Volume 89 — Massachusetts Reports

<p>Writ of entry to recover five parcels of land. The trial in the superior court was before Morton, J., who signed the following bill of exceptions:</p> <p>“ The demandant claimed the parcel described in the first count of his declaration, by deed to him from Lydia Bond, dated June 12, 1855, but not recorded till January 28, 1860. The tenant claimed the same by deed to him from Lydia Bond, dated December 28, 1859, and recorded the same day. The demandant introduced evidence to prove the insanity of the grantor at the date of her deed to the tenant, and also to prove that the tenant had actual notice at that time of the prior unrecorded deed of the demandant. The tenant claimed and offered evidence to prove that, if the grantor was insane at the date of the deed to him, she afterwards ratified it when sane. Upon the question of ratification, the judge ruled that a person who makes a deed while insane may ratify and confirm it upon becoming sane, but, as it was admitted in this case that the prior deed to Ira Bond was recorded before the ratification, if any took place, such ratification would not make valid the deed to Laban S Bond, as against the deed to Ira. Both deeds were voluntary deeds.</p> <p>“ The demandant claimed the parcels described in the last four counts under the will of Lydia Bond. The tenant claimed the same under and by virtue of a deed of the same from Lydia Bond to Eber Bond, dated February 16, 1860, and under the will of said Eber. To defeat the deed to Eber Bond, the demandant alleged and introduced evidence to prove that the grantor was insane at the time she executed it. The tenant denied the insanity, and claimed further that if she was then insane she was afterwards restored to sanity, and then ratified the deed to Eber Bond.</p> <p>“ The consideration named in the deed to Eber Bond was, that he should support the grantor during her natural life. She was at the date of the deed living in his house, and afterwards became a member of his family and was supported by him and by his executor until her death, which occurred March 21st 1862. Upon the question of the insanity of Lydia Bond as affecting her deed to Eber Bond, the judge, against the objection of the tenant, ruled that if the insane delusion was such that the party, though knowing that she was making a deed and what its legal effect would be, yet was rendered entirely indifferent to property by an insane delusion that she was about to perish, or that others who would be affected injuriously were about to perish, so that she was incapacitated from a rational care for her interest or theirs, then the deed may be avoided. The tenant asked the court to instruct the jury that the deed of an insane person, being only voidable and not void, becomes a binding contract upon the grantor and those claiming under him, if when he becomes sane he adopts and ratifies it; and that if Lydia Bond availed herself of the contract by receiving the consideration or purchase money due upon it after her restoration to sanity and with an understanding of the contract, that was a ratification and adoption. The judge did so instruct the jury, with the qualification that it must in this case be the intelligent act of Lydia Bond, knowing that she was acting under the contract contained in the deed, and understandingly availing herself of the provisions in the contract in her favor.</p> <p>“ The tenant asked the court further to instruct the jury that, if Lydia Bond was of an unsound mind at the time she executed the deed, upon coming to the full possession of her mental faculties she could not avoid the deed, unless she restored the price or consideration she had received and surrendered the contract for her support. But the judge declined so to instruct the jury, except so far as the prayer for instructions is affected by the next preceding instruction. There was no other contract except that contained in the deed to Eber Bond.”</p> <p>The jury returned a verdict for the demandant, and the tenant alleged exceptions.</p>

<p>Tort for an injury to the plaintiff’s water privilege on Monoosnock Brook, in Leominster, by wrongfully drawing water therefrom.</p> <p>At the trial in the superior court, before Morton, J., without a jury, it appeared that the plaintiff owns a shop and land on the westerly side of the brook, and the defendant a shop and land on the easterly side. Both parties derive their title from Luke Wilder and Josiah Johnson, who in 1824 owned in common the land on both sides of the brook, and on the 4th of May in that year executed to Levi Johnson a deed, in which the granted premises were described as follows</p> <p>“ A certain tract of land situated a few rods from the meetinghouse in said Leominster, on the right side of the road leading io Luke Divoll’s, and on the east side of the brook, nearly oppos'te 1o our blacksmith’s shop, containing about nine or ten rods o land, bounded as follows: Beginning at the east side of our dam adjoining our said shop at a point on the upper side of said dam, five feet on the dam from a large stone at the east end of said dam, and runs easterly in a line with said upper side of said east part of said dam forty feet to a stake and stones; thence northeasterly about sixty feet, nearly at right angles with the front line, and in the direction of a poplar-tree near by on the margin of George, Chase’s mill-pond, till it comes to the road leading to Luke Divoll’s; thence by said road westerly about sixty feet to a point in the brook which is even with the upper corner of the eastern abutment of the bridge on said road ; then along said brook southerly to the point on the dam first mentioned. Also the right and privilege to make and forever maintain a flume in and through said dam, and to draw and use sufficient water of the pond above said dam to do the turning, sawing and other usual business of a wheelwright, provided, however, that said flume shall always be so constructed that the water therein shall not exceed one foot in depth when the pond is full, and also that said Levi, his heirs and assigns, shall never draw any water from said pond when no water runs over said dam.”</p> <p>On the 23d of November 1833 they executed another deed to Levi Johnson, in which the general boundaries of the granted premises included the lot above described, and the following sentence was added to the description : “ About nine or ten rods of land, the northwest corner of the above piece of land, was conveyed by said Luke and Josiah to the said Levi by deed, for a water privilege which is not conveyed or sold in this deed, dated May 4th, 1824; reference to said deed recorded in the registry of deeds, book 256, page 108.”</p> <p>The defendant, owned all that was conveyed by the above two deeds; and the plaintiff owned all the rest of the premises formerly owned by Luke Wilder and Josiah Johnson.</p> <p>The answer admitted that Levi Johnson used the water in accordance with the provisions of the deed of 1824, and there was evidence tending to prove that those owning the defendant’s estate have never exercised or claimed the right to exercise any control over the water in the pond except to draw the same as stated in the deed, and that the plaintiff and those owning his estate have exercised such control and kept the dam in repair. And certain deeds and agreements were introduced to show that the practical construction of the above deeds by the parties was, that the right to the use of water which was conveyed by them was a restricted one. The defendant contended that under the two deeds he had acquired a title to the land to the thread of the stream and an unrestricted right to one half of the water, and that, if any restrictions were imposed by the deed of 1824, they were removed by that of 1833; but the judge declined so to rule, and ruled that the defendant had only the right to use the surplus water when the water in the pond would run over the dam. The defendant’s flume was built within the boundary lines described in the first deed, and it appeared that he had so changed it that the outlet' from the pond therein was lower than the dam was in 1824; and the judge accordingly found for the plaintiff. The defendant alleged exceptions.</p>

<p>The premises granted in a deed were described as beginning on a street; thence running hT. ten rods, nineteen links; thence E. one hundred and twenty-two feet to the southerly corner of land of A. B.; thence running S. ten rods to the street; and thence on the street to the place of beginning. This description was erroneous. The southerly corner of A. B.’s land was only seven rods from the street; in order to reach that comer by the courses described, the first line should have been but seven rods and nineteen links in length; and the first and second lines, if run out according to the courses and distances given, would include A. B.’s land, leading to his northerly corner, which was three rods fi'om his southerly corner. Beld, that the reference to A. B.’s southerly corner must prevail, and that the distances mentioned in the first and third lines must be rejected.</p>

<p>One who takes a deed of mortgage of a portion of a lot of land, the whole of which is subject to a prior mortgage, with notice of a prior unrecorded deed of warranty of an adjoining portion of the same lot from the same grantor to a third person, cannot compel the latter to contribute towards the redemption of the first mortgage, and a direct reference in his deed of mortgage to such third person as the owner of the adjoining land will amount to such notice.</p>

Tort. The declaration alleged that the plaintiff was the owner of a lot of meadow land lying on the north side of Austin Street in Worcester; that there is and always has been a small stream of water running through the centre thereof to and crossing Austin Street; that the waters of the stream, collected in said meadow and from other lands adjoining the same, have for more than twenty-five years been accustomed to flow and did rightfully flow off southerly in a drain and…

<p>Contract for breach of the following agreement, signed by the defendant: “ Worcester, Dec. 21,1857. Received of J. W. Fletcher, as collateral security to his notes of even date, (to wit, to one note of $1000, payable on demand with interest semiannually, and one other note of $1000, of even date, payable-on demand with interest semi-annually, and one other note of.' $700, payable in six months from date, with interest, and also> to one note of $500, payable in four months from date, with interest,) a mortgage of $1000 given by Gardner Morse to C. W. Wilder, dated Oct. 19th, A. D. 1854, and assigned by said Wilder to said Dickinson ; also a note and mortgage given by said Morse to said Fletcher of $3000, dated Dec. 29th, A. D. 1856; when said notes are paid, said notes and mortgages are to be assigned to said Fletcher, or the proceeds received accounted for.”</p> <p>At the trial in this court, before Chapman, J., there was evidence to show that on the 1st of October 1861 the plaintiff had paid and taken up the two smaller notes given by him to the defendant, mentioned in the agreement, and had paid the interest on the two larger notes to June 21st 1860; that on that day Morse, having the right to redeem the mortgages which the defendant thus held as collateral, and being desirous to borrow money of Joseph Marshall and to give security therefor upon the mortgaged premises, offered to pay to the defendant the two $1000 notes, with interest, if he would assign the mortgages to Marshall; his object being to discharge them. The defendant accepted the proposal, knowing the object. Inquiry being made if there would not be difficulty arising out of the transaction, inasmuch as only about $2000 was due on the notes, the defendant said that he would take the responsibility. The mortgages, with the notes which they were given to secure, were accordingly assigned to Marshall, who on the 3d of January 1863 discharged the same upon the record. At the time of the assignment the plaintiff was absent from the Commonwealth. The day before the plaintiff went away, the defendant asked him to settle these notes before he left; to which the plaintiff replied that he could not, but had left his affairs with his wife. The defendant never made a demand upon her. The notes assigned to Marshall were of no value after the discharge of the mortgages, the maker having been discharged in insolvency. It was agreed that the value of the securities, if the mortgages had not been discharged, would have been $2000, over and above the amount due on the two $1000 notes of the plaintiff. On the 12th of March 1863 the plaintiff with his counsel called upon the defendant and offered in writing to pay the two $1000 notes, and requested the delivery and re-assignment of the notes and mortgages which had been assigned to the latter as collateral security. The plaintiff did not tender or exhibit any money, but his counsel was prepared to pay the notes, and so informed the defendant.</p> <p>There being no dispute as to the above facts, the case was by agreement of the parties reserved for the determination of the full court.</p>

Tort. The declaration alleged that the defendant sued out a writ of copias against him, and on the 7th of June 1858 unlawfully and without right caused him to be arrested and imprisoned in the common jail, and held and detained him there from said 7th of June until the 10th of February 1860.

<p>If manufactured goods are sold by sample, by a merchant who is not a manufacturer, and both the sample and the bulk of the goods contain a latent defect, there is no implied warranty against the defect, and evidence is inadmissible to show that by the usage of merchants the seller is responsible therefor; and if such sale is made through a commission merchant, who is not authorized to sell on credit, he must account to the consignor for the price, without deduction for such defect.</p>

<p>Tort to recover damages and costs which the plaintiffs had been compelled to pay to certain persons for injuries sustained by them in consequence of a defect in a highway in Leominster, the plaintiffs alleging that the defendants caused the defect.</p> <p>The action was referred under rule of court to three arbitrators, the majority of whom made the following award:</p> <p>“ Be it remembered that on this 6th day of November A. D. 1862, we, the referees named in the award and rule, after due notice, met the several parties and their counsel at the town-hall in Leominster, and, after hearing their several pleas and allegations in the above case, we, the undersigned, being a majority of the referees, (Mr. Going not agreeing with us,) decide the case as follows, viz: In the action of the inhabitants of the town of Leominster against the Fitchburg and Worcester Railroad Company we decide the case in favor of the defendants, and the costs of reference taxed — seventy-five dollars, and the costs of court taxed by the court, and all costs paid by the plaintiffs, the inhabitants of the town of Leominster. Leominster, November 6th 1862.”</p> <p>The other arbitrator certified upon the award that he was present at the hearing, but did not agree in the decision.</p> <p>The defendants moved to have the award accepted, to which the plaintiffs objected. At the hearing upon this motion, in the superior court, before Rockwell, J., it appeared that the two arbitrators who signed the award were stockholders in and directors of the Fitchburg Bank; and at the time of the selection of the arbitrators and of the making of the award one Blood was indebted to the bank in the sum of $6000 on his own notes, and had transferred to the bank as collateral security seventy-two shares of the capital stock of the defendants. Blood was a man in good credit and of fair standing, and the arbitrators testified, against the objection of the plaintiffs, that they were ignorant of the pledge. It was agreed that no person should be an arbitrator who owned stock of the defendants.</p> <p>Upon these facts, the judge ordered that the award should be set aside ; and the defendants alleged exceptions.</p>

<p>Contract upon a policy of insurance for $2000, dated June 1, 1862, by which the defendants insured the plaintiffs’ stock of boots manufactured and in process of manufacture in their shop in Barre. At the trial in this court, Chapman, J. ruled that, under St. 1861, c. 152, the evidence offered in defence of the action was incompetent; whereupon the case was taken from the jury and the question of the competency of the evidence reserved for the full court, with the agreement that if the evidence should have been admitted a new trial should be ordered, but otherwise judgment should be entered for the plaintiffs. The material facts are stated in the opinion.</p>

<p>If a bond of defeasance which was executed by the grantee of land to the grantor at the time of taking the deed is surrendered and destroyed at the expiration of the time limited therein, and a new bond is given upon a consideration partly new, by which the grantee agrees to reconvey the premises to his grantor upon the payment within an additional time of a larger sum, the grantor thereby surrenders and abandons his title as mortgagor, and the grantee becomes the owner of the land in fee.</p> <p>If an application for insurance is expressly made a part of the policy, and the policy is also made subject to the conditions and limitations expressed in the by-laws annexed, and these by-laws provide that the policy shall be void if the application shall not express the true title of the assured to the property and his interest therein, an answer that the applicant owns the property to be insured, in reply to a direct inquiry in the application upon that subject, when in fact he only holds a bond for a deed, will avoid the policy.</p> <p>So an answer in such application that the property is incumbered “ for $1000 with other property,” in reply to the question, u Is it incumbered by mortgage or otherwise? If so, for what sum ? ” will avoid the policy, if in fact there is a mortgage for $1400 upon the property insured and other property.</p>

<p>Contract upon a policy of insurance for $1400, dated October 31,1856, issued by the defendants upon the plaintiff’s dwelling-house and outbuildings, which were destroyed by fire within the time covered by the policy. At the trial in the superior court, Rockwell, J. directed the jury, upon facts which are stated in the opinion, to return a verdict for the defendants, which they accordingly did; and reported the case for the determination of this court.</p>

<p>Contract upon a judgment recovered by the plaintiffs against the defendants for costs, in the court of common pleas for Worcester county in December 1855.</p> <p>At the trial in the superior court, before Vose, J., it appeared that in October 1852 the action in which the judgment was recovered was commenced by an attorney duly admitted in this commonwealth in favor of the present defendants against the present plaintiffs, which, after remaining for several terms upon the docket, was terminated by the entry of a nonsuit. The defendants now offered evidence to prove that said action was commenced and prosecuted without their authority or knowledge, and that they never heard of it, or of the judgment recovered in it, until the present action was commenced. The judge -ruled that this evidence was inadmissible, and a verdict was returned for the plaintiffs. The defendants alleged exceptions.</p>

Bill in equity by the assignees of Nourse, Mason & Co., of Boston, insolvent debtors, to restrain the defendants, citizens of this commonwealth, from prosecuting a suit of foreign attachment, commenced by them in Pennsylvania, before the institution of the proceedings in insolvency, upon a debt of Nourse, Mason & Co. contracted and payable here. A general demurrer filed by the defendants was overruled. 4 Allen, 545.

<p>Contract brought against the executor of the will of Maxcy Cook, to recover threefold the amount of usury paid to him by the plaintiffs. The writ commanded the officer “ to attach the goods or estate of Milton Cook,.....as he is executor of the last will and testament of Maxcy Cook,” &c.; and the declaration alleged “that the defendant, as executor aforesaid, heretofore, to wit, on the 1st day of September 1861, took and received from them and the plaintiffs paid him as said executor the sum of $135.13, unlawful and usurious interest,.....and the plaintiffs say that an action has thereby accrued to them to recover of said defendant the sum of $405.39,” &c.</p> <p>At the trial in the superior court, before Lord, J., the plaintiffs offered to show that in May 1851 Maxcy Cook lent to them the sum of $600, taking their note for $660, secured by mortgage; that they made partial payments upon the note; that Maxcy Cook died in 1861; and that the defendant, as executor, brought a writ to foreclose the mortgage, whereupon the plaintiffs, without objection or notice to the defendant that usury was reserved in the original contract, paid to him the full amount of the balance due upon the note. The judge, being of opinion that these facts, if proved, would not entitle the plaintiffs to maintain their action, so ruled, and a verdict was taken for the defendant. The plaintiffs alleged exceptions.</p>

<p>Tort for slander by the female defendant, in charging the plaintiff with breaking into a tenement occupied by the defendants, and stealing certain papers which had been put up at the windows, and with other burglaries and thefts. The answer denied the speaking of the words, and averred that the defendants’ tenement had been entered, and certain papers which had been put up at the windows had been taken away, without their consent, and that they had been informed and believed that the plaintiff removed the papers, and that he in fact did enter their tenement, which was locked and fastened, and took the papers from the windows in the absence of the defendants and without their leave and against their consent, and that the words, if uttered, were uttered without malice.</p> <p>At the trial in the superior court, before Vbse, J., the plaintiff introduced evidence to support the averments of the declaration; and the female defendant, after testifying that the tenement was entered and the papers removed, and that she had reason to believe that the plaintiff did it, denied having spoken the words charged in the declaration. “ The defendants requested the court to instruct the jury that although, as a general rule, words actionable in themselves are as an inference of law uttered with malicious intent, yet if the circumstances of speaking them were such as to repel that inference, unless upon proof of actual malice, the plaintiff, in order to entitle himself to a verdict, must furnish such proof; and the judge so ruled.</p> <p>“ The plaintiff requested the court to instruct the jury that if the defendant uttered to third persons, of and concerning the plaintiff, a false charge of theft or larceny, as set forth in the declaration, the law implied malice unless there was some legal justification, and that the jury were not at liberty to find a justification under the answer; but the judge refused so to rule.”</p> <p>The jury returned a verdict for the defendants, and the plaintiff alleged exceptions.</p>

<p>Contract, brought by the administrator of William B. Bigelow against the administrator de bonis non with the will annexed of Abel Bigelow, to recover a legacy. The writ was dated May 24, 1862. The will, which was dated September 21, 1840, contained the following provisions :</p> <p>“ First. In order to provide a sufficient fund for the payment of all my just debts, I order and direct that my saw-mill, with the land connected with it and all its privileges and appurtenances, be sold by my executors hereinafter named, &c. •</p> <p>u Item. I give and bequeath to my children, [naming nine,, including William B.] each the sum of one hundred dollars, to be paid to each of them when they shall severally attain the age of twenty-one years ; and I authorize and empower my executors to sell real estate, so far as the same may be necessary, to pay said legacies, provided any money that may be left as the proceeds of the sale of the saw-mill, or as due to me at the time-of my decease, after paying my debts, shall be first applied to. the payment of said legacies.”</p> <p>It was agreed in the superior court that the testator died on. the 7th of October 1840, and his will was proved on the 22d¡ of the same month. The saw-mill referred to was sold by the-testator for $800 after making the will. The executors “ accepted the trust, returned an inventory of the estate of the testator, and settled an account of their administration thereof in the probate court; from which it appears that the whole available amount of debts due to said Abel Bigelow at the time of his decease, including the proceeds of the sale of the saw-mill, was less than the amount of debts then due from him and the legacies which had been paid. After the decease of said executors, the defendant, on the first Tuesday of April 1861, was appointed administrator of the remaining estate of Abel Bigelow with the will annexed, and since his appointment has returned into the probate court an inventory of said remaining estate as follows, viz: real estate appraised at $1725, and personal property appraised at $36.54; and the real estate now remaining is sufficient, if sold and applied to that purpose, to pay the legacy sued for in this action and all the other pecuniary legacies given by said will which have not been paid; and the debts of said Abel were all paid by the executors before their decease. The plaintiff was appointed administrator of the estate of William B. Bigelow October 17th 1861, and afterwards and before the commencement of this action demanded of the defendant the payment of said legacy, which was refused by the defendant.”</p> <p>On these facts judgment was rendered in the superior court for the defendant, and the plaintiff appealed to this court.</p>

<p>Appeal by the administrator de bonis non with the will annexed of the estate of Abel Bigelow, from the decree of the judge of probate, allowing the account of Benjamin Estabroolc, as administrator of the estate of Eunice Bigelow, who was surviving executrix of the estate of her late husband, Abel Bigelow; the said account showing that no part of the estate of said Abel remained in her hands at the time of her death, or in his, as her administrator.</p> <p>It appeared at the hearing in this court that under the will of Abel Bigelow, the material portions of which are copied in the opinion, the executors named therein, of whom the widow was one, settled an account in the probate court in May 1843, exhibiting a balance of $791.62 in their hands, the same being various articles of personal property, named in the inventory of the estate. These articles, consisting of a horse, wagons, carts, other domestic animals, wood, hay, grain, provisions, farming utensils, household furniture, See., were taken by the widow as legatee under the will. Her family consisted of herself and her nine children, five of whom died while minors.</p> <p>She remained a widow until her death. The appellee offered to prove that she expended the whole of said balance, and more, in the support and maintenance of her husband’s family, and in the education of the children. This claim was denied by the appellant, who offered to show that the family was supported from other sources.</p> <p>The case was reserved by Merrick, J. for the determination of the whole court.</p>

<p>Bill in equity in the nature of a bill of interpleader, brought by the executor of the will of James Wilder, seeking instructions as to the proper disposition of the principal of a fund left under the following provisions of the will:</p> <p>“ I give and bequeath to my daughter Sally Kendall, wife of Josiah Kendall, the income or interest of two thousand dollars, which sum is to remain in the hands and under the control of my executors, and to be by them put at interest, with good security, and the interest arising therefrom, after paying my said executors a reasonable sum for taking care of said legacy, to be paid to my said daughter Sally annually during her natural life, said interest to commence in one year after my said decease, and, at the decease of said Sally Kendall, I order my executors hereinafter named to pay over to the children who may be the surviving heirs of said Sally’s body, to be divided in equal shares among them. I further order if it should become necessary for my said daughter Sally to use any part of the aforesaid sum of two thousand dollars for her support during her life, then such part, as shall be absolutely necessary shall be deducted from the sum ordered to be paid to the children aforesaid.”</p> <p>The bill set forth, and it was admitted, that the testator died in 1842; that at that time the said Sally had three children, Susan, Josiah and Edwin ; that Susan died in 1843; that Edwin died in 1860, leaving a wife and four children; that the husband of said Sally died in 1860; and that said Sally died in 1863, leaving her son Josiah, and the four children of her deceased son Edwin, as her only heirs at law.</p> <p>At the argument, the children of Edwin were not represented, and the counsel for the executors, after reading the papers, were going on to submit their views upon the questions involved; but the court interposed, the chief justice saying that the whole duty of an executor, in a case like the present, is performed when he has brought the parties in interest before the court; and that, considering his relation to the parties and the fact that he cannot be allowed to charge the estate for the costs of an argument, he ought not to take any part in the discussion. Subsequently, however, objection being waived, and some peculiar reasons appearing to show that there was no danger of collusion, the court allowed the argument to proceed, remarking that this case must not be drawn into a precedent, as the rule which had been announced had been adopted by the court upon full consideration*</p>

<p>Tort. The first count was for the conversion of various articles of personal property; and the second for breaking and entering the plaintiff’s close, and carrying away an ice chest.</p> <p>It was agreed in the superior court that the ice chest was built by a former lessee of a tavern in Bolton, and was always thereafter, until the commission of the acts complained of in this suit, used for the purposes of the tavern by the successive lessees thereof, in the room in which it was built, until finally the title to the real estate became vested in the plaintiff, and the ice chest was sold by one to another of the lessees until it was purchased by John W. B. Forbes, the last lessee. “ The ice chest was a large and heavy wooden box, lined with zinc, in no way or manner connected with or affixed to the building, but was so large that it could not be removed through the door or from the room without taking it in pieces. The defendant, claiming it to be the property of Forbes, took it in pieces and removed it.”</p> <p>Upon these facts, Rockwell, J. ruled that the plaintiff could maintain his action upon the second count, and the jury accordingly returned a verdict in his favor. The defendant alleged exceptions.</p>

<p>If the owner of the equity of redemption of land which is subject to two mortgages, upon the first of which possession has been taken for the purpose of foreclosure, purchases and takes an assignment of both mortgages, and enters into possession of the premises, paying in full for the first mortgage, and for the second giving his note payable in three years, upon condition that the title to the land then be vested in him by a good and indefeasible title under foreclosure of the first mortgage, and it appears that by the purchase of the two mortgages he became the owner of the whole title, he is liable upon his conditional note, although the net rents and profits received by him within three years amounted to more than the debt secured by the first mortgage.</p>

<p>A. mechanic’s lien is waived, if, before any money becomes due to him under the contract, he accepts on account thereof the negotiable promissory notes of his employer for the amount, payable after the time when the money would become due and his right to file a petition to enforce his lien would expire, and actually negotiates the same, and there is no evidence of the actual intent of the parties in giving and receiving them; and the fact that he afterwards takes them up and offers to surrender them in court is immaterial.</p>

Contract brought to recover the amount of expenses paid by the plaintiffs for the support of Lorenzo O. Lovell, a pauper, in the State Lunatic Hospital at Worcester.

Writ of entry to recover a parcel of land in Worcester. At the trial in the superior court, before Tose, J., it appeared that on the 8th of December 1853 John Davis conveyed the premises to the tenants in trust for the sole use and enjoyment of the Zion’s Methodist Society, a religious association of colored persons in Worcester, not then organized as a parish, adding thereto the condition “ that said trustees be fully empowered to convey [the same] to said society, whenever…

Action containing counts in tort and contract, to recover the value of a chest of tea and a keg of tobacco which the defendants had transported, as it was alleged, from Boston to Charlton, and deposited in their depot at the latter place, where the same were lost.

<p>Bill in equity, alleging that the defendants are a corporation, incorporated in 1854, and doing business under the statutes respecting Loan and Fund Associations, and having certain printed by-laws and amendments thereto, the material portions of which are copied in the margin ; * that the two amendments of the by-laws, which are copied, were illegal and invalid; that on the 9th of April 1858 the plaintiff" became a subscriber for six and one half shares in the association, and under the bylaws took out $2080 on said shares, and gave to the defendants a bond, the condition of which was that he should “pay or cause to be paid unto the abovenamed corporation, its successors or assigns, the sum of $2080 in the manner following, to. wit: thirteen dollars per month, on or before the first Monday of each and every month, that is to say, as monthly dues, to be applied in liquidation of the said principal sum of $2080, and ten dollars and forty cents as monthly interest, at six per centum per annum on the said principal sum, until the said payments of monthly dues at thirteen dollars per month amount to the said principal sum of $2080, pursuant to the by-laws of the said corporation, whereof the said obligor is a member, and also all fines which shall be charged to him pursuant to the by-laws of the said corporation, during the said period,” &c.; that this bond was secured by a mortgage of real estate ; that the plaintiff has paid upon said bond $856 as monthly dues, $387.41 as monthly interest, and fines to a small amount; that a large number of shares have been cancelled by the defendants pursuant to the two amendments of the by-laws, and a large amount of money paid for the same; that at the time of the filing of the bill a proposition was pending to raise the maximum rate of cancelling shares to eighteen per cent., which the plaintiff had reason to fear would be adopted; that the defendants can only cancel shares pursuant to article 20 of the by-laws; that the two amendments of the by-laws are in violation of article 31 of the by-laws, and prolong the time for the association to continue, during which the plaintiff will be obliged to pay monthly dues and interest on his bond; that, upon information, the time has been reached when by article 31 there is sufficient money on hand and due to the association to pay on each unredeemed share the par value thereof, and he ought no longer to be required to pay monthly dues and interest on his bond, but that the same should be discharged; that if there is not sufficient money on hand and due, for this purpose, the plaintiff has a right to have the funds accumulate, so that the association may more speedily terminate, and his bond and mortgage be discharged; that the defendants claim that he shall pay the entire balance due on said bond, absolutely, and as a debt; that if the court should decide that he must do this, he claims to redeem the mortgage, and that the loan was usurious, and that but a small sum is due, which he is ready to pay ; and that on such redemption he ought to be remitted to his original rights as a member, and to stand upon the same footing with the holders of unredeemed shares, as to profits. The prayer was, that the association might be wound up, an account taken and a receiver appointed, and that the defendants might be enjoined from cancelling shares as aforesaid, or adopting the pending proposition, and for other relief.</p> <p>The answer, amongst other things, averred that the plaintiff is not the owner of any unredeemed shares, and that the only relation which he holds to them is that of a borrower of funds which he is bound to repay in full, with interest, and no more, and that, by the true construction of the statutes, the by-laws and the condition of the bond, he has no interest in the matters complained of, and no right to maintain this bill; and denied that the loan was usurious.</p> <p>The plaintiff filed a general replication.; and the case was reported by Merrick, J. for the determination of the whole court upon the pleadings.</p>

<p>Writ of entry to recover a piece of land with a building thereon. The plea was nul disseisin.</p> <p>At the trial in this court, before Chapman, J., it appeared that in April 1862, E. C. Sawyer, being then the owner of the demanded premises, executed a lease thereof for years to the tenant, and in August following conveyed the premises to one Prince, who, on the 18th of March 1863, conveyed them to the demandant. The demandant also held a mortgage upon the premises, and received the rent from the tenant from June 1862 to January 1863, under an order from Sawyer. On the 1st of April 1863 the tenant offered to pay the rent for the quarter which then expired, but the demandant refused to receive the same, alleging that the tenant had forfeited his title under .the lease by using the building as a place of resort for illegal gaming and the illegal keeping and sale of intoxicating liquors, contrary to Gen. Sts. c. 87, §§ 6, 8, from April 1862 to the 31st of March 1863. The jury found specially that the premises had been so used from April 22d 1862 to the 1st of July 1862 ; and the case was reserved for the determination of the whole court.</p>

<p>Appeal from a decision of the judge of insolvency, refusing the discharge of an insolvent debtor from his debts, as surviving partner of a late firm of which he was a member.</p> <p>It was agreed that the appellant, Rice, in his original petition, dated November 28, 1861, represented that he was “ individually and as surviving partner of the late firm of Fox & Rice, composed of himself and William B. Fox, deceased,” insolvent; that the firm was dissolved in February 1861, and Fox died in the following August; that he duly took the oath prescribed for insolvent debtors, at the second meeting; that he duly filed an assent to the granting of a certificate of discharge, signed by a majority in number and value of all the creditors who had proved claims, and also of his separate creditors, but not a majority in number and value of his partnership creditors ; that there were no partnership assets; that at an adjourned third meeting the judge passed a formal decree that a discharge from his individual debts should be granted to him, and a certificate of discharge was accordingly signed, setting forth that he was discharged “ from all his individual debts which have been or shall be proved against his estate, and from all debts which are provable against his separate estate; ” and that no application was made for this discharge, or for the decree granting it, except so far as the same would be inferred from the proceedings in the case, and he had no knowledge thereof, and declines to accept the same, and on the 26th of December 1862 requested another meeting to be called, which was done, and the same was held on the 13th of January 1863, when he presented a petition for a discharge from his debts as surviving partner, which petition was denied, for the reason that a majority in number and value of the creditors of the late firm had not assented thereto. From this decree Rice appealed to this court, where the decree was affirmed; and he appealed to the whole court.</p>

<p>A tenant for life is liable to account for the value of trees wrongfully cut by him from the estate, with interest from the time when they were cut: and is not entitled, when held to account for their value, to deduct sums expended in procuring from other sources wood to be used for fuel upon the premises; and the fact that the new growth upon the land is as valuable as the increased growth of the trees which were cut would have been is immaterial.</p>

<p>A father may maintain an action for harboring and secreting his minor daughter, and persuading her to remain absent from his family and service without his consent, and in such action may recover for his mental suffering caused by the injuiy, though he may not introduce evidence thereof, distinct from and in addition to that which shows the nature and extent of the injury.</p> <p>A declaration for enticing away a minor daughter from her father’s family may be amended by adding a count for harboring and secreting her and persuading her to remain absent from her father’s family and service without his consent.</p> <p>The defendant in an action for harboring and secreting the minor daughter of another, and persuading her to remain absent from her father’s family and service without his consent, has no ground of exception to an instruction to the jury that, if the plaintiff by his cruel, abusive and improper treatment of her had justly alienated her affections from him to such an extent that she would not continue to live with him, he had forfeited all claim to her service and society and could not recover damages, although the defendant requested an instruction upon this point which was not qualified by the insertion of the word “justly;” nor has he any ground of exception to a refusal to instruct the jury that if the plaintiff’s treatment of his daughter contributed in any degree to produce the wrong complained of, the action could not be maintained.</p>

<p>Writ of entry to recover a parcel of land in Uxbridge.</p> <p>It was agreed, in the superior court, that the demanded premises are part of a lot of land described in a deed from 'Daniel Taft to the Inhabitants of Uxbridge, dated March 20, 1737, “ for and in consideration of the love and affection I bear to ye town of Uxbridge, and for diverse other valueable considerations me moveing hereunto,” “said land being improved for a burying-place ; to have and to hold the said given and granted premises, with all ye appurces> priviledges and commodities to the same belonging or in any wise appertaining, to the said, town of Uxbridge forever, to their only proper use, benefit and behoofe, for a burying-place forever.” The town entered upon the demanded premises under this deed, and occupied the same for a burial-place for many years, the last burial upon the premises having been made fifteen or twenty years ago. In 1860 the town, under a vote for that purpose, sold the premises to the tenants, who entered upon the same and inclosed them within their school-house lot, and removed the remains of persons buried there, and lowered the grade of the earth, and appropriated the land to use for school purposes, and no other. Thereupon Amariah Taft, an heir of said Daniel, entered upon the land for breach of the condition of said deed, and gave notice of the entry to the town and to the tenants, and made and delivered, upon the premises, a deed thereof to the demandant.</p> <p>Upon these facts, judgment was rendered for the demandant, and the tenants appealed to this court.</p>

<p>IT, prior to the passage of St. 1861, <?. 152, a policy of insurance was issued under the conditions and limitations expressed in the by-laws of the insurance company, one of which was that when any property insured should be taken possession of by a mortgagee the policy should be void, and the application, which was expressly made a part of the policy, contained an agreement that if the answers therein did not give a full, just and true exposition of all the facts and circumstances in relation to the condition, situation, value and risk of the property to be insured the policy should be void, the omission to disclose in the application the fact that possession of the premises to be insured had been taken under a second mortgage thereof, and a subsequent retaking of possession under the same mortgage, without the consent of the underwriters, will avoid the policy.</p> <p>Such policy will also be rendered invalid if, in reply to a question in the application calling for the amount of incumbrances, the answer was that there were two mortgages, for $2700 in all, the first of which was for $1150, and the second for $1550, when in fact the first was for $1150 as principal, and for accrued interest to the amount of $300 more.</p>

Complaint under the bastardy act. At the trial in the superior court, before Vose, J., the physician testified to the complamao+’s declaration in the time of her travail, and the complainant testified that the defendant was the father of the child; and, in cross-examination, she stated that her mother told her that she would have to tell the doctor that the defendant was the father of the child.

<p>The St. of 1863, c. 242, which provides that usury between the payee and the maker of a promissory note, payable on time, shall not be a defence to an action thereon, brought by the indorsee to whom the same was indorsed before maturity, for value, and without notice, express or implied, of the usury, does not apply to contracts which were in existence at the time of its enactment.</p>

<p>Contract to recover for work done by the plaintiff in build ing a highway in Scituate. The writ was dated September 4, 1860. The first count alleged that the plaintiff agreed to build the road for a certain price, according to specifications furnished by the defendants and annexed to the declaration, which consisted of certain specifications of the county commissioners, to which the defendants added others, providing among other things that “ one half of the money will be paid for construe • tian when the road is completed, the remainder within sixty days.” The second count was a general count for work and labor done in building the road. The portion of the answer which is now material was as follows:</p> <p>“ And as to the second count in plaintiff’s writ, the defendants are ignorant personally, but on information and belief they deny that they are indebted to the plaintiff in any sum of money whatever for the building of any road as set forth, or in any manner whatever. And the defendants will require the plaintiff to prove each and all of the allegations in both of said counts, except as to the making of the contract set forth and annexed, and all facts necessary to make out their case — admitting the road described to be within the limits of their town, and that the same was put out by their selectmen to the plaintiff to be built, but deny acceptance by the county commissioners or selectmen, or that the same was completed according to the terms and conditions of said agreement.”</p> <p>At the second trial in the superior court, before Russell, J., after the decision reported in 5 Allen, 120, the judge ruled that the evidence was insufficient to sustain the first count. It appeared that the work done by the plaintiff was completed by the 4th of August 1860, and the defendants thereupon contended that the second count could not be sustained either for the whole or any part of the stipulated compensation, and that the plaintiff was not entitled to maintain any action until the expiration of sixty days from the completion of the work; but the judge ruled that this defence was not open under the answer.</p> <p>It further appeared that when the plaintiff had completed his work he notified the county commissioners thereof, and after-wards Mr. Southworth, their chairman, delivered to the plaintiff the certificate copied in the former report of the case, under the circumstances there stated. The defendants objected to the admission of this certificate, but the judge ruled that it was admissible to prove good faith on the part of the plaintiff; and it was read to the jury accordingly. The question of the plaintiff’s good faith was in controversy between the parties.</p> <p>Other questions arose, which are now immaterial. The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>Waste. The declaration alleged that in 1858 the defendant became the owner of a messuage in Barnstable for the life of the plaintiff Samuel Thacher, and entered into possession; that since 1850 the female plaintiff has been the owner of the reversion, and has the next immediate estate of inheritance therein ; that the defendant, disregarding his duty in the premises, has committed and suffered great waste of the estate, and has suffered the buildings and fences thereon to remain unrepaired and to go to decay, and has taken down and removed a substantial stone wall twenty feet long, and has taken up and removed five large flat stones used for door-stones for the barn and corn-house on the estate, and taken down a stone wall on the east side of the garden, forty feet long, and converted the stone to his own use, and taken up and removed a valuable fruit tree, and undermined a corner of the bam; whereby an action of waste hath accrued to the plaintiffs to have and recover the place wasted, and the damages done thereto.</p> <p>The defendant in his answer denied the commission of any acts of waste, and denied the plaintiffs’ title, and claimed title in fee in himself.</p> <p>At the trial in the superior court, before Russell, J., it appeared that in 1846 the plaintiff Samuel Thacher, being then the owner of the premises, conveyed them to Zeno Scudder, who on the same day reconveyed them to the female plaintiff. In 1854 said Samuel went into insolvency, and his assignee sold his estate in the premises to certain persons, who, as the plaintiffs contended, afterwards sold the same to the defendant. In proving the defendant’s title the plaintiffs were allowed, under objection, to introduce in evidence the record copy of a deed of the premises to the defendant’s grantor, no notice having been given to the defendant to produce the original, and no explanation being made why the original was not produced.</p> <p>Upon production of this record it appeared that the original deed had not been executed in the presence of an attesting witness, whereupon the defendant objected that the proof of the deed was insufficient; but the objection was overruled.</p> <p>Said Samuel testified that his conveyance, through Scudder, to his wife was without consideration, and to preserve the property in case of any misfortune to him ; that he then owed several small debts, which were subsequently paid; and that he was also then indebted to the bank in a sum of money which was secured by a mortgage upon these premises and other property, which remained unpaid at the time of his insolvency, the mortgage being more than sufficient security for the same. This plaintiff was then allowed, under objection, to testify to his good faith in making the conveyance. The defendant asked the court to rule that upon these facts the assignment to the assignee in insolvency and the conveyance by him conveyed a valid title to the estate in fee. The judge declined so to rule, but gave full instructions as to the effect of conveyances made to defraud, defeat or delay creditors, and of deeds upon a secret trust. To this refusal the defendant excepted.</p> <p>The defendant asked the court to rule that the plaintiffs were not entitled to maintain this action jointly; but the judge ruled otherwise.</p> <p>The judge, after charging the jury, requested them, if they found that any waste had been committed, to specify the particulars; and they returned a verdict in favor of the plaintiffs, and found waste of one of the stone wralls referred to in the declaration. A plan was put into the case which showed that this was a wall leading from the street in a straight line, and not inclosing any land.</p> <p>The plaintiffs moved for judgment of forfeiture of the premises described in the declaration, but the judge overruled the motion.</p> <p>Both parties alleged exceptions to those rulings which were adverse to them, respectively.</p>

<p>A defendant who has voluntarily appeared and submitted to the jurisdiction of a justice of the peace before whom an action against him has been brought, cannot afterwards, when the case has been brought by appeal to the superior court, object to the jurisdiction of the court on the ground that the writ was served upon him and that he lived in another county than that in which it was returnable.</p>

<p>Writ of entry to recover possession of a piece of woodland.</p> <p>At the trial in the superior court, before Russell, J., the demandant was allowed, under objection, to introduce in support of his title the assignment of a mortgage, which was not recorded until after the date of his writ. The tenants did not claim under any recent deed, but relied upon a title by adverse possession, for a period of seventy years, by their grandfather, Barnabas Crocker, and their father of the same name; and in connection with other evidence they offered to show that, during the lifetime of their said grandfather, the premises were called and known as the “ Barney Crocker lot,” for the purpose of showing that the title was reputed to be in him. The tenants did not offer to show that the lot was so called by any one under whom either they or the demandant claimed title; and the judge excluded the evidence.</p> <p>The jury returned a verdict for the demandant, and the tenants alleged exceptions.</p>

<p>Tort against the selectmen of Wellfleet, for refusing to put the plaintiff’s name upon the list of voters, and rejecting his vote at several elections in that town.</p> <p>At the second trial in the superior court, before Russell, J., after the decision reported in 3 Allen, 1, the plaintiff, for the purpose of showing that before offering his vote he furnished to the defendants sufficient evidence of his having the legal qualifications of a voter, was allowed to prove certain statements relating to his residence, made by him before the board of selectmen, not under oath. To these the defendants objected, on the ground that statements not under oath were not competent testimony before them. It was not proved or claimed that they made any such objection at the time, or that they tendered an oath to the plaintiff.</p> <p>It appeared that the plaintiff in 1857 went from Wellfleet to Roxbury, and that he passed the most of the time in the latter place down to the time of the acts complained of in 1859. The plaintiff was a witness, and his counsel asked him what his intention was in leaving Wellfleet; to this question the defendants objected, but the judge overruled the objection, and the plaintiff replied that he did not intend to remove from Well-fleet.</p> <p>The jury returned a verdict for the plaintiff, with $800 damages, and the defendants alleged exceptions.</p>

<p>Tort for breaking and entering the plaintiffs’ close, described in the writ as Jamaica Pond, and carrying away eight thousand tons of ice, the property of the plaintiffs, for the purpose of selling the same.</p> <p>At the trial in the superior court, before Ames, J., the plaintiffs introduced an act of the general court of the Colony of Massachusetts, passed May 25, 1636, (1 Col. Rec. 176,) under which they contended that the fee of Jamaica Pond and of the land beneath it was granted to the town of Roxbury ; and also the acts of March 3,1635, (1 Col. Rec. 172,) and of March 18, 1684, (5 Col. Rec. 470, 471); and the ancient records of Roxbury, containing the following votes and proceedings :</p> <p>“ The same day [Jan. 2, 1648] it was voted that those young men w have payd Rates to Towne charges and have had no land as yett Allotted to them shall by ye 5 men have severall proportions allowed unto them out of such g [ground] as shal be found out not to be yett disposed of.”</p> <p>“ At A Legall Meeting of the Freeholders and Other Inhabitants of the Town of Roxbury held At the Meeting House in the Easterly Parish in said Town the sixth day of March 169» Liberty was granted to Mr. Joseph Belknap To drain or Draw water out of the pond to supply his Mill with water, he bringing in a brook to the said Pond to feed and bring water into The same; The Quantity or Depth of Water Being not Determined which he is to draw Of; Or Lower the Pond not being Decided But to be determined by the Selectmen afterwards when it doth Appear whether or How much any of the Neighbours may be Damnified thereby; And the said Belknap Being to Maintain the Highway Pasable And good where he Diggs.” In 1739, thirty-three inhabitants of Roxbury presented a petition to the selectmen setting forth that the mill of Mr. Belknap was first erected to grind com for such families in Roxbury and Brookline as had their dependence’thereon, and that some of the grantees of Mr. Belknap had fallen into the habit of grinding large quantities of wheat from Boston, and praying that the selectmen would take such proper methods, as that “ None of the said grantees of Mr. Belknap his Heirs or Assigns should thereafter Draw any More water out of the said Great pond, but such Of them as shall and do Enter into Suffecient Obligations and penalties Effectually to Oblidge Themselves that they will from time to time use And improve the same for family Grinding Only; And that they will not Grind Wheat From Boston or Elsewhere, Unless it may be Done without any damage to such persons or Families in said Roxbury And Brookline Is have or may depend on Grinding at the said Mill.” Upon this petition, the selectmen met, and drew up a report saying; amongst other things: “ And this Matter being of Great Importance, we Think it our Duty in faithfullness to the Town To Determine vote and order as Followeth (that is to say) That none of the said Grantees of Mr. Belknap Shall hereafter Draw any more water out of the said Pond but such of them as shall and do forthwith give Bond to the Town Treasurer with a Reasonable penalty As Security to said Town and Neighbourhood that They will not henceforth grind any more wheat From Boston or Elsewhere, unless it may be done without Damage to such of the Neighbourhood In Roxbury and Brookline as do or may Depend on The said Mill for Grinding as Aforesaid.”</p> <p>At the annual town meeting held May 19,1740, “ the Matter Relating to the Great Pond Came under consideration And was Loud Debated Upon, and was then propos’d whether The Town would Approve of And Confirm The Report of the Selectmen Respecting the same, And Voted in the Affirmative.”</p> <p>In 1783 certain inhabitants or owners of land in Roxbury presented then petition to the selectmen, complaining that large quantities of water had been drawn from the pond of late years, and the selectmen thereupon ordered that the proprietors of the mill do immediately cease from drawing water out of the pond, until the season will admit of taking an accurate view of the same.</p> <p>“ At A Legal Meeting of the Freeholders and Other Inhabitants of the Town of Roxbury Held att the Meeting-House in the Easterly Parish in said Town the 3d day of March 1788. The Petition of Mr. William Marshall being Read and considered, Voted, that the Selectmen, the Hon’ble William Heath, Doct’r Eliphalet Downer, David S. Greenough, Esq’r, And Martin Brimmer Esq’r, be a Committee to take the said petition into Consideration, View the Great Pond, The Mill, and the Wells of water contiguous, And report At The Next Meeting what is proper to be done Thereon.”</p> <p>At a meeting held April 7,1788, the committee appointed by the last vote submitted a report in favor of allowing Marshall to draw water out of the pond on the following conditions, viz: “ that The trank or Sluice for the drawing said Water be so placed, that the water in the pond shall not be Drawn more than six Inches lower Than its present Heigth,c And that a proper mark For that purpose be fixed by the Selectmen: And Provided that said Marshall be held to turn The Brook into said pond which was brought Into the same by Mr. Joseph Belknap in the year 169§.</p> <p>“ The Foregoing Report having been read and Considered, the Question was put, whether The Town would Accept the same. And it Passed in the Negative.</p> <p>“ A motion was then made and Seconded That Mr. William. Marshall have Liberty to draw Water from Jamaica Pond (so. called) as Low As was Granted to Mr. Joseph Belknap in the. Year 169|. And the Question being put, it Passed in the Affirmative.”</p> <p>The plaintiffs also introduced the record of a judgment rendered in the supreme court in 1791, in an action brought by William Marshall against Martin Brimmer and another, which was referred to arbitrators, who were authorized “ to determine and report in what way and by what rule the drawing the waters of Jamaica Pond by the said Marshall shall be regulated for the future.” The arbitrators made an award in favor of the plaintiff, and also reported “that the drawing the waters from Jamaica Pond (so called) be regulated for the future by the selectmen of Roxbury, for the time being.” No further facts in relation to the case or submission were disclosed.</p> <p>On the 5th of September 1794, it was voted “ that it is the unanimous Sense of the Inhabitants of the Town of Roxbury, that Drawing the waters From Jamaica Pond (for any other purpose than for the use of A Grist Mill for the Inhabitants of Roxbury, And Brooklyn, as heretofore granted to Mr. Belknap) will be injurious to the Inhabitants Of the Town of Roxbury in General And more Particularly to the Abuttors of the Pond (The Inhabitants of Jamaica Plains).</p> <p>“ The Town thereupon Voted That the Selectmen, Martin Brimmer Esq’r, David S. Greenough Esq’r, And Thomas Williams Jun’r, Be and hereby are A Commee To Appear before the General Court At their Next Sessions in behalf of the Inhabitants of The Said Town of Roxbury to Enforce the Above Vote.”</p> <p>The plaintiffs also introduced in evidence a remonstrance of the selectmen of Roxbury to the legislature, with evidence that the same was taken from the files of the year 1795 in the office of the secretary of state, against the incorporation of the Jamaica Pond Aqueduct Company, reciting the votes of the town and referring to the case of Marshall v. Brimmer, and urging that the town have an exclusive right to the waters of the pond, and have never granted liberty to any person to draw water therefrom, but for the purpose of grinding corn for the use oí the inhabitants of Roxbury and Brookline.</p> <p>The plaintiffs also introduced in evidence a deed to them from the city of Roxbury, dated December 24th 1851, embracing the premises; and called witnesses to show that the town, by its agents, reclaimed a part of the pond in 1856, and built a walk along the easterly shore, and stationed policemen to prevent bathing in any part of it during the daytime; that in January 1860 they posted up a notice near the defendants’ ice-houses, establishing boundaries within which ice might be cut, and took pains to see that their rights were not infringed ; that before any ice had been cut that winter they gave notice to Smith, one of the defendants, that the town would charge them for cutting ice, and had fixed bounds within which the defendants might cut, if they would pay for it; that when the defendants went upon the pond to cut the ice the agent of the town again informed them that they would have to pay for the ice, if they took it; that the defendants proceeded to cut and carry away about eight thousand tons of ice therefrom; and that the defendants were citizens of Roxbury, and sold ice in other places than West Roxbury. The town afterwards presented a bill, at the rate of three cents a ton, which the defendants refused to pay, saying that they should try the title, and admitting that the wholesale market value of the ice was fifty cents a ton, and that the cost of cutting and carrying it away was from seventeen to .twenty cents per ton.</p> <p>The plaintiffs also offered the award in the casa of Commonwealth v. Roxbury, (9 Gray, 454,) for the purpose of showing possession under the grant of 1636, as between the parties to that suit.</p> <p>Upon this evidence, with other evidence which is now immaterial, the judge directed a verdict for the defendants, in order to report the case for the determination of this court.</p>

<p>Bill in equity, alleging that the plaintiff was the holder by indorsement and assignment of several promissory notes given by Robert J. French, and secured by a mortgage of certain personal property, which contained a provision that the mortgagor should not sell the same without the written consent of the mortgagee; that Henry H. Richardson, one of the defendants, was desirous of purchasing the property, subject to the mortgage, and, in consideration of the plaintiff’s consent thereto, agreed to pay to the plaintiff the said notes, and accordingly indorsed the same, and purchased and took possession of the property; that afterwards, on the 23d of April 1860, said Richardson, having more than sufficient property to pay all the debts which he then owed, executed to the defendant Putnam a deed of certain real estate in trust, 1st, for the payment of all the debts which he then owed, with power to sell such portions of the estate as the trustee should deem most for the interest of all concerned, and 2dly, to appropriate the income of the residue for the support of said Richardson and his family during life, with a further provision for the disposition thereof after his death; that said Richardson did not pay the plaintiff’s notes at their maturity; that the plaintiff afterwards foreclosed his mortgage, and applied the proceeds of the property in part payment of his notes; that in June 1860 the plaintiff requested Putnam to pay to him the balance due thereon; that Putnam paid all the other debts which said Richardson owed at the time of the execution of the deed of trust except the plaintiff’s, and, the said Richardson objecting, did not pay the plaintiff’s debt; that in April 1861 the plaintiff commenced an action against Richardson upon the notes; and that in November 1861 proceedings in insolvency were instituted by Richardson, and Putnam was appointed as his assignee. The prayer was, that the trustee might be ordered to render an account of his doings under the deed of trust, and to pay to the plaintiff the balance due upon his notes, and for further relief.</p> <p>The defendants filed a demurrer, assigning for causes, 1st, that the plaintiff has a remedy at law; 2dly, that it is not alleged in the bill that Richardson ever promised in writing to pay the plaintiff’s notes; 3dly, that the plaintiff was not a party or privy to the deed of trust, and that the trust was voluntary and inoperative against the existing creditors of Richardson; and 4thly, that it is not alleged that the plaintiff ever recovered judgment against Richardson in the1 action mentioned in the bill. The case was reserved for the determination of the whole court.</p>

<p>Bill in equity, in the nature of a bill of interpleader, by the administrator of the estate of Daniel P. Nye, seeking for the instructions of this court as to the discharge of his trust upon the following facts:</p> <p>Thomas Taylor died in 1838 intestate, seised of certain real estate in Quincy, leaving a widow and several children, of whom Anna A. Taylor, who in 1848 intermarried with Daniel P. Nye, was one. On the 30th of June 1849 the widow and heirs of Thomas Taylor, together with Daniel P. Nye, in right of his wife, made to the Old Colony Railroad Corporation a deed of a part of said real estate, and a lease of another part, with the right to take earth, gravel and other materials therefrom. The share of Mrs. Nye, amounting to $1975.21, was received by her of the corporation by their note, payable to then- own order and indorsed in blank, and by them with her assent delivered to her husband, who, at or about the time of receiving it, made and delivered to her a note or memorandum in writing thereof. He also at different times afterwards received for her share of the sales of other portions of said real estate, and of money received from one Evans for trespasses on certain other portions thereof, various sums amounting in all to $2150, for which he delivered to her another note or memorandum in writing. There was no evidence as to the phraseology of these notes or memoranda, further than may be inferred from the memoranda upon the notes hereinafter copied. All of these sums were invested by him, with other money of his own, in the purchase of a lot of land in Quincy, and in building a dwelling-house thereon, in which he and his family continued to live until his death. On the 1st of July 1857 he made and signed the following notes and memoranda thereon:</p> <p>“ $2850. Boston, July 1st 1857. On demand after date I promise to pay to the order of Anna A. Nye twenty-eight hundred fifty dollars, value received, with interest. Danl. P. Nye.</p> <p>“ This note was given for the old note and interest that was given for money received from Old Colony Railroad for gravel The money was used to build my dwelling-house.</p> <p>“ Danl. P. Nye.”</p> <p>“ $2435. Boston, July 1st Í857. On demand after date I promise to pay to the order of Anna A. Nye twenty-four hundred thirty-five dollars, value received, with interest.</p> <p>“ Danl. P. Nye.</p> <p>“ This note was given for the old note that was given for my ;vife’s interest in the Mann farm, meadow land, and money received from Evans. The money was used to build my dwelling-house. “ Danl. P. Nye.”</p> <p>In March 1860 he was thrown from his horse and fatally injured, and died intestate, without having recovered his consciousness, leaving a wife and four children, the defendants, in this suit, and an estate amounting, after payment of his debts, to about $50,000. The plaintiff was appointed administrator.</p> <p>The case was, by agreement of the parties, reserved by the chief justice upon the bill, answers of Mrs. Nye and of the guardian of the children, and a deposition of Mrs. Nye. The material portions of the deposition are as follows:</p> <p>“ The two notes copied in the bill were given to me by my husband in this way: He took the notes and showed them to me, and put them in a trunk with other papers. He told me that they belonged to me, in regard to the house — in words, 1 Annie, these notes belong to you, in regard to the house.’ The trank was one we both kept our papers in. In conversation, oftentimes, he would repeat that the house was mine. I did not know in whose name the house stood, until after his death, when I was asked to buy it by the administrator. I did buy it after his death, subject to the right of dower. He never spoke to me about the shape of the deed, in case he sold the house and bought another, but merely said it should be deeded to me in case he bought another. He handed me money at different times, and would say, ‘Annie, here is a little interest money.’ This was both before and after the making of these two notes. The money received by me from my father’s estate wras paid to my husband with my assent. ...... All our papers lay in the trunk together. These two notes were separate, put up together. We found them together.......I had seen them when looking over other papers together [with my husband], I never opened them. The papers were kept indiscriminately together. I gave $4000 for the house, at auction. That was agreed upon as about a fair price for the house, subject to my rights of dower.......At the time money was received from the Old Colony Railroad and others for land of my father’s, there was no agreement between my husband and me as to it; I simply let him take it. I do not recollect anything about notes given previously to these. They might have been in that trunk; I cannot say. I had often said to him that I would like to have my money put into a house.”</p>

Tort for the conversion of a dwelling-house standing on land of the defendant in Roxbury.

Tort against the sheriff of Norfolk for the default of his deputy, Littlefield, in attaching, upon a writ in favor of Etheridge Clark against the plaintiff, certain hay, com and farming tools alleged to be exempt from attachment; and also for disturbing the plaintiff in his use and occupation of his barn.

The case was reserved by the chief justice for the determination of the whole court, upon agreed facts which are stated in the opinion.

<p>Petition for partition of two parcels of land in Dedham.</p> <p>It was agreed in the superior court that Francis Johnson, a son of the petitioner, died unmarried, and without issue, seised in fee of the premises, leaving a will, containing the following language: “As to my worldly estate, and all the property, real, personal or mixed, of which I shall die seised and possessed, or to which I shall be entitled at the time of my decease, I dispose of the same in the manner following to wit: I desire that my property in the Sandwich Islands shall be collected and realized by my executors,” &c. The will then gave directions as to the disposal of the avails of the property in the Sandwich Islands, but contained no further reference to any other estate of the testator. After the probate of this will, the petitioner with his wife executed a deed of the premises to Henry A. Peirce, “ to have and to hold the above released premises to the said Henry A. Peirce, his heirs and assigns, to the use of the said Marshall and Alice Johnson for and during the term of their joint lives, and the life of the survivor of them, and from and after the decease of said survivor to the use and behoof of Elizabeth Ann Gerrish, of Dedham, widow, Marshall Johnson, Jr., clerk, and Edwin Johnson, both of Boston in the county of Suffolk, Josiah B. Johnson, Henrietta Johnson and Cotton Centre Johnson, all of Dedham aforesaid, their heirs and assigns forever.” The petitioner has ever since been in possession of the premises, and by descent and conveyances has acquired the estates therein of all of the remaindermen except Marshall Johnson, Jr.</p> <p>Upon these facts, it was ordered in the superior court that partition be made as prayed for, and the respondent appealed to this court.</p>

<p>The insertion of an obligation which is unwarranted in the condition of a recognizance renders the recognizance void.</p>

<p>One who has paid money to a Roman Catholic priest to be expended in building a church, cannot, after the same has 'been expended in building a church which has been occupied by him and others for public worship, recover it back on the ground that the priest procured the subscription by representations that the proposed church was for the people, and was nothing to him, and subsequently took a deed of the land for the church in his own name, without expressing any trust, there being no evidence that this is an unusual method of holding titles to churches in that denomination, or that the people were associated together under any religious organization; or that he misrepresented the amounts which certain other persons had subscribed for the same purpose; or that, after the destruction of the church by fire, he collected the money upon a policy of insurance which he had taken out thereon in his own name, and rejected an offer of the insurance company to rebuild the church, and rendered no account to the plaintiff of the money received upon the policy.</p>

<p>Contract upon an account annexed. One item of the account was for “ three years’ shop rent, $240.” After the case had been sent to an auditor, Brigham, J. granted leave to the plaintiff, in the superior court, to amend the declaration, by adding a count upon a written lease for the rent. The defendant objected to this amendment, on the ground that it set up a new cause of action, and alleged exceptions to the order of the court allowing it to be made.-</p>

<p>Writ of entry to recover a parcel of land in Weymouth.</p> <p>At the trial in the superior court, Brigham, J. ordered judgment for the tenant, upon facts which sufficiently appear in the opinion, and reported the case for the determination of this court.</p>

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

Contract against the administrator de bonis non of Hiram Metcalf, upon two promissory notes signed by said Hiram, payable to the plaintiff or order on demand with interest, one of which was for $240, dated April 2,1852, and the other for $100, dated December 26, 1851. The writ was dated October 19, 1861.

<p>In a time policy on a vessel which at the commencement of the risk is in a foreign port, where full repairs may be made, there is an implied warranty of seaworthiness, both for port and in setting out therefrom.</p>

<p>Contract on two policies of insurance upon the ship E. L. B. Jenney, issued by the defendants to Gibbs & Jenney.</p> <p>It was agreed in this court that, after procuring the policies, Gibbs & Jenney instituted proceedings in insolvency, and the plaintiffs were appointed as their assignees, and thereafter the plaintiffs indorsed upon each of the premium notes :given for the policies the following memorandum: “ In consideration of the loss on the within risk being payable to the assignees of Gibbs &• Jenney, and the continuance of the insurance until arrival of the vessel, we guarantee the within note.” At the same time the following memorandum was indorsed upon one of the policies : “ It is agreed that this policy shall continue in full force to the assignees of Gibbs & Jenney, they having become responsible for the premium note. Policy extended to the arrival of the vessel by agreement, anything herein to the contrary notwith standing.” A memorandum of similar purport was indorsed upon the other policy. Each policy contained the following clause: “ And in case of a loss, such loss shall be paid in sixty days after proof and adjustment thereof, the amount of the premium note, if unpaid, and all sums due to the company from the insured when such loss becomes due, being first deducted.” A. loss occurred afterwards, the amount of which was agreed; and the only question submitted to the court was, whether the defendants were entitled to deduct therefrom the amount of other premium notes which they hold against Gibbs & Jenney, signed by the latter prior to their insolvency, for other policies of insurance.</p> <p>The case was reserved for the determination of the whole court.</p>

Contract upon a policy of insurance issued by the defendants upon the schooner Arbutus, for one year from August 10th 1861. The answer averred, amongst other things, that the schooner was lost through the criminal misconduct of the master, who was also the owner and party in interest in this suit. At the trial in the superior court, before Ames, J., the plaintiffs claimed as mortgagees, and the question as to their insurable interest was submitted to the jury.

<p>Contract brought by a mutual insurance company to collect the amount of two assessments upon one of its members.</p> <p>At the trial in the superior court, before Ames, J., without a jury, it appeared, amongst other things, that at the time the first assessment was made the deficiency in the funds of the company amounted to $4666.81, and the amount of deposit notes then in force was $114,141; and an assessment of ten per cent, upon these notes was laid. At the time when the second assessment was made the deficiency amounted to $5616.68, and the amount of deposit notes then in force was $117,326.60 5 and an assessment of ten per cent, upon these notes was laid. Certain other material facts are stated in the opinion.</p> <p>The judge ruled that the first assessment was invalid, and the second one valid ; and both parties alleged exceptions.</p>

<p>it the plaintiff in an action on a policy of insurance voluntarily files a replication, which simply alleges that the defendants have waived the objections stated in the answer, he thereby admits the truth of the facts therein contained.</p> <p>If an application for insurance is expressly made a part of a policy, an answer in the application falsely denying the existence of incumbrances on the property to be insured will avoid the policy.</p> <p>A vote by directors of a mutual insurance company, authorizing one of their number and their treasurer to settle a loss, and partial payments actually made by the treasurer upon trustee processes in which the company were summoned as trustees of the assured, and statements by different officers of the company to the assured that his claim ought to be paid, will not estop the company from defending an action upon the policy, on the ground of misrepresentations in the application for insurance, if it does not appear that the assured has changed his position in reference to his claim, in consequence of these acts and declarations.</p>

<p>The entry of an appeal from a decree of a judge of probate, when leave to enter it is granted on petition under Gen. Sts. c. 117, § 11, should be made at the term at which leave is granted; and, if not made until the second term held in the county after the leave is granted, it will be too late.</p>

<p>Under the usages and discipline of the society of Friends, a bequest to the overseers of a “Friends* preparatory meeting,’* in trust, for the benefit of the Friends of a particular place, may be upheld as a devise to the overseers of a prepárative meeting, that is, to the male overseers of the monthly meeting which includes the preparative meeting.</p> <p>A bequest, in trust forever, “ the income of which is to be appropriated for the benefit of the Friends’ meeting ** in a particular place, without further designation of the purposes to which it is to be applied, is a charity, and therefore not void as a perpetuity, if it appears by evidence that all the purposes to which the Friends, under their usages and discipline, apply their funds are the maintenance of religious worship and of schools, aiding the sick and the poor, and the purchase and repair of -burying-grounds; and that the latter of these purposes is regarded by them as among their religious duties.</p>

<p>Contract for $25, money had and received.</p> <p>At the trial in the superior court, before Ames, J., it appeared that in May 1863 the defendant conveyed to the plaintiff’s wife a lot of land, to her sole and separate use, receiving from her as a part of the consideration twenty-five dollars in money, which the plaintiff shortly before had sent to her, he being absent on public military service at the time. There was no evidence that either the plaintiff or his wife had offered to reconvey the land to the defendant.</p> <p>The judge ruled that upon this evidence the action could not be maintained, and a verdict was accordingly returned for the defendant. The plaintiff alleged exceptions.</p>

Contract against a married woman, to recover for lumber sold and delivered to her.

<p>The purchaser of an equity of redemption of land at a sale thereof on execution cannot contest the validity of the mortgage, or maintain a bill in equity to set aside a foreclosure of the mortgage as fraudulent, after the expiration of more than three years from the time when a certificate of taking peaceable possession for the purpose of foreclosure was duly recorded.</p>

<p>A creditor of one who has made a conveyance of land, which was given and received with intent to defraud creditors, cannot .before recovering judgment, or making an attachment of the land, upon his claim, maintain a bill in equity against the parties to the fraudulent conveyance, to obtain an account of rents and profits from the grantee, and to restrain him from committing waste or parting with his title, and the grantor from selling or assigning a note taken by him for the ostensible price of the land.</p>

Contract to recover the proceeds of intoxicating liquors sold by the defendant.

<p>Contract to recover commissions from the 31st of May to the 27th of December, under the following agreement executed between the plaintiff and the defendants, on the 17th of December 1855:</p> <p>“ This agreement between Thompson Newbury, of Taunton, in the county of Bristol, and the Bay State Screw Company, a corporation located at said Taunton, witnesseth, that said New-bury is to continue in the employ of said company for the term of five years from the first day of June eighteen hundred and fifty-five, as manufacturing and general agent of said company, and to perform all the duties usually devolving upon such agents with fidelity and according to his best skill and judgment. The said Newbury also agrees to assign to said company any and ■all patent rights he now has or may have or obtain during the term of fourteen years from the first day of June, eighteen hundred and fifty-five, for improvements in making screws, rivets, bolts and other like articles, for the whole territory of the United States of America. And the said company agree to pay said Newbury, in consideration of the fulfilment of said agreement by him to serve the company as their agent as aforesaid, should the said company continue the business so long, the following salary: For the first three years from the first of June last, three thousand dollars a year, and for the last two years thirty-six hundred dollars a year, payable quarterly. And in consideration of the assignment of said patents, said company agrees to pay to said Newbury or his heirs the following annual commission for the term of fourteen years from the first day of June last, should the company continue to use said Newbury’s improvements so long, viz : A commission of fifteen per cent, upon the net profits of said company for each year that their net profits as determined by them do not exceed twenty-five per cent, upon their capital stock; and for each year that said net profits exceed twenty-five per cent, upon the capital stock a commission of twenty per cent, upon said net profits, provided that the commissions for any one year do not exceed ten thousand dollars. And the said company agree that if they should decide to sell any of said patent rights, they will pay to said Newbury, or to his heirs, one half of the amount received for the same.”</p> <p>At the trial in this court, before Merrick, J., it appeared that "the plaintiff was one of the directors of the defendant corporation, and that, an arrangement having been proposed for a union between the defendants and the American Screw Company, by which the latter were to purchase all the shares of the stockholders of the defendants, and thenceforth to have the entire management and control of all its business, property, rights and effects of every kind, a committee of the directors of the defendants, appointed for the purpose of this consolidation, passed the following votes on the 7th of July 1860:</p> <p>■“ Voted, That we pay Thompson Newbury the sum of twenty-five thousand dollars whenever our proposed arrangement with the American Screw Company is consummated. In consideration of which sum Mr. Newbury agrees to annul his contract with us, and to give up all his rights in patents for screw machinery now owned by us, and to give us the right to use any other machinery now used by us, and also to procure patents at Our expense for any improvements in screw or other machinery now used by us not now secured by patents, and which we may deem worthy to be so secured.</p> <p>“Voted, That we deem it expedient and desirable for the company to consolidate with the American Screw Company of Providence.</p> <p>“Voted, That Mr. Newbury be appointed by this committee to consult with Mr. Angelí on the subject of a union, and to report.”</p> <p>This arrangement was agreed upon and consented to by all the parties in interest, with the plaintiff’s approbation, on the 12th of July 1860; but the agreement was not consummated and the actual union did not take place until the 27th of December 1860. In the mean time the business of the defendants went on as before. On said 27th of December, the defendants paid to the plaintiff the sum of twenty-five thousand dollars, according to the terms and for the purposes mentioned in the votes of July 7th ; and it was conceded by the plaintiff that he accepted this sum as a consideration for annulling his agreement with the defendants, and that the same upon his acceptance of said payment became and was thereby annulled. The plaintiff also admitted that a full settlement had' been made by the defendants of all other claims by him under the agreement, before and up to June 1st 1860, and also for his personal services rendered after that date.</p> <p>Upon these facts, the judge ruled that the plaintiff was not entitled to recover, and a verdict was accordingly returned for the defendants; and the case was reported for the determination of the whole court.</p>

Contract upon an agreement entered into between the plain tiff and the defendant, the material portions of which are aa follows: “ First the said Bucklin, for the consideration hereinaftej mentioned, doth hereby for himself, his heirs, executors and administrators, covenant and agree with the said Pierce, his heirs, executors, administrators and assigns, that he will proceed and go forthwith to California, in the schooner Abby P. Chase or some other expeditious way; that he…

Contract to recover for goods sold and delivered. The defendant relied in defence upon a discharge in insolvency.

<p>The condition of a recognizance entered into by a debtor who has been arrested on an execution, under Gen. Sts. c. 124, § 17, is fulfilled, if the debtor appears and submits himself to examination at the time and place fixed for that purpose, and is discharged and allowed to go at large by the magistrate without taking the oath; although the magistrate may have erred in the performance of his duty.</p>

<p>If a mortgagor in his mortgage of real estate has covenanted to keep the buildings standing on the land insured against fire for the benefit of the mortgagee, and payable to him in case of loss, or in default thereof to pay to him such sums as he should reasonably ex- ■ pend for such insurance, and afterwards procures a policy in his own name, and, after a loss, delivers the policy to a third person in trust, to collect the insurance money and pay to the mortgagee so much as may be necessary to satisfy the debt secured by the mortgage, this gives the mortgagee an equitable lien upon the policy which may be enforced against the mortgagor, although he afterwards obtains possession of the policy for a tera- • porary purpose, and then fraudulently seeks to avail himself thereof for his own benefit.</p>

<p>Bill in equity by sureties upon notes given by Reuben Fish to the Fairhaven Bank, seeking to compel the latter to apply the avails of certain securities held by them from Fish pro rata upon the notes signed by the plaintiffs. The case was reserved, for the determination of the whole court by Dewey, J., upon facts which sufficiently appear in the opinion.</p>

<p>The statute of limitations does not begin to run against any part of the claim of an attorney at law for services rendered and moneys paid in conducting a suit to its termination, under a general employment, until the final entry of judgment therein.</p>

<p>A right of way, as appurtenant to .land, may be acquired by the adverse use, for twenty years together, of several persons in succession, who claim under the same title; and a grant of the land, “ with the privileges thereunto belonging,” to have and to hold the same tl with all the privileges and appurtenances,” by an owner who has commenced such use, constitutes a sufficient privity of estate to enable the purchaser to avail himself "of his grantor’s use.</p>

<p>The admission of an overseer of the poor, in giving directions%r a pauper’s relief to one who has the care of the town’s poor, that the pauper has a settlement in the town, derived from an ancestor, is not competent evidence against the town in an action subsequently brought against it by another town for another cause, in which the settlement of another pauper, which depends upon the settlement of that ancestor, is in controversy.</p>

<p>Petition, dated August 5,1863, for the enforcement of a lien • upon a vessel. The United States appeared as claimants, and filed a plea to the jurisdiction, which was overruled, and thereupon filed an answer, insisting among other things that the vessel was the public property of the United States, arid not subject to this process.</p> <p>At the trial in the superior court, before Ames, J., it appeared that by an oral contract, made at Norton, the petitioners agreed with Stephen Andrews to furnish timber for three light boats which he was building at New Bedford for the United States that the timber was bought as round timber, and was to be sawed at Norton and sent to New Bedford; and that there was no precise agreement as to the price. The timber was accordingly delivered, and used in the construction of the light boats, about one third in each.</p> <p>The contract between Andrews and an agent of the United States, under which the light boats were built, was put in evidence, and the material portions of it were as follows :</p> <p>“ The party of the first part, in consideration of the matters hereinafter referred to and set out, and of the specifications attached hereto and forming a part of this contract, covenants and agrees to and with the party, of the second part to construct and equip three light vessels fully complete, and furnish them and each of them with tackle, apparel and furniture according to the plans, drawings and specifications hereto attached and made a part of this contract, and deliver the same so constructed, completed and furnished to the duly authorized agent of the light-house board, at the port of New Bedford, state of Massachusetts, within the period of four calendar months from the date of this agreement.</p> <p>“And the said party of the first part hereby agrees to be governed and controlled, during the progress of the building of said vessels, by the supervisory instructions and directions of the superintendent of construction appointed by the light-house board, and to perform the said work of construction and equipment in a workmanlike manner, and to the satisfaction and approval of the said superintendent of construction.......</p> <p>“And the party of the second part covenants and agrees to pay to the party of the first part, in consideration of the premises and of the faithful performance of each and all of the foregoing stipulations, the sum of forty-seven thousand five hundred dollars, upon the presentation of a written certificate from the superintendent of construction to the effect that the said vessels have been constructed, furnished, fitted and completed to his satisfaction and approval, and in accordance with this agreement.......</p> <p>“ Provided, however, that in case the party of the second part shall at any time be of opinion that this contract is not duly complied with by the party of the first part, or that it is not in due progress of execution, or that the said party of the first part is irregular or negligent, in such case he, the said party of the second part, shall be authorized to declare this contract forfeited, and thereupon the same shall become null, and the party of the first part shall have no appeal from the opinion and decision aforesaid; and the right to except to or question the same in any place or under any circumstances whatever is hereby released by the party of the first part; but the party of the first part shall remain liable to the party of the second part for the damages occasioned to him by the said non-compliance, irregularity or negligence.”</p> <p>Jacob K. Vaughn testified that he was appointed by the light-house board to superintend the construction of these vessels, which were intended to be used as floating lights in the Potomac River; that he accordingly went to New Bedford, and the work went on under his superintendence; that the timber, some of which came from the petitioners and some from other persons, was piled up in the yard without being kept separate; that the vessels were constructed with an additional keel, called a bilge keel, on each side, to prevent rolling; that all the between decks was taken up with the accommodations for the men, and for the storage of oil, &c.; that the hold was very small, and principally taken up by the water tanks and magazine ; that the vessel was schooner-rigged, with a try-sail mast about four feet abaft of the mainmast; that she was of about one hundred and fifty tons burden, with a very short bowsprit; that she carried very much less canvas than is usual for vessels of that size; that the mainmast had a lantern built about it after she was finished, with a windlass and hoisting apparatus ; that the anchors and chains were much heavier and more numerous than is usual in ordinary vessels ; that such vessels are usually towed, if going any distance; that they can, however, navigate, and would make good fishing vessels ; that they were built according to contract, and on the 20th of June 1863 he gave Andrews a written certificate that they were so completed; and that this vessel on the 5th of August had her crew and provisions on board, with ammunition, and preparations were making for getting her armament on board. He also testified that vessels for ordinary purposes would not be built so heavy as these were, and that, to alter these into carrying vessels, it would be necessary to take off the bilge keels, to take out about half of the between decks, to remove the try-sail mast and the lantern and all the anchors and chains but two in each.</p> <p>The timber was not surveyed by any sworn surveyor; and a city ordinance of the city of New Bedford was read in evidence, prohibiting any sale or purchase of “ any lumber or timber brought into the city of New Bedford for sale, unless it shall be surveyed ” by a sworn surveyor, in conformity to certain provisions as therein set forth. It was objected that the petitioners were not entitled to a lien for any timber sold by them without having been first duly surveyed; and that the materials furnished were for the three vessels collectively, and not specifically for this vessel.</p> <p>The judge ruled that so much of the materials furnished as was used and appropriated for this vessel might properly be considered as furnished for and on account of her; but that, as it appeared that she was built for the United States, under the inspection and superintendence of their agent, for a special and peculiar public use, and not adapted without alteration to general use, that she had been accepted by the United States and was in their possession, that she had been provided by the United States with a fixed lantern and apparatus to answer the purpose of a light boat, with her crew and provisions on board, and that arrangements were in progress to get her armament on board, and to remove her to her place of destination, she was not legally liable to be held and sold under this process. He therefore directed a verdict for the respondents, which was rendered accordingly, and reported the case for the determination of this court.</p>

Indictment for wrongfully desecrating and disfiguring a public burying-ground in Swanzey, which was particularly described by metes and bounds, by erecting a shed and maintaining a pen for hogs thereon, &c. At the trial in the superior court, before Ames, J., a question of variance arose between the averment and the proof of the description of the burying-ground, which is fully stated in the opinion.

Indictment for a single sale of intoxicating liquor. At the trial in the superior court, before Ames, J., Constant Taber testified as follows : “ I live in Wrentham. I have known the defendant four or five years. I saw him in Attleborough in January, February or March last. I think I had liquor of him. I cannot say what kind of liquor; it might have been whiskey or beer. I asked for lager beer. I paid for it. I cannot say exactly what it was.

Indictment charging that the defendant, at a place and during a time named, “ did keep and maintain a certain tenement, then and there used for illegal gaming,.....whereby, and by force of the statute in such case made and provided, the said tenement then and there kept and maintained by the said Charles Stahl, and then and there used and resorted to as aforesaid, was then and there a common nuisance,” &e. At the trial in the superior court, before Ames, J., the defendant…

Indictment for polygamy, setting forth that the defendant was lawfully married to James I. Boyer in 1850, and in 1863 was married to Henry Follett, she being then the lawful wife of said Boyer, and said Boyer being still alive, and not having been beyond sea for seven years together, and not having voluntarily withdrawn from her and remained so withdrawn and absent for seven years together, and she never having been divorced from him.

Indictment for a nuisance, in obstructing the navigation of Taunton Great River with a bridge.

<p>Petition for a jury to assess the damages sustained by reason of the location of a railroad upon land of the petitioners, at the comer of Haverhill and Causeway Streets in Boston, and filling up an adjacent canal.</p> <p>At the second trial in the superior court, before Vose, J., after the decision reported in 3 Allen, 133, the petitioners, for the purpose of showing the value of the land and easements, called Calvin Young as a witness, who testified that he occupied a lot, situated one hundred and fifty feet below the petitioners’ wharf on the canal from 1840 to 1845 ; that he hired it and paid rent for it; that he used the canal as others did ; that he heard of sales of land on the canal about the time of the location of the railroad, but not from the buyer or seller; and that he had no knowledge of any sales, and had never bought or sold land on the canal. The petitioners proposed to ask this witness the value of the land and of the easement in the canal; but the respondents objected, and the judge refused to permit the question to be put.</p> <p>The respondents called Henry Sargent, who testified that he was principal assessor of Boston ; was first chosen in 1844, and has held the office ever since ; that he assessed this land for the year 1844; that he did not know when he first saw it, but it was not until after the canal was filled up opposite to it; that he never knew how the petitioners used the canal, and did not know what their rights in the canal were; that he had known of sales of land on Howard Street, but not on the canal; had assessed other wharf property on the canal, and in other parts of the city, and had never been engaged in any business which required the use of a wharf, in any part of the city. The respondents then asked the witness what, in his opinion, the land was worth, at the time of the respondents’ location of their road. The petitioners objected that he was not qualified to give his opinion as an expert, but the judge overruled the objection.</p> <p>The respondents also introduced one Cowdin, who testified he was a dealer in marble and owned a lot of land on Charles-town Street, from one hundred to one hundred and fifty feet from the canal, and six hundred to eight hundred feet from the petitioners’ lot; that his lot was not on the canal or any other water, or used for wharfing purposes; that he was well acquainted with the petitioners’ wharf and the canal, and had known how it was used for thirty-five years; that he had heard of the sales of land on the canal to the respondents, just before their location, and the prices paid, from parties to the sales, and had used wharves in other parts of the city, for the purpose of receiving on them stone to be used in his business. The respondents then asked the witness the value of the petitioners’ land. The petitioners objected that the witness was not qualified to give his opinion, but the judge admitted his testimony.</p> <p>The petitioners also claimed that the remainder of their lot was injured by the location of the respondents’ road so near to it, and Otis Minot, one of the petitioners, was called to show it. Upon cross-examination, he was asked for what price the remainder of their lot was sold. To this question the petitioners objected, as the sale was not made till 1861, but the judge allowed it to be put.</p> <p>The jury returned a verdict for the petitioners, with $2881.75 damages; and the petitioners alleged exceptions, which were argued in March 1863.</p>

<p>Contract to recover for the loss of a trunk and its contents.</p> <p>The following facts were agreed: In September 1859 Josiah Perham suggested to the defendants’ agent an arrangement for an excursion train from Boston to Montreal and back. Such an arrangement was accordingly made with all the connecting railroad companies on the line, by which the price of each ticket was fixed at five dollars, of which Perham was to have fifty cents and the residue was to be divided among the various railroad companies in proportion to the length of their respective routes, and the train was to start from the defendants’ station in Boston on the 20th of September. The tickets were accordingly printed, having a printed heading “ From Boston to Montreal,” and bearing the name of the defendants’ agent, with the designation of his office, and with coupons attached for the other roads, good for ten days, and covering the return trip. Perham took some of these tickets and disposed of them as he pleased, and gave a receipt for such as he received, and returned all that he did not sell. The plaintiff, a citizen of Providence, purchased two tickets of Perham, one for himself and one for his wife, intending to go to Montreal, and on his return to visit friends in Vermont, New Hampshire and Maine, and to be absent from home several weeks. On the 20th of September he delivered two trunks to the defendants’ baggage master at their station in Boston, and requested checks for them for Montreal. The baggage master declined to give checks, saying that they did not provide checks on excursion' trains. The plaintiff then asked to have them checked by the regular train. To this the baggage master replied that the plaintiff and the trunks must go by the same train, and they would be perfectly safe, as he (the baggage master) was to go through with them. The trunks were put into the baggage car of the defendants, and the plaintiff and his wife took their seats in a passenger car of the defendants. The defendants’ baggage master and both cars went through to Montreal, but the defendants’ locomotive went only to the termination of their own road. Each road furnished its own locomotive and conductor. One of the plaintiff’s trunks was lost after the termination of the defendants’ road, but on what part of the route was left uncertain ; and the plaintiff demanded it of the defendants’ baggage master at Montreal on the 21st of September.</p> <p>It was agreed that if upon these facts the action could be maintained judgment should be rendered for the plaintiff, for $355.70 ; and judgment was accordingly rendered for the plaintiff for that sum in the superior court, and the defendants appealed to this court.</p>

Contract. The second count was upon the following written instrument • “ New York, Sept. 12th, 1862. “ f>321^¡¡ Twelve months after date, we promise to pay to ourselves or order three hundred and twenty-one fe50 dollars for value received, payable in Boston, and subject to the policy. “ Blanchard, Sherman & Co.” (Indorsed,) “ Pay to the order of the Anchor Insurance Co. “ Blanchard, Sherman & Co.” “ Pay to the American Exchange Bank or order, on account of Anchor Ins. Co. Wm.

Contract upon two promissory notes, signed by the defendant, payable to his own order and indorsed by him, dated September 27th 1861, each for $500, and payable in seven and ten months respectively. The answer is sufficiently stated in the opinion.

<p>Liability as the maker of a promissory note which is signed by another person with his own name alone, without words of procuration, cannot be established by proof that the person sought to be charged employed the signer of the note to carry on business for him, that the note was given for the price of articles used in the business, and that he subsequently admitted the signer’s authority “ to sign the note for him.”</p>

Contract brought by the second indorser against the first indorser of a promissory note, signed by Charles E. Rice and indorsed first by the defendant, then by the plaintiff, and after-wards by another person, all of whom, it was agreed, were accominodation indorsers, with no agreement or understanding among themselves in reference to their interest or liability, except such as would be implied by law.

Tort for the conversion of fifty-one puncheons of gas tar, or dead oil.

<p>Contract on a recognizance, taken under Gen. Sts. c. 124, § 10, with condition that the defendant Haskins, who had been arrested on an execution in favor of the plaintiff, should within thirty days from the day of his arrest deliver himself up for examination ; giving notice as therein provided, and making no default, and abide the final order of the magistrate thereon.</p> <p>At the trial in the superior court, before Ames, J., without a jury, it appeared that, five days after the arrest upon the execution mentioned in the recognizance declared on, the plaintiff caused Haskins to be arrested upon another execution in his favor, and Haskins thereupon entered into another similar recognizance before the same magistrate with another surety; and afterwards the magistrate issued a notice to the plaintiff that Haskins, “ arrested on execution in your favor,” without any designation of which of the two executions was referred to, desired to take the oath for the relief of poor debtors, and appointed a time and place for that purpose. The creditor did not appear at the time and place so appointed, and Haskins was accordingly discharged, without taking the oath.</p> <p>Upon these facts, the judge ordered judgment for the plaintiff, and the defendants alleged exceptions.</p>

<p>Under Gen. Sts. c. 124, §§ 9,10, a special justice of a police court (except in Boston; is authorized, in casé of the disability of the justice, to take a recognizance from a person arrested on mesne process, and at a time when the court is not in regular session.</p> <p>A debtor who, having been arrested on mesne process after Gen. Sts. c. 124 had been amended by St. 1860, c. 215, entered into a recognizance with condition to “ deliver himself up for examination, giving notice in the manner required in and by the 124th chapter of the Gen. Sts.,” cannot perform the condition thereof by' delivering himself up for examination to a single justice of the peace and of the quorum.</p> <p>It seems that a recognizance of a person arrested on mesne process, if taken before a special justice of a police court, (not in Boston,) need not show on its face that the special justice acted in the matter in consequence of the disability of the justice; but, if this is necessary, an amendment of the recognizance, setting forth that fact, if the same appears to be true, may be made by the special justice during the progress of the trial of an action upon the recognizance.</p>

<p>If a creditor who has arrested his debtor on execution does not live in the county in which the arrest was made, and his attorney, though having his usual place of business therein, cannot be found, by'the use of due diligence, the debtor may give notice of his desire to take the oath for the relief of poor debtors by causing the same to be served on the officer who made the arrest.</p> <p>Seven o’clock in the evening, in January, is not an unreasonable hour to fix for the examination of a debtor who has been arrested in Boston upon an execution, upon his application to take the oath for the relief of poor debtors.</p> <p>If the creditor does not appear at the time and place fixed for the examination of a poor debtor, the magistrate may adjourn the case before the expiration of an hour from the time appointed.</p>

Contract against the surety upon a recognizance taken in the police court of Boston, the condition of which recited that Mary J. Reynolds had been brought before the court by virtue of a warrant in due form of law issued on a complaint “ charging her with the crime of knowingly receiving stolen goods, as more fully set forth in said complaint,” and provided for her appearance to answer to the charge in the superior court.

<p>If one who has been arrested on mesne process, under St. 1857, c. 141, and is before a magistrate for examination upon his application to take the oath for the relief of poor debtors, enters into a recognizance with condition to appear at an adjourned hearing, and thence from day to day, submitting himself to examination and making no default, and to abide the final order of the magistrate thereon, the recognizance is discharged by the service upon the magistrate of an injunction, procured by the creditors, prohibiting all further proceedings by him in the case.</p>

Contract against the surety on a recognizance taken under Gen. Sts. c. 134, § 17, in the sum of three hundred dollars, with condition that Benjamin F. Edmunds, who had been arrested on a writ in favor of the plaintiff, in which the damages were laid at three hundred dollars, should at the time and place fixed for his examination deliver himself up for examination before some magistrate authorized to act, and make no default, and abide the final order of the magistrate…

<p>This case came up again in the superior court, before Tose, J., after the decision reported in 5 Allen, 333. The plaintiff had voluntarily filed a replication, as a part of the original pleadings, in which he did not deny the fact of payment of the order by the defendants to Friend, at the plaintiff’s request, before notice to them of the assignment of it by the plaintiff to James M. Stevens. Afterwards the parties were allowed respectively to file a new declaration and answer, which was accordingly done; and the new answer referred to and adopted, as a part of it, the allegations made in the original answer.</p> <p>At the trial, the defendants contended that the facts stated in the original answer and not denied by the replication were to be taken as admitted; but the judge declined so to rule. Evidence was thereupon introduced similar to that reported heretofore, and the defendants asked the court to instruct the jury that, if they should find that this order was drawn by Friend to conceal his property from attachment, and for no other purpose, and the plaintiff knew it, and told the defendants after they had accepted it that he had no interest in it whatever, and that they would deal with and pay to Friend precisely as though they had not accepted it, unless an attachment should be made, and the acceptance was at that time put into the hands of Friend in the presence of the defendants, and they assented so to deal with and pay to Friend, the plaintiff could not recover without showing that such attachment was made. The judge declined so to rule, and instructed the jury that, “ if they were satisfied upon the evidence that Friend drew the order, and the defendants accepted it, for the purpose of enabling Friend to cover up his interest in the kiln of brick, and to prevent its being attached by his creditors, and James Stevens received it with a knowledge of such purpose and without any consideration, and if, after it was delivered to Stevens, it was agreed by all the parties to it that the order should be returned to Friend, and that the defendants should pay him precisely as if no such order had been drawn, and the order was so returned to Friend and he retained it, this state of facts would constitute such a revocation and surrender of the order as would discharge the defendants from any further liability under their acceptance.”</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>While two adjoining estates are both owned by the same person, no easement can be created in one of them by the use of a drain through it for the benefit of the other; and after the ownership is severed, the continuance of the drain, if its use is not open or visible or known to the owner of the estate through which it passes, has no tendency to prove the acquisition of an easement by adverse enjoyment.</p> <p>A grantor of land with full covenants of warranty, and his privies, are estopped to claim any interest in the granted premises.</p> <p>If the owner of two adjoining estates, through one of which a drain exists for the benefit of the other, conveys the lower estate with full covenants of warranty, no easement is reserved by implication, unless it is de facto annexed to the estate which the grantor retains, and is necessary to the enjoyment thereof, and is in use at the time of the grant. And this necessity cannot be deemed to exist, if a similar privilege can be secured by reasonable trouble and expense.</p> <p>If, by the true construction of a deed, a grant of land extends beyond the eaves and to the walls of a house owned by the grantor, and the water is allowed for more than twenty years thereafter to fall upon the granted land from the eaves of the house, it should be submitted as a question of fact for the jury to determine whether the owner of the house thereby acquires a title by adverse enjoyment, or an easement, or no right at all. in the land under the eaves.</p>

<p>Bill in equity for specific performance of the following agreement:</p> <p>“ Providence, Oct. 1, 1861. Received of Welcome Farnum his note for fifty-two hundred and nine dollars and fifty cents, six months from date, for which I agree to transfer and deliver to said Farnum or his order fifty shares of the Providence and Worcester Railroad stock, upon the condition that said note is paid at maturity, without grace, and I am to have dividends upon said stock, and deduct same from note at maturity; said Farnum to have full power to vote upon said stock.</p> <p>“ Robert Taft.”</p> <p>(Indorsed) “ Welcome Farnum.”</p> <p>The bill alleged that on the 1st of May 1860 the defendant, being the owner of fifty shares of the stock of the Providence and Worcester Railroad Company, in consideration of two hundred and fifty dollars in money paid to him by the plaintiff, and of a promissory note for $4750 signed by W. & D. D. Farnum, payable to the defendant’s order in eleven months from date, agreed in writing, on the payment of the note, to transfer the stock to Farnum or his order ; that this agreement was at once transferred by Farnum to the plaintiff, who paid the two hundred and fifty dollars, and for whose benefit the agreement was made, Farnum acting as the plaintiff’s agent; that on or about the 1st of April 1861 the defendant and Farnum accounted together, and a new note was given for $5212.51, payable in six months from date without grace, and a new and extended agreement was made for the transfer of the stock upon the payment of said new note; that this agreement was at once transferred by Farnum to the plaintiff; that on the 7th of October 1861 the defendant and Farnum again accounted together, and another note was given for $5219, dated October 1, 1861, payable in six months from date at the Uxbridge Bank, and thereupon the agreement above copied was made, and was at once transferred by Farnum to the plaintiff; that in all these matters Farnum acted as agent of the plaintiff, which the defendant well knew; that by the true intent and meaning of this agreement the plaintiff became the owner of the stock; that in the latter part of March 1862, Farnum, as the plaintiff’s agent, had an interview with the defendant, in which he asked if the latter would carry the note longer; that after looking at a memorandum he spoke of the note as to mature upon the 1st and 4th of April, to which the defendant assented, Farnum not then having the agreement or the note, and having by mistake omitted to make a memorandum that it was payable without grace; that the defendant replied in substance that he could not carry the note much longer, but would for thirty days; that no definite arrangement was then made for the extension of the note; that Farnum on the 29th of said March wrote to the defendant as follows: “ If you conclude not to carry your stock for another six months, I will arrange to take it away. If I should not get it away short of ten days, will it make any difference to you 1 Please reply by return mail.” That on the 30th of March the defendant replied as follows : “ I have made arrangements to use the money when due.” That on the 2d of April Farnum wrote to the defendant as follows: “ Will you oblige me by sending your stock to some one of your friends in Providence 1 It will save me great trouble and expense, if you will do so. Please reply by this evening’s mail if possible.” That on the same day the defendant replied as follows: “ Yours was received. Shall be in Providence Friday morning; and will see you at Waterford, when go down.” That on the 4th of April, which was the day named by the defendant in the last letter, Farnum met the defendant in the cars, and then for the first time learned that he had fallen into a mistake as to the date of the maturity of the note, through the defendant’s assent to Farnum’s statement that it fell due on the 1st and 4th of April; that the plaintiff believes and avers that said assent was given for the purpose of misleading Farnum ; that the plaintiff was also mistaken as to the day when the note would mature, and had made arrangements to pay the same, and could as well have paid it on the 1st as on the 4th of April, and fully intended to pay the same when due; that the stock was then worth twelve hundred dollars more than the amount of the note; that the defendant on the 4th of April refused to transfer the stock on that day; that on the 10th of April the plaintiff tendered to him the full amount of the note and interest, which the defendant refused to accept, and has ever since refused to receive the same, or to transfer the stock. The prayer was for a specific performance of the agreement, and for other and further relief.</p> <p>The defendant in his answer denied, amongst other things, that he knew that Farnum was acting as the plaintiff’s agent, in any of the transactions referred to, until the 4th of April 1862; averred that his reply to Farnum’s letter of March 29th was written and mailed upon that day, and immediately upon the receipt thereof; that he expected to receive the amount of the note upon the 1st of April, and had made arrangements to use the same in the purchase of a wood lot; and that he lost the bargain in consequence of not receiving the money. The plaintiff filed a general replication, and evidence was taken, and the facts established are sufficiently stated in the opinion.</p>

<p>>ne who has agreed to convey three lots of land, two of which are represented in the contract to be subject to a mortgage for $1750 each, and the third to a mortgage for $1600, amounting in all to $5100, cannot maintain a bill in equity against the purchaser for specific performance, if it appears that in fact the first two lots are each subject to a mortgage for $1000 and the third to two mortgages amounting together to $1600, and that . there is a fifth mortgage upon all of the lots for $1500; although after the tender of his deeds he has tendered an executory agreement by the assignee of the last mortgage that either of the first two lots shall be released from it upon payment of $750.</p> <p>An order or decree in a suit in equity may be varied at any time before the entry of the final decree.</p> <p>If the plaintiff in a suit in equity for specific performance of an agreement for an exchange of lands cannot give the title mentioned in the agreement, the bill may be dismissed, although the objection is not. stated in the answer, or taken until the hearing before a master to whom the case has been referred to receive a proper conveyance.</p>

Contract. The defence was a discharge in insolvency; which the plaintiff contended was invalid. After a verdict for the plaintiff in the superior court, the defendants moved for a new trial, upon the following facts, admitted by the parties to be true, and stated by Putnam, J., who presided at the trial: “ The trial of this case was commenced on Wednesday, May 7,1862.

Review of an action brought by the defendant in the name of the city of Boston against the plaintiffs, .upon a constable’s bond, in the usual form, dated September 24th 1860, executed by said Calder as principal and the other plaintiffs as sureties, to the treasurer of the city of Boston, in which action judgment was recovered against the present plaintiffs, in the police court of the city of Boston, for damages and costs, upon their default.

<p>Contract to recover for services rendered under the following agreement:</p> <p>“ This agreement, made this eighth day of April, A. D. 1861, between Washburn, Foque & Co. of Boston, and George H. Greene, of Newton, witnesseth, that the said Greene, in consideration of the agreements of the said Washburn, Foque & Co., herein contained, agrees to serve them in the capacity of buyer and salesman, and to take the management of their woollen department for the term of three years from the above date, and devote his time and attention according to his best knowledge and ability to their service; in consideration whereof said Wash-burn, Foque & Co. agree to pay said Greene during said term as salary, for the first year sixteen hundred dollars, for the second year eighteen hundred dollars, the third year two thousand dollars. It is further agreed that this contract may be terminated on the first of January or July of each year by either party, who shall give three months’ notice in writing.”</p> <p>At the trial in the superior court, before Russell, J., it ap peared that the defendants discharged the plaintiff from their employment on the 12th of August 1861, and afterwards compelled him to leave their store, though he offered to remain and tendered to them his services. The writ was dated January 20th 1862. The defendants introduced evidence tending to show that the plaintiff did not serve them faithfully, and offered to show that the amount of sales by him was far less than those by other salesmen in the same department; but this evidence was excluded. The plaintiff testified, on cross-examination, that the defendant Washburn did not in July 1861 state to him the amount of his sales and of those by other salesmen, or complain to him of the small amount of his sales. Washburn was then called on the part of the defendants, and was permitted to testify that he did state to the plaintiff in July 1861 the amount of his sales and of those by the other salesmen, and did complain to him of the small amount of his sales; but he was not allowed to testify what he stated to the plaintiff that the amount of his sales was. Another of the defendants, Foque, testified that he discharged the plaintiff, and that he gave to the plaintiff as a reason for so doing that the firm had failed and were unable to go on in business. The defendants’ counsel then asked Wash-burn for what reason the plaintiff was discharged; but the evidence was excluded.</p> <p>The jury returned a verdict for the plaintiff, for the full amount of his claim; and the defendants alleged exceptions.</p>

<p>If a cross-interrogatory annexed to a commission for a deposition is so obscurely written that a date therein referred to is uncertain, the deposition should not be rejected because the deponent and the magistrate mistook the date; but if, in reply to a cross-interrogatory when and where a written contract, which purported to be made at a particular time and place, was in fact made, the deponent has answered simply, “ The paper speaks for itself,” the deposition should be rejected, if the party who took the deposition has been notified of the objection in season to take it anew.</p>

Trustee process. The trustee in his answer set forth that the defendant, a citizen of Illinois, failed in April 1861, and executed an assignment of his property to Luther L. Greenleaf, of Chicago, Illinois, and to the alleged trustee, in trust for the benefit of his creditors, and a copy of the assignment was annexed, by which it appeared that certain of the creditors were preferred over others; that the trustee was a citizen of this commonwealth ; that the assignees…

<p>A general devise of all the testator’s estate will operate as an execution of a power over property which he had formerly owned, and of which he had the beneficial use as well as the power of disposal, unless a contrary intention appears in the will.</p>

<p>Bill in equity in the nature of a bill of interpleader, brought Dy the trustees under the will of John P. Monks, seeking instructions as to the proper discharge of their duties.</p> <p>The material parts of the will were as follows: .</p> <p>“ I nominate and appoint my son, Richard Joseph Monks, and my friend Osborn Howes, of said Boston, merchants, executors of and trustees under this my will. I give, devise and bequeath to my said trustees all my estate, real and personal, of every sort and kind, in trust that said trustees shall, as soon as convenient, convert my personal estate into money, and to manage and take care of, according to their best ability and skill, my real estate; repairing, leasing, letting, and, if necessary, rebuilding, and receiving the income thereof, and to apply said income, together with the proceeds of my personal estate, in the first place, to payment of expenses in management and repairs thereof; secondly, to pay from said income to my mother, Mrs. Margaret Monks, of said Boston, widow, eight hundred dollars per year during her life.......I direct said trustees to pay from said income to my sister, Bridget Monks, of New York, single woman, three hundred dollars per year during her life ; and the remainder of the net income of my said estate I direct my trustees to pay yearly, one third part thereof to my wife, Delia S. Monks, during her life, and the other two thirds to all my children, equally to be divided, including said Richard J. Monks, to their sole and separate use during their lives; and, if my wife shall die before my children, then her third of said income shall go equally to said children in manner afore expressed; and, after the decease of my mother and sister, then their shares shall be divided, as aforementioned, amongst my children; and, in case of the decease of any child or children of mine, the share of such child shall go to his or her child or children, if any; otherwise shall be divided between my surviving children, as aforesaid, until the decease of all my children. I then order and direct that my trustee or trustees for the time being shall make over and convey all my estate equally to my grandchildren. And I authorize my trustees, if they think best, to sell and convey such of my lands as are at South Boston, or any part of such land at South Boston, and to invest the proceeds of the sales of such estate or lands, with the proceeds of the sales of my personal estate, in United States or state securities, or city of Boston scrip, or in first class mortgages of real estate.”</p> <p>The testator afterwards executed a codicil, the material parts of which were as follows:</p> <p>“ Before making my will, I had transferred to my son, Frank H. Monks, fifty shares of the capital stock of the Broadway Bank, Boston; also to my son, George H. Monks, thirfy shares, and to my son, Henry G. Monks, seven shares, of said bank. Now it is my wish, as I have before expressed in my will, that all my children shall share equally in the division of the income of my estate. It is therefore my will that the above-mentioned bank shares transferred to my children be regarded and considered as so much advancement from my estate; and, in the division of the income of my estate, it is my will that the income of said bank shares so holden by said children shall be taken and considered as a part of the distributive shares of said children of the income of my estate; so that the division of the income of my estate, as stated in my will, will be made amongst all my children equally, in the same manner as it would if said bank shares were now in my name, and had never been transferred to my children.”</p> <p>It appeared that the testator left real estate to the appraised value of $275,700, and personal property to the amount, over and above his debts, of about $15,000 ; he also left a widow and seven children. Since his death one grandchild has been born. The will was duly proved, and the plaintiffs accepted the trusts therein named. The minor children and grandchild of the testator appeared by their respective guardians ad litem.</p>

<p>If an accommodation note is disposed of by the payee for less than its face, the transaction is usurious, although the indorsee takes it without notice that it was an accommodation note.</p>

<p>Contract brought to recover moneys received by the defendants as the proceeds of goods consigned to them by the plaintiffs for sale.</p> <p>At the trial in the superior court, before Brigham, J., it appeared that the action was brought for the benefit of Joseph Blair and others, to whom the plaintiffs had assigned their claim against the defendants; and a verdict was returned for the defendants, upon facts which are stated in the opinion. The ulaintiffs alleged exceptions.</p>

Petition to enforce a mechanic’s lien for labor in the erection of a building.

Contract for money had and received. The writ was dated June 28, 1860. At the trial in the superior court, before Russell, J., it appeared that the parties were formerly partners, the plaintiffs and the defendant having an equal interest, in certain purchases and sales of wool, the sales being made by Hilton & Gore, commission merchants, of Boston, who, as the result of the transactions, had in December 1859 a balance in their hands of $2412.23 in favor of the parties.

Contract. At the trial in the superior court, before Ames, J., it appeared that the plaintiff, who had agreed to sell and deliver some flour to Hooper Chase, of Bangor, sent for collection through the defendants as his agents a draft of $387 for the price, with a bill of lading of the flour attached. By mistake of the plaintiff, the indorsement of the bill of lading, which was made out in his own name, was not signed.

Contract brought by a counsellor at law to recover for professional services rendered as senior counsel in the trial of a cause in which the defendant was a party. At the trial in the superior court, before Lord, J., there was evidence tending to show that the plaintiff was retained in behalf of the defendant by George D. Porter, the defendant’s attorney of record in the suit, who had charge of the preparation of the case for trial.

<p>If B. has agreed in writing to pay to an attorney for his services a certain sum, “ when two suits now pending against him in favor of A. are finally terminated, and when all of the suits are finally terminated which said A. may bring against him on the covenants of a lease,1’ which is described, and all actions of tort growing out of his taking possession of the leasehold premises, provided said suits are terminated in favor of B., and not otherwise, and the suits then existing have been terminated in favor of B., and two other suits brought by the administrator of A. have been terminated by an entry of judgment in favor of B., without costs, by his consent, and it appears that the administrator has wholly performed his duties except rendering his account, and does not intend to bring any further action, B. cannot resist payment of the stipulated amount on the ground that the contingency provided for has not occurred; although no release has been executed by A. or his administrator of all causes of action upon the lease, and the statute of limitations would not yet be a bar to a claim under it.</p> <p>In an action by an attorney at law to recover an amount agreed in writing to be paid to him in gross for his services for one year, and also an additional amount to be paid upon the termination of certain specified suits in favor of the client, if no claim is made for services in the specified suits, it is immaterial to determine whether the attorney was bound to render services in said suits after the expiration of the year; and the defendant has no ground of exception to the refusal of the presiding judge to make any ruling upon that subject.</p>

<p>Under Rev. Sts. c. 70, $ 2, an executor’s bond, which is signed by two sureties who are Inhabitants of this commonwealth, and by a third person who is described as an inhabitant of another state, if approved and accepted by the probate court, is sufficient to qualify him to act.</p>

<p>This action was commenced in the police court in Boston by Angeline Gooch, sole administratrix of the estate of T. L. Gooch. While the action was there pending, she married the plaintiff.1 He was afterwards appointed administrator de bonis non of the same estate, and thereupon appeared in court and obtained leave to prosecute the action, and the court rendered judgment in his favor. The defendant appealed to the superior court, and there contended that, as the marriage of the original plaintiff extinguished her right and power as administratrix, (Gen. Sts. c. 101, § 4,) this plaintiff had no legal right to prosecute- the action. But that court ruled otherwise, and allowed the plaintiff to proceed to trial. The plaintiff obtained a verdict, and the defendant alleged exceptions.</p>

The claim was for the balance due upon a charter of the ship Bold Hunter, owned by the petitioners ; and it was agreed that the petitioners, believing that they had a lien for the amount, filed a libel in admiralty against a portion of the goods, after the estate of Augustine Wills had been rendered insolvent, which libel was afterwards, and within four years from the date of the bond of the respondent as administrator, dismissed.

<p>Tort. The declaration was as follows :</p> <p>“ And the plaintiffs say that whereas they, before and at the time of the committing of the grievance hereinafter mentioned, were and from thence hitherto have been and still are lawfully possessed of a certain close, abutting on Tremont Street, so called, in said Boston, situate between the messuages now numbered 175 and 176 on said street, and bounded westerly by said street; northerly by land of the defendant, to him conveyed by one Rice; easterly by a passage way running northerly, and leading to Mason Street, so called ; and southerly by the northerly wall of the said messuage now numbered 176, on said Tremont Street, yet the said defendant, well knowing the premises, wrongfully and injuriously kept and continued, from and upon the southerly wall of his messuage numbered 175 as aforesaid, a certain building projecting and overhanging the plaintiff’s said close, and before then wrongfully erected and built, projecting as aforesaid, for a long space of time, to wit, from the first day of May last past hitherto.”</p> <p>After it had been determined that the plaintiffs should prevail in this action, (5 Allen, 308,) they moved in the superior court for judgment that the building mentioned in the declaration be abated and removed, in so far as it overhangs their land described therein, and that a warrant be issued to the proper officer requiring him to abate and remove the same at the expense of the defendant, in like manner as public and common nuisances are removed ; and it was thereupon considered and adjudged by the court that the building or bay-windows, overhanging the plaintiff’s close, be abated and removed. The defendant appealed to this court.</p>

<p>Contract brought to recover ninety dollars as the balance due for “ a six ton scale,” sold and delivered. The answer averred that the plaintiffs agreed to build and set up for the defendant a scale, to be of sufficient strength and capacity to take on “ a six ton load,” and to be in all respects equal to a certain scale set up and used by Messrs. Hall & Robbins; and that the scale which was put up by the plaintiffs was greatly inferior to the scale of Hall & Robbins, in various particulars which were specified, and that it was nearly useless to the defendant, and not worth to him what he had already paid therefor.</p> <p>At the trial in the superior court, before Ames, J., it appeared that the plaintiffs were employed in selling scales manufactured by the Buffalo Scale Company, and proposed to sell to the defendant, who was a dealer in coal, one of their scales, and the defendant replied that he was very well pleased with one in use by Messrs. Hall & Robbins, and, after examining it, the plaintiffs made a contract to furnish to him a six ton scale, equal in every respect to that one, and that the defendant should pay them by giving to them his old scale, and ninety dollars in money. The plaintiffs accordingly took away the old scale, and furnished and set up the new one, which still remains on the defendant’s premises and in his use. The defendant has paid no part of the ninety dollars.</p> <p>There was conflicting evidence as to whether the scale sold by the plaintiffs could safely weigh six tons, and the general tendency of the whole evidence was to show that the various parts of it were inferior in size and strength to that of Hall & Bobbins, which was called a six ton scale. The defendant requested the court to rule that the burden of proof was upon the plaintiffs to show that the scale was according to the contract, but the judge ruled otherwise. The defendant then offered to prove that he caused a written notice to be served on the plaintiffs, before the suit was commenced, to take away the scale and replace the old one; but the judge ruled that under the answer filed in the case the proposed evidence was inadmissible.</p> <p>The defendant then requested the court to rule that the plain' tiffs were bound to furnish a scale equal in every material respect to the sample, and if in any material parts it was not equal, and the inequality was not made up in some other part, by which the scale was made equally strong in all respects with the sample, the contract had not been fulfilled by the plaintiffs. Also, that if the sample scale were a six ton scale, and what is sold in the market as such, then the plaintiffs were bound to furnish a scale equally strong and equally good in every respect. The judge did not so rule, but instructed the jury that the defendant, by the terms of his contract, was entitled to a platform scale which should be capable of weighing as high as six tons, in the manner usually practised at such establishments as his — sufficient to stand all the rough usage incident to the customary use of such a thing with ordinary care, under all the circumstances, in all the modes, and subject to all the accidents to which such use, with ordinary care, would be subject; that he was furthermore entitled by his contract to a scale equal in all material respects to the one referred to; but that it was not necessary that it should be of the same pattern, and that equality does not mean exact correspondence; that it should be in all its parts of as good material and as well constructed—that it must be equally serviceable, convenient, useful and durable, for the purpose of weighing six tons, in the manner indicated as the scale referred to — but that it was not required by the contract that it should be of any greater capacity than six tons, and, if the scale referred to had any superfluous strength not necessary for the purpose of weighing six tons, it would not be incumbent on the plaintiffs to prove that the scale sold to the defendant had the same strength. The jury were also instructed, if they found the scale sold in any respect not equal to the contract or warranty, to deduct from the agreed price the amount of such deficiency.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>If an award has been made for damages sustained by the proprietors of a mill, situated upon the outlet of a natural pond, in consequence of the appropriation, by a town, of water from the pond for the supply of water works, under authority of the legislature, and it subsequently appears that the outlet continues to be as well supplied with water as it was before, notwithstanding this additional use, the town cannot maintain a bill in equity to set aside the award on the ground that this newly discovered evidence shows that the proprietors sustained no damages, and that they had prevented this fact from being known at the time of the hearing, by wrongfully deepening the outlet prior thereto, if the bill also alleges that for a period of eleven months before such deepening of the outlet, during the whole of which time water was taken from the pond for the water works, the water continued to flow through the outlet without perceptible diminution.</p> <p>An unexplained delay of more than four years after the discovery of new and material evidence is such loches as will defeat a bill in equity to set aside an award on that ground.</p>

Bill in equity alleging that the plaintiffs -were duly chosen assignees of the estate of William E. George, an insolvent debtor, whose estate vested in them as of the 18th of September 1861; that on the 13th of December 1858 said George purchased an estate in Wrentham for the price of $10,000, and on the 14th of the following February made a valid mortgage thereof to the Dedham Institution for Savings, to secure the sum of $5000; that on the 21st of June 1860 he executed…

Contract brought in the police court of Boston by the plaintiff, who is a British subject, against the master of a British vessel, who is also a British subject. The defendant objected, in the police court, that the court had no jurisdiction, and a hearing was thereupon had upon all the questions involved, and the case was dismissed, and the plaintiff appealed to the superior court.

Contract brought by the consignees of a cargo of coal against the master of the bark Hadley, alleging that the latter signed bills of lading for two hundred and eighty tons of coal, consigned to the plaintiffs from Baltimore, and that the plaintiffs had purchased and paid for that amount, but that the defendant had delivered to them only two hundred and sixty-five tons.

Contract against the acceptor of a draft for $1000, drawn by Sanford C. Gardner, in favor of J. & C. Levy & Co., upon the defendant. The draft was duly indorsed and accepted. At the trial in the superior court, before Allen, C. J., it appeared that the draft was protested for non-payment, and returned to Levy & Co., and was afterwards returned to the drawer, who assigned it by bill of sale to the plaintiff, with the indorsement of Levy & Co. remaining uncancelled.

Contract brought by the owners of the bark Hadley, to recover the freight of a cargo of coal from Baltimore to Boston, consigned to the defendants. This case was tried in the superior court at the same time and submitted to the same jury and under similar instructions as the preceding case; and a verdict was returned for the plaintiffs. The defendants alleged exceptions.

<p>Tn New York, a discharge in bankruptcy may be pleaded in bar to an action upon a judgment recovered in that state before the granting of the discharge, but after the commencement of the proceedings in bankruptcy, upon a debt which existed prior to the commencement of such proceedings; and the same defence may be made to an action brought upon such judgment in this commonwealth.</p>

Contract upon a witnessed promissory note signed by the defendant, dated March 30,1854, and payable to the plaintiff or order. The answer set up a discharge in insolvency, dated in March 1858, under proceedings in which the first publication of the notice of the issuing of the warrant was made on the 8th of July 1857. The plaintiff replied that the discharge was void, and also that the plaintiff had made a new promise to pay the note.

<p>J£ upon an application by a debtor, who has been arrested on execution, to take the oatu for the relief of poor debtors, the magistrate issues a notice to the creditor by a wrong name, whereby the discharge of the debtor is invalidated, the surety in his recognizance, who has subsequently been compelled to pay the amount of the execution, cannot maintain an action against the magistrate to recover damages for the mistake.</p>

Contract for money paid. At the trial in the superior court, before Ames, J., the plaintiff introduced evidence tending to show that he, having been in co-partnership with the defendant Rogers and James Brown, Jr., who was originally joined as a defendant, but was defaulted, withdrew from the firm on the 17th of October 1853, and that it was then agreed that all the joint property should belong to Rogers and Brown, and that they should pay all the joint debts; but that they,…

<p>If, in an action for the conversion of the plaintiff’s machinery in a workshop, by the refusal of the defendant’s agent to allow it to be removed upon demand, it does not appear that the defendant or his agent ever actually used the machinery, or had the actual possession of it otherwise than by being in the rightful possession of the workshop, and it appears that the defendant had instructed his agent to forbid the removal of any of the machinery, but to use no force to prevent it, and that, upon a demand, which included some machinery to which the plaintiff had no right, the agent forbade the removal of any of it, the question should be submitted to the jury whether this was such a clear and absolute refusal to deliver the machinery to which the plaintiff was entitled as to amount to a conversion; and an instruction to the jury that it was evidence of such an assumption of control or dominion over the propertjr, to the exclusion or in defiance of the plaintiff’s right therein, as would amount to a conversion, is erroneous.</p> <p>If, in an action for the conversion of personal property, it does not appear that the defendant has personally intermeddled therewith in any way, and the evidence of conversion relied upon is the refusal of an alleged agent to allow it to be removed on demand, in compliance with directions received from the defendant, and there is evidence to show that the defendant in giving such direction, and in employing the agent, was merely acting on behalf of a corporation of which he was president, which the agent well knew, the question should be submitted to the jury to determine whether the agent, in his refusal to allow the removal of the property, was acting as the agent of the defendant or of the corporation; and if for the latter, the defendant is not responsible.</p> <p>The owner of personal property may maintain an action for its conversion by proof that the defendant has previously refused to deliver it to any person who had a right to demand it, although the plaintiff was not then the owner of it.</p> <p>If, in an action for the conversion of machinery in a workshop, it does not appear that the defendant has ever appropriated the same to his own use, or removed the same, or had the actual possession thereof otherwise than by being in the rightful possession of the workshop, and the alleged conversion consists in the refusal to allow the plaintiff to remove the same upon demand, a subsequent notice to the plaintiff by the defendant that he has relinquished all claim to the machinery should be considered in mitigation of damages.</p>

Motion to accept an award. The submission was in the terms prescribed by Gen. Sts. c. 147, §§ 1, 2, and recited that the parties had agreed to submit “ all demands between them ” to the determination of three arbitrators.

Complaint under the bastardy act. The defendant’s answer filed in the superior court simply set forth that the defendant was not guilty.

Tort for the obstruction of a passage leading from the rear of the plaintiff’s house, on Staniford Place, to Green Street, in Boston.

<p>Under articles of agreement signed by a married woman, her husband, and several other persons, reciting that she and one of the others have taken a lease of certain manufacturing works, and providing that she shall furnish a certain amount of capital, at eight per cent., and that her husband shall devote his whole time to the business of manufacturing and selling the articles, and making special provisions as to the duties and rights of the others, and further providing that “ she or her husband, as they two may decide or agree, shall receive one half of the net profits of the concern,” her husband is a partner in the firm; and she, therefore, is not a partner, and is not liable upon a promissoiy note given in the name of the firm.</p>

<p>Tort for the conversion of certain horses and other property, belonging to the estate of Gustavus Cheney, deceased, of which the plaintiff was administratrix. The defendants denied the plaintiff’s title, and denied the conversion.</p> <p>At the trial in the superior court, before Ames, J., “ the plaintiff proved that the property had been for some time in the possession and apparent ownership of the deceased, and that after his death it remained at the stable which the deceased had occupied ; ” and that his son, who was an agent of the defendant Pierce, had “ the apparent custody ” of it thereafter. In order to prove the conversion, the plaintiff called as a witness Samuel E. Sewall, a counsellor at law, who testified that he was for some time attorney for the plaintiff, and wrote a letter to Pierce, asking him to call and converse about the property, and that Pierce accordingly came to his office, and said that he and a woman claimed the property, and had papers showing the title. Upon this evidence, the defendants contended that there was no evidence of a conversion by either of the defendants, and that the plaintiff was not entitled to recover; and the judge so ruled, and directed a verdict for the defendants, which was accordingly rendered. The case was reported for the determination of this court.</p>

<p>Contract brought to recover rent of a store in Milk Street, in Boston, from the 1st of October 1861 to the 1st of January 1862.</p> <p>At the trial in the superior court, before Russell, J., it appeared that the plaintiff made a lease of the store to the defendant, with his partners, “ for the term of three years from the first day of July 1858,” for the rent of $1800 a year, payable quarterly, and the lessees covenanted, amongst other things, to pay the rent for such further time as they might hold the same. On the 1st of July 1861 the defendant left at the plaintiff’s dwelling-house written notices that he and his firm should vacate the store on or before the 1st of October 1861, to which the plaintiff made no reply; and on said 1st of October the store was accordingly vacated, and notice thereof was given and the keys were delivered to the plaintiff* who replied that he considered the defendant as still his tenant, and should look to him for payment of the quarter’s rent. The plaintiff received and signed receipts for all the rent due on the 1st of October; and the store remained vacant, the plaintiff refusing applications for the same, until January 1st 1862. Various questions arose in the case, which are rendered immaterial by the opinion.</p> <p>Under the instructions of the court the jury rendered a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>In a suit in equity brought to enforce against directors of a manufacturing corporation a personal liability for the corporate debts, under Rev. Sts. c. 38, § 25, the plaintiff will not be allowed to amend his bill, after a demurrer to it has been sustained, and after his de* mand is barred by the statute of limitations, provided he has been guilty of great loches ►n the prosecution of his suit, and in applying for leave to file an amendment.</p>

<p>If the owners of lots of land are in doubt as to the dividing line between them, and fix the line by an oral agreement, and occupy according to such agreement, no exception lies to an instruction to the jury that “ although the presumption is that such was the true line, yet if it could be shown not to be so, such oral agreement and occupation would not bind the parties nor fix their rights, unless the line had been adhered to for the full term of twenty years.”</p> <p>If a boundary line has been erroneously run between adjoining owners of land, without fraud, and under a mutual mistake, there being no determination of the line by arbitration or other judicial decision, one owner is not estopped from claiming his land to the true line, because the other has with his knowledge erected buildings or incurred expense in consequence of the mistake.</p>

Contract against a broker, to recover one half of the amount of commissions received upon the sale of a ship.

<p>If a portion of trust funds, the income of which is to be paid to a married woman for her life, and after her death to her husband for his life, with remainder over of the principal fund, is l.ent to the husband upon his note payable with interest semi-annually, and it is agreed by all the parties that the trustee shall not collect the interest, in order to avoid the trouble of receiving the same from the husband and paying it over to the wife, and in pursuance of this agreement the trustee omits for more than six years to collect the interest, the note is not thereby barred by the statute of limitations; but the trustee may set off the same in equity, after the wife’s death, against a claim of the husband for the income.</p>

<p>A married woman maybe held liable, under Si. 1845, c. 208, § 5, upon covenants contained in a deed of land in another state, held her to her sole and separate use, and conveyed as the consideration of a deed of land in this commonwealth, which was conveyed to her, to her sole and separate use, free from the interference or control of her husband; and the fact that her husband joined with her in the deed and covenants is immaterial.</p>

<p>In an action for an assault and battery, the plaintiff cannot be allowed, for the purpose of showing special damages, to prove that by reason thereof he lost a position to which he was about to be appointed, although the declaration contains averments to that effect. The admission of material, incompetent evidence, under objection, is ground for a new trial, although neither court nor counsel alluded to it afterwards, in the course of the trial.</p>

<p>Under Gen. Sts. c. 95, the probate court has authority to order a public administrator to distribute the balance of an estate amongst the next of kin of the intestate.</p>

<p>If the stockholders o? a corporation have passed a vote instructing the directors to adjust an interest dividend, which had been expected by the subscribers to the capital stock, by issuing certificates therefor, payable at a future time named, with a condition that, if there should not then be money enough in the treasury to pay the whole amount, the holders of the certificates should receive as much pro rata as the treasurer should be able to pay, and that he should give public notice as soon as he should be able to pay the balance, and the directors have accordingly issued such certificates, the holder of one of them, if under any circumstances he can maintain an action upon it, can only do so by proof that the company was able to pay the full amount of interest covered by the vote, either at the specified time, or at the commencement of the action; and it is immaterial whether certificates have been issued for the full amount or not.</p> <p>If a corporation has voted to pay to its stockholders an interest dividend at some future time, when it should be able, and issued certificates therefor accordingly, the determination of the question whether at any particular time it is able to pay it does not rest in the final decision of the directors, but in that of the court, who, in judging of it, will pay regard not only to the existing liabilities and funds of the corporation, but also to those contingencies to which it is exposed which may require unusual outlays.</p>

Indictment for a nuisance in a town way in Haverhill, known as Washington Avenue. At the trial in the superior court, before Brigham,, J., it appeared that the nuisance complained of consisted of a stone wall erected by the Boston and Maine Railroad within the limits of the land duly taken and occupied by them for their railroad according to law.

<p>Indictment for embezzling sixteen Melton cloth overcoats., the property of David M. Hodgdon.</p> <p>At the trial in the superior court, before Ames, J., the defendant pleaded in bar a previous acquittal upon the same charge; and it was admitted, on the part of the Commonwealth, that the defendant had been duly tried and acquitted on an indictment charging him with embezzling a quantity of Melton cloth, lasting, velvet, flannel, wadding, and other materials used in making overcoats, the property of said Hodgdon, which had been delivered to the defendant to be made into overcoats; and that the present indictment was for the same crime intended to be covered by the first indictment. The principal facts which appeared in both cases were, that Hodgdon delivered the materials to the defendant as aforesaid, and that several overcoats were made up and returned, but the work proved unsatisfactory and they were redelivered for completion to the defendant, who subsequently did the acts relied upon as proof of the embezzlement.</p> <p>The judge overruled the plea in bar, and the defendant alleged exceptions.</p>

<p>Complaint for being a common seller of intoxicating liquors, from November 13th 1862 to January 14th 1863. The defendant was originally convicted before a magistrate, and on appeal was required to enter into a recognizance, not only to prosecute her appeal with effect, but not to violate any law of the Commonwealth against the sale of intoxicating liquors for one year. When the defendant was called in the superior court, she did not appear, and her counsel suggested that the court had not jurisdiction of the case, by reason of the illegality of the recognizance, which was sent up with the other papers; but the judge ordered her to be defaulted, and she was afterwards brought in on a copias, when the same objection was renewed, and overruled.</p> <p>At the trial, before Vose, J., one Hayes was called as a witness for the government, and testified that “ he had been in the house of the defendant sometime before Christmas, a month or so, but could not tell if in December, or how many wrecks before December 25th.” The district attorney then asked him whether at the time he was in there he bought or drank any liquor, and the witness testified, under objection, that be did buy liquor. On further examination, the witness was uncertain whether the time when he was there was before or after November 13th 1862. The judge thereupon instructed the jury that they must be satisfied that the defendant was guilty within some part of the time charged in the complaint, and gave certain other instructions to which no special exception was taken. The bill of exceptions further recited “that the government proved seven different sales of liquors by the defendant, in the kitchen of her dwelling-house.” It appeared that, when the liquor was called for, the defendant went into the cellar and brought it up, there being no liquors in the kitchen. The witnesses testified that when they were in the kitchen other men were there drinking some kind of liquor, .but the witnesses did not know whether or not it was paid for. The defendant asked the court to rule that this was not to be regarded as evidence of sales; but the judge declined so to rule, and instructed the jury that this evidence was not to be regarded as prima facie evidence of sales, unless they were satisfied that the defendant’s kitchen was a place of common resort.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Complaint for being a common seller of intoxicating liquor. At the trial in the superior court, before Putnam, J., one Coffee testified to a single purchase of rum from the defendant, taken from a cask in a room in the defendant’s house, which room was fitted up in some respects as a bar-room. Two other witnesses testified to two purchases of beer there, and the question whether it was intoxicating was left to the jury.

The first case was a complaint, the first two counts of which charged the defendant with single sales of intoxicating liquors, and the third count, with being a common seller thereof, in violation of law.

Complaint for an illegal sale of intoxicating liquor. After conviction, the defendant moved in arrest of judgment because the certificate of the magistrate that the complaint was under oath was in these words: “ Taken and sworn before me,” instead of “ Taken and sworn to before me.” This motion was overruled, and the defendant alleged exceptions.

<p>The husband of a woman with whom an act of criminal intercourse is alleged to have been committed by the defendant in an indictment for adultery is not a competent witness to prove the commission of the offence.</p>

<p>Indictment, charging in the first count that the defendant uttered and passed as true an uncurrent and worthless bank bill of the tenor following:</p> <p>“ State of Rhode Island.</p> <p>“ The Tiverton Bank will pay to bearer two dollars on demand. Tiverton, Aug. 1,1857.</p> <p>Casb’r. Pres’t.”</p> <p>The indictment also contained the following averment, immediately after the above copy: “A more particular description of which said bank bill the said jurors have not, and cannot give.”</p> <p>The second count was for passing a paper made in the similitude of a bank bill, &c.</p> <p>At the trial in the superior court, the defendant was convicted on the first count, and moved in arrest of judgment on the ground that the count Was insufficient; but the motion was overruled. The defendant appealed to this court.</p>

<p>In an indictment for libel, in charging the prosecutor with being licentious, if the defendant has introduced the testimony of a married woman that the prosecutor once sought illicit intercourse with her, he cannot be allowed to prove in addition that she immediately complained thereof to her husband.</p>

Indictment for murder, by shooting William Currier on the 14th of July 1863. The trial took place in December 1863, before Bigelow, C. J., and Metcalf, Merrick and Hoar, JJ. Foster, A. G., appeared for the Commonwealth, and J. G. Abbott 8f B. F. Russell, for the prisoner.

<p>Press copies of letters are admissible in evidence against a party, if they purport to have been written by him and are found in his possession and appear to be in his handwriting and the originals cannot be procured; and, after a verdict against him, a new trial will not be granted for the reason that experts were allowed to testify that in their opinion the originals of the press copies were in his handwriting, instead of testifying, that the copies appeared to be in his handwriting.</p> <p>Telegraphic messages are admissible against a party as evidence of his declarations, and also as evidence tending to show communications to the person to whom they were addressed, if proved to be in his handwriting, and to have been received at the telegraph office and sent over the wires properly directed to a person who was then living at the place of their destination.</p> <p>In an indictment for obtaining goods by falsely pretending that the defendant was acting as a broker for an undisclosed principal, the vendor may testify that he gave credit to such principal, although in his books of account he entered the transaction as a sale to the defendant, and made out a bill of parcels in that form; and it is proper to submit it as a question of fact to the jury to determine to whom the credit was in fact given.</p> <p>In such indictment, evidence that the defendant was deeply insolvent at the time of making the false representations relied on is competent against him, for the purpose of showing his intent.</p> <p>In such indictment, an averment that the defendant falsely pretended that he had an order from a certain person, whose name he did not disclose, to purchase the goods at a certain price, is sustained by proof that he falsely pretended that he had an order from that person to purchase the goods, and accordingly bargained for them on his behalf at that price.</p> <p>So in such indictment there is no variance between an averment that the vendor was induced by reason of the false pretences to accept the offer and sell and deliver the goods, and proof that his inducement was the expectation of receiving the price from the undisclosed principal, if it appears that this expectation was created by the false pretences of the defendant.</p> <p>A count in such indictment which alleges that the defendant falsely pretended that he had an order from a certain person in New York, whose name he did not disclose, to purchase the goods, is not sustained by proof that he falsely pretended that he had an order to purchase them, without stating that the order came from a person in New York.</p> <p>An indictment may be sustained which charges that the defendant obtained goods by false pretences made by the defendant “ in his capacity as merchandise broker.”</p> <p>So an indictment may be sustained which charges that the defendant, by falsely pretending that he was acting as a broker for an undisclosed principal in the purchase of goods, induced the vendor to accept his offer and sell the goods to said undisclosed principal, and to deliver the same to the defendant as his broker.</p>

<p>Indictment charging that on a day named, at Boston, in the county of Suffolk, there was and still is a certain railroad track then and there belonging to the Middlesex Railroad Company, a corporation,” &e., “ and that said railroad track was then and there in the lawful possession of the said Middlesex Railroad Company, and lawfully used by said Middlesex Railroad Company for the passage and drawing the railroad cars and carriages of said company with passengers over and along said track, the said company then and there having lawful authority to pass and run their said railroad cars and carriages along, over and upon the said track without being unlawfully, wilfully and maliciously obstructed; ” that the defendant, on the day named, “ did wilfully, maliciously and unlawfully obstruct the passage of a certain car of the said Middlesex Railroad Company then and there lawfully being and passing upon and along said track, by then and there wilfully, maliciously and unlawfully driving and placing a certain wagon drawn by one or more horses driven by him the said Hicks upon said track, and by driving said wagon against said car, and by slowly driving in front of said car, and so did wilfully and maliciously obstruct, delay and hinder said car for a long time, to wit, one half hour,” &c.</p> <p>At the trial in the superior court, before Brigham,, J., the St. of 1854, c. 434, was put in evidence, incorporating the Middle-sex Railroad Company as a horse railroad company, and fixing the location of their road, by § 6 of which provision is made for the punishment of any person who shall “ wilfully and maliciously obstruct said corporation in the use of said road or tracks, or the passing of the cars or carriages of said corporation thereon.” The government then proved a vote of the mayor and aldermen of Boston, fixing the streets in which the track might be laid, including Beverly Street, and providing that the method of construction should be similar to that of the railroads in the city of New York, and that the work should be done to the satisfaction of the superintendent of streets and of the committee on paving. It was also proved that the company was duly organized under its charter, and that it had laid a track in Beverly Street and was in the possession and use thereof. The evidence also tended to show the commission by the defendant of the acts alleged in the indictment, in reference to a car belonging to another horse railroad company which' was using the track in Beverly Street by the consent of the Middlesex Ráilroad Company, behind which, at a distance fixed by the general regulations for horse cars, a car of the Middlesex Railroad Company was also compelled to stop.</p> <p>The defendant thereupon contended that the indictment could not be sustained without proof that the track was in the lawful possession of the Middlesex Railroad Company, and was lawfully used by them, and that said company had lawful authority to pass and run their cars upon and along the track in said street, for the following reasons: 1. Because the company could only lay a track in such streets as should be fixed by the mayor and aldermen, and the vote of the latter fixing the streets was conditional upon the construction of the tracks in a certain method and to the satisfaction of the superintendent of streets and of the committee on paving, neither of which conditions had been proved to have been complied with; 2. Because there was no proof that the location had been assented to in writing by the company, as required by the charter; or that the charter had been accepted by the company in writing; or that ten per cent, of the capital stock of the company had been paid in within the time therein required. The defendant also requested the court to rule that, to establish the fact of obstruction as alleged, the government must prove that he was on the track, and hindered the progress of the car, and was requested to remove therefrom by persons having the management thereof, and could reasonably have removed, but did not.</p> <p>The judge declined to give any of the foregoing instructions, and instructed the jury that if the Middlesex Railroad Company was organized, and was in the use and occupation of a railroad track in Beverly Street, located there by the city of Boston, after accepting the act incorporating the Middlesex Railroad-Company, “a malicious and wilful obstruction of the cars of that corporation in the use of the corporation upon said track, by the defendant at the time alleged, would authorize the jury to find the defendant guilty upon this indictment,” although there was no evidence of the various particulars mentioned in the defendant’s prayer for instructions; that a wilful and malicious obstruction of the car of the other company using the track by the permission of the Middlesex Railroad Company, if intended to operate so as to obstruct the car of the Middlesex Railroad Company, which was upon said track in the rear of the other car, and if it did so operate with the knowledge and with the wilful and malicious intent of the defendant, was a malicious and wilful obstruction of the car of the Middlesex Railroad Company in the rear of the other car ; and that it was not necessary to prove a demand or notice to the defendant to remove, and a refusal by him to do so.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions; and he also filed a motion in arrest of judgment, assigning, amongst other reasons which were not afterwards insisted on, that the offence was not alleged with such certainty and precision that the defendant could know the criminal act with which he was charged.</p>

Indictment charging that the defendant, at a time and place named, “ certain personal property, to wit, an omnibus, of the value of five hundred dollars, the property of Jacob H. Hathorne, did wilfully and maliciously injure, by then and there wilfully and maliciously driving the pole of a horse railroad car at, against and through a panel of the said omnibus,” “ by means of which said wilful and malicious driving of the said pole against the said panel of the said omnibus,…

<p>Complaint under Gen. Sts. c. 165, § 41, made by Edward Bassett, charging that the defendant, at a time and place named, “ with force and arms unlawfully and cruelly did beat and torture a certain horse, of the property of him the said Edward Bassett and one Knott P. Martin, against the law,” &c.</p> <p>At the trial in the superior court,, before Vbse, J., there was evidence to prove that the horse in question was owned by Bassett & Martin, who were bakers, and that on the day named Martin drove him in a baker’s cart to the defendant’s house, stopping in the public street to deliver bread to the defendant’s wife and to collect a bill of her; that Martin did not get off from his cart, but the defendant and his wife came out, and the defendant, who had a stick in his hand about as large as a large broom handle, ordered Martin to go away, and after a short dispute struck the horse a severe blow with the stick, which caused him to jump forward, and the defendant followed, striking him three times more, and the horse ran so that Martin could hardly hold him. There was also evidence of a previous difficulty between the defendant and Martin, the defendant charging Martin with being too intimate with his wife, which Martin denied.</p> <p>Upon this evidence, the defendant asked the court to instruct the jury that they must be satisfied that it was his intention cruelly to beat and torture the horse, and that in pursuance of such intention he did cruelly beat and torture him ; that there is no offence where there is no intention or motive; that if it was the intention of the defendant merely to drive off Martin, this was merely an assault on him ; and that the question for the jury was, whether the defendant inflicted the blows for the purpose and with the intention of injuring the horse, or inflicting pain and suffering upon the horse, or whether it was for the purpose of driving Martin away and injuring him.</p> <p>The judge declined to give these instructions, and instructed the jury that a person may under some circumstances lawfully inflict force upon a horse, as where he has the ownership or control of the animal, and does it for the purpose of discipline or government, or for the purpose of driving him from his premises, if trespassing, but that in such cases the law requires that the force used should not be immoderate, or inflicted in such a manner as to cause unnecessary pain; that in the present case it was not pretended that the defendant had any right to use any force either upon Martin or the horse; that the jury must be satisfied that the defendant inflicted the blows upon the horse purposely, intentionally; and it was immaterial what may have been his motive for so doing; and they must also be satisfied that the blows caused excessive pain and suffering to the animal.</p> <p>The jury returned a verdict of guilty. The defendant alleged exceptions, and also moved in arrest of judgment, on the ground that the complaint charged two offences. This 'motion was overruled.</p>

Complaint made by Joshua Foster under Gen. Sts. c. 164, § 10, setting forth that the defendant, at Boston, at a specified rime, “ with force and arms, was committing a criminal offence against the laws of said commonwealth, to wit, the crime of drunkenness, and that, at the time of the commission of said offence, the said O’Connor was arrested by said Foster, a police officer of said city, and that, at the time of said arrest, the said O’ Connor was armed with a dangerous…