Volume 88 — Massachusetts Reports

<p>A. voluntary association was formed for the purpose of creating a fund, to be vested in trustees, by the payment of entrance fees, monthly instalments on shares subscribed for and held by its members, fines and investments of the sums received, with the provision that when by these means the funds should have accumulated so as to amount to $500 upon each share subscribed for and still held by members, they should be divided amongst the holders of such shares pro rata, and the association dissolved. A member of the association who had subscribed for shares surrendered the same, and all his right to receive the said sum of $500, to the company, upon receiving a less sura than $500, paid to him by the association in advance, for which he bound himself to pay interest, in addition to the sums due from him for his monthly instalments, until the dissolution of the company. Under this agreement, he paid to the trustees of the association, in monthly dues, fines, interest, &c. a sum exceeding the whole amount received by him from the association as an advance, with interest thereon. Held, that he is not entitled, under Gen. Sts. c. 53, ^ 5, to recover, in an action against the persons who are acting as trustees for the time being, any portion of the sums so paid by him, as usurious»</p>

<p>Tort for breaking and entering the plaintiff’s close in Lowell, (described in the writ,) and tearing down, carrying away and destroying an unfinished wooden building there being, and converting the same to the defendants’ use.</p> <p>The defendants in their answer “ deny upon their personal knowledge that they entered the plaintiff’s close, as described in the plaintiff’s writ, and tore down and destroyed a new wooden building belonging , to the plaintiff, and converted the same to their own use.</p> <p>“ And the defendants further answer that if any act of theirs shall be proved by the plaintiff in connection with the defacing or injuring the plaintiff’s building, the said building was located by the plaintiff or his order upon a street or public highway within the city of Lowell; and whatever was done by the defendants was done by order of the city authorities to remove an obstruction to said street or public highway and to abate the nuisance.”</p> <p>At the trial in the court of common pleas in Middlesex, at March term 1858, before Perkins, J., the plaintiff contended that the answer did not deny his title so as to oblige him to furnish any evidence of it. But the judge ruled that the answer did not admit the plaintiff’s title, and that he must show such title as was necessary to sustain this action.</p> <p>The plaintiff, in proof of his title, introduced a deed of the premises made to himself in 1833, which stated that the descriptions therein were made according to a certain plan to which it referred. The defendants objected that as the deed referred to a plan, it was necessary that the plan should be produced, before proceeding further with the location of said deed. And the court ruled “ that said plan, being referred to in the deed, became so far connected with it that it must be produced as a part of the proof in determining the situation upon the face of the earth of the premises conveyed.” To this ruling the plaintiff excepted.</p> <p>The plaintiff, for the purpose of proving that this part of said highway had been discontinued, introduced a record of the commissioners of highways in December 1826, on a petition for “ a road from the north end of the Central Bridge to Pelham, in a direction from the Pelham meeting-house through the town of Dracut,” upon which the commissioners “ adjudge that an alteration in the road from the Central Bridge to Pelham line through the town of Dracut, in a direction from Pelham meeting-house, is of common convenience and necessity,” and described the road by courses and distances in part over lands of certain persons named, and in part “ over old road; ” “ the said highway is to be three rods in width on the easterly side of said line in every part except ” at a point not material to this case. “ And it is considered by the said commissioners that the highway herein described and located be, and the same is hereby, established as a public highway, a plan of which is hereto annexed; ” but no plan was annexed to the copy. It was objected by the defendants that this copy could not go the jury without the plan or a copy of it being próduced, and so the court ruled. And upon the reassembling of the court at a subsequent time the plaintiff produced the original report of the commissioners, with said plan annexed.</p> <p>The plaintiff also introduced the' record of said commissioners in 1827, on a petition “ praying for an alteration of the highway in Dracut, from the Central Bridge to Dracut meeting-house, which was located in December last, but now not worked,” upon which “ it is considered and adjudged by said commissioners that the alteration hereinafter described is of common convenience and necessity,” and described the road more particularly by lines and boundaries, in part “ over road as formerly laid out,” and “ as located in December last,” “ said road to be three rods wide from the first mentioned boundary to the north side of land belonging to the Central Bridge Corporation, being thus far precisely as heretofore located, and four rods wide from that point to the intersection of” a certain other road ; “ embracing within its limits a town road of about three rods in width, and from said road three rods in width to the last mentioned bound, said road to be on the easterly side of said lines and boundaries.” “ And said commissioners adjudge that all that part of the road by them located in December A. D 1826, from the abutment of the Central Bridge to the point where the above location intersects with that made as aforesaid, and lying west of the said location, be and the same is hereby discontinued; and it is further considered by said commissioners that said new highway or alteration thus laid out and described be and the same is hereby established as and for a public highway.” This record made no other allusion to any plan than by reference to said former laying out, which did refer to a plan. The defendants objected that this copy could not be introduced, in consequence of its reference to the road as previously laid out, until proof of the first laying out was introduced ; and so the court ruled. And the original location having been read as above stated, this paper was also read in evidence.</p> <p>The plaintiff also introduced a record of the county commissioners, showing that, in 1854, upon a petition to them “ to define the boundaries of that part of the county road within said city running north from Central Bridge to the boundary line between said city and the town of Dracut, known by the name of Bridge Street,” and praying them “ to locate anew said road for the purpose of establishing the boundary lines thereof,” they adjudged that “ said new location is of common convenience and necessity,” and described it very exactly by metes, bounds and monuments, both on the easterly and westerly sides of the street; which limits exclude the locus.</p> <p>The defendants introduced a copy from the records of the town of Dracut, laying out a highway from Lieutenant Richardson’s to Hunt’s Ferry, two rods wide, in 1735; “ also evidence tending to show that this old way formerly ran over the locus in quo, whereon the west end of the building — all that part cut off— was placed ; and that it was constantly used and actually travelled upon as a way until the erection of Central Bridge in 1826; and that persons travelling to Lowell in winter sometimes used the same way over the ice until 1839, when that travel ceased; that persons since that time have driven their cattle and horses down to the river to drink at this place; that within twenty years drift wood has been taken ashore at the terminal point of said old highway, and left to' dry upon a portion of the old way where Front Street is now located.”</p> <p>The plaintiff requested the court to instruct the jury that the location of the county road in 1827 and 1828, embracing as it lid parts of the old town way, and altering the same, and the new location of the highway in 1854, amounted to a discontinuance of the old way ; but the judge declined so to rule. '</p> <p>The jury returned a verdict for the defendants, and the plaintiff alleged exceptions, which were argued in January 1859.</p> <p>T. Wentworth, for the plaintiff, cited, as to the discontinuance of the way, Rev. Sts. c. 24, § 69; Hadley v. County Commissioners, 11 Cush. 394; Johnson v. Wyman, 9 Gray, 186, and cases cited; Tyler v. Hammond, 11 Pick. 193.</p>

<p>A petition for the alteration of a highway which had been laid out fifty feet wide prayed that it might be narrowed by taking ten feet from the easterly side, leaving the boundary line on that side along the wall of a building which the petitioner had erected there, iu ignorance of the laying out of the highway. A committee appointed for that purp )se reported that they had altered the highway according to th§ prayer of the petition, by setting off ten feet from the easterly side of the highway, leaving the highway forty feet wide, and bounded on the westerly side according to the original laying out, and on the easterly side by the building of the petitioner. This report was accepted. Held, that this was not a new laying out of the highway so as take in more land upon the westerly side of jt, although the westerly boundary, as it then stood, was a little less than thirty-nine feet from the building of the petitioner.</p> <p>Maintaining a fence within the limits of a highway for forty years, under a claim of right, gives to the owner an absolute right, under the statutes of this commonwealth, to continue it there, as against the public.</p>

<p>If the defendant in an action of contract which was brought originally in a police court has filed there a written plea amounting to the general issue, he may, upon the trial of the case in the superior court, on appeal, give in evidence any matter of defence which would have been admissible under his pleadings in the police court, if no order has been passed for him to plead anew in the superior court.</p>

Writ of entry. At the trial in the superior court, before Russell, J., a verdict was returned for the demandant, and the tenants alleged exceptions. The case is stated in the opinion.

<p>A woman of twenty-one years of age and upwards does not follow or have the settlement of her father, which is acquired by him in a town in this commonwealth after she reaches that age; although she continues to be a member of his family, and he then, for the first time, acquires a settlement in this commonwealth.</p>

Contract upon the following promissory note: “ $381. Reading, Apr. 28,1836. For value received, I promise to pay Sarah Flint or order the sum of three hundred and eighty-one dollars on demand with interest till paid. Sewall Flint. Abram Tapley, witness.” The note bore the following indorsements: “ North Reading, Nov. 1855. For value received, pay one half of the within note to Sarah Flint, and the other half to Esther Bodge. Sarah Flint, her x mark. Witness, Joseph Cook.

Petition for a jury to assess the damages sustained by the petitioner by reason of taking his land for a public way. A warrant was duly issued and the case was tried, and the sheriff, at the request of the respondents, reported that it appeared that there was a private way, twenty-one feet wide, over the petitioner’s land, which was laid out as a public way, and land taken sufficient to make it thirty-five feet wide.

Tort to recover damages for a personal injury sustained by reason of a defective way in Lowell. At the trial in this court, before Chapman, J., it appeared that the defect complained of was an abrupt descent in the brick sidewalk on Lawrence Street, where a court enters upon that street.

<p>A testatrix whose daughter and children of the daughter survived her bequeathed the residue of her estate to trustees, with directions that they should invest and accumulate it until her youngest grandchild should, if living, attain the age of twenty-one years, and then pay over annually the income thereof to her grandchildren in equal shares during the lifetime of the longest liver of them, and afterwards distribute the principal among their heirs at law, with provisions in case of the previous death of any of the grandchildren. After the death of the testatrix, her daughter gave birth to another child. Held, that the disposition of the principal and income of the trust fund was void, as being too remote and tending to create a perpetuity; that the directions to invest and accumulate the estate must fall with the disposition of the trust fund; and that the whole residue must be treated as intestate property.</p>

<p>If the assignee under an assignment of property in trust for the benefit of the creditors ot the assignor defends an action brought against him by a creditor to recover the dividend upon his debt, upon the ground that the plaintiif, by a secret oral agreement not to claim any portion of the proceeds of the estate, induced him, he also being a creditor, to sign a release to the assignor and to procure the signatures of other creditors thereto, the burden of proof is upon him to establish, not only that such an agreement was made, but also that it was secret; and there is no presumption of law that it was intended to be secret, but the question should be submitted to the jury.</p>

<p>Bill in equity, brought March 9,1860, by two stockholders of the Lowell and Salem Railroad Company, for themselves and in behalf of the other stockholders, against certain directors and agents of said company, and of the Lowell and Lawrence Railroad Company, whose railroad connected with that of the former company, and others, charging various acts of conspiracy and fraud, by which the interests of the stockholders in the Salem and Lowell Railroad Company were prejudiced and sacrificed, for the benefit of the Lowell and Lawrence Railroad Company ; and especially in reference to false and fraudulent representations and practices for the purpose of injuring the credit of the Salem and Lowell Railroad, and enabling them to i'isue and take its bonds, on the 20th of August 1856, secured by a mortgage of property of the company, at prices below their true value, and also in reference to a contract executed on the 1st of October 1858, by which the Lowell and Lawrence Railroad Company were to “ do and perform all the transportation of persons and freight upon and over the Salem and Lowell Railroad,” and to pretended settlements made between said companies. The bill also set forth that, since the plaintiffs had reason to suspect the frauds and conspiracies charged, they have demanded explanations of the defendants, petitioned the general court for an investigation, and endeavored to procure the election of directors who would cause the matters to be investigated, but, being in a minority, have failed to succeed. The defendants filed a general demurrer. The plaintiffs, at the argument, moved to amend their bill by joining the Salem and Lowell Railroad Company as defendants.</p> <p>This case was argued in January 1862.</p>

<p>Though a person is arrested under a legal warrant and by a proper officer, yet if one of the objects of the arrest is thereby to extort money, or enforce the settlement of a civil claim, such arrest is a false imprisonment by all who have directly or indirectly procured the same or participated therein, for any such purpose; and a release or conveyance of property obtained by means of such arrest is void. And the discharge of the person arrested without being taken before a magistrate for examination and the failure to return the warrant are circumstances competent to be considered as bearing upon the question whether the release or conveyance was obtained by duress. And if the presiding judge, on the trial of a case where the validity of a release or conveyance of property, executed by a person under arrest, is in question, has stated the above principles of law to the jury, no exception lies to his refusal to instruct them that the discharge of the person arrested without examination and the failure to return the warrant of themselves rendered the arrest illegal and established the fact of duress.</p> <p>Parol evidence to prove the issuing of a warrant and the arrest of a person thereon is incompetent, unless it is shown that neither the warrant nor a copy of it can be produced.</p>

<p>Contract on a recognizance taken under St. 1857, c. 141, concerning imprisonment for debt, with condition that the defendant Bunker, who had been arrested on an execution in favor of the plaintiff, should within ninety days from the time of his arrest deliver himself up for examination, giving notice as therein provided, and making no default, and abide the final order of the magistrate thereon. The answer alleged a performance of the condition of the recognizance, by delivering himself up for examination, giving due notice, and taking the oath for the relief of poor debtors before Dexter Bucknam, Esquire, a justice of the peace and of the quorum, within the ninety days, and receiving a certificate thereof from said Bucknam, a copy of which was annexed to the answer, being in the usual form.</p> <p>At the trial in the superior court, before Russell, J., after the former decision in this case, reported in 1 Allen, 256, the defendants moved to amend the answer, “ by inserting in the certificate in the answer, the words following: ‘And I further certify that no justice of a court of record, police court, judge of probate, master in chancery or commissioner of insolvency could be conveniently found to attend said examination ’ ”; but the judge refused to allow the amendment to be made.</p> <p>The defendants called the justice, Bucknam, as a witness, and asked him “ What inquiries he made about other officers named in the statute, before acting in said case;” “whether any of said officers could be conveniently found; ” and “ whether he learned from any source, before acting as said magistrate, that the master in chancery who issued the citation was away, or expected to be away, on the day of the hearing.” All of these questions were excluded by the judge, the defendants having stated, as to the last one, that they did not expect to prove that the information was communicated to the witness by the said master in chancery. The citation, issued by a master in chancery, was annexed.</p> <p>The plaintiff called several of the officers named in St. 1857. c. 141, § 4, and was allowed, under objection, to show by them the distances of their residences and offices from the residence and place of examination of the debtor, and from the residence of the justice who acted in the case, and that they were at home and disengaged on and immediately before the day of the examination.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>An oral award by referees, under an oral submission, is competent evidence upon a question of disputed boundary between the parties.</p>

Contract upon an agreement in writing to pay the sum of $490 to the plaintiff for building a house according to certain specifications.

Contract upon a promissory note of $250, dated Pepperell, January 27, 1859. At the trial in the superior court, before Russell, J., after proof of the execution of the note, the defendants introduced evidence to show that the note was given after an award under a submission by the plaintiff and Butterfield of all demands between them to arbitration, and that the following receipt for the note was given by the plaintiff* “ Pepperell, Jan. 27, 1859.

<p>Contract upon a promissory note for $125, signed by the defendant, and payable to Charles Estes or order in three months from date, and indorsed to the plaintiff. The answer alleged that the note was given for a horse sold by Charles Estes to the defendant, warranted sound, which proved unsound, and the note was indorsed after its maturity; and that after the commencement of this action the parties submitted the case to arbitrators, with a provision that their award should be in accordance with the law, and evidence presented. The arbitrators awarded as follows:</p> <p>“ That as the testimony showed conclusively that the horse was purchased with the distinct understanding that it was sound in every particular, and with the express understanding, also, that if it was not sound it should not be considered a sale; also, the testimony showed that the horse did not prove to be sound, and that when demand was made for the note, after maturity, Mansfield offered to let the- said Estes have the horse for the note, stating that he should not keep the horse, as it was lame and had been lame ever since he had it in his possession; under these circumstances, it seems to the referees that the note was not valid, as there was really no sale. In regard to the matter of the said Estes’ purchasing the note in good faith, it seems that, by the indorsement made by the original owner of the note, he will be held to make any loss good to the said Jedediah Estes. Therefore the referees decide that the said Mansfield shall as soon as possible deliver to the said Estes the horse for which he gave the note of $125, and the said Estes shall, on delivery of the horse by the said Mansfield, deliver to the said Mansfield the note given by him for said horse.”</p> <p>At the trial in the superior court, Russell, J. ruled that this award, the making of which was admitted, was no bar to the action; and, no further defence being offered, directed a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>Writ of entry to foreclose a mortgage given by the defendant to the plaintiff, of land which was subject to an estate of homestead for the benefit of the grantor and his family. The mortgage contained full covenants of warranty, and was not signed by the defendant’s wife.</p> <p>At the trial in the superior court, before Wilkinson, J., there was evidence tending to show that the defendant’s wife and child left him and removed from the premises in 1861, and that in April 1862 she obtained a divorce from bed and board, and a decree giving to her the custody of the child, and alimony; and that for the alimony and the costs of the proceeding her bus- • band’s interest in the premises was sold on execution, after the commencement of this action, and conveyed to the plaintiff by the officer. The judge instructed the jury that if these facts were proved the plaintiff was not entitled to recover; and they returned a verdict for the defendant. The plaintiff alleged exceptions.</p>

Two writs under Gen. Sts. c. 137, to recover possession of a tenement, Trials by jury were waived in the superior court, and the cases were heard before Russell, J. It appeared that on the 25th of December 1860 the plaintiff received a deed of the premises from Judson Murdock.

<p>Tort to recover damages for an assault and battery upon the female plaintiff.</p> <p>At the trial in the superior court, before Putnam, J., it appeared that the plaintiffs had occupied as tenants a tenement owned by the defendant, and that their estate therein had been terminated by their failure to pay rent, and a notice to quit from the defendant; and thereupon, the plaintiffs not having left, the defendant came into the tenement without objection, and proceeded to take out the windows. There was evidence tending to show that, after he had taken out the windows in one room, the female plaintiff obstructed his entrance into another room, in which her young child was lying, and the defendant removed her bold upon the door casings, and at this time the alleged assault took place, respecting the details of which the evidence was conflicting. The judge instructed the jury that “the defendant had the right to enter the premises at the time he did, and in the manner he did, and take out the windows as he did, providing he did it without creating a breach of the peace; that if the female plaintiff undertook to prevent him from doing it, he had the right to use as much force as was necessary in order to overcome her resistance ; and that if he used more force than was necessary for such purpose, and she was injured by reason of such excess of force, the plaintiffs could recover for the injury sustained thereby.”</p> <p>The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions.</p>

Writ of entry. It was agreed in this court that George W. Ricker, the former owner of the premises, conveyed them in 1850 to Jerediah Ricker, who in May 1851 mortgaged them to Josiah Willard, who afterwards died, and whose executor, Charles Hayden, in August 1856, assigned the mortgage, together with another mortgage, to James M. Cummings, by an instrument which contained the following proviso: “ Provided nevertheless that if the said Jerediah Ricker and Moses Ricker, their…

Bill in equity in the nature of a bill of interpleader, by the mortgagee of real estate, to ascertain the proper disposition to be made of the surplus remaining in his hands to be accounted for, upon a sale of the premises under a power of sale contained in the mortgage.

Tort by a mortgagee of personal property against an officer who attached the same on a writ against Joseph O. Farrell, the mortgagor. The items of the plaintiffs’ claim under their mortgage consisted of “ Balance due, $6.13; Nov. 21,12 barrels of flour, $90 ; Nov. 29, cash, $27 ; same date, recording mortgage, 75 cts.; ” and flour subsequently delivered, sufficient to make up the whole amount of claim $172.03.

<p>In order to constitute a mortgage, it is not necessary that a bond of defeasance from the grantee to the grantor in a deed should bear the same date as the deed. But if, after the making of such a bond, a deed has been given in accordance with its terms, and afterwards the premises are reconveyed to the obligor, and it is agreed that the same bond shall continue in force for the same purpose, this will amount to a redelivery of the bond, and make the transaction a mortgage.</p> <p>The owner of the equity of redemption of land which is subject to two mortgages cannot, after the expiration of three years from the time of an entry by the first mortgagee to foreclose, maintain a bill in equity to be let in to prosecute a bill to redeem brought within the three years by the second mortgagee; or to procure an injunction against the first mortgagee, to prevent him from serving an execution for possession issued upon a judgment under the act respecting forcible entry and detainer; or to set aside the first mortgage in part, for fraud in the loan which it was given to secure.</p>

Writ of entry to foreclose a mortgage. In the superior court it was agreed that the mortgage was made to Patrick Dempsey to secure a negotiable promissory note, which was given to Dempsey for the price of intoxicating liquors sold by him in violation of law, and that before the maturity of the note Dempsey assigned the mortgage and note to the plaintiff, who took them for a valuable consideration, and without notice of the original consideration; whereupon Wilkinson, J.…

<p>Tort brought under St. 1840, c. 85, § 1,* to recover damages for the destruction of the plaintiff’s building and contents, and trees growing upon his land, by fire communicated by a locomotive engine of the defendants.</p> <p>At the trial in this court, before Dewey, J., the defendants contended that the statute did not apply to articles of personal property which may be removed with facility at the pleasure of the owner1; that, as to such articles, it applied, if at all, only to such as the corporation has knowledge or reasonable cause to believe are situated where they may be so injured. By agreement of the parties, all questions as to the construction of the statute were reserved for the whole court, and it was left to the jury to determine whether the fire was communicated by the engine of the defendants under such circumstances as to charge the defendants with the loss of any of the property destroyed, it being agreed that, if they should find for the plaintiff, an assessor should present a detailed statement of the losses sustained, upon which judgment might be entered under the direction of the court.</p> <p>One ground of defence relied upon was, that no live sparks from the engine of the defendants did or could reach the buildings of the plaintiff; and the plaintiff was allowed, under objection, to introduce evidence that the same locomotive, using similar wood fuel, within a fortnight before the day of the fire, emitted burning sparks that fell upon his premises. The defendants then introduced evidence tending to show that similar engines had been used for fifteen years on their road, and also on various other railroads, and that they did not emit sparks that would set fire to buildings. In reply to this evidence, the plaintiff was allowed, under objection, to introduce evidence that similar engines, on one of said railroads, had emitted sparks which had communicated fire to objects.</p> <p>It was conceded that the train alleged to have communicated the fire was passing at its usual hour, and was a regular train. Upon the argument of the case to the jury, the counsel for the plaintiff urged, as tending to show that the fire was communicated from the engine, that it might have been communicated by the sparks, falling upon a parcel of shavings in the shed of the plaintiff, the sparks passing through an open door toward the railroad, or upon the old and dry shingles of the roof of the shed about ninety feet from the railroad; that the weather had been dry for some time previous; and that the wind had blown strongly that day from the direction of the railroad. Upon the close of the plaintiff’s argument to the jury, the defendants’ counsel asked new and further instructions, “ that if the season was dry, and the wind was from the railroad and strong, and the plaintiff knew those facts, and left a door of a shed open toward the railroad, and shavings within the shed, or old and dry shingles on the roof known to him to be such, and either of those things contributed to the fire, it is evidence of negligence on his part, which should preclude his recovery.”</p> <p>The court thereupon instructed the jury “ that the plaintiff was bound to exercise ordinary care and prudence in reference to his property thus situated near a railroad, and that if they should find any want of ordinary care and prudence in reference to his property by leaving open the door of the shed toward the railroad, or in reference to shavings in the shed, or by reason of having old and dry shingles on the roof of his buildings, he knowing the season was a dry one, and that the wind was from the railroad, if either of the things mentioned contributed to the communication of the fire, the plaintiff could not recover; that the burden was on the plaintiff to show that the fire was communicated to the property of the plaintiff by the engine of the defendants ; that this fact was to be affirmatively proved by the plaintiff; and that it was not sufficient to show that it was possible, or a probability that the fire was thus communicated, but the fact must be shown that the fire was communicated by the engine of the defendants.”</p> <p>The jury returned a verdict for the plaintiff, and the case was reported for the determination of the whole court.</p>

<p>Petitions for a jury to assess damages caused by taking portions of different lots of land for “ the locating, laying out and widening ” of a highway in Stoneham. The highway in question was Central Street, and the lands were taken for widening it. The cases were tried together.</p> <p>It was objected, in the superior court, that there was an informality in the certificate of the selectmen of one of the towns from which the jurors were drawn, and that one of the jurors was misdescribed in the summons. It did not appear that this objection was taken before the sheriff; and Brigham, J. overruled it.</p> <p>The jury were sworn to “ make a just and true appraisement of the damages sustained ” by the petitioners; and in their verdicts they found that Stevens and Dunckley were respectively entitled to no damages, and that Fowler was entitled to recover $15 damages, “ by reason of the laying out of Central Street.” The petitioners for this reason moved to set aside the verdicts, but the motion was overruled.</p> <p>At the trial before the sheriff, the respondents were allowed, under objection, to put the following questions to the petitioner Stevens: “Did you'say to the county commissioners, if they would run the line in one place I claim so much damages, and none in another 1 When the county commissioners first pointed out the line of the street, did you say anything about claiming damages, and if so, what ? Had you made application to the town, ot had you said the street ought to be widened ? Have you, previous to the alterations in the street, said it ought to be widened and straightened? Have you not said, in substance, that it would enhance the value of estates upon the street, to have it widened and straightened ? ”</p> <p>The petitioner Dunckley was asked by his counsel what he had been offered a foot for his land, but the evidence was excluded. He was asked in cross-examination whether he saw and conversed with one Hadley, who came to him claiming to act for the county commissioners, and whether Hadley pointed out to him the proposed alterations in the street, and this evidence, though objected to, was admitted.</p> <p>Amos Hill 2d, a witness for the respondents, testified that he had known all these estates for thirty years ; that he was an engineer, and knew the value of real estate in this neighborhood, both from sales by himself and others. On cross-examination, he testified that he had sold but one lot in the village of Stone-ham within ten years, and had known three other sales within that time of lots not in the village and not building lots. He was then allowed, under objection, to testify whether the estates of the petitioners were increased or diminished in value by the alterations made in the street.</p> <p>Franklin Harriman, a witness for the respondents, testified that he was one of the selectmen of Stoneham, that he knew the value of real estate there, and had known of sales made and prices paid. On cross-examination, he testified that he bought one lot in 1849, had been present at one sale by auction, and knew of other sales only by report. The sheriff asked him whether as selectman he had had occasion to lay out town ways from time to time, and had awarded land damages for the same. The witness replied that he had in eight or ten instances. To this inquiry and answer the petitioners objected. The witness was then allowed, under objection, to testify whether the estates of the petitioners were increased or diminished in value by the alterations made in the street.</p> <p>Other witnesses were also called by the respondents, whose qualifications were substantially like those of the witness Hill; and they were allowed to testify to the same matters.</p> <p>The petitioners alleged exceptions; but the verdicts were ordered to be accepted in the superior court, and the petitioners appealed to this court.</p>

Motion in the superior court to set aside the verdict of a sheriff’s jury, finding that the Fitchburg Railroad Company had sustained no damages by reason of land taken by the Eastern Railroad Company for its railroad, on the ground that it was against the weight of the evidence. The sheriff returned no minutes of the testimony taken before the jury, nor did he keep any, neither party having requested him to do so.

<p>Tort, brought by the tenant of a building to recover damages for injuries sustained by reason of the falling of the wall of the ■defendant’s adjoining building upon the building occupied by the plaintiff.</p> <p>At the trial in the superior court, before Brigham, J., there was evidence that the building occupied by the plaintiff and that of the defendant were so close to each other that the roof of the former, at its eaves, touched the wall of the latter for a part of the length thereof, and for the remainder of the distance was within two or three inches thereof; that just prior to the fall of the defendant’s wall there had been a very heavy shower of rain, and a great quantity of water ran down the roof of the building occupied by the plaintiff, and against the defendant’s wall, the effect of which was to wash and soften the mortar in the same to such an extent as to loosen the stones and cause them to slide and fall in, so that the wall fell and broke through the roof of the adjoining building and injured the plaintiff’s property and business therein. The defendant’s wall opposite to the eaves of the adjoining building had been recently built, and the evidence was conflicting as to whether it was well or poorly built. Various questions of evidence arose in the course of the trial, which are now immaterial.</p> <p>The judge instructed the jury that if the defendant’s wall was improperly, unskilfully or negligently constructed in its work and materials, and if water from the plaintiff’s roof, flowing off in its usual mode and in an ordinary amount, caused or contributed to cause the fall of the wall, the defendant would still be liable, if he exposed his wall to this flow without reasonable precaution while the wall was building; that the rights of the parties were to depend upon the condition of things existing at the time th¿¡ building was begun ; and that the defendant was not obliged to take precautions against any extraordinary convulsions of nature, such as an earthquake or flood.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

The declaration in the first of these actions contained one count for money had and received, and one count alleging a special executed contract between the parties for an exchange of horses, in which O’Donnell gave to Allen his note for $95 as the difference of value, and a subsequent rescission of the contract and a refusal by Allen to restore the horse delivered by O’Donnell to him, or the value thereof. The second action was upon the above note.

<p>Tort for the conversion of a mare.</p> <p>At the trial in the superior court, béfore Vose, J., the plaintiff claimed title under a bill of sale executed to her on the 10th oi January 1861 by her son George P. Cox; and both of them tes tiffed that it was a bona fide sale, for a valuable consideration. The defendant justified the taking under a writ against Henry A. Waitt, committed to him as a constable for service.</p> <p>On cross-examination, George P. Cox admitted that on the 4th of January 1862 he instituted proceedings in insolvency, and identified the petition, schedule of assets, proof of claims by the plaintiff, and by Joseph H. Waitt, and the votes for assignees, and testified in relation to his dealings with the plaintiff and with Joseph H. Waitt. The defendant then introduced evidence tending to show that the sale to the plaintiff was merely colorable, and that George P. Cox afterwards caused the mare to be sold to Henry A. Waitt, before the attachment by the defendant; and he was also allowed to read to the jury the above enumerated papers, to contradict George P. Cox upon a material matter, to the admission of each one of which the plaintiff objected.</p> <p>The judge instructed the jury that, if the transaction between the plaintiff and her son was merely colorable, and they adopted the form of a sale merely to cover up the property from creditors, and did not intend thereby that any title should pass to the plaintiff, and no consideration was paid, and George P. Cox afterwards caused the mare to be sold to Henry A. Waitt as his property, the mare was liable to attachment as property of- said Waitt.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

Tort to recover damages for a personal injury sustained by reason of a defective way in Lowell, the alleged defect in which consisted of ice and snow upon a sidewalk.

Tort to recover damages for a trespass, in driving a wagon against a horse of the plaintiff and breaking his legs. At the trial- in the superior court, before Russell, J., the defendant on cross-examination denied that he had said to one Perry that he had a right to one half of the road, and, if he saw fit, to break the legs of the plaintiff’s horse if be stood in his way on the street.

Replevin. At the trial in the superior court, before Russell, J., the plaintiff claimed title under a bill of sale, and, upon notice from the defendant to produce it, put into the case a bill of sale, which the defendant testified was not the same as a bill of sale of the same date, shown to him by the plaintiff, shortly after it was given, of which he made a copy which was now lost; and the defendant was further allowed to testify, under objection, to the contents of the…

<p>Petition to the county commissioners of Middlesex county for a jury to assess damages sustained by reason of taking land of the petitioner in Woburn for a railroad. A warrant was duly issued and the case was tried before the sheriff, whose report thereof showed that before the hearing commenced the respondents objected to proceeding under the warrant because no jurors were taken from Stoneham, which was the town nearest to the land in controversy; but the objection was overruled, the jurors all having been taken from towns within the same county and adjoining Woburn.</p> <p>During the trial the petitioner testified in his own behalf, and was allowed, under objection, to state his opinion of the amount of damage sustained by him, by reason of the taking of the land. John Hill, a witness for the petitioner, was also allowed to testify, under objection, what he gave for a lot of land about a quarter of a mile from that of the petitioner, and how the two lots compared in value. Luther Hill, another witness for the petitioner, was allowed to testify, under objection, as to the comparative value of the land in controversy and an adjoining lot, a sale of which for a certain price had been put in evidence. George W Dike another witness for the petitioner, stated on cross-examination that, as a member of a committee of the town of Stoneham, he had recently purchased a lot of land for a cemetery, situated near the petitioner’s land and the railroad, and was asked what price he paid for it. This question was objected to on the ground that the land was bought for a public purpose; and the evidence was excluded. A. L. Richardson, a witness for the respondents, was asked on cross-examination how much one McEvoy gave for a small lot of land on the line of the railroad, and in the vicinity of, but not adjoining, the petitioner’s land. The respondents objected to this question, on the ground that the lot was not adjoining or situated similarly to the land of the petitioner; but the evidence was admitted. The respondents offered to prove a sale of land adjoining that of the petitioner, made by one Hackett to them since the date of the warrant; but the evidence was excluded. Thaddeus Richardson, a witness for the respondents, was asked how much he paid for land similar and near to that of the petitioner, which he had purchased about seven years before; but this question was held to be incompetent. The respondents offered to prove that since the hearing began their directors had located a passenger station at a place near the petitioner’s land which the railroad crossed; but the evidence was excluded.</p> <p>The jury returned a verdict assessing damages in the sum of $785, which on motion of the respondents was set aside in the superior court; and the petitioner appealed to this court.</p>

<p>je’roceedings in insolvency, in invitum,, against an infant, who is not represented by a guardian ad litem, are void, and ma3 be set aside on a bill in equity brought b}’ a creditor who has an attachment upon his estate, although such creditor’s claim is one which might be avoided by the infant, on plea and proof of his infancy.</p>

<p>Trustee process, originally entered in the police court of Lowell, where an adverse claimant was admitted as a party, and afterwards brought by appeal to the superior court, where, upon a trial between the plaintiff and the claimant, the latter obtained a verdict. The trustee appeared in the superior court during the whole time that the process was pending there, but no issue of fact was tried between him and the plaintiff. The plaintiff then moved that full costs should not be allowed to the claimant and the trustee; and Wilkinson, J. decided that the court had discretionary power in regard to the taxation, and ordered that the trustee should only be allowed to tax costs in the police court. The trustee alleged exceptions.</p>

Tbustee pbocess. The trustees were charged, in the superior court, upon facts which are stated in the opinion; and they appealed to this court.

<p>Under a contract “ to devote my time and best energies from daylight in the morning until nine o’clock in the evening to A. for the term of one year,” for a stipulated sum by the day, with a provision that the wages shall continue the same until the expiration of the term, in case of the previous death of A., the performance of reasonable services, after the death of A. within the term, upon the request of his executors, is a condition precedent to the right to recover wages after such request.</p>

Contract brought to recover $11, as the balance due on an account annexed. The defence was payment.

<p>Petition for a writ of certiorari, to quash the proceedings of the county commissioners for the county of Middlesex, upon the petition of the Proprietors of the Locks and Canals on Merrimack River, a corporation, for an abatement of taxes assessed upon them in the city of Lowell for the year 1860.</p> <p>Upon the original petition to the county commissioners for an abatement of the taxes, certain facts were agreed, which are stated in the opinion. Upon these facts, the county commissioners determined that the petitioners were overrated, and entitled to an abatement; and they made an abatement of $2250, assessed upon the sum of $300,000, “ because, in the judgment of the commissioners, the water power which is taxed for the last named amount by the assessors should not, under the facts agreed upon by the parties, as a matter of law, be taxed; ” and they awarded their costs to the petitioners against the city.</p> <p>The present petitioners alleged that the proceedings of the county commissioners, as above set forth, were invalid, and prayed that the same might be certified to this court and quashed.</p>

Petition for a writ of certiorari, to quash the proceedings of county commissioners in issuing a warrant for a jury to assess the damages for land of Robert Murdock taken for a common sewer under St. 1859, c. 137.

Contract upon a promissory note signed by the defendant and a surety, and payable to the plaintiff or order, dated February 33,1858.

Tort for the conversion of a watch. At the trial in the superior court, before Russell, J., it appeared that the plaintiff, with another man, hired a horse and wagon for one dollar of the defendant’s master, about noon on a Sunday, to drive for two or three hours, not for works of necessity or charity; that he did not return until late in the evening, when the defendant demanded three dollars more; that the plaintiff said he had no money, and the defendant took his watch,…

<p>Tort to recover damages for an assault and battery upon the female plaintiff, and for breaking and entering the plaintiffs’ close, to wit, the hall in the basement of the Universalist church in Tyngsborough, and expelling the female plaintiff therefrom. The answer denied the assault, and alleged that whatever acts were done by the defendant were done by him in a proper manner and without undue force, as agent of the Proprietors of the First Universalist Meeting-house in Tyngsborough, to whom the premises belonged.</p> <p>At the trial in the superior court, before Vose, J., there was evidence tending to show that in May 1841 ten persons in Tyngsborough, who had been in the habit of subscribing to pay for hiring a Universalist preacher, applied to a justice of the peace for a warrant to call a meeting in order to form an incorporated religious society, and, at the meeting held in the same month in pursuance of the warrant issued upon said application, officers were chosen, and the society adopted the name of “ the Proprietors of the First Universalist Meeting-house in Tyngsborough.” The records were made a part of the case. A committee to purchase a site for the meeting-house, and a building committee, were also chosen. On the 19th of August 1841 Charles Butterfield executed a deed of land to “ the society called the Proprietors of the First Universalist Meeting-house in Tyngsborough,” and a meeting-house was soon after erected thereon, by subscription for fifty-three shares of twenty-five dollars each; and meetings of the society have continued to be held and the organization maintained to the present time. At the first meeting, by-laws were adopted, one of which was as follows : “ Any person may become a member of the society by taking one or more shares in the meeting-house and subscribing the by-laws.”</p> <p>In 1848 the ladies who attended the meetings of this society formed an association called “ The Ladies’ Murray Circle,” for charitable and religious purposes, the records of which were made a part of the case, and are sufficiently referred to in the opinion; and there was evidence tending to show that prior to 1857 this association became owners of two shares in the meeting-house. The basement of the meeting-house remaining unfinished, it was voted, at a meeting of the society held in September 1857, to finish it by subscription, and that the standing committee, of whom the defendant was one, be authorized to superintend the same; and the defendant informed the female plaintiff that the proprietors had agreed that the ladies might finish the basement and hold meetings there, if they would furnish the money, which information was communicated to the ladies, who accordingly furnished the money to the committee. There was further evidence “ that the talk among the proprietors was, that the ladies were to fit up the hall and have the use of it for fairs and social parties; and that it was not talked of that they were to have the control of the basement to the exclusion of the society.”</p> <p>It appeared by the records that at a meeting of the society in .1861 it was voted that the committee have charge of the church and basement, and see that the whole be kept in repair. The committee, of whom the defendant was one, gave the female plaintiff, who was president of the Ladies’ Murray Circle, written notice to quit the basement; and, more than two weeks afterwards, the defendant with another of the committee went to the basement to take control of it and fasten it up, and had entered it, and were putting a new lock on the. door, when the female plaintiff came there and protested against their proceedings, and the defendant requested her to leave the premises, which she refused to do, and interfered with the shutting up of the room, and the injury complained of resulted from the attempt of the defendant to remove her therefrom.</p> <p>The judge, among other instructions hot excepted to, instructed the jury “ that the legal proceedings in 1841 did not create and establish a legally incorporated religious society, but that the original subscribers and those who afterwards united with them for the purpose of maintaining religious worship continued to be a voluntary unincorporated association; that the effect of the deed of Butterfield was to vest in the original subscribers, and their heirs and grantees, the legal estate in the land and building; that if the association, at first consisting of the original subscribers or proprietors, subsequently enlarged their membership, and admitted persons to their association not original proprietors, and not claiming under any of the original proprietors, and the association, thus enlarged and changed, continued in the possession and use of the church ground and building by the assent of the proprietors, such association used and occupied it as tenants at will under the legal owners of the property; that it was not necessary, in order to create the relation of ten ants at will, as to this basement, between the religious society and the Murray Circle and its members, that any formal grant or lease should be proved; that it was competent for the jury to presume such a tenancy, if the evidence satisfied them that the Circle was in the exclusive use and possession of the basement with the assent of the religious society ; that, if they found that such a tenancy existed, it could only be terminated by three months’ notice in writing from the society to the Circle, and that the defendant, acting in behalf of the society, could not lawfully eject by force any member of the Circle from the basement, claiming a right to be there as a member of the Circle, until such notice had been given; that it was a fact to be determined by the jury, upon the evidence, whether the Circle had ever paid to the society the price of two shares in said house for the purpose of acquiring the rights of membership in the society; that the effect of such payment, if made, would not be to make the Circle the owners of any part of the legal estate in the land and building, in the absence of any conveyance from the original proprietors, but simply to make the members of the Circle tenants in common with the members of the society in the use and enjoyment of the building; and that if the evidence satisfied them that such a tenancy was created by the fact of payment by the Circle for two shares in the meeting-house, the defendant, acting as one of and in behalf of other tenants in common, could not lawfully expel by force the female plaintiff from the premises so held in common.”</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

Two actions of tort, tried together, against a gas light com pony for an injury to the plaintiffs’ health from the inhalation of gas which escaped from the defendants’ pipes. At the second trial of these cases in the superior court, before Wilkinson, J., it appeared that in January 1857 the gas escaped from the defendants’ pipes under the same circumstances referred to in the former report of these cases. 3 Allen, 410.

<p>The charterer of a vessel, who has been subjected to expense in getting her off from and over a gas pipe, which was an unlawful obstruction to the navigation of a river, and .upon which she caught in passing along the river, while navigated with due care, may maintain an action against those who laid the gas pipe, to recover for such expense, but not for any delay in his business or other consequential damages.</p>

<p>It is too late, after the adjournment of the court without day, to apply to a judge of this court for the allowance of exceptions; and a written agreement between the parties by which, before the trial, they mutually agreed to waive certain claims and objections, and that the rulings of the court should be subject to exception as in other actions at law, does not extend the time within which such application should be made.</p> <p>The decision of a judge of this court, declining to reserve a case on questions of law, or denying a motion for a new trial, is not subject to revision by the whole court.</p>

Bill in equity filed April 29, 1859, and served by subpoena upon the following day, by various inhabitants and tax payers of the town of Belmont against the inhabitants of said town, the assessors and treasurer thereof, and the president, directors, & Co. of the Bunker Hill Bank, alleging that at a town meeting of the inhabitants of the town held on the thirteenth of April 1859, under a warrant containing a proper article for that purpose, it was voted, notwithstanding the…

<p>Writ of entry. The demandant claimed title as tenant by the curtesy, upon the following facts, which were agreed in the superior court:</p> <p>On the 4th of April 1846, Nathaniel C. Woodman conveyed the demanded premises to Mary W. Comer, wife of the demand-ant, to have and to hold the same to her sole and separate use, free from the interference or control of her husband. On the 18th of the following November, she conveyed the same by her sole deed to Nathaniel C. A. Preble, under whom the tenants claim. In November 1848 she had, for the first time, a living child born ; and died in June 1851.</p> <p>On these facts, judgment was rendered in the superior court for the tenants, and the demandant appealed to this court.</p>

<p>A devise is void which gives to heirs at law of a deceased child of the testator the same estate which they would be entitled to as heirs of the testator, by right of representation of their parent; and they will take by inheritance, and not under the will.</p> <p>If persons take an estate by inheritance from a more remote ancestor, by right of representation of a nearer ancestor, they cannot be regarded as taking it by inheritance from the latter, within the meaning of Gen. Sts. c. 91, § 1, cl. 6.</p>

<p>Bill in equity by the executor and trustee under the will of Elizabeth Smith, deceased, praying for instructions as to the execution of his trust. The will contained the following provisions :</p> <p>“ Second, I give to James Edward Head, son of my brother John Head, twenty shares in the Boston Water Power Company, and thirty shares in the Boston Mill Dam Company, subject to the restrictions hereafter named.</p> <p>“ Third, I give to Elizabeth Smith Head, daughter of Henry A. Head, of Bangor, in the State of Maine, twenty shares in the Boston Water Power Company, and thirty shares in the Boston Mill Dam Company, the income of which is to be paid to her during her natural life ; and, at her death, the stock is to go to her heirs.</p> <p>“ My will is that the Water Power and Mill Dam stock given to Elizabeth Smith Head shall not be sold during her natura^ life, but that the dividends thereon may be paid to her during her life, and, at her death, the stock go to her heirs. My executor may transfer the said stock to her trustee, or he may himself hold it in trust for her.</p> <p>“ The Water Power and Mill Dam stock given to James Edward is not to be sold during his life, unless by special direction of the judge of probate, on good cause being shown; but the income thereof is to be paid to him during his life by my executor, or by such trustee as may be hereafter appointed; and, at the death of the said James Edward, the said stock shaL be divided among his lawful issue, if any he leaves; and, if he dies without leaving issue, the said stock, or the proceeds of it, if sold, shall go to the Boston Society of the New Jerusalem.”</p> <p>The facts, so far as material, are stated in the opinion. The case was reserved by the chief justice for the determination of the whole court.</p>

<p>In computing the amount of a widow’s share in the estate of her husband, under St. 1861, c. 164, upon her waiving the provisions of his will in her behalf, promissory notes held by him at the time of his death, and given by him in his will to the makers thereof, are to be regarded as assets; and the personal property is to be estimated at its value at the time of distribution.</p> <p>If a testator bequeaths the income of certain property to his wife so long as she lives and remains his widow, for the support of herself and her two children, and she waives the provisions of the will in her behalf, the two children are entitled to the whole of such income, during the time specified.</p> <p>If a testator who bequeaths the income of certain property to his wife, so long as she lives and remains his widow, for the support of herself and her two children, and appoints her guardian of said children, provides also that during that time no change in any investment shall be made without her consent, her waiver of the provisions of the will in her behalf does not give to the trustees of the property the right to change investments with out her consent.</p>

<p>If an individual has taken a conveyance of land for the benefit of a religious society, and has executed a note and mortgage for the purchase money, which the society agree to assume and pay, and has conveyed the equity of redemption to the society, which, “ for the better security for the performance of their said agreement,” appointed him as their agent to let, manage and control the stores, cellars and apartments upon the land, except such ás are used by them for public worship, to collect and receive the rents, and to pay over to the mortgagee the net amount thereof, after payment of all expenses, or temporarily to invest the same for the purpose of afterwards applying it to the discharge of the mortgage debt, this constitutes a trust; and the society, after paying the debt by money obtained upon a subsequent mortgage of the land, and procuring a discharge of the first mortgage, and tendering the note and mortgage to him cancelled, may maintain a bill in equity against him to compel him to pay over to them the funds remaining in his hands, and to enjoin him from further intermeddling with the property.</p>

<p>Votes by the inhabitants of a town instructing their treasurer “to consolidate the town debt for ten years, provided the money can be obtained at five and a half per cent.,” and authorizing him “ to borrow such sums as shall be necessary for the use of the town, under the direction of the selectmen,” and also “ to borrow twenty-five thousand dollars of the Mount "Vernon Bank, at five and one half per cent, interest, and that the same be appropriated under the direction of the selectmen to the liquidation of the present town debt,” do not authorize the treasurer to employ a broker in their behalf to negotiate the loan, or render them liable to pay for the services of a broker employed b)r him to borrow the money for them.</p>

<p>In an action to recover the price of goods sold by an agent, in which one ground of defence is that the goods were sold with an express agreement, assented to by the principal, that the purchaser should only be responsible t;o the agent, with whom a settlement for them has been made, if the agent in his testimony has denied that such a settlement has been made, he may be contradicted by showing that in letters written by him he has made different statements.</p> <p>If a settlement has been made of large accounts, without reference to books or careful reckoning of items, but founded upon a statement by one of the parties of the amount of the balance of a certain account as shown upon his ledger, after giving all credits properly applicable thereto, and it afterwards appears that a comparatively small item of credit had not been entered upon the ledger, still, if the parties in making the settlement did not intend to ascertain the precise result of the account between them, and ea:h of them agreed to waive all claims against the other which were not included in the balance arrived at, and the statement as to the balance of the account upon the ledger was made in good faith, and does not appear to have been relied upon by the other party, and the error does not appear to have been material, the settlement should be upheld.</p> <p>[f there is a conflict in the oral testimony of the parties to an action, in respect to an alleged settlement between them, it is proper for the presiding judge to advise the jury to examine carefully the several written instruments which have been produced as having been executed at the settlement, and to consider which theory is most consistent with them; and the verdict of the jury finding that such settlement was made will not be set aside because in so advising them the judge omitted to instruct them specially that they must first be satisfied of the authority of the agent by whom the settlement was finally agreed to on the part of one of the parties, if his attention was not called to the matter, and if the question of the authority of the agent was fully discussed in other parts of the case.</p> <p>If the verdict of a jury covers the whole issue submitted to them, no exception lies to the refusal of the presiding judge to inquire of them as to their finding upon a particular question which arose during the trial, where such refusal does not involve a violation of any rule of law, or of established practice.</p>

<p>Tort. The declaration set forth that the plaintiff was the owner of a messuage and premises, with the appurtenances, on Billerica Street in Boston, and by reason thereof was entitled to a drain or sewer leading therefrom in, through and under certain adjoining land; that “the defendant wrongfully stopped up the said drain and sewer, or obstructed the plaintiff in examining into and repairing said sewer, whereby the water might freely flow through the drain, under said defendant’s premises ; ” that thereby large quantities of water which ought to have flowed through the drain were prevented from flowing from the plaintiff’s land, and caused injury to the plaintiff; “ and by reason of the defendant’s obstruction of said drain, or his preventing its repairs by the 'said plaintiff, house No. 36 belonging to said plaintiff, and adjacent to the defendant’s house, was also injured,” &e.</p> <p>At the trial in the superior court, before Putnam, J., the plaintiff proved his title under a deed conveying to him the premises, with all the privileges and appurtenances to the same belonging, and offered evidence tending to show that in September 1861 the refuse water did not flow off freely from his premises, as it had been wont to do, and he claimed that it was owing to some obstruction in the drain, and notified the defendant in writing that the drain was out of order, and requested him to join with the plaintiff in repairing it; and that some days thereafter the plaintiff went on to the defendant’s premises, with a carpenter and tools, for the purpose of examining the drain, but the defendant refused to permit him to do so, and ordered him off torn the premises. The evidence was conflicting as to whether there was in fact an obstruction in the drain.</p> <p>The plaintiff asked the court to instruct the jury, “ that where the owner of two or more adjoining houses sells and conveys one of them to a purchaser, such house is entitled to the benefit and is subject to the burden of all existing drains communicating with the other house, without any express reservation or grant for that purpose; that the clause in the plaintiff’s deed, “ with all the privileges and appurtenances to the same belonging,” conveyed to the plaintiff by implied grant, all the easements, drains, &c., as they were used at the time of the plaintiff’s purchase; that it makes no difference as to the plaintiff’s right to recover in this action, whether or not a new drain could have been constructed at much or little expense by the plaintiff on his own land, and that it makes no difference whether either the plaintiff or the defendant knew or understood that there was such a drain at the time of the conveyance.”</p> <p>The judge declined to instruct the jury as prayed for, but did instruct them that the plaintiff, by the conveyance to him, was entitled to have the use of this drain, provided the jury found as a fact that it was necessary to the beneficial enjoyment of his estate; that whether it was so or not was a question for them to determine upon the whole evidence; that the determination of this question involved the inquiry how far a drain could be built, with reasonable expense and labor, upon the plaintiff’s own land; and he further instructed them as to how they were to determine the question of this necessity; to which latter instructions no objections were made, if the principle above stated was correct. The jury were further instructed that if they found that the use of this drain was thus necessary to the beneficial enjoyment of the plaintiff’s premises, it did pass to him by his conveyance, and he had the right at reasonable and proper times and in a proper manner to go on to the premises and examine the drain for the purpose of repairing it, and if the defendant prevented him from so doing, and the plaintiff suffered damages in consequence thereof, and in consequence of being unable to repair said drain, the plaintiff could recover.</p> <p>The judge further instructed the jury that if upon the evidence they found as a fact that there was no obstruction in the drain, or that the plaintiff could have removed all the difficulties on his own premises, and without going on the premises of the defendant, then their verdict must be for the defendant.</p> <p>The jury returned their verdict for the defendant, and in reply to an inquiry put to them by the court, upon which they had been requested to find specially, stated that they found it on the ground that there was no obstruction in the drain.</p> <p>The plaintiff alleged exceptions.</p>

Contract brought against the administrator of John Hancock, deceased, to recover one quarter part of the rent received by him from the tenants of certain premises.

<p>Contract to recover for the plaintiff’s services as president of the Pawners’ Bank from January 1st to November 25th 1861. A trial by jury was waived in the superior court, and the case was heard by Rockwell, J., who ruled that the plaintiff was not entitled to recover, upon facts which are stated in the opinion, and directed judgment for the defendants. The plaintiff alleged exceptions.</p>

<p>Contract upon the following written instrument:</p> <p>“ Whereas it has been agreed by and between the parties plaintiff and defendant in a writ of review entitled John T. Smith vs. George W. Palmer & another, numbered 3098 on the docket of the superior court for the county of Suffolk, that judgment may be entered for the defendants in review, and that the said defendants have agreed to receive in full satisfaction of said judgment the said plaintiff’s note for dated November 1st 1860, payable in six months from date, when said note is paid, now I, John M. Way, the attorney for the said defendants, hereby acknowledge having received said note, and do stipulate and agree that said execution shall not be put in force in any way against the defendant [plaintiff] until the maturity of said note and for one week thereafter, and do further agree that if said note is paid at or before its maturity, or within one week thereafter, I will discharge and wholly release the said judgment and execution on the dockets of said court. And if said note is not promptly paid, the said Palmer & another are in no way to be affected by this agreement or the judgment or execution. But if paid as aforesaid, then the said judgment is to be fully discharged, and also the execution. John M. Way,</p> <p>“ Attorney for Palmer & another.”</p> <p>At the trial in the superior court, before Allen, C. J., it appeared that the plaintiff duly paid the note mentioned in the above agreement at maturity, and that he was arrested on the execution, in pursuance of directions given by the defendant Way, and entered into a recognizance under the statute. The judge instructed the jury that the contract was the contract of this defendant, and not of Palmer & another; that the plaintiff’s promise to pay his note of $185 was a sufficient consideration for this contract; that the jury were not limited in damages to the amount of the judgment, execution, interest and costs, which the defendant agreed to discharge, and upon which execution the plaintiff was arrested; but that they were at liberty to return any amount as damages, from nominal damages to three hundred dollars, that being the ad damnum, in the plaintiff’s writ.</p> <p>The jury returned a verdict for the plaintiff, with damages in the sum of two hundred and fifty dollars; and the defendant alleged exceptions.</p>

Contract. The 1st count was for use and occupation of a tenement hired of the plaintiff by the defendant.

Tort for breaking and entering, on the 7th of October 1861, a tenement occupied by the plaintiff for a shop and dwelling, as tenant at will to the defendant, he paying rent to her on Saturday of each week.

<p>Contract to recover for goods sold and delivered. At the trial in the superior court, before Morton, J., the plaintiff testified that he sold the goods for cash. The judge instructed the jury that if by the contract between the parties the goods were sold for cash, and to be paid for on delivery, the plaintiff was entitled to interest from the date of the sale and delivery. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Contract upon a policy of insurance issued by the defendants by which they insured the plaintiff in the sum of $2500 on the charter of the bark Wyandotte.

<p>Replevin of two horses. The pleadings are sufficiently-stated in the opinion.</p> <p>At the trial in the superior court, before Allen, C. J., the plaintiff offered evidence tending to show that on the 3d of December 1861 he concluded a purchase of the horses from Horace Caldwell, and received them into .his possession. It appeared that they had formerly belonged to Jonathan I. Caldwell, and remained in his possession as his property up to the time of his insolvency, the first publication of the notice of which was made on the 28th of December 1860. David Thaxter was subsequently duly appointed assignee of his estate, and never took possession of or sold or conveyed the horses, and did not know that they belonged to Jonathan’s estate until the time of the trial. The proceedings in insolvency were still pending. After the plaintiff’s purchase, he employed. Jonathan to keep them for him; and while they were so kept, the defendant, who was a deputy sheriff, took them away upon a writ against Jonathan.</p> <p>The defendant offered evidence tending to show that the purchase by the plaintiff was merely colorable. The judge ruled that evidence of any facts which tended to show that the purchase by the plaintiff and the sale to him were not intended to be an actual purchase and sale, or to convey any title to him, or that the object of the sale was merely to enable Jonathan I. Caldwell to hold the horses and prevent them from coming to his assignees, or that he was keeping them for his own benefit and not as an agent of the plaintiff when the defendant took them away, was admissible ; and, evidence whereby the defendant claimed to prove these facts having been introduced, the judge instructed the jury that, if proved to their satisfaction, these facts would constitute a defence to the action ; but if they should find that the plaintiff purchased the horses with the intention and purpose to take title, and that Jonathan was keeping them for him in pursuance of such intention and purpose when the defendant took them away, this would be such a title as would enable the plaintiff to maintain his action, and the defendant could not defeat such title merely by showing that it might be avoided by the assignee in insolvency of Jonathan, or, in other words, under such a state of facts evidence that the horses were the property of Jonathan at the time of his insolvency, and of the general assignment of his effects to Thaxter, would not constitute a defence to this action, although the jury should believe that the plaintiff knew that the horses were Jonathan’s up to the time of his insolvency, the defendant showing no title under Thaxter, or that any act of ownership over the horses had been exercised or claimed by him.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Contract. The writ was dated February 13, 1861. The declaration set forth that on the 10th of October 1860 the plaintiffs bargained and sold to Isidore Filene certain goods, specified in an account annexed, for prices amounting to §335.31, but which goods they declined to deliver until payment or security therefor should be made or given; that on the 13th of October, while the goods were in their possession, they received from said Isidore the following letter: “ Please to send me the goods I have ordered to-day, for I have lost considerable trade this week......By sending the ordered, goods to-day, you will oblige,” &c.; that on the same day, and in consideration that the plaintiffs would deliver the goods, the defendant executed upon the back of said letter the following agreement: “ If you will please to deliver the goods to Mr. I. Filene, I will see that the same will be paid; ” that the plaintiffs thereupon, giving credit to said agreement of the defendant, delivered the goods, and that Isidore and the defendant, though requested, have never paid for the same, &e.</p> <p>The answer contained general denials, and averred that if any goods were delivered to Isidore on the credit of any agreement by the defendant, the same were returned to the plaintiffs, and the agreement annulled.</p> <p>At the trial in the superior court, before Allen, C. J., it appeared that the plaintiffs and Isidore made an agreement for the sale of the goods as alleged, and the time of credit and prices were agreed on. Isidore was a stranger to the plaintiffs, and gave references as to his credit, which on inquiry did not prove satisfactory to the plaintiffs. Within a few days after the 13th of October, the guaranty of the defendant was given upon the plaintiffs’ request. The goods were sent to Isidore in two lots, on the 18th of October; Isidore expressed dissatisfaction with them, and returned a part of them to the plaintiffs. While things were in this situation, the plaintiffs consulted the defendant in reference to the matter, and the latter went to Lawrence, where Isidore was doing business, to confer with him, and upon his return informed the plaintiffs that, if they would discount ten per cent, from the whole bill, Isidore would receive the goods. The defendant testified that it was made a condition at this time that he should be released from his guaranty, because Isidore refused to have the goods unless he could have them upon his sole credit; but this was denied. It was agreed, however, that ten per cent, should be discounted, and the goods, which had not been unpacked by the plaintiffs since they had received the same from Isidore, were returned to the latter at Lawrence on the 27th of October.</p> <p>A correspondence between the plaintiffs and Isidore was also put into the case, as follows: On the 18th of October, Isidore wrote to the plaintiffs, expressing dissatisfaction with the goods, and saying, “ As it is so, I don’t want the goods at all, and will return your caps at the same time, for I can do better, and have prompter attention paid to me.” The plaintiffs replied on the same day, saying that the goods were the same which were bought, and were put at the same prices which they had told him, and adding: “ If however you are disposed to return the goods, we wish you would not unpack the last goods sent, as it damages the goods, &c.....We are confident that if you take the bill, you will find that we have made you prices that will give you satisfaction.” On the 19t.h, Isidore replied, again expressing his dissatisfaction, and saying: “ I gets disgusted about the whole of your doings. That’s not all. The goods I bought about eleven days ago, and not have them now, and the bill and I suppose note is made due the 10th. Now I should like to know who has got more right to complain, me or you......Now if you think you can make all right so may send the goods right away, or else none at all.” On the 23d, Isidore wrote again to the plaintiffs, saying: “ The three cases of goods I received only Friday afternoon last, which is about eleven days later from the time I bought, and not to my satisfaction. I even wouldn’t have unpacked the goods, if you didn’t write your letter that I’ll find out the goods to my satisfaction, which is to the contrary, and therefore send you at least the last goods back......My brother wrote me that you was up and wanted security of him. If you did think that I oint good enough, you had no business to haul me up stairs when I inquired for another man, name Mr. Wolf, Federal St., where I have told you that I want to [buy] on’ six months’ time, and by giving you good references you said it’s all right, and you will send the goods right away, which was not the case before the 18th afternoon, and the bill you made out the 10th. Now to the point. I’ll tell you, if you don’t want to sell me the goods, say so, and that will settle the whole matter.” On the 27th the plaintiffs wrote to Isidore as follows : “ We have seen your brother in this city respecting the bill of goods sold you, part of which you returned, and he stated for you that you would take the goods if we would make a discount of ten per cent. We think this is a pretty large discount to make, but to show you that we wish to deal honorably with all men we have concluded to make the discount, and give you the same length of time that you and our Mr. Evans agreed upon, that is, four months. We have therefore sent you the goods to-day per express. The goods have not been unpacked since you packed them.”</p> <p>Upon this evidence, the defendant contended that he was released from his guaranty by operation of law, and by express agreement; but the judge instructed the jury that the evidence of an agreement between the vendor and vendee, by which ten per cent, was discounted from the price of the goods, failed to show any such alteration of the original contract, or any substitution of such a new contract, as would exonerate the defendant under the guaranty declared on, unless they believed the defendant’s testimony, that there was an express agreement to release him.</p> <p>The defendant also requested the court to rule that, under the declaration, the plaintiffs could not recover upon the defendant’s assent, if any, to such altered or substituted contract; but the judge declined to give this instruction.</p> <p>The defendant also contended that the action was prematurely brought, and that there was no evidence upon which it was competent for the jury to find that the cause of action had accrued at the date of the writ; but the judge declined so to 'rule, and instructed the jury that the plaintiffs must satisfy them that the credit given had expired before the action was brought, and that it was a question of fact for them to find, upon -the evidence, whether it had expired, being dependent upon the agreement of the parties as to the time when the credit, which was four months, began to run.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>Tort brought in the name of “ George, the Count Joannes,” seeking to recover damages of the defendant for slander. The declaration was as follows :</p> <p>“First Count. And now comes the plaintiff, and avers and declares that he is by professional vocations a public author of historical and other literary works, and a public lecturer, and public oratorical illustrator of the Sacred Scriptures, and the works of Shakspeare, for reputation, income, profits and emoluments, as exemplified by the annexed Exhibit A;* and also special attorney, counsellor and advocate, practising by special authority, and by the laws, in the supreme judicial court and the superior court of Massachusetts, also, for reputation, income, profits and emoluments; and in any and all of said intellectual employments the unimpaired reason and the reasoning powers of plaintiff are a condition precedent for plaintiff’s said public employments; their continuance ; and for his reputation, his income, profits and emoluments. And the plaintiff further avers and declares that the defendant is an attorney and counsellor at law of Massachusetts, and a justice of the peace for the comity of Suffolk, of great practice in his legal profession, and learned in the law, and of enlarged influence in public and in society. And the plaintiff further avers and says that defendant is an avowed enemy of the plaintiff upon a vital question of this republic. The treasonable motto of defendant’s political and abolition creed, to wit: ‘ The Constitution of the United States is a compact with Hell,’, plaintiff has denounced in three public orations at Faneuil Hall, Boston, (and before several thousands of his fellow-citizens,) as traitorous to the constitution, and to the government of this republic; and thence the abolitionists are the avowed and malicious enemies of plaintiff; and of which abolitionists the defendant is one, and a public supporter of that ultra and sanguinary creed. And the plaintiff further says that the defendant, at Boston, in the county of Suffolk, on or about the fifth day of February, A. D. one thousand eight hundred and sixty-two, and in the presence and hearing of a large assembly of citizens, did publicly, falsely and maliciously, and without reasonable and probable cause, and not being pertinent to the judicial inquiry at issue, accuse the plaintiff with being insane ; with being possessed in his own proper person with the contagious disease of insanity; by words spoken publicly by defendant of and concerning plaintiff, and substantially in matter as follows, to wit: ‘ I ’ (meaning defendant) 1 now, gentlemen of the jury, shall speak upon a delicate subject; and will say that, for which I run the hazard of legal proceedings on the part of the plaintiff in this action; ’ (meaning the action Joannes v. Nickerson, then being tried in the superior court, county of Suffolk; and, by the word ‘ plaintiff,’ meaning the present plaintiff.) 1 It is, that he’ (pointing and looking at and meaning this plaintiff) ‘is insane. I’ (meaning defendant) ‘ can liken him’ (meaning plaintiff) ‘ only to Pratt and Mellen, two madmen well known in this community.’ (Here followed by defendant a description of the said citizens, Pratt and Mellen, one or both of whom had been secured and placed in a lunatic asylum for insane persons, as being confirmed and dangerous madmen.) ‘If the plaintiff’ (meaning this plaintiff) ‘had justice done him, a jury’ (meaning a jury sworn to inquire into any case of lunacy) would consign him’ (meaning plaintiff) ‘to an insane hospital, and not find a verdict in this action in his favor, and against my client;’ (meaning the then defendant, Joseph Nickerson, Esq., in the action then being tried.)</p> <p>“ Second Count. And the plaintiff says that the defendant, at Boston, in the county of Suffolk, on or about Wednesday the fifth day of February, A. D. one thousand eight hundred and sixty-two, in the presence and hearing of a large public assembly of citizens, to wit, two hundred, (more or less,) did publicly, falsely and maliciously, and without reasonable and probable cause, and not pertinent and materia] to the issue upon the aforesaid judicial trial, (but maliciously impertinent to said issue,) accuse, charge and publicly denounce the plaintiff with being insane ; with being diseased and possessed in plaintiff’s own proper person with the most terrible of God’s inflictions upon mankind, that of the infectious and transmissible physical and mental disease of insanity; which accusation, if true, as falsely and maliciously slandered by defendant, would deprive plaintiff of his personal liberty ; of all personal, legal and social rights whatever; of all income and emoluments from his professional employments; of all future public advancements and domestic happiness; casting desolation, misery and sorrow upon plaintiff, and increasing his sufferings by the sad reflection that the slander upon the father also slanderously taints the mental condition of plaintiff’s children ; and to give additional force and injury to the wounded feelings of the plaintiff, and as a climax to the malice of the defendant, he publicly made the said accusation, even in the presence and hearing of the wife of the plaintiff, and which false and malicious accusation the defendant well knew, when he uttered it, to be totally untrue, atrocious, actionable and most malignant in its mendacity.</p> <p>“ In consideration, therefore, of the foregoing premises, the plaintiff brings this action of tort; and claims to his damage the sum of ten thousand dollars. “ Respectfully,</p> <p>“ George, the Count Joannes, Plaintiff in person.”</p> <p>To this declaration the defendant demurred, as not setting forth any legal cause of action, as containing irrelevant and improper matter, and as having annexed to it a printed exhibit not pertaining to the cause of action.</p> <p>At the hearing in this court, before Hoar, J., the demurrer was sustained, and judgment rendered for the defendant; and the plaintiff appealed to the whole court.</p>

<p>The superior court, after a demurrer to a declaration has been sustained and judgment rendered thereon for the defendant and the plaintiff has appealed to this court, have authority to order the plaintiff to furnish an indorser for costs, and, in case of his failure to do so, to order a nonsuit.</p>

Tort, brought in the name of “ George, the Count Joannes,” seeking to recover damages of the defendant for a libel, in publishing of the plaintiff these words: “ There flourishes a soidiscmt count with his decorations given by the grand duke of Pumpernickel, or brought from some similar august potentate.” At the trial in the superior court, before Allen, C. J., the jury returned a verdict for the defendant, and the plaintiff presented to the presiding judge a bill of…

<p>The plaintiff in a personal action, brought originally in the superior court, who recovers a verdict of just twenty dollars, is not entitled to costs, under the General Statutes.</p>

<p>Payol evidence is competent to show a special contemporaneous agreement to charge nothing for services to be rendered by one who was not an attorney at law, but was “ author • ized and employed” by a written power of attorney to manage and defend a suit at law.</p>

<p>Tort for the conversion of sixty-seven barrels of flour. Upon agreed facts, which are stated in the opinion, judgment was rendered in the superior court for the plaintiff, for the amount received by the, defendants upon the sale of the flour by them, deducting the sum claimed by them as the amount for which they had a lien on the flour, and the expenses of the sale; and the defendants appealed to this court.</p>

<p>Contract against a railroad company for a failure to forward and deliver to the plaintiffs at Burlington certain iron rails. The declaration contained several counts, which it is unnecessary to set forth at length.</p> <p>The case was heard in this court, without a jury, before Hoar, J., who reported it for the opinion of the whole court upon the following facts, which were established by the evidence :</p> <p>“ The iron, for the loss of which the suit was brought, was part of a lot delivered to the defendants at Charlestown in 1852, to be carried over their railroad, and forwarded by connecting roads to Burlington, Vermont. It was safely carried over the, defendants’ road, and delivered by them to the Cheshire Railroad, the next road in the line of forwarding; and by that road delivered to the Rutland and Burlington Railroad, and upon that road was detained and used.</p> <p>“ The freight for the carriage of the iron, at the usual prices, was paid by the plaintiffs to the Rutland and Burlington Railroad Company for all the connecting roads ; and the defendants received their proportion of it, without notice of any claim for failure to deliver any part of the iron. The Rutland and Burlington Railroad Company had agreed with the plaintiffs to have the whole lot transported from Charlestown to Burlington for an entire sum, lesá than the usual and established rates. There was some evidence that this contract was made by the defendants; but, upon the whole evidence, I was of the opinion that it was not made by them, but by the Rutland and Burlington Railroad Company; and that the defendants had no notice of any special contract until after the .freight had been charged at the usual rate, the iron all earned over the defendants’ road, and the freight paid by the plaintiffs, and the defendants had received their customary proportion of it.</p> <p>“ Notice was given by the plaintiffs to the Rutland and Burlington Railroad within a few weeks after the lost iron was missing, and a claim made by the plaintiffs upon that road for compensation for it; and, soon after, the defendants were noti-. tied that it was lost: but no claim was made upon the defendants, nor suggestion that they were in fault or responsible for its loss, until within a year of the time when this action was brought, which was nearly six years afterward.</p> <p>“ The Rutland and Burlington Railroad Company were solvent ; and a demand against them could have been collected, by due diligence, at any time within a year after the loss of the iron. They then became insolvent, and have so continued ever since. In the negotiations between them and the plaintiffs during that year they did not deny their liability, if it could be shown that the iron was received by them, and not delivered.</p> <p>“ The occasion of the loss of the iron arose from the manner in which the way-bills were made out by the Fitchburg Railroad Company. Some of them did not designate the number of cars loaded with iron for the plaintiffs ; and one of them did not, in any way, designate the amount of the iron transported. This was negligent and improper. The defendants were at the same time forwarding other iron to the Rutland and Burlington Railroad Company, to be used on that road ; and hence th mistake arose. The way-bills,* and a letter of George Parker,, dated Oct. 2, 1857, to John J. Swift, may be referred to. There was no other negligence or breach of contract by the defend-, ants, except as to the way-bills.</p> <p>“ If upon these facts the plaintiffs are entitled to recover the whole value of the iron, I find for the plaintiffs the sum of $3,592.15 ; being at the rate of sixty dollars a ton for the quantity sued for, and including interest from the first day of April 1853. If not entitled to recover for the whole value of the iron, but for such damages as would have been sustained if the plaintiffs had made a seasonable demand upon the defendants, without loches or unreasonable delay, I find for the plaintiffs, for the sum of two hundred dollars'; and, if not entitled to recover on either ground, for the defendants.”</p> <p>The letter of George Parker, which is referred to, contained a statement of the claim of the plaintiffs upon the defendants.</p>

<p>An officer who has suffered a voluntary escape of a debtor whom he has arrested on ex ecu tian cannot arrest him again upon the same execution; and the magistrate before whom the debtor is brought upon the second arrest has no jurisdiction to determine upon the right of the officer to make it.</p> <p>The admission of evidence, which may have been incompetent, to prove facts which were proved by other evidence, furnishes no ground for a new trial.</p>

Contract upon a bond, dated August 24, 1844, executed by the Boston and Maine Railroad Extension Company to the plaintiff, in the penal sum of $30,000, the condition whereof was as follows: “ The condition of this obligation is such that whereas the said company have taken, pursuant to law, for the purpose of their railroad, a certain parcel of land belonging to said Smith, situate between Canal Street and the canal, so called, in said Boston; and the said company and said…

<p>A party who has testified, in his own behalf, that he has taken a deposition which is not produced at the trial, cannot be allowed to state, as the reason why it is not produced, that the deponent refused to answer a part of the questions put by him, on the ground that his answers would tend to criminate him, but answered the questions put by the other party.</p>

Bill in equity in the nature of a bill of interpleader, setting forth that the three plaintiffs were the executors and are the trustees appointed in the will of Joshua Sears, late of Yarmouth, deceased; that in said will, in addition to various legacies, the testator gave to Cyrus A. Sears of Boston $10,000, “ to be paid to him, $5000 when he shall be twenty-five years old and $5000 when he shall be thirty-five years old ; the interest on said sums until payment of the…

<p>If, upon the return of the notice of a debtor’s desire to take the poor debtor’s oath, the magistrate within the hour, and before the creditor appears, decides that the notice is insufficient, and informs the debtor that a new notice will be necessary, and the debtor thereupon departs, and after the expiration of seven days from the service of the first notice applies for and obtains another which is sufficient in form and is duly served, a discharge granted to him upon the second notice, upon his taking the oath, is valid; although the first notice was sufficient, and the creditor appeared after the departure of the debtor before the expiration of the hour, and desired the examination to proceed.</p>

<p>Contract against the surety on a recognizance taken under Gen. Sts. c. 124, § 10, with condition that Henry Hobart, who had been arrested on an execution in favor of the plaintiff, should within thirty days from the time of his arrest deliver himself up for examination, giving notice as therein provided, and making no default, and abide the final order of the magistrate thereon. Judgment was ordered for the defendant in the superior court, upon agreed facts, which are sufficiently stated in the opinion ; and the plaintiff appealed to this court.</p>

Contract against the surety on a recognizance taken under Gen. Sts. c. 124, § 17, with condition “ that the judgment debtor, at the time fixed for his examination, to wit, at three o’clock in the afternoon this day, as above mentioned, will deliver himself up for examination, before some magistrate authorized to act, having given notice of the time and place thereof in the manner provided in and by the hundred and twenty-fourth chapter of the General Statutes of the said…

<p>Tort brought by the assignee of C. D. Hawkins, an insolvent' debtor, to recover the value of certain goods sold by Hawkins to the defendant for the purpose of defrauding creditors.</p> <p>A trial by jury was waived in the superior court, and the case was heard before Russell, J., who found that the defendant purchased the goods in question from Hawkins on the 7th of May 1861, giving his note for them ; that on the same day he signed a petition in insolvency, which was filed on the day following, and a warrant issued and the plaintiff was duly chosen assignee of his estate; that Hawkins at the time of the sale was insolvent and in contemplation of insolvency, and the sale was made with a fraudulent intent, and the defendant had reasonable cause to believe both of these facts ; and that the defendant took possession of the property immediately after the sale.</p> <p>It further appeared that a portion of the property sold consisted of a quantity of shoe uppers, bound and ready to be made up, and that, before the appointment of the assignee, Hawkins, with the defendant’s consent, took the same, procured soles and other necessary stock for them, and had them made and sent for sale to one Putnam, who held them or the proceeds of them at the time of the commencement of this suit, and of whom the plaintiff had claimed the same. It also appeared that two sewing machines were included in the sale to the defendant. The defendant contended that one sewing machine was expressly exempt by St. 1860, c. 65, and that the other should be included under the name of tools and machinery, under Gen. Sts. c. 133, § 33; that the shoe uppers, and certain kid skins, linings and rubber gorings, which were included in the sale, were materials and stock, designed and procured by Hawkins, and necessary for carrying on his trade or business, and intended to be used therein, and were therefore exempt from attachment to the value of $100; that the defendant could be held liable only for property in his hands at the date of the suit, unless the plaintiff should show a conversion before that time, and not for property taken by the insolvent before that time, or for property which was exempt by statute, or for the shoe uppers, under the circumstances stated. The judge held that some of the articles sold were not under any statute exempt, that the materials were not exempt, as contended by the defendant, that the defendant could not under such a sale avail himself of any right of exemption which Hawkins might have had in a part of the property sold, and that, as the defendant had taken possession of the property sold, he was liable to the plaintiff for its value; and ordered judgment for the plaintiff accordingly.</p> <p>The defendant alleged exceptions.</p>

<p>If a deputy sheriff who has attached mortgaged property on two writs has been sued foj the value thereof by the mortgagee, and has prevailed in his defence on the ground that the demand made upon him was limited to property attached on one writ, the judgment in his favor is no bar to a subsequent action to recover the value of the same property, after a new demand; and in such case, a new demand within twenty days after the rendition of the judgment is within a reasonable time, if it appears that the situation of the defendant has not changed in the mean time.</p> <p>Cucumbers in bulk and in salt, at the time when a mortgage thereof is executed, are not so substantially changed or intermingled with other property by being subsequently u greened ” and put into bottles and vinegar which are not included in the mortgage, as to authorize an officer, who afterwards attaches and sells the same, to retain the proceeds thereof.</p>

<p>An officer who npon arresting a person charged with larceny takes from him other property than that alleged to have been stolen, and refuses to give it up on demand, and retains ' possession of it for two years after the person arrested has been convicted, is liable in damages; and if the property so taken is a promissory note, the maker of which becomes insolvent before the officer offers to restore it, the measure of damages is the value of the note at the time of the conversion, and interest thereafter.</p>

<p>A promissory note given by a married woman in payment for land conveyed to her, to her sole and separate use, is valid, under Gen. Sts. c. 108, § 3.</p>

<p>Tort, brought by the assignee in insolvency of James D. O’Sullivan, against the wife of the debtor.</p> <p>The first count in the declaration set forth a payment by said debtor to the defendant of $730, in discharge of a claim held by her against him, which payment was made in contemplation of insolvency, with a view to give her a preference over other creditors.</p> <p>The second count set forth a conveyance by the debtor to her of a parcel of land, with a view to prevent the same from coming into the hands of his assignee.</p> <p>The defendant filed a general demurrer, which was sustained in the superior court, and judgment ordered thereon for the defendant. The plaintiff appealed to this court.</p>

<p>A bill in equity may be signed by attorney, and need not be sworn to, or contain an allegation that the person assuming to act as attorney is such in reality.</p> <p>The husband of a married woman may join with her as plaintiff in a bill in equity, in a case in which he has no interest.</p> <p>Filling up a blank form of a deed by paroi authority of one who has signed and sealed it will not make it a valid conveyance of land, unless the instrument is redelivered after being completed in form.</p> <p>A married woman who has signed and sealed a blank form of a deed, with paroi authority to fill it up so as to convey her rights of dower and homestead in her husband’s land, may, after the instrument has been so filled up in her absence, and signed and delivered by her husband, maintain a bill in equity to compel the person named therein as grantee to reconvey her estate in the premises, although upon being informed that-the instrument had been filled up in conformity to her authority she assented thereto, and although upon the faith thereof the person named as grantee has rendered services to her husband, and furnished supplies to her family.</p>

<p>The fact of purchasing from a broker a note, which has been wrongfully signed by a member of a partnership with the name of his firm and intrusted to the broker for sale, at a usurious rate of interest, does not, in the absence of other evidence upon the subject, afford a conclusive presumption that the purchasers do not take it in good faith as against the other members of the firm.</p>

Contract upon a note for $2500, dated September 10th 1855, signed “ French, Wells & Co.,” and payable to the plaintiff on demand with interest.

<p>An administrator whose intestate’s estate proves insolvent has the same right to avoid a fraudulent disposition of property by him in his lifetime that a creditor would have.</p> <p>The administrator of one who has deposited money in a savings bank upon terms and conditions set forth in the by-laws contained in the deposit book, one of which provides that “ no persons shall receive any part of their principal or interest, without producing the original book,” may maintain an action against the savings bank for such deposit, if the same is needed for the payment of debts, upon tendering a satisfactory bond of indemnity in lieu of the book, if the latter was fraudulently disposed of by the intestate in his lifetime.</p>

<p>Contract upon a note signed by the defendant, dated Boston January 1, 1853, payable in ninety days after date to the order of Babson and Deacon. The writ was dated October 2, 1861, and the plaintiff claimed as purchaser from the assignees in insolvency of the payees.</p> <p>At the trial in the superior court, before Allen, C. J., it appeared that the defendant lived in Maine at the time of giving the note in suit, and has resided there ever since; that from 1853 to 1857 he visited Boston, which was the residence and place of business of the payees, quite .frequently, and they generally knew of his visits. The chief justice ruled that these facts did not show that the action was barred by the statute of limitations, and the jury returned a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>Contract upon two promissory notes signed “ Moore & Crosby,” dated November 16, 1855, and amounting together to $7650. Emery N. Moore, one of the original defendants, was defaulted; and the action was defended by Charles H. Crosby alone, who, among other matters, set up in defence a discharge in insolvency, and also the release contained in the following paper, signed by the plaintiff and other creditors of Moore & Crosby:</p> <p>“ Boston, January 14, 1857.</p> <p>“ Know all men that we the undersigned, severally and respectively creditors of Emery N. Moore and Charles H. Crosby, of said Boston, late copartners and printers under the firm of Moore & Crosby, insolvent debtors, whose claims have been proved and allowed against their estate, hereby release and forever discharge the said Moore & Crosby from all our claims proved as aforesaid. And we also hereby petition the Hon. Isaac Ames, Esquire, commissioner of insolvency before whom the case of said debtors is now pending, to grant a certificate of discharge to said debtors. In witness whereof we have hereto set our hands and affixed a common seal the date above written.”</p> <p>The plaintiff filed a replication setting forth various matters in avoidance of the discharge in insolvency, and amongst others that he was a creditor of Moore & Crosby for the amount @f the notes in suit, for which he held a mortgage of personal property, and that for the purpose of inducing him to discharge his said mortgage and prove his notes and assent to the discharge of said Crosby, the latter falsely and fraudulently represented to him that the creditors of Moore & Crosby intended to invalidate the mortgage by showing that the plaintiff was a partner in the firm of Moore & Crosby, and that there was a probability of their success, and that the plaintiff’s best course for his own interest was to discharge his mortgage, prove his claims, and assent to their discharge, which he, being induced by the said representations, accordingly did, and that his assent was necessary to secure the requisite majorities to authorize the granting of the certificate of discharge. The replication further set forth that the execution of the release, if proved, was obtained by the false and fraudulent representation that it was merely an assent to the granting of a certificate of discharge in insolvency.</p> <p>At the trial in this court, before Hoar, J., the plaintiff offered in evidence certified office copies of a mortgage of personal property by Moore & Crosby to one Hill, and also of another to Rice, Kendall & Co., the latter having been executed within six months before their insolvency. The defendant objected on the ground that the original should be produced, or its loss accounted for; but the objection was overruled.</p> <p>Upon the effect of the mortgage to Rice, Kendall & Co. the judge ruled as follows: “ If Moore & Crosby were unable to pay their notes and meet their business engagements in the ordinary course of business, and knew that fact, and then made a mortgage of personal property in their possession to a preexisting creditor to secure a preexisting debt, and within six months went into insolvency, a discharge thereupon obtained is invalid, although the property thus mortgaged was subject to previous mortgages to more than its value, and the mortgage was given with the intention to make it effective by a payment of the previous mortgage at some future time, and with the intention and expectation of paying all their creditors at some future time.”</p> <p>The plaintiff offered evidence tending to prove the facts set forth in the replication, in reference to the representations by which he was induced to sign the assent to the granting of a certificate of discharge in insolvency. The defendant asked the court to instruct the jury that if he made such representations, and even if they were untrue in fact, it would not constitute a fraud in law, and the plaintiff could not avail himself of it. The judge declined thus to rule ; and did rule that, “ if the defendant fraudulently made the representations, knowing them to be false, and in order to gain a private advantage, and they were the inducement and cause of the plaintiff’s signing the release and assent to the discharge, the plaintiff could avail himself of the fraud to avoid the instrument; but that mere untruth in representations would not constitute fraud, nor any general representations of what would be for the plaintiff’s interest.”</p> <p>The plaintiff contended at the trial that any evidence tending to show fraud in procuring the plaintiff’s signature to the instrument as an assent to a discharge set up in the replication, and relating to representations of a partnership, was competent to avoid the paper as a release, and offered evidence with that view. The defendant asked the court to rule that “ so far as the release is concerned, the plaintiff must be held to a proof of the same fraud set forth in his replication; to wit, the representation by Crosby that the paper was merely an assent to his discharge in insolvency.” The judge declined so to role.</p> <p>The plaintiff contended that the release was in the nature of a composition deed, and offered some evidence tending to show that one of the creditors was induced to sign it by promises of a pecuniary character; the defendant objecting. The defendant asked the ¿curt to rule that the release was not in the nature of a composition deed, and is not invalidated by any preferences or advantages to one creditor over another. The judge declined so to rule; but ruled that, if in the nature of a composition deed, it was not invalidated by any preference, upon the facts proved in this case.</p> <p>Much evidence having been introduced by the plaintiff affecting the validity of the discharge, and the circumstances under which he proved bis claim, discharged his mortgage, and signed the paper containing the release and assent to the discharge, and which covered a considerable period of time prior to the signing of the paper last referred to, the defendant asked the court to rule that whatever may have taken place between the parties prior to the signing of the release, if the plaintiff voluntarily and knowingly executed the same, it would bind him ; and also that if fraud had been practised by the defendant in procuring the claim to be proved and mortgage released, it would not invalidate the release if the plaintiff executed the same, knowing its contents, and of his own accord; and further, that the plaintiff must show some fraud on the part of the defendant in procuring his signature to the release. The judge adopted these rulings, with the qualification that if the fraudulent representations were the cause and motive of executing the release when it was signed, it would be invalid.</p> <p>The jury found a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Arbitrators under a statute submission have no authority to award that one of the parties shall transfer to the other a specific article of personal property.</p> <p>An award by arbitrators under a statute submission that one of the parties shall recover of the other a certain sum of money, and transfer to him a specific article of personal property, is wholly invalid.</p>

<p>Tort against a constable for the conversion of eight hundred and sixty horse shoes.</p> <p>A trial by jury was waived in the superior court, and the case was heard before Putnam, J., who found that the plaintiff made a bona fide purchase of the horse shoes from Royal Ingraham, their owner, for $40, which he paid; and Ingraham, taking one shoe, said, “ Take them ; these are the shoes ; I deliver them to you.” The shoes, by agreement between the parties, were left in the shop occupied by Ingraham, and a few days afterwards the plaintiff went there and saw them remaining there just as he had left them, but did nothing about removing them ; and they were afterwards attached by the defendant on a writ against Ingraham in favor of N. Lamson & Co. The judge ruled that this was evidence from which it was competent to find a sufficient delivery and change of possession of the property, and found that there was such delivery and change of possession, and rendered judgment for the plaintiff. The defendant alleged exceptions.</p>

<p>Bill in equity, setting forth that before the erection of houses upon Hayward Place in the city of Boston, the land upon and adjoining the same was owned by Lemuel Hayward; that upon his decease it was arranged among his heirs that the said land should be laid out into a court or street, to be occupied exclusively for dwelling-houses; that for this purpose the land was surveyed and laid out into a court, with house lots of convenient size, and numbered, following the course of the court; that this agreement was made to facilitate the sale and enhance the value of the lots, by rendering them quiet and desirable places of abode; that it was further agreed among the heirs, and those who represented such as were not sui juris, that in conveying the lots the grantees should be laid under an express obligation or duty, by way of condition or limitation of the use thereof, that “ no other building, except one of brick or stone, of not less than three stories in height, and for a dwelling-house only,” should be erected by them; that the deeds of all the lots were made upon this condition, and the same was either repeated or referred to in the subsequent conveyances thereof; that lot No. 2 was set to Charles Hayward, one of the heirs, and, being under the control of trustees, was by them conveyed in 1822, upon condition “ that no other building shall be erected or built on the lot except one of brick or stone, not less than three stories in height, and for a dwelling-house only,” and the same came by intermediate conveyances to James Nightingale, one of the defendants, who now owns the same; that early in 1862 said Nightingale leased said premises, consisting of a three story dwelling-house, and convenient and comfortable accessory erections, to Frederick Loeber, the other defendant; that the plaintiffs believe and charge the fact to be that the said lease contains the same condition above recited, but they also insist that said Loeber is bound by the conditions of the tenure of his lessor, whether he had actual knowledge thereof or not; that said Loeber has taken steps to convert said dwelling-house into a restaurant or eating-house ; that the owners of other dwelling-houses in Hayward Place thereupon requested the defendant Nightingale to interfere, and stop his tenant Loeber from such unlawful perversion and misuse of the premises; that Nightingale, being threatened with a suit by Loeber in case of such interference, thereupon said that “ as he could not escape a lawsuit by any course which lay open before him, he might as well have the matter settled by the suit of the proprietors aforesaid, as by the suit of Loeber; ” that Loeber has since used the place as a restaurant, having large numbers of noisy and boisterous persons in and about the same, and has thus rendered Hayward Place almost unfit for quiet and comfortable residences; and that the plaintiff Parker, in behalf of himself and eleven others who were named, being each the proprietor of a lot on Hayward Place, with a dwelling-house thereon of the description above set forth, has brought this bill. The titles of some of the plaintiffs were set forth in detail. The prayer was for an injunction against such use of the premises, and for other and further relief.</p> <p>The defendants filed a general demurrer, and the case was thereupon reserved for the determination of the whole court.</p>

<p>Under an order of the court, allowing a plaintiff to take out a new writ of summons to a new defendant, the plaintiff may take out a writ of summons and attachment, and cause the new defendant’s goods to be attached thereon,* and a bond given to dissolve an attachment so made is valid.</p>

<p>In an action on a note that is made payable absolutely, evidence is not admissible to prove an oral agreement, when the note was made, that it should be given up in a certain event, which has happened.</p>

Petition setting forth that the petitioners were by St. 1807, c. 92, incorporated for the purpose of laying out, making and keeping in repair a turnpike from a certain point in Hingham to a certain point in Quincy, with bridges, draws, toll-gates, See.; that under said act they constructed and have since maintained said turnpike, &c.; that by St. 1862, c. 177, the turnpike and bridges were made a public highway, and it was provided that the supreme judicial court, upon…

Contract against the treasurer of the National Steam Gauge Company, a joint stock company incorporated under St. 1851, c. 133, to recover the amount of a judgment recovered by the plaintiff against that company. Upon agreed facts, which are stated in the opinion, judgment was rendered in the superior court for the defendant; and the plaintiff appealed to this court.

<p>If one of two lessees, who covenant jointly to pay the rent and perform other stipulations, is described as surety, in a lease which provides that the lessees shall not lease or underlet or permit any other person to occupy the premises except such as the lessor shall in writing approve, the assignment by the principal lessee of all his interest in the lease, with the consent of the lessor, to one who signs a written agreement with the lessor and lessees, and furnishes guarantors that he will perform the stipulations of the lease, does not discharge the lessee who is described as surety from the obligation of his covenants, although such assignment and agreement were made without his knowledge.</p> <p>TNj use of demised premises, by the assignee of a lease, for the unlawful sale of intoxicating liquors, without the actual knowledge of the lessor, will not discharge one of the original lessees, who is described as surety, from the obligation of his covenants.</p> <p>The reentry by a lessor upon demised premises, for failure on the, part of the assignee of the lease to fulfil its stipulations, and the re-letting of the same, under authority expressly reserved in the lease, will not discharge one of the original lessees, who is described as surety, from the obligation of his covenants.</p>

Contract upon a promissory note, against the administrator de bonis non of the estate of Isaac Tufts. At the trial in the superior court, upon agreed facts, which are sufficiently stated in the opinion, judgment was rendered for the plaintiff, and the defendant appealed to this court.

Two actions of contract upon policies of insurance dated on the 19th of November and the 17th of December 1860, respectively, by the first of which the defendants in the first action insured the plaintiffs in the sum of $10,000, and by the second of which the defendants in the second action insured the plaintiffs in the sum of $5000, on the ship Golden Rocket for one year.

Trustee process. The defendants were partners under the firm of Carson & Hard, of whom Carson was a son and heir at law of David Carson, deceased, whose executors were summoned as trustees. It appeared by the trustees’ answers, in the superior court, that the will of David Carson contained the following provisions : — “ First. Imprimis.

Writs of entry to recover of the tenant certain undivided portions of a piece of land in Lee. The plea in each action was nut disseisin, with a specification claiming that the tenant was sole owner of the premises in fee, and that the demandant had no title therein.

<p>It is no defence to an action for slander, by words imputing unchastity to a woman, to show that the defendant spoke the words to her, and was led to do so by her general conduct, and especially by her deportment with a particular man, believing the same to be true.</p> <p>In such action, evidence that the plaintiff’s general reputation is bad, independently of the slander of which she complains, and that it was bad ten years before, and at another place, is admissible in mitigation of damages, although no such ground of defence is set up in the answer; but evidence of particular instances of her misconduct is not admissible.</p>

<p>A pound-keeper may lawfully impound beasts which have been distrained damage feasant in a yard furnished and used by the town as a town pound, if the town have furnished and used no other place as a pound, although the inhabitants of the town have passed no vote concerning the same, and taken no action at any town meeting for the purpose of establishing it as a pound.</p>

Contract upon a bond executed by the defendant to the plaintiff in the sum of $300, with condition that the defendant should within a certain time remove a barn standing upon his premises to a greater distance' from the plaintiff’s house, which was upon the adjoining land.

Tort against a deputy sheriff for the conversion of certain articles of household furniture. At the trial in the superior court, before Brigham, J., it appeared that the defendant attached the property in question on the 30th of July 1860, on a writ against Allen N. Smith, and subsequently sold the same on the execution which issued in the suit.

<p>Contract. The declaration alleged that the defendant, in consideration that the plaintiff would buy of him a certain pianoforte at and for a certain price or sum of money, to wit, • the sum of $300, undertook and promised to the plaintiff that it was as good as any other that was made for that price, and would give him good satisfaction, and that it was well made, and would stand up to concert pitch; and the plaintiff, confiding in said promise and undertaking, bought the pianoforte of the defendant, and paid him the said sum of money; and the pianoforte proved worthless, and was not well made and would not stand up to concert pitch, “ and could not be put there; ” wherefore the plaintiff returned it to the defendant, and demanded the price paid therefor, &c. The answer denied the various allega tians of the declaration, and among other things denied that the pianoforte was sold for any sum of money, and averred that the consideration paid for it was lumber and its proceeds.</p> <p>At the trial in the superior court, before Brigham, J., the plain tiff introduced evidence tending to support the averments of the declaration. The defendant introduced evidence tending to show that the pianoforte was paid for by an accepted order on a thud person, payable in lumber; and asked the court to rule that this fact, if proved, would show a variance between the averment of the declaration and the proof; but the judge, under the pleadings, ruled otherwise.</p> <p>It also appeared that the defendant was not a manufacturer but a seller of pianofortes, and he contended that the affirmations alleged and relied upon were mere expressions of opinion. The judge instructed the jury that the representations that the pianoforte was as good as any made for the price, and would give good satisfaction, were expressions of opinion which, if false, would not constitute any ground for avoiding the sale and recovering back the consideration ; that a representation that a pianoforte is well made and will stand up to concert pitch is a representation of fact, which, if proved to be false, as between a seller making the representation and a buyer relying upon it, would authorize the buyer to recover back the consideration paid, upon a rescission of the contract, if the pianoforte was returned within a reasonable time, “ notwithstanding the price paid consisted of an order by the buyer on a third party, accepted by such third party, as payment by the seller, and payable in merchandise to the seller at the lowest cash market price, if this order was treated as cash by the parties at the time of sale.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Tort. The declaration was as follows: “ And the plaintiffs say the defendant was an agent of said town duly appointed according to law to purchase, keep for sale, and to sell according to law intoxicating liquors as such agent for said town during the years 1858 and 1859, and as such agent he did purchase for and in behalf of said town a large quantity of liquors, [which were described.] And the plaintiffs further say that, at the time of the expiration of the agency for…

Contract upon the covenant against incumbrances in a deed of land. The breach alleged was, that Salmon K. Norton, the former owner of the land, who conveyed the same to the defendant, reserved in his deed, which was dated April 26, 1859, all the wood standing and growing on a portion of the premises, with liberty to remove the same within six years.

<p>Contract upon a promissory note, signed by the defendant, dated September 9, 1854. The writ was dated May 20, 1862. The defence was the statute of limitations.</p> <p>At the trial in the superior court, before Rockwell, J., the plaintiff introduced evidence to show that in March or April 1855, the defendant left this commonwealth and resided in California for about three and one half years. The evidence was conflicting as to the defendant’s purpose in going to California, and his intention to return. The judge instructed the jury that if the defendant in March or April 1855 left Massachusetts and went to California for the purpose of engaging in such business as he could find there, and without any fixed determination or intention as to whether he should return to Massachusetts or hot, or if be went intending to engage in such business as he might find, either for a certain or an indefinite period of time, or if he went to engage in business, intending to remain a certain time or until he should acquire a certain sum of money, and thereupon did remain in California until October 1858 continuously, and then returned to Massachusetts, the time of such living in California should be deducted, and not be taken as a part of the time limited for bringing this action; if, however, he went without any intention of engaging in business there, but only to visit and examine the country, the time of his absence should not be deducted, although by accident, sickness or otherwise he was detained there until October 1858.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>A cause of action upon an account current is deemed to have accrued as early as the data of the last charge, although there are later items of credit.</p> <p>An estate of homestead under a deed does* not relate back to the date of a bond for the deed, but begins at the date of the deed.</p> <p>A note given for the price of land is not “a debt contracted previous to the purchase thereof,” within the meaning of Si. 1855, c. 238, § 3, and cannot be enforced upon the land, if a right of homestead under that statute exists therein.</p> <p>No estate of homestead exists in land held in common abd undivided.</p>

<p>One who has an estate as tenant by the curtesy initiate in land held by his wife to her sole and separate use, under St. 1845, c. 208, does not, by living thereon three years successively, gain a settlement, under Rev. Sts. a. 45, § 1, cl. 4.</p>

<p>Contract. The declaration alleged that the plaintiff, as collateral security for his promissory note of $1250, executed and delivered to the defendant a mortgage of about seventy acres of land in Deerfield; that the premises were described in the mortgage as being subject to three previous mortgages, one of which was a mortgage by the plaintiff to the Massachusetts Hospital Life Insurance Company for $300 ; that the mortgage to the defendant contained a recital that the latter should assume and pay the three previous mortgages, and that the amount due thereon made a part of the consideration of the note for $1250; and that the defendant has not paid the mortgage for $300, although the plaintiff has paid the whole of the note for $1250. The defence was, that the defendant had paid the mortgage for $300, and that by a subsequent arrangement, when the plaintiff sold his equity of redemption in the premises, it was mutually arranged that the purchaser should assume the mortgage of $300, and that thereupon that amount was deducted in taking up the note for $1250.</p> <p>At the trial in the superior court, before Ames, J., the jury returned a verdict for the plaintiff, and the defendant alleged exceptions, which are sufficiently stated in the opinion.</p>

<p>Under a omplaint that a fence is out of repair, fence-viewers have no authority to assign to each of the owners of adjoining land his respective share of the fence, and to direct the building thereof within a specified time.</p> <p>No action lies to recover upon an award of fence-viewers, under Gen. Sts. c. 25, §§ 3, 4, unless they have previously adjudicated that the existing fence was insufficient and illegal, and that the fence which the plaintiff has rebuilt is sufficient.</p>

Tost against a constable for the conversion of a horse, wagon and harness, by attaching them upon a writ in favor of Benjamin B. Mansfield against S. D. Wing. At the trial in the superior court, before Ames, J., the plaintiff claimed title under a bill of sale from Wing to him, dated July 4, 1862. The defence was that this sale was not absolute, but merely as collateral security for a debt, and that it was fraudulent and void as against creditors.

<p>An agreement not under seal, in consideration of one dollar, made by a creditor with the principal debtor upon a joint and several promissory note, payable on demand, that if the latter will pay one half of the amount due within thirty days, the creditor will release and discharge him from the payment of the remainder, reserving his rights against any other party liable for the debt, will not discharge the surety upon the note.</p>

<p>Indictment for being a common seller of intoxicating liquors.</p> <p>At the trial in the superior court, before Vose, J., after the evidence for the Commonwealth was in, the defendant produced a license under the St. of U. S. of 1862, c. 119, authorizing him to carry on the business or occupation of wholesale dealer in liquors, at a place which was named, and during that portion of the time covered by the indictment in which sales were proved to have been made by him ; and he asked the court to rule that this license was a protection to him during the time covered by it; but the judge ruled otherwise. The defendant also requested the court to instruct the jury that Gen. Sts. c. 172, § 15, allow or purport to allow the jury in criminal trials the rightful power to determine, against the instructions of the court, questions of law involved in the issue; but the judge refused so to rule.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>Indictment for a neglect to repair a portion of two highways, leading to the bridge of “ The Proprietors of the Connecticut River Bridge” across the Connecticut River, between Deerfield and Montague.</p> <p>At the trial in the superior court, before Vose, J., it appeared that at the place where the bridge was built the bank of the river on the west or Deerfield side projected out into the stream, so that at that point the river was narrower than it was at a short distance above or below the bridge ; and that at a distance of about fifty feet from the west end of the wood structure of the bridge the two roads leading to it united, one of them approaching the bridge from the northwest, and the other from the southwest, with a cross road running between them intersecting with the upper road at a point about one hundred and seventy feet from the bridge, and with the lower road at a point about one hundred and forty feet from the bridge. In March 1862 by an unusual freshet the bank at the west end of the bridge, to the distance of about one hundred and sixty feet, including the cross road, was swept away, leaving an excavation from fifteen to twenty feet in depth, which extended down to a solid stratum of rock, and had at the westerly side an abrupt and precipitous bank, about ten feet west of where the cross road had been. This stratum of rock continued from the westerly abutment of the bridge into the bank at the westerly side of the excavation, and was swept clear of all the earth and materials upon it, except the westerly abutment of the bridge. A few trees also remain standing below this abutment. The excavation also extended about twenty rods below the bridge.</p> <p>The upper highway leading to the bridge was established in 1832 upon the site of the Fifth Massachusetts Turnpike, without mention of any chartered rights of the Proprietors of the Connecticut River Bridge; and the lower highway was established by user alone. The evidence was conflicting whether the defendants had ever repaired either of these highways between the cross road and the bridge, and the jury found specially that they had not. The bridge corporation have at various times caused work to be done upon both of these roads, for the purpose of preventing the water from breaking through them ; and several years ago they raised the superstructure of their bridge about four feet, and graded up the road, so as to make a convenient entrance upon the bridge. The defendants did not deny their obligation to repair the highways to the respective points of intersection with the cross road.</p> <p>In high water the main current of the stream is on the westerly side, and directly towards the west abutment, and the bank has for many years been gradually wearing away, and the water, before the freshet of March 1862, at a short distance both above and below the bridge, extended several rods further west than the westerly end thereof. The evidence also tended to show that the freshets of Connecticut River, as they have occasionally occurred of late years, have been higher than those of former times, each succeeding fireshet being greater than any preceding one; and it appeared that the freshet of March 1862 was the highest ever known, and rose some three feet upon the superstructure of the bridge, and there was not room for the water of the river to pass between the abutments, and the water crossed the roads at each end of the bridge, and, after the westerly bank had been washed away, continued to flow through the excavation for about four weeks, but has not since run into the same except in two days in October 1862, when there had been heavy rains. The bottom of the excavation is higher than the ordinary stage of the water in the river during the summer.</p> <p>It appeared that the safest and most practicable mode of repairing the ways across the excavation is by a bridge, which would cost $2680; and that to build solid masonry across it would cost much more. The Proprietors of the Connecticut River Bridge were incorporated by St. 1796, c. 24, and the Fifth Massachusetts Turnpike by Si. 1798, c. 85.</p> <p>The defendants requested the court to instruct the jury as follows:</p> <p>“ 1. If from natural causes, without default of the town, the ways complained of have been entirely destroyed by being washed away to such a depth that the place where such ways were is now a part of the natural channel of the river, so that nothing remains of said ways to be repaired, then the allegation that there are such highways out of repair is not supported.</p> <p>“2. The charter of the bridge corporation authorizes and requires said corporation to erect and support a bridge across Connecticut River. This authority and duty extend to the changes in the course and beds and banks of the river from natural causes, whether it be by excessive floods producing violent and visible alterations, or by imperceptible wear of the water.</p> <p>“ 3. The bridge corporation had by their charter all the incidental powers necessary for the permanent safety, support and maintenance of their bridge ; and this includes the right of controlling all the lands upon the western bank of the river, which are reasonably necessary for this purpose td the defendants are bound only to repair the ways up to the lands controlled by the bridge corporation.</p> <p>“ 4. The obligation of the town to repair is suspended until the bridge corporation shall repair that portion of the ways which belongs to it to repair.</p> <p>“ 5. If the site washed away has become a necessary part of the channel of the river from natural causes, or from natural causes as affected by the authorized structure of the bridge, the defendants are not under obligation to repair it.”</p> <p>The judge declined to give these instructions, and instructed the jury that, upon the foregoing evidence, it was the duty of the defendants to rebuild or repair the highways alleged to be out of repair, in consequence of said excavation. The jury returned a verdict of guilty ; and the judge reported the case for the determination of this court.</p>

<p>Bill in equity, praying relief by injunction and otherwise for the disturbance of the plaintiffs’ water privilege at Shelburne Falls.</p> <p>After the decision reported in 2 Allen, 275, where the pleadings and general facts which are material are set forth, the following issue of fact was framed, to be submitted to a jury:</p> <p>“ Did the defendants, without the consent or permission of the plaintiffs, during any part of the time within six years next preceding the date of the bill, use the water of the stream in such quantities, or use, divert or obstruct it in such manner, that the quantity of surplus water flowing over the grist-mill flume, which the plaintiffs had a right to take and receive there, was less in quantity or less favorable to the plaintiffs in the regularity of its flow and discharge there, than it would have been if the riparian proprietor on the south bank of the river had used one half of the whole quantity of water in the stream, and all the shops and works that existed on the north side of the river at the date of Crittenden’s deed to Pratt had been continued as they then existed, and their respective proprietors had first been supplied with the water at all seasons of the year, to which they were severally entitled ? ”</p> <p>Instead, however, of submitting this issue to a jury, it was afterwards ordered that the cause be committed to Henry Voss, as commissioner, “ to hear the parties and their evidence upon the issue that has been framed in the case, and find and report to this court the facts, and also assess the plaintiffs’ damages, in case he shall find such facts as entitle the plaintiffs to recover damages. Said commissioner is also to state and report to this court any controverted questions of law, raised and relied upon by either party, provided that he shall deem that such questions of law are involved in or affect the findings so made by him, or his assessment of damages; and in such case he shall make his findings, and assessment of the damages, in the alternative, if practicable, so that a final decree may be entered,” &c.</p> <p>At the same time, the following agreement was entered into by the parties: “ It is agreed that the report of the commissioner, as hereinbefore ordered, shall not preclude either party from a trial by jury, if, upon return of the report, and before the hearing upon the questions of law that may be raised, such party shall notify the other that he shall claim such trial; in which case, the trial by jury shall be of the whole issue, or of any subordinate questions of fact, as the court shall direct. Upon such trial, the report of the commissioner so made shall have the force and effect only of an auditor’s report, in civil actipns at law. This memorandum is not to be taken as an absolute agreement for a jury trial at the mere request of either party, unless the court, upon a hearing for further directions, shall deem such trial to be reasonable, and of importance to the rights of the parties.”</p> <p>Judge Vose in his report, which was filed in September 1862, stated the general facts established by the evidence, and found, following the language of the issue, that the defendants did not use the water as therein mentioned. He also added that “ the counsel for both parties submitted to the commissioner sundry propositions of law, as applicable to different portions of the evidence in its bearings upon their several rights; but as, in the judgment of the commissioner, some of these propositions were not involved in the issue submitted to him, and none of them controlled or determined his finding under the evidence in this case, he has not stated or reported them.”</p> <p>The plaintiffs thereupon moved that the cause should be submitted to a jury; but, at a hearing before Merrick, J., this motion was denied, and judgment was ordered for the defendants. The plaintiffs appealed to the full court.</p>

<p>Bill in equity by the directors of a joint stock company known as Division No. 395 of the New England Protective Union, organized in August 1852, for the purpose of carrying on the ordinary business of country trade, in Orange, in buying and selling merchandise, under a constitution or articles in writing, the material portions of which are copied in the margin.*</p> <p>The bill set forth that numerous persons, who were named, have been share-owners in the Division; that some of them have owned more than one share; that various transfers of shares have been made from time to time, by reason of which it has become difficult to apportion and adjust the losses of the Division; that the Division closed its business in April 1862, and was then found to be insolvent; that large sums were and now are due from the Division to various creditors, upon some of which suits have been commenced against individual share-owners ; and that various sums were due to the Division. The prayer was for an account, and a receiver, and that the receiver might have power to make a fair, just and proportionate assessment upon the share-owners, according to their respective liabilities.</p> <p>After the filing of answers by various of the defendants, the cause was referred to a master, who found the following facts: The records of the Division showed various meetings, with lists of those who attended them, various semi-annual settlements, (which are sufficiently referred to in the opinion,) and lists of the original members, and of those who from time to time withdrew from the Division, and of those who joined the same, together with all the officers thereof. None of the members ever signed the constitution. One of the original members died in 1855. In 1859 Jefford L. Weaver, one of the original members, made a transfer in writing of his interest, but no assent of the directors thereto was shown, and the books of the Division did not show any record thereof, nor had the agent any knowledge thereof. J. B. Kempfield, another of the original members, removed from Orange, without transferring or selling his share, and since then has taken no part in the proceedings of the Division.. Lewis R. Howe in 1854 or 1855 bought of one of the original members “ the right of drawing out eight dollars,” taking a writing, which was not produced, and which might have been, as he testified, a bill of sale of one share in the Division, and afterwards attended several meetings, and took an active part in one of them, was chosen a director in 1858, did not decline the office, and signed “ as an individual and not as a director ” one note with the other directors, to raise money for carrying on the business. Certain other facts appeared, tending to prove that Howe was a member. James Battles, another of the original members, was chosen president of the Division in 1860, and stated at the meeting that if the Division would excuse him from acting as president he would give up his interest in the company; whereupon they voted to excuse him. Damon E. Cheney, another of the original members, sold and transferred his share in 1854, and his transfer was duly recorded. It was understood that stockholders might transfer their interest, or withdraw from the concern, whenever they chose, and the agent was authorized to approve and record transfers.</p> <p>At a regular meeting held in March 1855 it was voted that “ each member may make his dividend up to another share, and that he may draw out ten dollars on each extra share, to be drawn as the first share; and each member may pay in the balance at any time, by paying interest from date on said amount.” At the same meeting, and previous to the passage of said vote, a report had been made and accepted, giving the amount of what was claimed as assets, and also the amount of the liabilities of the concern, and representing that there had been a gain within the last six months, and that the shares were then worth §16,07. No certificates were issued for the new shares, but certain of the members paid in the requisite amounts, and thereafter considered themselves and were considered by the other members as the owners of two shares each. There were really no dividends when these shares were taken, and no dividends have ever been paid to those who took them. No fraud was shown. The insolvency of the Division grew mainly out of the depreciation in value of some of the goods, loss on debts due to the Division, and interest paid on borrowed money. The goods were inventoried at cost, and the notes and accounts were reckoned at par, and on this basis the value of the shares was estimated in March 1855, although the depreciation had then been going on for some time.</p> <p>A schedule of the debts due from the Division was annexed, and upon some of them suits had been commenced, and were still pending, against individual members of the Division.</p>

<p>It is not necessary to prove that the deed was recorded, under which land was held, in order to establish a settlement under Sis. 1789, c. 14, § 1, and 1793, c. 34.</p> <p>A jailer’s register of prisoners committed to jail for debt, containing his entry of the time and means of their liberation, is not competent evidence to prove the taking of the poor debtors’ oath, under St. 1787, c. 29.</p>

<p>A bond which is drawn up in proper form to be signed by a principal and a surety is well executed, if it is first signed by the surety, and afterwards, in his absence, but before its delivery, signed by the principal.</p> <p>If a bond with condition to abide the award of arbitrators stipulates that the award shall be made in writing and ready to be delivered on a certain day, this stipulation is complied' with if before that day the award is made, signed, delivered to one of the arbitrators, and by him read to the parties at their request.</p> <p>If an award which appears unobjectionable on its face has been made, under a general submission, by bond, of all demands to arbitration, and no partiality or corruption is charged against the arbitrators, paroi evidence is inadmissible to show that they considered, in making their award of damages, a matter which furnished no legal ground of claim for damages.</p> <p>If payment of a bond is resisted on the ground that it was given in consideration of an illegal agreement by the obligee, and the evidence is conflicting whether at certain times prior to the execution of the bond the obligee has sought to obtain it by means of the alleged illegal agreement, evidence is competent on his part to show that at the time of the execution of the bond no such agreement was made.</p> <p>If a witness who is called to impeach another witness testifies, in reply to a question as to the general reputation of the latter for truth and veracity, that he has heard it called in question to a limited extent, it is no error to submit this evidence, with proper instructions as to the weight to which it is entitled, to the consideration of the jury.</p>

Contract in which the plaintiff seeks to charge the defendants as common carriers, for the loss of a quantity of dressed deer skins, which were in the defendants’ freight depot at East Albany on the evening of the 5th of July 1861, when it with all its contents was destroyed by an accidental fire.

<p>If one of the executors of a will was a partner of the testator, a settlement of the partnership accounts existing between the testator and such partner, made by the executors without the sanction of the probate court, is not binding upon persons interested in the estate; and interest cannot be charged on a balance so found. But items of charge stated in such an account and settlement are competent, in connection with other evidence, as admissions against the surviving partner.</p> <p>The mere fact that executors have been guilty of gross neglect in rendering their account will not prevent the allowance of sums paid by them for counsel fees, or of their reasonable expenses of administration, if such neglect did not cause the litigation for which the fees are charged, and most of the parties interested have expressed their willingness that they should be allowed.</p> <p>Although executors have neglected to take such steps as will enable them to avail themselves of the statute of limitations, in defence to claims presented against the estate of their testator, they may be allowed for debts paid by them more than four years from the date of their bond, if it does not appear that those interested in the estate have suffered by the neglect.</p> <p>The executor of a will, who is the surviving partner of the testator, and who has paid debts due from the firm at any time before the final settlement of his account as executor, may be allowed for the testator’s share thereof, although the time for the limitation of actions against executors had expired.</p> <p>If an executor, after the expiration of one year from the date of his bond, has sufficient funds to pay all the debts due from his testator’s estate, and delays the payment of them, he cannot be allowed for the subsequent interest which he thus wrongfully allots to accrue.</p> <p>An executor has no authority to pay money to extinguish a claim of dower in land belonging to the estate of his testator.</p> <p>If persons interested in the estate of a deceased person have been guilty of loches in protracting the settlement of it, they are not entitled to claim interest against the executors, although the latter have also been guilty of neglect.</p>

<p>If a devise of real and personal estate is made upon the following condition, to wit: “My mother is to have her support on my estate to the amount of forty dollars a year, if she chooses to remain on my estate, and if she chooses to go away she is to be paid the sum of forty dollars a year during her natural life,” and she goes away, her claim for the annuity is upon the devisee, and not upon the executor of the testator.</p>

<p>A bill in equity to enjoin the prosecution of a suit at law is demurrable, if it shows upon its face that a complete defence exists to the suit.</p> <p>A creditor who has received payment of his debt from his debtor cannot maintain a bill in equity to set aside, for irregularity, proceedings in insolvency which have been subsequently instituted against the debtor, and to enjoin the assignee from prosecuting a suit at law to recover back such payment as a preference, if he alleges therein that the payment to him was not an unlawful preference.</p>

<p>Tost against a deputy sheriff for the conversion of various articles of furniture and several hundred pounds of pork. The defendant justified the taking of the articles on the ground that he attached them on writs against Ann McGough, to whom they belonged. The writ was dated April 19, 1861.</p> <p>After the former decision in this case, reported in 4 Allen, 502, the parties agreed that on the 18th of April 1861 Ann McGough, who was then the owner of the articles, executed a bill of sale and made a delivery of them to the plaintiff, but that as against her creditors the sale was fraudulent and void; and that afterwards, on the same day, the defendant attached them on two writs, one in favor of James F. Allyn, and the other in favor of one Carter, which were returnable and entered at June term of the superior court 1861. Judgment for the plaintiff was rendered in each suit at the following October term, and execution was taken out by Allyn, the return upon which set forth that on the 4th of June 1861 Allyn made application for a sale of the property, and on the following day appraisers were appointed, who were certified by the officer to be “ discreet and disinterested persons.” The appraisers also certified to being “ disinterested persons.” The goods were sold by public auction on the 15th of June 1861. It was further agreed, if evidence to prove the fact would be competent, that the defendant appointed as an appraiser a brother of the attaching creditor. No execution issued upon Carter’s suit.</p> <p>Upon these facts, judgment was rendered in the superior court for the plaintiff; and the defendant appealed to this court.</p>

<p>Insanity occurring after a person has become an inhabitant of a town will not prevent his acquiring a settlement, under Rev. Sts. <?. 45, § 1, cl. 12, by living therein ten years consecutively.</p> <p>The rule that a domicil once acquired is presumed to continue until a subsequent change is shown applies to cases of settlement.</p>

<p>An estate of homestead, acquired under St. 1855, c. 238, is not affected by Gen. Sts. c. 104, § 3; or lost by the temporary removal of the householder with his family therefrom, without acquiring a domicil or homestead elsewhere; or waived by acts recognizing a superior title in another person.</p>

Tort to recover damages for an injury sustained by the plaintiff on the defendants’ bridge, while passing the same in a sleigh. At the trial in the superior court, before Wilkinson, J., “there was evidence tending to show that the injury arose from a collision of the plaintiff’s sleigh with another sleigh coming in an opposite direction upon said bridge.

Tort for assault and battery. At the hearing in the superior court, before Putnam, J., it appeared that the plaintiff had brought several actions against different persons for an assault and battery, in all of which he became entitled to his costs. The clerk’s docket showed, (though this fact was not reported,) that only one of the cases was tried, and the residue were adjusted by an agreement between the parties.

Contract upon the following promissory note : “ $500. Chicopee Dec. 31, 1861- “ For value received I promise to pay Joseph E. Wood or order five hundred dollars on demand, with interest, the above payable in specie.

<p>No action lies to recover back money paid as the consideration for a quitclaim deed whicn contains covenants of warranty against all persons claiming under the grantor, both parties having acted under the belief that the deed conveyed a valid title, although the title to the land described, which was derived by the grantor from the assignee of an insolvent debtor, wholly fails, by reason of a want of jurisdiction in the judge of insolvency who assumed to act in the case; and paroi evidence is inadmissible to prove an agreement entered into at the time of fhe execution of the deed that the money should be repaid by the grantor, in case of a failure of title. Merrick, J. dissenting.</p> <p>Persons acting as assignees of an insolvent debtor, but who, by reason of a want of jurisdiction in the judge of insolvency who assumed to act in the case,'had no authority to do so, executed a quitclaim deed of the equity of redemption of certain real estate of the debtor to the defendant, who afterwards, by a quitclaim deed which contained covenants of warranty against all persons claiming under himself, conveyed all his interest in one undivided half of the premises to the plaintiff, for a price agreed upon and paid by the latter, all parties believing the proceedings in insolvency to be valid. At the time of executing this deed, the defendant entered into a collateral contract in writing, by which he agreed that no claim should be made for payment of the principal or interest of the claims secured by certain mortgages upon the premises until a certain time, and that he would not dispose of the property under a power of sale contained in a mortgage held by himself, and that, if necessary to prevent other parties holding mortgages thereon from collecting their claims or taking possession of the property, he would take an assignment of said mortgages and notes, and pay the same himself, holding them against the plaintiff, if payments should be made by the plaintiff at extended times as therein specified, as a substitute for the payment of the notes according to their tenor. Held, that the plaintiff could not maintain an action of assumpsit to recover back the money paid to the defendant as the consideration for said deed, nor be allowed to prove an oral agreement, made at the time of executing the deed, that the money should be repaid in case of a failure of the title. Merrick, J. dissenting.</p>

<p>One who has undertaken to sell a part of the estate of an insolvent debtor, as assignee thereof, but who, by reason of a want of jurisdiction in the judge of insolvency who assumed to act in the case, had no authority to do so, in consequence of which the title failed, is liable to the purchaser in an action of assumpsit for the money received by him as the price thereof, with interest from the date of the writ; and no previous demand is necessary. But such action cannot be maintained by one to whom the purchaser has subsequently conveyed the premises.</p>

<p>A verdict for the plaintiff in an action of tort for deceit in the sale of a horse by representing that he was kind, orderly and quiet in harness, when in fact he had the vice of kick-, ing in harness, will not he set aside merely because the plaintiff, while testifying to an instance of the horse’s kicking violently in harness, after being driven by himself and a friend, a few days after the purchase, was permitted to state that when he was about to drive out that day “ his wife and child were ready, having their things on, to go with him.”</p>

Replevin of a horse, carryall and chaise. At the trial in the superior court, before Vose, J., it appeared that in 1855 George C. Taft, a brother of the plaintiff, was the owner of the horse and carryall; that he failed in that year, and they passed into the possession (though for what consideration did not appear) of one Bancroft, who had been his clerk; that ■ Bancroft sold the same to the plaintiff in 1855, taking his note therefor, which the plaintiff has never paid;…

<p>Contract. The plaintiff’s claim, as established at the second trial, after the decision reported in 5 Allen, 36, was overbalanced by the defendant’s set-off, and a verdict was returned for the defendant. Upon an appeal from the clerk’s taxation of costs, Vose, J. allowed costs to each party, and ordered that the bills of costs be set off against each other, and that execution should issue for the balance of costs which might be found due to either party. The plaintiff alleged exceptions.</p>

<p>A petition for leave to establish the truth of exceptions will not be dismissed as insufficient, if it avers that the matters set forth in the disallowed bill of exceptions, which is annexed, are correctly stated, and both taken together recite sufficient facts to authorize the granting of the petition.</p> <p>The proper time for filing a petition for leave to establish the truth of exceptions, in other counties than the eastern counties of this commonwealth, is at the first ensuing law term of this court.</p>

Contract brought by the collector of taxes for the city of Worcester, under Gen. Sts. c. 12, § 19, to recover taxes assessed by the city upon the personal estate of the defendant, for the years 1859, 1860 and 1861.

<p>Bill in equity alleging that the plaintiff was an insolvent debtor, whose estate was in course of settlement in the court of insolvency for Worcester county; that he had obtained and duly filed the assent of a majority in number and value of his ered'tors to the granting of a certificate of discharge, and had done all other acts necessary to entitle himself thereto; that he thereupon left the Commonwealth, being an officer in the army of the United States ; that at the third meeting of his creditors, in the absence of himself and of the assignee, the defendant presented a large pretended claim against his estate, which was wholly groundless, and by fraud and falsehood prevailed upon the judge of insolvency to allow the same; that, by reason solely of the allowance of this claim, the assent of creditors which had been filed appeared to be insufficient, and a discharge was therefore not granted; that the plaintiff was wholly ignorant of the acts of the defendant and of the consequent refusal to grant the discharge until the time for procuring and filing the assent of his creditors had passed; and he had applied to the court of insolvency for relief, which had been refused. The prayer was, that the defendant’s claim might be expunged, and that a meeting of his creditors might be called, and a certificate of discharge granted to him.</p> <p>The defendant filed a general demurrer, which was overruled by Merrick, J., and the defendant appealed to the whole court.</p>

Trustee processes. In each case, the administrator of the estate of Joseph Whitman was summoned as trustee, and Enoch Hinckley, the father-in-law of the defendant, appeared as claimant of the funds disclosed by the trustee’s answer, claiming the same under two assignments, the first of which, dated June 17th 1861, purported to assign to him a claim for cash paid out and services rendered as executor of the estate of said Joseph Whitman, and the second, dated December 4th…

Tort against the sheriff of Worcester for the conversion by one of his deputies of certain hay.

<p>Bill in equity brought by the assignee of Jesse Com-stock, an insolvent debtor, to procure the assignment of a mortgage, with power of sale, of certain real estate in Southbridge, made by Comstock to the defendant, and dated September 8 1859, which was within six months prior to the institution of the proceedings in insolvency, for the purpose of giving him an unlawful preference, and to restrain the defendant from proceeding to sell the land under the power of sale. After the former decision in this case, (2 Allen, 448,) the following questions were framed to be submitted to the jury: 1. Whether or not Com-stock was insolvent at the time of making the mortgage; and 2. Whether or not the defendant had reasonable cause to be lleve that he was insolvent.</p> <p>At the trial in this court, before Chapman, J., it appeared that during the year 1859 Comstock was in business in Southbridge as a butcher; and the plaintiff, after introducing evidence that he then had the reputation of being insolvent, was allowed, under objection, to introduce evidence that during that time he had the reputation of managing his business badly, and of neglecting to attend to it. The judge instructed the jury in regard to what constitutes insolvency, among other things, that if a debtor has concealed his property fraudulently, to avoid the payment of his debts and to prevent its being taken by his creditors, he is liable to be proceeded against, and is to be regarded as insolvent, though his property may consist of money in his pocket, and may be sufficient to pay all his debts.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>No action lies to recover the price of intoxicating liquors purchased by a citizen of this commonwealth in another state, where the sale was legal, for the purpose of being brought into this commonwealth, and here re-sold, in violation of law, if the vendor had reasonable cause to believe that such was the purpose of the buyer; or to recover the price of the barrels in which such liquors were contained, if the purchase of them was merely incidental to the purchase of the liquors, for their keeping and transportation, and was a part of the same contract.</p> <p>If an action has been submitted to the jury on the merits, an objection to the pleadings cannot be taken for the first time in this court, on a bill of exceptions.</p>

Trustee process. Silas A. Burgess, the supposed trustee, answered that, as an attorney at law, he prosecuted an action and recovered judgment in favor of the principal defendant against Fogg, Houghton & Co. for personal services rendered to them by the defendant, and that he held in his hands, at the time of the service upon him, the sum of $19.35 as the balance of the amount received on the judgment.

<p>A., being m the occupation of a store, used as a bird store, and being the owner of a itiinace in the cellar, surrendered possession thereof to B., who executed a written promise to pay $30 to A. within three months, Vith a condition providing that if B. should be removed from the store, as used for a bird store, then the note should be null and void and A. should have the furnace. After a few days, the owner objected to B.’s occupying the store, and B. accordingly left the same temporarily, but ten days afterwards took a -lease thereof, without restriction as to the use of the premises, and allowed C. thereafter to occupy the same as a bird store. Held¡ that B. was liable upon his promise.</p>

Writ of entry to recover a parcel of land in Worcester. It was agreed in this court that in the year 1861 a tax of $8, and in the year 1862 a tax of $12, were legally assessed by the assessors of Worcester upon the demanded premises to Sarah E. Wall, who was then the owner thereof, and that these taxes were duly demanded of her, and payment refused, and thereupon the collector duly advertised the same for sale, and, no person appearing to bid, purchased the same in behalf of…

Bill in equity by officers, who were also stockholders, in the New England Coal Mining Company, a corporation established under Si. 1851, c. 299, against stockholders therein, to compel contribution towards a sum which the plaintiffs have been compelled to pay to satisfy a judgment against them for corporate debts.

Trustee process, originally commenced before a magistrate, and brought to the superior court by appeal. Walter Thorp Charles W. Baker and Rufus A. Benson prayed to be allowed to appear as claimants to the funds in the hands of the supposed trustees, under the circumstances stated in the opinion; but their claim to appear was disallowed, and they appealed to this court.

<p>Contract to recover money paid by the plaintiffs for the support of the defendant’s wife.</p> <p>It was agreed, in the superior court, that she, not having property of her own, and being temporarily a resident of Spencer, was committed to the State Lunatic Hospital at Worcester, as a lunatic, by order of the judge of probate, on the 11th of February 1862, and remained there till the 1st of the following July. The town of Spencer paid, on due demand, for her support there a sum which was admitted to be reasonable, and the town of Brookfield, where she and the defendant then had and still have their legal settlement, repaid said sum to the town of Spencer on due notice, and afterwards gave to the defendant notice thereof and of all the facts, and demanded payment thereof. The defendant was and is destitute of property. He was, however, able and willing to support his wife at home by his labor, but not otherwise. She, at the time of her commitment, had not left his house”with his express or implied consent, or in consequence of any fault on his part.</p> <p>On these facts, judgment was rendered in the superior court for the defendant, and the plaintiffs appealed to this court.</p>

<p>Complaint for an assault and battery upon Abner Smith</p> <p>At the trial in the superior court, before Brigham, J., it appeared that at the time of the alleged assault and battery the defendants were constables of Barre, and were also acting as marshals and special police of an agricultural fair, and that the acts complained of occurred in clearing a highway in that town from a crowd of persons, for a course for the exhibition of the trotting of horses, within limits in the highway fixed by the officers of the society for that purpose. Smith testified that he had no other use for the highway than to witness the exhibition. The defendants offered to show that he was within the lines which were necessary to be kept open for the exhibition of the horses, and refused to fall back when requested, although there was abundant room for public travel in that part of the highway which was not included in those lines; and that he was wilfully and maliciously in the highway for the purpose of obstructing the exhibition of horses there. The judge ruled that the officers of the agricultural society had no authority to define and fix bounds or lines in the highway, within which their exhibitions were to be conducted, and that, when bounds and lines were thus fixed in a highway, the defendants could exercise only those powers which constables might exercise for the preservation of public peace, and rejected the evidence of the designation of the lines fixed as aforesaid, so' far as the same were within the limits of the highway, and also of Smith’s purpose in being there; and instructed the jury that the defendants “ were not justified in arresting Smith without legal process, because he refused when directed to fall back' within lines fixed by the society, within the highway ;.. . . and if he, when thus directed, struck the horse of one of the marshals, or used any violence upon the horse, not with the malicious intent, and not using force tending maliciously, to injure the horse, or to cause personal injury to the person riding upon the horse, he was not committing a breach of the peace, nor would his arrest without legal process in the act of so doing be justifiable.”</p> <p>The jury returned a verdict of guilty, and the defendants alleged exceptions.</p>

Indictment for adultery with Emeline B. Carlton. At the trial in the superior court, before Rockwell, J., it appeared that in November 1861 the defendant was married to said Emeline, and lived with her as his wife thereafter.

Complaint charging the defendant with being a common seller of intoxicating liquor, on the 1st day of January 1862, and from thence to the 17th day of January 1863.

Complaint. The third count, on which alone the defendant was convicted, set forth that he, on a certain day, “ at the city of Worcester, in said county [of Worcester], did convey certain intoxicating liquors from place to place in said city, he the said Hutchinson then and there having reasonable cause to believe that the same were intended to be sold contrary to the provisions of chapter eighty-six of the General Statutes,” &c. A motion in arrest of judgment, on the ground…

<p>Complaint for a search warrant for certain intoxicating liquors, under Gen. Sts. c. 86, § 42, alleged to be illegally kept and deposited in a.certain tenement by Patrick McSweeny. At the trial of the issue framed for that purpose in the superior court, before Rockwell, J., McSweeny appeared as claimant, and the jury found that all the liquor described in the complaint was at the time of the making of the complaint kept and deposited by him for the purpose of being sold in violation of Gen. Sts. c. 86. The claimant alleged exceptions, and filed a motion in arrest of judgment, which are sufficiently stated in the opinion.</p>

Complaint made under Gen. Sts. c. 86, § 43, for the search of a dwelling-house for intoxicating liquors.