbourne, Australia, thence to Manilla, and back to Boston ; or, from Melbourne to Calcutta, and back to Boston,” “ including the cabin for passengers, for the outward voyage only, except the necessary room for the captain and officers of the ship, foi $35,750, provided she went to Calcutta.” For effecting this charter, the defendant paid to a broker $893.75, and charged the plaintiff with his proportion thereof, which the master allowed.</p> <p>The ship proceeded upon her voyage from New York to Melbourne, thence to Calcutta, and back to Boston; but only $22,400 of the charter money was paid, the rest being in litigation, under circumstances reported in detail by the master, who found, from the facts disclosed, that, whatever might be the result of the litigation, the defendant must be held to have insured to the plaintiff his share of the whole amount.</p> <p>Upon conflicting evidence, which was reported in detail, the master found that the defendant insured the plaintiff’s interest in the ship, and was therefore liable to account to him for his share of certain sums received from the insurers.</p> <p>It appeared that the plaintiff’s wife accompanied him upon the voyage, and that a Mr. Burns went as passenger from New York to Port Louis, and a Mr. Rollins from Calcutta to Boston. The master reported that by the “ outward voyage ” he understood the voyage from New York to Calcutta; and, no special agreement being proved as to the plaintiff’s right to take his wife without charge, the master reported a sum wliich he considered proper for the plaintiff to be charged for her passage, and likewise for that of the other passengers, after leaving Calcutta.</p> <p>The plaintiff received $675 at Melbourne on account of his services. The agents who paid it charged a commission of two and one half per cent., and the defendant was allowed to include this in the ship’s account with the plaintiff.</p> <p>The ship was at Calcutta during a portion of the months of July and August. There was evidence that it is reasonable and necessary at that season to hire conveyances there, and that, in the absence of a special agreement to the contrary, it is usual to charge the expenses to the ship. But the defendant’s letter of instructions to the plaintiff, the receipt of which was acknowledged, without dissent, contained this sentence : “ I do not expect to pay any riding bills, and hope yo'u will live on board the ship.” The master reported that under this letter of instructions the plaintiff could not be allowed to charge the riding expenses against the ship.</p> <p>Several trustee suits were brought against the plaintiff, in which the defendant was summoned as trustee. These suits were pending at the time of the hearing before the master.</p> <p>Upon the question of interest, the master found that interest should be charged by the defendant only on the balance due, after an account stated, and beginning to run after a demand and a refusal or neglect to account; and he stated accounts casting the interest accordingly, showing a balance due to the plaintiff, on his account as master, of $175.44; and on his account as part owner, of $1470.33.</p> <p>Both the defendant and the plaintiff alleged various exceptions to the master’s report, of which so much as is material is copied in the margin.*</p>

Contract against the owners of the ship Bunker Hill, to recover wages for services performed by the plaintiff in navigating the ship. At the trial in the superior court, before Brigham, J., it appeared that the plaintiff, having been twelve years at sea, shipped as mate of the Bunker Hill, for a voyage from London to Melbourne, Callao and the Chincha Islands, at fifty dollars a month.

<p>A promise to repay money which the promisor requests the promisee to pay to a third person is not within the statute of frauds; and the cause of action arises when the money is paid, and not when the promise is made.</p>

<p>An assignment, not under seal, of a lease which is under seal, does not give to the assignee the right to maintain an action in his own name for subsequently accruing rent.</p> <p>A claim due from the plaintiffs and another person, jointly, is not a subject of set-off^</p>

<p>Notes given to assignees of a debtor for work done by them under a contract by which they agreed to complete an unfulfilled contract of the debtor, cannot be reached and held by a creditor, upon a bill in equity, under Gen. Sts. c. 113, § 2.</p>

<p>&. bill in equity is not multifarious which avers that the plaintiffs are several owners of different parcels or lots of goods, which have been obtained from them by fraud through distinct and separate transactions, by a person who has pledged them to secure an advance to him of money and a note, and seeks a restoration thereof, if the bill offers to pay such advance, and seeks to cause the note to be given up. But such bill must aver in clear and distinct terms that all or some portion of the goods which were thus obtained and pledged belonged to each one of the plaintiffs.</p>

<p>If a bill in equity to redeem land from a mortgage, and requiring an answer under oath, has been dismissed, upon motion of the plaintiff, and without the knowledge of the defendant, after the filing of the answer, and after the expiration of the time when, by the rules of the court, the plaintiff was entitled to file a replication and take testimony, the decree for the defendant is conclusively presumed to be upon the merits, and is a bar to a subsequent bill for the same cause, brought by the same plaintiff, or by one who acquired his title pendente lite.</p>

<p>Bill in equity by the assignees of John A. Walker, an insolvent debtor. The bill alleged, in substance, that on the 5th of March 1861, Walker was seised and possessed, in his own right 'in fee simple, of the parcels of real estate therein described ; that on the same day, he, being then insolvent, conveyed the premises to Joseph G. Russell, who immediately thereupon conveyed the same to Rhoda P. Walker, wife of said John; that afterwards the said John and Rhoda, by their deeds bearing date the 1st day of April 1861, but in fact executed on the 1st' day of May then next ensuing, conveyed the same to the defendant Jones ; that each of said conveyances was made for a mere nominal consideration, and that they were all made and accepted by said several parties as aforesaid with intent and design to secure the premises to the use of said John and Rhoda, and thereby to prevent the same from coming to his assignees, and thus to defraud his creditors. It was further set forth in the bill, that the defendants pretend that the premises were purchased by said Jones of said Rhoda in good faith, and that he actually paid her therefor the several sums expressed in the deeds to him, and that the plaintiffs, protesting that no such sums were in fact paid, nevertheless .claim, that if it shall be made to appear that they were paid, and that the money is now in the hands and possession of said Rhoda, it is the proceeds of the real estate of said John fraudulently conveyed as aforesaid, and of right belongs to them.</p> <p>The defendants demurred to the bill, assigning, as a cause of demurrer, that upon the case stated, the plaintiffs have a plain, adequate and complete remedy at law.</p>

<p>Bill in equity against Artemas Hammond, an insolvent debtor, and his assignees in insolvency, alleging, amongst other things, that said Hammond entered into a written agreement to sell coal, wood and bark for the plaintiffs, and that, at the time of his insolvency, he had sold large quantities of the same for them, payment for which had been made to the other defendants, as his assignees; and praying for a decree ordering the defendants to account for and pay over the sums collected by them, and to deliver the books of Hammond to the plaintiffs, to enable them to collect such of the debts as are still outstand-</p> <p>To this bill the assignees filed an answer, and then applied to the court to have the following issues tried by a jury :</p> <p>“ First. "Whether, subsequently to the written contract entered into between the plaintiffs and Artemas Hammond, a copy of which is annexed to the bill, the said parties made a verbal agreement, whereby the coal and wood, which said Hammond required for his retail sales, were and did become his sole property, at certain agreed upon prices, anything in said written contract to the contrary notwithstanding; and whereby said Hammond became and was the purchaser and owner, at certain agreed upon prices, of the wood and coal which he sold at retail; and whereby the said Hammond was not to account to said plaintiffs as their agent for coal and wood sold at retail, but was to take what was necessary for his retail trade, and pay for it at a certain fixed price.</p> <p>“ Secondly. Whether the contract made between the plaintiffs and Artemas Hammond, a copy of which is annexed to the bill, was made with the object and intention of the parties to said contract, by their dealings under it, to enable the said Hammond to obtain a false credit to carry on business, buy merchandise, and borrow money and notes upon the strength of the possession of property which apparently belonged to him, but which really was owned by said plaintiffs, by virtue of said contract.”</p> <p>Upon this application, Hoar, J. refused to allow the second issue to be submitted to the jury; and thereupon the parties agreed to waive a trial by jury on the first issue, and that the cause be reported to the full court upon said refusal to allow said second issue to be submitted to the jury; and that, if the court should be of opinion that such refusal was erroneous, the cause should be sent to a jury upon the issue of fraud, and also upon said issue agreed to be waived as aforesaid; but, if said ruling should be sustained, then the cause should be sent to a master, to find and report the facts in relation to the alleged subsequent parol agreement, and to state and report an account between the parties, in conformity with the prayer of the bill; and the court to render such judgment thereon as the law requires.</p> <p>The above agreement having been entered into and filed by the parties, it was ordered that the cause be reported to the full court, to be disposed of in pursuance of said agreement. ,</p>

<p>If a recognizance contains enough upon its face to show that the case in which it was taken belonged to a general class of cases of which the court had jurisdiction, it is not necessary for it to show in detail that the case did not fall within certain exceptions to that class of cases, of which the court had no jurisdiction.</p>

Contract upon a recognizance. The action was brought originally against Edward J. Davenport as principal and William C. Tyler as surety in the recognizance.

<p>No exception lies to the allowance of an amendment to a declaration after a demurrer to it has been sustained, although the question of terms was reserved for future consideration, if it does not appear that the case was allowed to proceed to trial before the terms were decided upon.</p> <p>A declaration sufficiently sets forth the authority of a constable to make an arrest on execution, which alleges the recovery of a judgment for $85 damages, the issuing of an execution thereon, the making of the affidavit and the procuring of the certificate required by the statute, and the delivery of the execution to a constable duly authorized • to serve it.</p> <p>A declaration sufficiently sets forth the authority of a magistrate to take a recognizance, upon an Application to take the poor debtors’ oath, which alleges that he was a commissioner of insolvency within and for the county where it was taken, and duly authorized to act in such cases.</p> <p>The declaration in an action upon a recognizance, entered into upon an application b}T one who has been arrested on execution to take the poor debtors’ oath, need not aver affirmatively that the execution had not been paid.</p> <p>A certificate, under Gen. Sts. c. 124, § 5, to authorize an arrest of a judgment debtor on execution, which sets forth that the magistrate, after due hearing, is satisfied that there is reasonable cause to believe the facts therein required to be sworn to, is correct in form.</p> <p>In an action upon a recognizance, it is not necessaiy, in order to show the authority of the magistrate who took it, to produce his commission in court; but his authority may be shown by parol proof of his acts in that capacity.</p> <p>It is a sufficient signing of the name of a magistrate to an official certificate, if his surname is written in full, and his given name is expressed simply by its initial letter.</p> <p>An execution having upon it the affidavit required by law for that purpose is sufficient to authorize the arrest of the judgment debtor, although the officer has made no search ior property belonging to him, and has received no special directions to make the arrest.</p>

<p>A creditor of a corporation may maintain a bill in equity against officers, for the purpose of charging them with the debts of the company for which they are liable, under Rev. Sts. c. 38, § 25, without first recovering judgment in an action at law against the corporation.</p> <p>A bill in equity brought by a creditor against officers of a corporation, for the purpose of charging them with the debts of the company for which they are liable, under Rev. Sts. c. 38, § 25, which avers that at the time the plaintiff’s claim accrued the debts of the corporation exceeded the amount of its capital stock actually paid in by a sum which is named, and that the defendants were at the time the claim accrued directors of the corporation, does not sufficiently show that the excess of debts over and above the amount of capital stock actually paid in happened under the administration of the defendants.</p>

<p>Petition to enforce a mechanic’s lien. At the trial in the superior court, upon facts which are sufficiently stated in the opinion, Morton, J. ruled that the petitioners were not entitled to a lien; and they alleged exceptions.</p>

<p>If labor and materials have been furnished and used in the erection of a fence upon the land of several different owners, under an entire contract, with no stipulation for a separate price from either, a mechanic’s lien therefor cannot be enforced upon the various lots of land collectively; nor is an account filed in the clerk’s office, of the whole amount due, a sufficient compliance with St. 1855, c. 431, § 2, to authorize the enforcement of a lien upon either of them.</p>

<p>Contract against-a constable and his sureties upon his bond given to the plaintiff, as treasurer of the city of Boston, and executed by the defendants jointly and not severally. One clause of the condition of the bond provided that the defendant Goodwin, the constable, should with “ faithfulness, speed and diligence serve all writs, executions and distresses in private causes, between party and party, and make return thereof duly,” &c.</p> <p>A trial by jury was waived in the superior court, and the case was heard before Morton, J., who found that, on a writ against one Streeter, Goodwin attached property of George H. Harden, in pursuance of directions from the plaintiff therein, and acting under an honest belief that the same belonged to Streeter, and that Harden afterwards recovered judgment against Goodwin therefor on a trial, and an execution issued for the damages and costs, which is still unsatisfied. The judge ruled that the bond was valid, that the defendants were liable thereon upon the facts proved, and that in the absence of fraud or collusion the judgment against the constable was conclusive evidence as to the damages and costs, and he rendered judgment accordingly. The defendants alleged exceptions.</p>

<p>An action lies against the sureties upon a bond given by the cashier of a bank, to secure the faithful performance of the duties of his office, although it does not in its terms conform to the provisions of Rev. Sts. c. 36, § 27, and no other bond was taken.</p>

<p>Replevin of fifty seven tierces of lard.</p> <p>At the trial in the superior court, before Brigham, J., it appeared that the plaintiff, who resided in Nantucket, employed Cushman; Spence & Co., who were known to him as commission merchants in Boston, to purchase eighty tierces of lard for him in Chicago. They purchased the lard, which was sent to them by railroad, and arrived in two separate lots, and was stored by them in Boston, in the public warehouse of Hills & Brother, who issued warehouse receipts for it. The defendant offered evidence tending to show that when the lard arrived, Cushman informed Hills that it was the property of his firm, and they intended to hold it for a rise, and would probably wish to get an advance upon it; and on the next day Spence requested Hills to get an advance upon it, giving to him the invoice from the seller of the lard, and the warehouse receipts, indorsed by Cushman, Spence & Co. In pursuance of this request, Hills procured from the defendant an advance of $1333, on the 11th of May 1861, and delivered to him the warehouse receipts. It was agreed that the advance was made by the defendant in good faith, and without any reason on his part to believe that the lard was not the property of Cushman, Spence & Co.</p> <p>There was conflicting evidence as to whether the plaintiff gave to Cushman, Spence & Co. authority to sell the lard, at the time when he employed them to make the purchase. On the 14th of May, they sent to him a letter as follows : “ Please find above a receipt for eighty tc’s lard. When the balance arrives, will send you receipt; also B. L., which we have of thirty barrels more, expecting every day draft paid.” The receipt referred to was as follows: “ 80 tc’s lard. Boston, May 14, 1861. Received and stored eighty tc’s prime leaf lard, for Franklin Nickerson, to be sold for his account and risk, and under his instructions.” On the 4th of June, they sent to him another letter, enclosing a similar receipt for thirty barrels of lard. The Plaintiff did not object to the terms of these receipts, or forbid the sale of the lard; but testified at the trial that he sup posed they were warehouse receipts. On the 25th of July he learned of the pledge to the defendant, and commenced the . present action.</p> <p>/ The defendant’s counsel argued to the jury, and requested the court to instruct them that “ the plaintiff, having accepted the two receipts in question from Cushman, Spence & Co. without making any objection to the same, or forbidding or objecting to their selling the lard, allowed them to be intrusted with the possession of the lard for the purpose of sale, and that he could not show any different state of things, because he did not under- * stand the force and effect of the two receipts;” but the judge declined so to rule.</p> <p>The defendant also requested the court to instruct the jury that, if the plaintiff intrusted in the hands of Cushman, Spence & Co. the lard in question, as his agents, and if the understanding and agreement between the plaintiff and Cushman, Spence & Co. was, that they should at some future time sell the lard on his account and risk, although no time was fixed for the sale, or-terms, and if the defendant in good faith advanced money to Cushman, Spence & Co., believing' them to be the owners, and with probable and reasonable cause' to believe that the lard belonged to Cushman, Spence & Co., then the defendant can hold the ird for the amount of his advances; and that if the. plaintiff, knowing that the said Cushman, Spence & Co. were commission merchants, whose ordinary and usual business was to sell property like this in question, employed them as his agents to buy, receive and take charge of the lard in question, and if he, by his acts and conduct, negligently allowed and consented that Cushman, Spence & Co. should be held out to the public as the true owners of the lard, and allowed the title to the property to be held in their name, and also negligently allowed the ordinary and usual indicia, documents and muniments of title to be in the name of Cushman, Spence & Co., and. if the said defendant was misled by the negligence of the plaintiff, and was deceived by the said plaintiff’s agent, and in good faith advanced money on the goods, believing and having reasonable cause to believe that the goods were the property of Cushman, Spence & Co., then the defendant is not to suffer from the fact that the plaintiff’s agent exceeded his authority, büt can hold the lard for the amount of his advances.</p> <p>The judge declined so to instruct the jury, but instructed them that “if the plaintiff, for the fraudulent purpose of enabling Cushman, Spence & Co. to obtain a false credit, or to hold themselves out to and deal with innocent persons as the owners of said property, gave them the possession of the property, and other ordinary and usual indicia of ownership, he cannot recover his property of any bona fide purchaser, or one who has been imposed on by the appearance of ownership furnished by the plaintiff to Cushman, Spence & Co. A jury would be authorized to infer such a fraudulent purpose in the plaintiff, if, without evidence of any express or positive fraudulent intent, it was proved that he gave such possession, and furnished to and permitted Cushman, Spence & Co., to have all the ordinary indicia of ownership, upon the ground that every one is presumed to intend the usual and ordinary consequences of his act. If Cushman, Spence & Co. were intrusted by the plaintiff with the possession of this lard for the purpose of sale, any bona fide contract made by Cushman, Spence & Co. in relation to this property would be valid, and it would be immaterial when or on what terms, .imitations or conditions, such sale was to be made; the material fact to be ascertained being that the prop erty was put into the possession of Cushman, Spence & Co. for the purpose of sale.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>A recognizance may be valid, although the language of its condition varies from, the language of the statute under which it is taken, in immaterial particulars, and although it omits to require all that the statute authorizes.</p> <p>A recognizance entered into by the defendant, under Gen. Sts. c. 137, § 9, on an appeal by him from the judgment of a magistrate in favor of the plaintiff for restitution of the premises demanded in a writ of forcible entry and detainer, is valid, which stipulates that the said defendant “shall and do prosecute his said appeal at said superior court with effect, and pay all rent of said premises now accrued, and all intervening rent, damages and costs which may arise after said appeal.”</p>

<p>An action by a magistrate against a judgment creditor, to recover fees for services rendered in taking a recognizance from the judgment debtor, on his application to take the poor debtors’ oath, may be sustained by proof that the recognizance was taken orally; and the magistrate’s minutes are competent evidence for this purpose, if the extended record has not been made.</p>

<p>Bill in equity brought by the treasurer and receiver general of the Commonwealth, alleging that the defendants are a savings bank and institution for savings incorporated under the laws of this commonwealth, and having their usual place of business in Boston, and are liable and bound to pay a tax on account of their depositors of one half of one per cent, per cmnum on the amount of their deposits, to be assessed one half of said annual tax on the average amount of their deposits for the six months preceding the first day of May, and the other on the average amount of their deposits for the six months preceding the first day of November, which tax is by law required to be paid semi-annually, &c.; that the treasurer has assessed upon the said corporation the amount of the tax first payable, to wit: the sum of $6929.44, which is the sum shown to be due by the return of the corporation made in conformity to the requirement of law; that the time for said payment has elapsed, and the defendants refuse to pay the same.* The prayer was for an injunction.</p> <p>Upon this bill a temporary injunction was issued, and the defendants appealed to the whole court.</p>

<p>Appeal from the decree of the judge of probate, ordering that the insolvent estate of William O. Moody, deceased, who at the time of his death was a member of the firm of Harrod & Moody, should be distributed amongst all the creditors who had proved their claims before the commissioners appointed to receive and examine claims against his estate, pro rata, without reference to the question whether the claims were against the joint or separate estate. At the hearing in this court, the case was reserved by Chapman, J. for the determination of the whole court, upon facts which are stated in the opinion.</p>

<p>In an action of tort for the conversion of “ five hundred and fifty dollars, in good and current money, the same being in bills of the People’s Bank of Roxbury,” an objection to the declaration, on the ground that it does not sufficiently describe the bills, cannot be taken at the trial upon the merits.</p> <p>The plaintiff in an action of tort for the conversion of property is not estopped from maintaining the action in his own name, by proof that in a bill in equity formerly brought by the plaintiff and wife against the defendant, which was signed and sworn to by the plaintiff, and afterwards discontinued, it was recited that the plaintiff and his wife were jointly possessed of the property.</p> <p>Evidence that bank bills were issued by a bank of this commonwealth in the regular course of its business, and had been once transferred and received as money, is sufficient, if uncontrolled, to authorize a jury in finding that they were worth the sums therein promised to the bearer.</p>

<p>Review of an action of contract in which the defendant in review recovered damages against the plaintiff in review, on a default. The present defendant was allowed to file an amended declaration, which was solely relied upon at the trial, and which set forth that he was engaged in excavating and removing from an estate in Brookline a quantity of earth which he had purchased for the construction of a causeway, and that Snelling, in consideration that he would discontinue said excavation, promised to procure a sufficient quantity of earth elsewhere for him, and to pay him for the time that he. and his teams should be kept idle, awaiting such procurement, the same prices that would otherwise have been earned, namely, at the rate of $3.50 a day for each team, and for his own trouble and inconvenience in thus suspending his work, and for the additional trouble, inconvenience and expense of excavating the earth from the new site, and of hauling the same a greater distance ; and that he discontinued the excavation accordingly, and remained idle awaiting the procurement of other earth by Snelling, and was put to trouble, inconvenience and extra expense, in making the excavation and hauling the earth from the new site ; whereupon Snelling owed him $318, according to a bill of particulars which was annexed. The first five items of the bill of particulars were for time lost; and the nineteen following items were for increased trouble, inconvenience and expense. The answer contained general denials.</p> <p>At the trial in the superior court, before Rockwell, J., it ap peared that one Rhodes was engaged in filling up certain flats, and had purchased a quantity of earth at the old fort in Brook-line to be used in said work, and had contracted with Lynch to haul the same from the fort to the place of filling, within a certain time, for a specified price; that in December 1860, when a portion of the earth had been removed, an extension of the time of doing the work was agreed to by all the parties in interest, and the work at the old fort was discontinued for a few days, until other earth was obtained in the neighborhood, but at a greater distancie from the place of filling, as a substitute. Lynch testified that at this time he had no men or teams in his employment, but had previously let out the whole work undertaken by him to one Corcoran, who, in pursuance of this contract, employed his own teams, and excavated and hauled the whole quantity of earth; that he had received from Rhodes the sum agreed upon, and had paid to Corcoran the sum agreed to be paid to him, and had not paid to him or to any other person anything more on account of the suspension of the work at the fort, or by reason of the change. Snelling thereupon contended that Lynch was not entitled to recover any damages, and asked the court to instruct the jury thp.t if these facts were true Lynch could not recover anything on the first five items in his bill of particulars; and, secondly, that if Lynch had received all the money to which" he was entitled from Rhodes, without any deduction for the delay consequent upon suspending the work at the old fort, and had paid over the same money to Corcoran, and had not paid any more money on account of the increased distance of hauling the last portion of the earth, or of the greater difficulty, if any, of excavating from the new site, then he was not entitled to recover anything for the remaining nineteen items.</p> <p>The judge instructed the jury that if the contract set out in the declaration was proved, they might inquire how many days or parts of days, if any, the teams were prevented from working by reason of this agreement alone, not including such delays as were caused by stormy weather or otherwise, and might give damages therefor; that although Lynch had underlet the work, yet the men and teams employed might be considered as his, in the true sense of the contract, provided it was understood between the parties that he was to stop them from further work at the old fort, and he did so stop them ; that, in regard to the remaining items, the claim of Lynch might be maintained, if the jury were satisfied that there was extra expense attending the excavation at the new site, and in hauling the earth taken therefrom; and if the evidence sustained the allegations as to an agreement to pay for these items, the only question to be considered was, how much would be a reasonable sum therefor.</p> <p>The jury returned a verdict in favor of the defendant in review, and the plaintiff in review alleged exceptions.</p>

<p>Contract brought in the name of a mutual insurance company, by its receiver, to collect the amount of assessments made upon a holder of séven policies therein.</p> <p>It was agreed, in the superior court, that the act of incorporation of the company (St. 1853, c. 176,) was approved on the 23d of April 1853, and went into effect thirty days thereafter, and that on the 7th of May 1853 a meeting was had, officers chosen and subscription lists prepared, and that on the 20th of May applications for insurance to the amount of $338,027, had been made. These applications requested insurance to commence on the 20th of May, and the policies, though not actually issued till the 1st of June, were issued as of that day. Various proceedings were recited, showing that the company continued to act as a corporation under the charter until the 20th of December 1856, when it was restrained by injunction.</p> <p>The 8th by-law of the company was as follows:</p> <p>“ Each person shall pay, upon the execution of his policy and before its delivery, the premium thereon, and in addition thereto deposit his written agreement to hold himself liable for an equal amount in the capital stock of the company, to be assessed and collected by the directors, in such sums and at such times as they shall deem expedient. All premiums and deposits thus paid in shall be denominated the absolute funds of the company, and shall be held pledged to pay — 1st, expenses; 2d, money borrowed ; and 3d, losses, and notes given in payment of losses.</p> <p>“ To place the property insured upon a solid foundation, each member shall be held to pay in case losses should happen so as to consume the absolute fund, at the discretion of the president and directors, during the term of his policy, a sum not exceeding two dollars for each dollar of premium and deposit.”</p> <p>Three assessments were laid upon the notes deposited as absolute funds. The method of making them was, to assess upon all the notes which were in force at the time when a loss occurred, for which the company were liable, a sum sufficient to pay the loss and expenses. The effect of these assessments was in most instances to exhaust and exceed the amount of the deposit notes; but in some instances to fall short thereof. A fourth assessment was then made by the following vote:</p> <p>Voted, that, whereas members of this corporation have just claims against the corporation, founded upon policies issued by it exceeding the amount of its existing funds, therefore that the following percentage of the deposit notes in force at the respective dates be ordered to be collected, and wherever this percentage, with any previously made, shall exhaust said notes, the remaining portion of said percentage in proportion to the premium and deposit severally is laid and assessed upon the policies themselves, at said dates respectively, apportioning the notes to yearly rates, 'viz: ” [then followed a list of nineteen assessments upon deposit notes and policies, to pay nineteen losses, the assessment in each instance being made upon the notes and policies which were in force at the time of the loss specified.]</p> <p>Various other facts were agreed, upon which questions arose wThieh became immaterial by the decision of the court. Upon the whole case judgment was rendered in the superior court for the defendant, and the plaintiffs appealed to this court.</p>

<p>If the plaintiff in an action to recover for building a road has introduced evidence to show that he was to receive as part of his compensation an assignment of a claim of the defendant for damages for land taken by a railroad company, and, for the purpose of proving the value of such claim, has proved that the defendant conveyed away by deed, for a large sum in gross, certain lands and his said claim for damages, the defendant may introduce evidence in reply to show that the claim for damages was valueless, and that nothing was paid or agreed to be paid therefor.</p> <p>Evidence is competent to prove that the adverse party in an action has suborned a witness to swear falsely in a deposition taken in relation to the case, although the deposition is not put in evidence by either party at the trial.</p>

Contract upon a poor debtor’s recognizance, in which John M. Way was principal and Granville G. Redding was surety.

<p>Bill in equity, praying that certain real estate conveyed by a deceased partner of the plaintiffs to the defendant might be decreed to be partnership assets, and that the defendant might be ordered to convey the same to the plaintiffs, for the benefit of the creditors of the partnership. The case was reserved by Hoar, J., for the determination of the whole court, upon facts which are stated in the opinion.</p>

Contract upon the following promissory note: “ $3000. Boston, June 16, 1858. On demand after date, we promise to pay to the order of Emily J. Plumer three thousand dollars, value received, with interest.

<p>Bill in equity by the husband of an insane woman, against the trustee under their marriage settlement, to obtain an order for a contribution from the income of the trust property secured to her sole and separate use, to aid in her support.</p> <p>In November 1860, upon a suggestion made in behalf of the wife, and after argument, the full court ordered a guardian ad litem to be appointed for her, who afterwards filed an answer, and the case was submitted upon the following agreed facts:</p> <p>By an ante-nuptial agreement executed at Charleston, South Carolina, on the 11th of December 1844, the income of certain property belonging to Juliane Monefeldt was secured to her sole and separate use, and William S. Monefeldt made the trustee thereof; and she and the plaintiff were shortly afterwards married, and lived together in Massachusetts, and had one son, who is now fifteen years old. Mrs. Davenport subsequently became insane, and, by the request of her friends and with the plaintiff’s consent, was placed in the asylum at Bloomingdale, New York, where she now is, without prospect of recovery. The plaintiff has been appointed as her guardian in this commonwealth.</p> <p>Immediately after the execution of the ante-nuptial agreement, William S. Monefeldt took possession of the property named therein, and held it, with the accumulations, until his death in 1857; and thereupon Henry Davenport was appointed in this commonwealth in his stead. The court of chancery in Charleston thereupon ordered the administrator of William S. Monefeldt to pay over the trust property to Henry Davenport, which was done in May and June 1858; the amount then being $9611.02. William S. Monefeldt left real and personal estate, but no wife or children, and Juliane, as his sister and an heir at law, was entitled to one fourth part thereof; and said court of chancery, upon application for directions as to the disposition of said share, ordered the administrator to pay to the plaintiff her share of the personal estate, and to convey her share of the proceeds of the sale of the real estate to a trustee by a deed in which said share should be settled so that the income thereof should be equally divided between the plaintiff and Juliane during their joint lives, and, after the death of one of them, the whole income should be paid to the survivor for life, and, upon the death of the survivor, the whole settled estate should be paid and delivered to her heirs at law. Henry Davenport was appointed trustee under this decree, and received the proceeds of real estate sold, to the amount of $9251.12. The plaintiff also received the sum of $5467.40, as her share of the persona, estate.</p> <p>The plaintiff is now a clergyman, with an annual salary of $800, and has maintained his wife and son to the present time, and he seeks by this bill to obtain the property held by Henry Davenport under the marriage settlement, or the income, or such part thereof as he may be'entitled to, either as husband or guardian of Juliane.</p>

<p>Bill in equity, praying for the removal of Edward Belknap, as trustee under the will of his father, and that an assignment by him of his interest in the trust fund might be declared void, and for other relief.</p> <p>At the hearing in this court, before Hoar, J., it appeared that John Belknap died in 1856, leaving real and personal estate, and a will which, after certain specific bequests, gave to his widow the use of his house on Mount Vernon Street in Boston during her life, one third of the net income, during her life, of certain specified real estate, and an annuity of $1600, and disposed of the residue of his estate as follows :</p> <p>“ All the rest and residue of my estate, real, personal and mixed, not herein before devised and bequeathed, I hereby give, devise and bequeath, in trust, to my sons Edward Belknap and Henry Belknap, and the survivor of them, and the heirs of such survivor, to be held in trust and managed by them for the following purposes, to wit: 1. From the amount received for income thereof, to appropriate a sum, not more than one fifth nor less than one tenth part of such income, for reinvestment, to preserve and augment the capital; 2. To pay the annuity herein before bequeathed to my wife, and the taxes and repairs on the house, which she is to use free of rent; 3. To divide the remaining income, after the payment above described, into four equal parts, for the use of my four children, Edward, Jane, Henry and George; the parts for Edward, Henry and Jane to be paid to them, and that of George to be paid to his mother, for his use under her direction during his minority; after he becomes of age, to be paid to himself.” Then followed provisions for the disposition of the estate after the decease of his widow, which are not now material.</p> <p>By codicils to this will Edward Belknap was left the sole trustee. He accepted the trust in June 1856, gave a bond according to law, and received a large amount of property, real and personal, and, after the settlement of his second account, absconded, having appropriated to his own use a large portion of the trust estate. On the 2d of April 1859, being largely indebted to the Union Bank, in New York, for money borrowed, he executed to them an assignment, which' is copied in the margin.* This assignment was made as additional collateral security, the bank not being satisfied with what they then bad The greater part of that indebtedness is still unpaid. It did not appear whether he was a defaulter to his father’s estate at the time of executing the assignment; but it did appear that the officers of the bank had no knowledge or reason to believe that no default or misapplication of the funds held under the will had then been made.</p> <p>As against Edward Belknap, the bill was taken for confessed; and the Union Bank alone opposed the granting of the relief sought for. A receiver was appointed to take charge of the estate, pending the suit; and it appeared by his accounts that the share of the income, and the commissions, to which Edward might have been entitled, if he had not been a defaulter, had been reserved. It was contended, in behalf of Henry Belknap, that this share of the income and the commissions ought to be applied to make up the amount of the principal which has been misapplied by Edward ; and other parties contended that the same should be applied first to make up the deficiency in the income.</p> <p>The case was reserved for the determination of the whole court.</p>

<p>Bill in equity to compel the specific performance of an .agreement for a family compromise.</p> <p>The bill set forth that the plaintiffs, Edmund L. Baylies, Elizabeth Hoffman and Ruth P. Livingston are the only children and heirs at law of Eliza A. Baylies, deceased, who was a daughter of Ruth Payson, lately deceased; that the plaintiffs, with the defendant and Mary Mulliken, are the only heirs at law of Ruth Payson; that in April 1858 Ruth Payson, being then of an extremely old age, and enfeebled and decayed in mind and memory, executed a written instrument purporting to be her will, containing the following clauses:</p> <p>“ 1. I give to each of my grandchildren, Elizabeth Hoffman, wife of Wickham Hoffman, Esquire, Ruth Payson Livingston, wife of- Livingston, Esquire, and to Edmund Lincoln Baylies, one hundred dollars, as a token of my affection. 2, I give to my niece Elizabeth C. Soley one hundred dollars, as a token of my affection for her. 3. I give to my niece Ruth Z. Soley an annuity of fifty dollars a year during her life, in half-yearly payments. 4. All the residue and remainder of my estate, real and personal, of every description, I give and devise to my two surviving children, Mary Larkin Mulliken and John Larkin Payson, and their respective heirs, executors, administrators and assigns, forever. 5. I appoint my said son John Larkin Payson to be sole executor of this will.”</p> <p>The bill further set forth that the defendant procured the execution of this will by the testatrix, in his presence and under his direction; that Ruth Payson died in March 1860, and the defendant gave notice by publication of his intention to offer the will for probate on the 23d of April 1860; that on the 20th of said April the plaintiff Edmund L. Baylies had an interview with the defendant in the city of New York, and informed him that the plaintiffs would oppose the probate of the will, and that the plaintiffs did not object to the provision for Mary Mulliken, and if the will had devised one half of the estate to her, and the other half in equal shares to the plaintiffs and the defendant, the plaintiffs would not have objected to it; that on the following day the defendant asked said plaintiff if the plaintiffs would take one sixth of the estate and settle the matter, to which said plaintiff replied that they would not, and that they stood out for the principle of the thing, and were determined to stand upon precisely the same footing as the defendant; that the defendant thereupon stated that upon his return home to Boston he would decide what to do, and immediately returned to Boston; that the plaintiffs thereupon retained Francis E. Parker, a counsellor of this court, to oppose the will; that on the 23d of April, William Minot, Jr., as attorney of the defendant, called upon the plaintiff Wickham Hoffman, and upon Mr. Parker, in Boston, and stated that he came on behalf of the defendant to say that the latter had concluded to settle the matter upon the suggestion made by Baylies, on condition that the plaintiffs should withdraw all opposition to the probate of the will; that Hoffman thereupon stated that he had no doubt the proposition would be accepted, but preferred to procure the consent of all the parties, and would write for it immediately, which he accordingly did; that Baylies immediately upon the receipt of this letter consulted with the other plaintiffs, and telegraphed to Hoffman to “ compromise at one quarter,” of which Mr. Minot was informed on the 24th of April, and it was then proposed by the attorneys that the agreement should be at once reduced to writing; that a writing was thereupon prepared by them, reciting the offer of the will for probate, and the existence of doubts as to its validity, and the agreement of the parties, as above stated, and concluding as follows: “ Now therefore I, the said John Larkin Payson,.......do covenant and agree with the said heirs.......simultaneously with the probate of said will, to execute and deliver to the said Edmund Lincoln Baylies, Elizabeth Hoffman and Ruth Payson Livingston, a sufficient conveyance in fee of one undivided quarter part of all the real estate of which the said testatrix died seised or possessed, with special warranty against myself, and also to execute and deliver an assignment and transfer to said heirs of Eliza Baylies of one undivided quarter part of all the personal property; ” that on the same day the defendant returned this agreement to Mr. Minot, declining to sign it, as unnecessary, because he had already in a letter to Baylies put the agreement in writing; that another writing was prepared by the attorneys at the same time with the former for the plaintiffs to sign, waiving notice of the offer of the will for probate, and requesting that it might be proved and allowed, which the plaintiffs executed and forwarded to Mr. Parker on the 27th of April; that on the 24th of April the defendant wrote to Baylies as follows:</p> <p>“ Boston, 24 April, 1860.</p> <p>“ E. L. Baylies, Esq.</p> <p>“ Sir: My son will have told you that I have consented to relinquish one half of my just right to the estate of my lamented mother to yourself and sisters, and pay over to you and them, when in cash, one fourth of the net proceeds of the same, two fourths to Mrs. Mulliken, and retain one fourth part to myself; which will not compensate me for expenses I have incurred towards the support of my mother’s family, and my own personal sacrifices made for her comfort, since my return to America in 1845.</p> <p>“ In the disposal of the property, if you do not object, I shall reserve the legacy of fifty dollars per annum for Miss R. Soley, and a hundred dollars given to Miss E. Soley; cancelling the one hundred dollars each to yourself and sisters.</p> <p>“ The furniture and the like, which will be appraised, has mostly been' taken' by my sister, excepting a few articles, gifts from me to my mother, and some trifles to Mrs. Payson for her unceasing devotion to my dear parent.</p> <p>“ I have made these proposals from a sole regard and respect to the memory of my dear mother, wishing to avoid the painful consequences that would unavoidably arise from a public litigation. At the same time, it is justice to myself, under existing circumstances, to clearly state that I had no more influence upon my mother’s doings in the making of the will than yourself. It was always her intention to dispose of her property as she has done, basing her views upon those that were contained in a previous will.</p> <p>My offer is made upon the understanding that you will remove all impediments to my freely passing the will, as it now stands, through the probate court; holding myself, as above stated, responsible for the payment of one fourth of the net estate to yourself and sisters, and then I shall attend to my duties as executor.”</p> <p>That Baylies replied as follows :</p> <p>“ New York, April 26,1860.</p> <p>‘John L. Payson, Esq.</p> <p>“ Sir: Your favor of the 24th inst. I have received.</p> <p>“ As regards the legacy of fifty dollars per annum to Miss R. Soley, it would give us much pleasure to increase the amount; say, Miss R. Soley should have the interest of three thousand ($3000) dollars during her lifetime. Mrs. Mulliken might give one half of this sum, (three thousand dollars,) yourself one quar ter, and we one quarter. Should you see fit to join with you, as administrator, Mr. William Minot, Jr., it would be acceptable to us, and perhaps more agreeable to yourself.”</p> <p>That the defendant replied as follows :</p> <p>“ Boston, 28th April, 1860.</p> <p>“ E. L. Baylies, Esq.</p> <p>“ Sir: Your letter of 26th inst. is received. From its contents I infer that you consent to the terms proposed in mine of 24th inst.; to which, having nothing to add, I am,” &c.</p> <p>That in all these matters Baylies was acting for all the plaintiffs, and all that he did in the premises was communicated to and approved by them, and, in consequence thereof, the plaintiffs regarded the agreement as fully concluded; but that on the 4th of May 1860 Baylies received a letter from the-defendant, conveying the information that, as the proposals of the latter had not been accepted either in the form or spirit in which they were made, he should withdraw them entirely; that Baylies replied, on the 21st of May, expressing his surprise, the readiness of the plaintiffs to carry out the agreement, and their determination to hold the defendant to the performance of it; that the defendant replied, adhering to his withdrawal; that on the 3d of July the will was offered for probate, and the plaintiffs, by their counsel, filed their assent, as hereinbefore set forth, and the will was then proved and allowed ; and that the defendant refuses to perform his part of the said agreement, and is about to depart out of the limits of the United States, with the intention, as the plaintiffs believe, not to return. The prayer was, that the defendant might be decreed specifically to perform the said agreement, and that the plaintiffs might be decreed to be entitled to a specific lien upon so much of the estate as would otherwise belong to him, and for further relief.</p> <p>The answer denied that Euth Payson at the time of executing her will was enfeebled or decayed in mind or memory, or that the will was drawn under the defendant’s direction; and averred that in 1846 she executed a prior will, a copy whereof was set out at length, similar in all respects to her last will, except that therein the residue of her estate was given to Mary Larkin Mullikpn, the defendant, and a daughter since deceased; and that the testatrix requested to have another will prepared in which the share of her deceased daughter should be given to Mary Mulliken and the defendant; admitted that in the interview with Baylies in New York on tlie 20th of April the latter stated substantially as set forth in the bill, and averred that the defendant then stated that the will was made in accordance with the well understood intentions of the testatrix; that the defendant had been enabled to pass the last years of his life in her company only at great inconvenience to himself and his family; that the father of said Baylies had stated to her that he did not wish to have himself or his family considered in the disposition of her property, to which the said Baylies replied that this was done in the expectation that Mrs. Mulliken would have all the property ; that the defendant further stated that although he had no doubt as to the validity of the will, he was exceedingly desirous to avoid family differences or any disagreeable feelings ,on the part of any of the plaintiffs, and still 'more any public family controversy as to the mental capacity of the testatrix, and inquired if the plaintiffs would be satisfied with one sixth part of the property, and, upon the statement by Baylies that they would not, but that they were determined to receive as large an amount as himself, he stated that after his return to Boston he would decide what to do, and would write to Baylies his decision ; and in pursuance of this statement wrote the letter of April 24th ; that he was not bound by any agreement which may have been made, if any was made, between Minot and Parker, and that he had no intention to be bound except by the terms of his letter; that said agreement, if made, was void by the statute of frauds; that the plaintiffs themselves did not believe any contract to have been then made; that his letter of April 24th to Mr. Minot, declining to sign the agreement which had been prepared, was as follows: “ In reply to your note of this date, you will please remember that I clearly stated to you yesterday, that, if my health would allow, I should write to Mr. Lincoln Baylies on that date; otherwise, on this day: which I did this morning, confirming the statement I made to you, viz: That I consent to pay over to him and his sisters, when en-cashed, the net proceeds of one fourth part of my mother’s estate, two fourths to Mrs. Mulliken, retaining one fourth for myself, after paying the legacies to Miss Ruth Soley and Miss E. Soley. I see no necessity of my signing any other document — least of all, one obliging me to acknowledge any doubt as to the perfect validity of my mother’s will; and therefore return you the enclosed document; ” that after the letter of Baylies, of April ■ 26th, and after the reply thereto had been sent, and after Baylies had been informed that the defendant declined to sign any other document than his said letter, to wit: on the 28th of April, he learned that the plaintiff Hoffman had been making diligent inquiries for the purpose of establishing the incapacity of the testatrix, and thus became aware that one great object of his proposal in his letter of April 24 — that of avoiding a public discussion upon the subject of her capacity — was defeated ; that on the 30th of April Mr. Minot read to him a letter from the attorney of the plaintiffs, of that date, containing the following paragraph: “ As I have not heard of the execution of the agreement by Mr. Payson, I presume that the will is not to be offered for probate to-day. If it is to be, please let me know it. Mr. Baylies’s children consider the execution of the agreement essential; and I think Mr. Payson also will see that, if the arrangement is to be carried into effect, it must be done by the customary forms, which alone can secure against the risks of life and capacity to act, to which all the parties are subject;” that the defendant understood and believed from this letter that unless he signed the proposed agreement the plaintiffs would continue their opposition to the probate of the will, and that they deemed the execution of the agreement by him as essentially necessary to any arrangement between them and him ; that the defendant refused to sign any other document, and afterwards determined to withdraw the proposal contained in his letter of April 24, because the same had not been accepted, and the proposed written agreement differed substantially from that offered by him, and he had been informed and believed that they deemed the execution of it essential, and, inasmuch as the matter had become to a great extent public, he thought it proper that the capacity of the testatrix to make a will should be fully investigated and vindicated in a court of justice, and especially that it should be shown that her will was not made under any improper influence from him ; that no claim was made that any agreement had been completed, when notice of the withdrawal of his proposal was given to the counsel of the plaintiffs, or at any time prior to the letter of Baylies of May 21st; that he retained Benjamin F. Thomas and Charles Devens, Jr., as counsel to aid in sustaining the will; that on the 4th or 5th of May said Thomas had an interview with the counsel of the plaintiffs, for the purpose of arranging a time which should be mutually convenient for the hearing, and fixed upon Monday, a fortnight thereafter, for that purpose; that, a few days after, said Thomas had a second interview with said Parker to ascertain whether the latter desired to go into a full hearing on the will, or only to cross-examine the witnesses thereto, and afterwards enter his appeal, in case their testimony should be found satisfactory to the judge of probate, and was informed by said Parker that he should take the latter course ; that no claim of a concluded agreement was made at either of these interviews, and preparations for the hearing were made by both parties ; that in the interval between the 2d and 21st of May the plaintiffs had frequent interviews with each other and with their counsel, and became satisfied that they could not successfully contest the will; that at the time when the will was proved, he appeared with his counsel, who stated that he did not desire to recognize the assent of the plaintiffs, or to depend thereon in any degree, but wished to produce such evidence as would satisfy the court, without such assent, and thereupon all the witnesses to the will were called and examined, and upon their testimony the will was admitted to probate ; and that it is true that the defendant is about to depart from the United States, but not with the intention not to return. In relation to various other matters alleged in the bill, the answer either admitted the same, or professed the defendant’s ignorance thereof.</p> <p>At the hearing,"before Hoar, J., the plaintiffs introduced the testimony of William Minot, Jr., and Francis E. Parker, and the defendant introduced the testimony of Charles Devens, Jr., and the deposition of Francis Payson, upon various of the matters alleged in the bill and answer. Mr. Minot testified to various interviews and negotiations, letters and agreements, substantially as set out in the bill and answer. Mr. Parker testified that he first knew of the correspondence between Baylies and the defendant a few days before the 21st of May, and never was authorized to waive any agreement for a compromise. He also testified to negotiations with the counsel of the defendant as to the time for the hearing upon the question of the probate of the will, before and after the 21st of May. The case was thereupon reserved for the determination of the whole court; was argued in November 1861, when it was decided that the bill was prematurely brought, for the purpose of enforcing specific performance of the alleged agreement; and again in November 1862, upon the question whether the bill might be maintained for the purpose of declaring and enforcing a trust.</p>

<p>Bill in equity, in the nature of a bill of interpleader, filed oy the executor of the will of Thomas Wetmore, to obtain the instructions of the court as to the payment of a mortgage upon an estate devised to him in trust. The material portions of the will were as follows :</p> <p>“ Second. I give to Mrs. Sophia Bishop, of Boston aforesaid, who has for so long resided in my house and faithfully cared for me, all my apparel, my household furniture, bed and table linen ; the same being in the house I own and occupy in Dwight Street, in said Boston.</p> <p>“ Third. I give to William T. Andrews, Esquire, aforesaid, my house and land in Dwight Street, in the said Boston, which I now occupy ; and also my shares of the capital stock of the Globe Bank in Boston, valued, at their par value, at fifty-six hundred dollars ; to hold and manage the same in trust:</p> <p>“ First, To permit the said Sophia Bishop to occupy and have the use and benefit of the said house in Dwight Street during her natural life, she paying the taxes thereon assessed while she shall so occupy the same; and,</p> <p>“ Secondly, To hold and manage the whole of the said property as a trust fund, subject to her right to occupy the house as aforesaid, if she shall wish to do so; and to collect and to pay over to her, on her receipt therefor, the net income thereof semi-annually during her natural life; and,</p> <p>“ Thirdly, Upon her decease, to convey and deliver the said real and personal estate and trust fund to Jane Gove Bishop, daughter of the said Sophia Bishop, free and discharged from all trusts; to have- and to hold the same to her and her heirs and assigns forever.</p> <p>“ Fourth. My bank stock aforesaid being under pledge and security for the payment of four thousand dollars, or thereabouts, I direct my executor to pay the whole sum for which it is pledged, as soon as it can conveniently be done, so that the said bank stock may be free from incumbrance; such payment to be made out of property not specifically herein devised.”</p> <p>The residue of the estate was given to the nephews and nieces of the testator.</p> <p>The parties agreed upon the following facts, so far as the same might be competent and material: The testator died in March 1860, unmarried and without issue, possessed of real ana personal property amounting in all, after payment of debts, to about $60,000. He purchased the house in Dwight Street in May 1857, for $8500. It was then subject to a mortgage for $5600 and interest, which formed part of the consideration of the purchase ; and he subsequently paid the interest thereon. Mrs. Bishop kept his house from 1837 until his death, and took care of him and his rooms and clothing, and boarded him, receiving for all these services 6om twenty-five to forty-two dollars a month. He knew that the united property of Mrs. Bishop and her daughter had at no time exceeded $1300. The house in Dwight Street was purchased and fitted up in accordance with theh choice and recommendation, and they lived in it as a .home.</p> <p>Upon these facts, the case was reserved for the determination of the whole court.</p>

<p>Declarations made by a deceased person when he believed that he should not recover may be admitted in evidence, although he lived seventeen days after making them.</p> <p>After evidence that the defendant in an indictment has requested a witness to swear falsely to facts tending to prove an alibi, he cannot be allowed to show that upon a full investigation the selectmen of the town where he lived had before that time assured him that they were satisfied of his innocence.</p> <p>Declarations of the defendant in an indictment to one who was searching his house after the commission of the crime are not admissible in his own favor.</p> <p>If dying declarations have been admitted to prove the identity of the defendant as the person who committed a crime, evidence is admissible in reply to show that the deceased had met and talked with persons with whom he was well acquainted, mistaking them at the time for other persons whom they did not resemble, and that he was in the habit of thus mistaking persons.</p>

<p>A judgment rendered on a verdict of guilty upon one count of an indictment which contained severa] counts, and a sentence passed thereon, will not be reversed on a writ of error, although there was no finding by the jury as to one of the other counts.</p>

Indictment for larceny, in the dwelling-house of Adam Grider, of gold and silver coin and bank bills, the moneys of said Adam. At the trial in the superior court, before Vose, J., it appeared that the moneys stolen were the earnings of Adam Grider and his wife, separately, after their marriage, each laboring separately from the other, and there was no evidence as to what specific part was earned by each of them.

<p>Indictment under Gen. Sts. c. 160, § 30. The 1st count charged that the defendants, three in number, on the 4th of August 1860, at Nahant, committed an assault and battery upon Charles A. T. Rice, and then and there without any lawful authority and without the consent and against the will of said Charles confined and imprisoned him for the space of two hours. The 2d count charged the commission of the same acts, with intent and design to send the said Charles and cause him to be sent from and out of the limits of the Commonwealth, without his consent and against his will. The 3d count charged that the defendants, at the time and place above named, fraudulently, wickedly and without any lawful authority, forcibly seized, confined, inveigled and kidnapped said Charles, he being the minor son of Henry G. Rice and in the lawful custody and guardianship of his father, with intent to send him and cause him to be sent from and out of the Commonwealth, without the consent and against the will of the said Charles and of his father.</p> <p>At the trial in the superior court, before Lord, J., evidence was introduced on the part of the Commonwealth tending to show that Charles A. T. Rice, named in the indictment, is the son of Henry G. Rice, and at the time of the alleged offence was a little more than nine years old; that he and his father were temporarily residing in Nahant; that the father had provided a school for the son kept by one Fette, and that on the 4th of August 1860 the boy was in school attending to his ordinary duties; that while the boy was reciting two men rushed into the school-house, one of them seized the master, Fette, pushed him across the school-room and held him, while the other rushed to them, raised a cudgel above the head of Fette, saying to Fette, “ If you touch him, (referring to the one holding Fette,) I’ll strike; ” that while this was going on a third person rushed into the school-room, seized young Rice and carried him out of doors and put him into an open wagon, thrusting him wholly or partially under the seat of the wagon, and rapidly drove off, when the other two came out of the school-house, running, followed by Fette making outcries, till they reached a carriage a short distance from the school, got into it, and followed the wagon in which was the third man with young Rice; that immediately afterwards search was made in every direction for the child by the father, who for this purpose employed many persons, detectives and others ; that within a few days traces of the child were found in Vermont and in Canada, and along the border line between Canada and Vermont, and that with that exception no trace of the child has been discovered by the father up to the time of trial.</p> <p>The defendants relied upon two grounds of defence: first, that they did not do the acts alleged, and to this end offered much proof of an alibi; secondly, that if done by them, what was done was done with the consent of the boy and by the wish of the mother of the boy, to whom, it was claimed, the custody of him belonged.</p> <p>Upon the question in whose custody the boy was, there was evidence that his father and mother intermarried about the year 1850, and from that time to the time of the trial they had lived together but a small portion of the time, being separated for long intervals until 1856, since when they have not lived together; and until 1860 the mother and child had not been separated. It further appeared that in September 1858 the mother obtained a decree of divorce in the state of Indiana, and a further decree granting to her the custody of the child; that on the 7th of December 1859 the father and mother entered into a written agreement, by which the custody of the child was conceded to the father upon certain terms and conditions therein mentioned, he agreeing to perform the same, notwithstanding any decree that might be made concerning the custody of the child in proceedings for a divorce in Maryland, provided that he should institute such proceedings; that in January 1860 the father obtained a decree of divorce in Maryland, where he resided, and a further decree granting to him the custody of the child; that afterwards disputes arose concerning the above agreement, and the mother sued out of this court a writ of habeas corpus for the child, upon which after a hearing it was ordered by the chief justice of this court, on the 1st of August 1860, that the custody of the child be remanded to the father. The judge ruled that the effect of these proceedings was that the legal custody of the child on the 4th of August 1860 was in the father, and that neither the mother nor any other person had the right to take him from that custody by force.</p> <p>The direct examination of Henry G. Rice, the father, was confined on the part of the Commonwealth to a few points ; the cross-examination was very long, and introduced a great variety of matters; upon re-examination, some of these matters were explained; the witness was then cross-examined again, and upon further re-examination was asked if he heard the mother say in Boston that she induced the child to try to run away from his father, to which he replied that he did. Upon further cross-examination, he said he thought the statement was made in the course of her testimony as a witness. He was then asked, what else she testified to. This was objected to, and excluded ; the judge remarking that the examination had been for a long time irregular. The defendants asked the judge to note an exception to the ruling; and the judge accordingly reported the facts, in the bill of exceptions, so that if they had a right of exception at that stage of the examination they might have the benefit of it.</p> <p>The defendants made requests for various rulings, which the judge declined to make in the language prayed for, but instructed the jury that upon the 1st count of the indictment the burden of proof was upon the Commonwealth to show that the child was seized and imprisoned by force and against his will; and, upon the 2d, to show that such seizure was for the purpose of taking him from the Commonwealth against his will; that, whenever the burden of proof was upon the government to establish a fact, it was necessary to establish it beyond a reasonable doubt; and that the burden was upon the government in this case to establish every fact alleged in the indictment. As to what would constitute a seizing and imprisoning by force and against the will, the following instruction was given : “ If the defendants, either alone or in company and in concert with others engaged in the same enterprise, entered the school-room, with no previous knowledge, on the part of the child, of their object, purpose or intention, and they or either of them (all being engaged in the common enterprise) seized the child and took him into a carriage with the intent charged in the indictment, that is such a taking by force and against the will of the child as will satisfy the requirements of the statute, although the defendants acted under the direction of the mother of the child, and although the child, as soon as he knew that his seizure was for the purpose of taking him to his mother, was pleased with it, and was desirous to have the intention carried out.”</p> <p>As to what would constitute the intent to take the child out of the Commonwealth against his will, the judge ruled as follows : “ If the defendants were employed to seize the child by a person who had such intent to take the child from the state, and the defendants were ignorant of such intent, still in law they are responsible for such intent on the part of the third person, and will in law be deemed to have had such intent, if they seized the child intending to take him out of the custody of the father and put him into the absolute control of such person, to do as he pleased with him.”</p> <p>The judge farther charged the jury as follows : “ I have been requested to instruct you in relation to the rights of parties, upon the supposition that the proceedings of August 4th were the execution of an agreement previously entered into between the mother and the child in order to aid the child to escape. I do not propose to instruct you upon merely speculative hypotheses. There is no evidence of any such previous arrangement, and no presumption of any such agreement in the absence of evidence, and consequently no instruction on that point is necessary.”</p> <p>The defendants’ counsel contended that there was evidence sufficient for the jury to find such previous arrangement; and the evidence on which they relied for this purpose was recited at length in the bill of exceptions, but, under the decision of the court, is now immaterial.</p> <p>The jury returned a general verdict of guilty, and the defendants alleged exceptions.</p>

<p>Bill in equity alleging that on the 4th of November 1861, Bucknam, Rayner & Co. were and still are creditors of the firm of Woodman & Lancaster, consisting of Broadstreet P. Woodman, George T. Lancaster and Warner R. Whittier; that on that day Lancaster applied by petition to the judge of insolvency, setting forth that said firm were insolvent, and praying that a warrant might be issued for taking possession of their joint and separate estates, according to law; that afterwards on the same day Woodman applied by petition to the same judge, setting forth that a limited partnership existed between himself, Lancaster and Whittier, of which Whittier was a special partner, and that said firm was insolvent, and praying that a warrant might be issued for taking possession of the joint and separate estate of himself and Lancaster; that notice was duly issued on each of these petitions, and a hearing had upon both of them at the same time, at which it was made to appear, and is true, that on the 29th of March 1856 a limited partnership was formed, of which Woodman and Lancaster were the general partners and Whittier was the special partner, to continue from the 1st of April 1856 to the 31st of March 1859 ; that on the 1st of April 1859 said partners renewed their partnership for three years, and signed a notice thereof, stating that Whittier remained a special partner as theretofore; that they continued to do business as partners, but did not comply with the statutes respecting limited partnerships, after the renewal; that at the hearing before the judge of insolvency, Lancaster and Bucknam, Rayner & Co. objected to the granting of the petition of Woodman, and showed that the partnership was a general one, by reason of the failure to comply with the statutes, as aforesaid, and prayed the judge to issue a warrant in conformity with the petition of Lancaster, but that the judge declined to do so, and dismissed the said petition, and, after the petition of Woodman had been amended by striking therefrom all that related to Whittier, a warrant was issued against the joint and separate estates of Woodman and Lancaster only, and delivered to a messenger, who has tallen possession of their property accordingly. The prayer was, that these proceedings might be annulled, and the judge, petitioner and messenger enjoined from any further proceedings under the petition of Woodman, and that the judge might be ordered to issue a warrant upon the petition of Lancaster, and for other and further relief.</p> <p>The various defendants filed answers, and testimony was taken and reported to the court by a commissioner, upon which three questions of law were discussed: 1. Whether this court can issue a writ of mandamus, as prayed for. 2. If it can, will it receive and consider any evidence other than that which was presented to the judge of insolvency. 3. Whether Whittier, either by agreement or operation of law, was a general partner, so as necessarily to be included in proceedings in insolvency instituted by one of the firm. The facts in evidence, so far as material, are stated in the opinion.</p>

<p>The title to land which has been conveyed to unincorporated trustees of a society of the Methodist Episcopal Church and their successors in trust, for the use and benefit of the society, does not vest in new trustees who may be elected from time to time, but remains in the grantees named in the deed, or the survivor of them.</p> <p>A mechanic’s lien does not attach to a church erected under a contract with a society of the Methodist Episcopal Church upon land the legal title to which is vested in the survivor of a board of unincorporated trustees, in trust for the use and benefit of the society, unless the church was erected by the consent of such survivor; and such consentís not shown merely by proof that he lived within a quarter of a mile and in sight of the church, if he was upwards of ninety-seven years of age, and had not acted in the affairs of the society for many years.</p> <p>A petition for the enforcement of a mechanic’s lien cannot be maintained without joining as a party the legal owner of the building or structure upon which the lien is sought to be enforced.</p>

<p>A levy of an execution, by selling the equity of redemption of land which appears to bo subject to a mortgage to secure a sum of money not yet due, is void, if before such levy the sum secured by the mortgage has been paid, although neither the judgment creditor nor the officer had actual or constructive notice of such payment.</p>

<p>A written notification as follows. “ To the overseers of the poor of the city of N. — Gentlemen— Mrs. A. B. and three children, whose legal settlement is in your city, but now residing in L., being in needy circumstances, has applied to this board for relief, which we have granted and charged to your city, and shall continue so to do until you remove or otherwise provide for their support. In behalf of the overseers of the poor of the city ofL. — C. D., Secretary,” is sufficient, under Gen. Sts. c. 70, § 17.</p>

<p>A deed of land conveying 11 the following parcels of real estate, being all the real estate of which my father died seised and possessed, viz: [here followed a description of several parcels of land] meaning to quitclaim all that is given to me of the real estate of my father by his last will and testament,” includes the grantor’s interest in all the land given to him by his father’s will, although not specifically described.</p> <p>A married woman, who owned under a devise from her father an undivided interest in a piece of land, united with her husband in a deed in this form: u Know all men by these presents that we, Paul Kimball and Sarah Kimball in his right, in consideration, &c. release and quitclaim unto A. B. all my right and title to the estate of which my father died seised and possessed, both real and personal, excepting his share in a dwelling-house, &c., together with all other the estate, right, title, interest, &c. whatsoever of me, the said Paul Kimball, which we now have,” &e. Held) that this deed included her interest under the devise.</p> <p>The extent of a grant of land cannot be shown by declarations of the grantor, or of the scrivener, made after the execution of the deed; or by conversations between the parties to the deed, before its execution, respecting the estate about to be conveyed.</p> <p>Actual notice of an unrecorded deed from a guardian is not proved by showing knowledge of the execution of the guardian’s bond, upon being licensed to sell the real estate.</p> <p>On the trial of a petition for partition, it cannot be shown in defence that the guardian of the grantor of the petitioner formerly presented a petition for leave to sell the grantor’s interest in the land, describing it as less than the interest now claimed under him by the petitioner, for the purpose of showing u that parties in adverse interest to the petitioner were in possession at that time, without any adverse claim on the part of those then holding the estate now claimed.”</p>

Writ of entry to recover a parcel of land in Gloucester. At the trial in the superior court, before Ames, J., the only controversy was as to the true course and location of one line described and set forth in the demandant’s deed, starting from a post, and running “ thence southerly in as straight a line as possible over the highest part of said hill, to a large white pine tree.” The post and the tree were distinctly ascertained; but there was a dispute as to the position of…

<p>Under a clause of a will giving a sum of money and several pieces of real estate, and concluding with these words: 11 All the aforegoing legacies to A. B., I give to him for his use only, during the term of his natural life,** the legatee takes only a life interest in the pecuniary legacy; and the fact that he was appointed one of the executors of the will, and had the care of the most of the testator’s personal property at the time when the will was made, is immaterial.</p> <p>Under a clause of a will, giving “ all my household furniture, wearing apparel, and all the rest and residue of my personal property, saving and excepting one feather bed,” the legatees therein named take the whole residue of the testator’s personal property, after the specific legacies, although no intention is expressed in the will to dispose of the testator’s whole estate, and the will in subsequent clauses gives various specific legacies in money, and although various collateral heirs at law of the testator, one of whom is nearer in degree than the legatees therein named, are not mentioned in the will.</p>

<p>Contract upon a promissory note signed by the defendant and payable to the plaintiff or order.</p> <p>At the trial in the superior court, before Lord, J., “ it appeared that the parties were partners in certain transactions in relation to the bringing of land into market, laying out and grading streets, &c., and that this partnership business continued through a series of years, and the accounts between them amounted to many thousand dollars; and that they devoted a long time, some month or more, to settling their said partnership accounts. When the partners had come to a result in reference to their partnership transactions, it appeared that there was a balance due from the plaintiff to the defendant; and the plaintiff and defendant then brought into their settlement certain private matters which did not relate to the partnership, and the private claims thus introduced by the plaintiff against the defendant were larger than the note in suit, which was given for the balance found upon such settlement due from the defendant to the plaintiff.”</p> <p>It was in dispute between the parties whether the settlement thus made was a full and final settlement of all partnership matters between them, and whether there were not still outstanding claims and other unadjusted matters. The plaintiff claimed that he was entitled to recover whether there was full settlement of partnership accounts or not, because in that settlement there was a balance of the private claims between the parties in his favor, larger than the amount of the note.</p> <p>“ The judge ruled that if the note in suit was given upon a full and final settlement of all partnership affairs between the partners, or of all such matters except certain items for personal services which the parties agreed to omit, or if such settlement had been made at the time of the date of the indorsement upon the note, the plaintiff can maintain this action ; but that ii there had been only a partial settlement of partnership affairs, and the partnership transactions were not closed, and there were outstanding debts against the partnership, and the note was given upon such partial settlement, the plaintiff cannot maintain ah action upon it; although there entered into the settlement a balance of private accounts in favor of the plaintiff greater than the amount for which the note in suit was given, the plaintiff cannot maintain an action at law upon said note.”</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>Tort for the conversion of hay.</p> <p>At the trial in the superior court, before Vose, J., it appeared that the plaintiff was assessed for taxes in Lynn for the year 1858, and removed to Saugus after the 1st of May in that year, without paying his taxes. The defendant Merritt was the collector of taxes in Lynn for that year, and on the 28th of May 1860 issued his warrant for the collection of the tax, under St. 1842, c. 34, directed to the sheriff of the county of Essex, or his deputy, or any constable of the town of Saugus in said county, requiring the collection of the taxes assessed upon the plaintiff. This warrant was served by Richard Mansfield, constable of Saugus, by distraining the plaintiff’s hay. Objections were made to the validity of the warrant, because it did not recite any facts authorizing the collector to issue it, and because it required the collection of twenty cents in addition to the taxes assessed upon the plaintiff, for a summons; but the objections were overruled, and a verdict was returned for the defendants. The plaintiff alleged exceptions. The circumstances under which the charge for the summons was made are stated in the opinion.</p>

<p>An award is not valid which provides for the payment, by one of the parties to the submission, of a certain sum, after making deductions therefrom of sums not fixed by or capable of being ascertained from the award.</p>

<p>In this case the. plaintiff introduced in evidence, at the trial in the superior court, the deposition of Daniel Frisbee. It appeared that the cross-interrogatories were written by the defendant personally. In the closing argument to the jury, the plaintiff’s counsel was permitted by Vbse, J., against the defendant’s objection, to comment upon the form of the cross-interrogatories, and to argue therefrom that the evidence of the defendant as to the transaction which was the subject of the controversy must have been erroneous. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>The issuing of a policy of insurance by an insolvent insurance company is a good consideration for a promissory note given for the premium, if the insolvency of the company was not known by its officers or agents at the time,</p> <p>tt is no objection to the validity of a note given to a foreign insurance company for the premium on a policy of insurance, to allege and prove that the capital stock, to the amount of one hundred thousand dollars, had not been paid in and invested as required by St. 1854, c. 453, § 31; or that the company have neglected to appoint a general agent, under § 32 of the same act, unless notice to do so has been given to them by the treasurer of the Commonwealth.</p> <p>The indorsee of a note given to a foreign insolvent insurance company for the premium on a policy of insurance is not estopped to maintain an action to recover the full amount thereof, by a statement made by him as attorney of the company to an agent of the defendant and other policy holders that all policies which might be sent to the office of the company should be cancelled, and that, upon payment of so much of the premium as had been earned, the premium notes should be surrendered, if it was in the power of th# company to surrender them, and, if not, that certificates of indebtedness of the company for the amount of the unearned premiums should be given; although he did not then disclose that he held the note given by the defendant.</p>

<p>A city, in its corporate capacity, may act as trustee of a fund left by will, in trust, with a provision that the income thereof shall be expended in the purchase of fuel, “ to be given, or sold at low prices, as may be deemed best by the trustees, to such worthy and industrious persons as are not supported in whole or in part at the public expense, but who may need some aid in addition to their own labor to enable them to sustain themselves and their families during the inclement season of the year; such aid to be afforded in the most private manner possible, and the names of the recipients to be withheld from the public.”</p>

<p>A mistake made by a magistrate, in giving to a party who is under recognizance to appear before him for examination erroneous information of the hour to which the hearing had been adjourned, does not affect the legality of proceedings had in the absence of such party, upon his default, at the time to which the hearing was in fact adjourned.</p>

<p>A sale by a town of all the seaweed that may land on the town’s beach for one year gives to the purchaser no such possession of the beach as to entitle him to maintain an action for breaking and entering his close, against one who may enter upon the beach and remove seaweed therefrom.</p>

<p>The insolvency of a plaintiff and the refusal or omission of the assignee of his estate to come in and prosecute the suit cannot be taken advantage of by a motion to dismiss; especially by one whose only relation to the case is that of a stockholder in a defendant corporation.</p>

<p>Contract upon a replevin bond in the sum of $3800, executed by the defendant, with two sureties, to Daniel Potter and Caleb W. Wiley, dated June 14, 1852.</p> <p>At the trial in this court, before Bigelow, C. J., it appeared that Wiley applied for the benefit of the insolvent laws by petition dated June 3, 1852, and Daniel Potter, one of the plaintiffs, was appointed messenger, and on the 26th of June Increase H. Brown was chosen assignee, and an assignment was duly executed to him on the same day. On the 14th of June, Brigham, who held a mortgage from Wiley, replevied the mortgaged property and executed the bond in suit. Wiley died in November 1852. The replevin suit was terminated by the entry of a non-suit, in June 1855, and judgment was entered thereon for costs and for a return of the property, and execution issued, dated June 27, 1855. On the 1st of July 1855, Brigham filed a petition for a review and for a supersedeas of the execution, both of which were granted, upon Brigham’s giving a bond with surety in the sum of $1000, with condition that if he should pay to said Potter whatever sum should appear to be due after the final judgment in review, then the bond should be void. Final judgment was entered for the defendants in review at May term 1860, and for costs and a return of the property replevied. A return of the property was demanded and refused.</p> <p>The. chief justice reserved for the determination of the whole court the questions whether Brown was rightly joined as a plaintiff, and whether this action can be maintained on the replevin bond.</p>

<p>A recognizance under Gen. Sts. c. 124, § 10, taken in more than double the amount of the execution, is not on that account invalid.</p>

<p>Tort for the conversion of hay.</p> <p>At the trial in the superior court, before Brigham., J., it appeared that the plaintiff, being the owner of a farm, executed a lease thereof to Nathan M. Withington for one year from November 1, 1859. Before the execution of this lease, it was orally agreed that Withington might use, during his occupation of the leased premises, a quantity of hay which was then upon the premises, and that an equal quantity of hay, of the next season, should be left by him at the termination of his tenancy, or the deficiency accounted for. On the 1st of June 1860, Withington executed to Daniel Lunt a bill of sale of “ all the English grass standing upon land now occupied by me under lease from Caleb Lamson, being about four tons, the same to be cut by said Lunt at his own expense,” and at the same time went with Lunt upon the field where the grass was growing, and plucked a handful of the grass, which was then about six inches high, and gave it to Lunt, saying that the grass there growing was to be Lunt’s, and at the same time agreeing for compensation to cut and cure it at a proper time, and Lunt agreed to pay Withington for so doing, and to take away the hay, when made, from the field. On the 18th of June 1860, the plaintiff served upon Withington a notice to quit for non-payment of rent, and took possession of the farm on or about the 10th of July, raked about one ton of hay which had been cut by Withington, and cut the rest of the grass, and put the whole crop, both that which had been cut by Withington and that which was cut by himself, into the barn. By authority of Lunt, Withington sold from the barn a portion of the hay to the defendant; and the plaintiff now seeks to recover the value of it.</p> <p>The judge ruled that upon these facts the plaintiff was not entitled to recover, and the jury returned a verdict for the defendant ; and the judge reported the case for the determination of this court.</p>

Contract upon seven promissory notes, all of which were in the same form, as follows: “ Gloucester, April 9th 1857. For value received, I promise to pay Alexander Foss or order two hundred dollars, on demand, with interest. Geo. H. Shepherd, Joseph Shepherd.” George H. Shepherd was defaulted, and the action was defended by Joseph Shepherd alone.

<p>The legal presumption, in the absence of evidence to the contrary, is in favor of the jurisdiction of a court of record of another state, which has assumed to exercise jurisdiction over a subject matter in controversy between parties residing there.</p> <p>Under an order of a court of record of another state that certain property shall be discharged from a mortgage thereon, upon the filing in court within a specified time of a bond, with sureties to be approved by the clerk, and with condition to pay the sum, if any, which should be found due upon the mortgage debt, a duly certified record of the court which shows that within the specified time a bond was received and placed on file by the clerk, and that subsequent proceedings were had which necessarily implied an approval and acceptance of the bond, is sufficient to prove the discharge of the property from the mortgage.</p>

<p>Tort for slander. ' The 1st count alleged that the defendant accused the plaintiff of the crime of buying and selling by unsealed weights and measures, by words substantially as follows: “ You make false charges and keep false weights and measures.” “ He uses false weights and measures.” The 2d count alleged that the defendant accused the plaintiff" of the crime of gross fraud and cheating at common law, by words substantially as follows: “ You cheat in weight and measure. You are a cheat and a liar, and everybody in town knows it.” “ He will cheat you in weight and measure and in every way.” “ He makes false charges, and cheats in weight and measure.” The answer set up, amongst other things, that whatever words were spoken by the defendant of the plaintiff were true.</p> <p>At the trial in the superior court, before Lord, J., the plaintiff introduced evidence tending to prove the speaking of the words charged in the declaration ; and the defendant was allowed, under objection, to introduce the evidence of William Lord, who testified that “the plaintiff applied to him to take some damaged meat, and sell the same about in Lawrence, without letting it be known that the plaintiff was concerned in the transaction.”</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>Land anciently granted to a territorial parish does not, upon the incoiporation of a town with the same territorial limits, pass thereby to the town, if prior to such incorporation a new religious society has been formed therein, recognized by statute as an independent organization, and its members therefore exempted from taxation in the original parish.</p>

Replevin. The defendant in his answer averred “that at the time of the supposed taking and detention of the property mentioned in said writ, he the said defendant was the owner of said property and is now the lawful owner of the same, and he denies the right of the plaintiffs to maintain this action.” At the trial in the superior court, before Brigham, J., the plaintiffs offered no evidence, but contended, and the judge ruled, that in the absence of evidence they were…

<p>Bill in equity by the residuary devisees of John Sparhawk, deceased, alleging that the defendants through fraud and undue influence procured from Sparhawk in his lifetime, without consideration, the execution of a deed of land to Sarah Graves, the female defendant, in which the right of occupying the premises was reserved to Sparhawk and his wife, during their joint lives and the life of the survivor of them; and that the defendants have refused to deliver up or cancel the deed, but claim tit.s to the premises, subject to the life estate of the widow of Spar-hawk. The defendants filed a general demurrer.</p>