Volume 90 — Massachusetts Reports

<p>Tort to recover damages for the obstruction of a way, by erecting a fence across it. The action was originally brought oy Moses Pettingill, and after his death was prosecuted by the plaintiff as his administratrix.</p> <p>At the second trial in the superior court, before Ames, J., after the decision reported in 3 Allen, 349, the plaintiff claimed the right of way in question as appurtenant to a certain piece of land owned by her intestate in his lifetime, with a dwelling-house thereon ; and introduced in evidence a deed thereof from Warren Porter to Moses Welch, dated December 8, 1846, and a subsequent deed thereof from Welch to Moses Porter, and of the administrator of Porter to her intestate. Neither of these deeds contained any express grant of the way; but conveyed the land, with all the privileges and appurtenances thereto belonging.</p> <p>The defendants, for the purpose of taking advantage of the recitals contained therein as to the boundaries and ownership of the adjoining estate, over which the way was alleged to exist, offered in evidence a deed of Warren Porter to Moses Welch, dated June 14, 1848, conveying a small lot of land, and describing the lot over which the way was alleged to exist as land of the grantor. The land conveyed by this deed was subsequently conveyed to the plaintiff’s intestate. This deed was excluded, although it was shown that the grantor and grantee named therein were both dead.</p> <p>It appeared that the estate conveyed by Warren Porter to Moses Welch, described in the deed put in by the plaintiff, was part of a larger estate,, which said Warren Porter took by devise from his late father, Zerubbabel Porter; and it also appeared that, from a period before the commencement of the present century to the time of Warren Porter’s last described deed, Warren Porter or his father owned all this larger estate. It also appeared that a small lot, which adjoined or was carved out of this larger one, was conveyed by Zerubbabel Porter in his lifetime, through a third person, to Mary Porter, his wife; that she died intestate in the lifetime of her husband, (who died in 1845,) leaving Warren Porter aforesaid and Elias Endicott Porter as her heirs at law. Adjoining to the smaller and larger estate was a triangular piece of land, claimed by the defendants to fa)' partly within the larger and partly within the smaller lot, and to have been originally a part of the highway. The plaintiff’s deed included part of it, and the fence complained of was erected upon the boundary line. The record of the court of sessions was produced, by which it appeared that, if this constituted a part of the highway, it. was discontinued in 1807. Evidence was introduced, but not of any witness who remembered as far back as the discontinuance of the highway, or farther back than the time when Zerubbabel Porter owned both the large and small lot, of the use of the alleged way over this triangular piece of land. It appeared that the triangular piece of land had lain open from time out of mind, and no evidence as to the ownership was offered, except what appeared from the title to the adjoining lots and the discontinuance of the highway; but the ownership was in dispute, and it was also in dispute whether the same was ever a part of the highway, and discontinued as aforesaid.</p> <p>The defendants requested the court to rule that there was no evidence of the existence of any right of way by prescription up to the time of Warren Porter’s conveyance to Moses Welch, less than twenty years before the date of the plaintiff’s writ; but the judge refused so to rule.</p> <p>The judge ruled that no right of way over what was Warren Porter’s land when he made the conveyance to Moses Welch would pass by that deed, unless it appeared that the grantee could not obtain access to his place by another route, without unreasonable labor and expense. It appeared that the estate conveyed had a large front upon the highway; that there were no insuperable physical obstacles, such as ledges, swamps, or the like; that the soil was light and easily worked; that the road and adjoining estate, especially in front of the plaintiff’s house, were about upon a level; and there was no evidence to show that any greater difficulty would be found in constructing the road suggested than over any field through which it might be necessary to construct a carriage road, or at any rate nothing more than a single culvert to allow the passage of surface water after heavy rains. Upon this state of facts, the defendants requested the court to rule, as matter of law, that there was no evidence to be considered by the jury of the necessity of unreasonable labor and expense in constructing a new road. The judge refused so to rule, but ruled that the deed under which the plaintiff claimed conveyed whatever was necessary to the beneficial enjoyment of the estate granted, and in the power of the grantor to convey ; that it was not enough for the plaintiff to prove that the way claimed would be convenient and beneficial, but she must also prove that no other way could be conveniently made from the highway to her intestate’s house, without unreasonable labor and expense; that unreasonable labor and expense means excessive and disproportionate to the value of the property purchased; and that it was a question for the jury, on all the evidence, whether such new way could be made without such unreasonable labor and expense.</p> <p>Under this ruling, the plaintiff introduced evidence as to the amount of labor and expense necessary for the construction of such new way; and both parties introduced experts, who computed the probable cost of constructing a new road. The plaintiff argued, by comparison with the consideration money named in the deed, that the cost of a new road would be out of proportion to the cost of the land. No evidence was offered of the value of the land. The defendants’ counsel requested the court to instruct the jury that such a comparison would be irregular, and that it did not appear that the consideration money paid was not less than it would have been if the necessity for building the new road had not existed. The judge ruled that the jury might take into consideration the probable cost of a new road, compared with the value of the land, but did not instruct them as requested, as to inferences from the consideration named in the deed.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>Replevin. At the trial in the superior court, before Brigham J., the plaintiffs introduced evidence tending to show that the goods were obtained from them by N. Allen without payment, and by fraud and false pretences. For the purpose of showing the fraudulent intent of Allen, they offered evidence to show that, two days after the transaction with the plaintiffs, Allen went into a store in Boston to purchase goods, and informed the salesman that he had taken a lease of a store and was going into business, and gave the name of D. P. Dodge as a reference, as to the truth of his statements; and they offered to show what Dodge said, in reply to inquiries made of him by the salesman. It was not contended that the answers of Dodge were a part of the pretences under which the plaintiff’s goods were obtained, or that they were false; and the judge rejected the evidence. The plaintiffs also offered to show that, in a subsequent interview with the same salesman, Allen introduced to him one J. T. Dodge, as a dealer in fluid lamps on Tremont Row, in Boston; and that the salesman inquired at Tremont Row, and found that said Dodge was not a dealer in fluid lamps there. This evidence was rejected.</p> <p>One of the plaintiffs testified as a witness, and the defendant offered to show, by cross-examination of him, that five days before the trial he made a complaint against N. Allen for obtaining the goods by false pretences, and that the warrant which issued thereon was served on the morning of the trial, by arresting Allen. This evidence was objected to, but the judge admitted it, for the sole purpose of showing bias or interest, and thus of affecting the credibility of the witness.</p> <p>The judge instructed the jury that, it being agreed that the goods came into the possession of the defendant by a transaction which had the form of a sale, the burden of proof was on the plaintiffs to show, by a preponderance of testimony, not only that the goods were obtained by said N. Allen by false pretences, but that the defendant was not an innocent purchaser.</p> <p>The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions.</p>

<p>Writ of entry to recover a piece of upland and flats known as Clay Cove Landing, on Eastern Point, so called, in Gloucester.</p> <p>At the trial in the superior court, before Vose, J., the demand-ants claimed title under the following vote of the commoners of Gloucester: “At a commoners’ meeting, Jan.4,1732-3, said meeting voted and gave to the inhabitants of the town of Gloucester forever all the common land at Clay Cove, so called, on the Eastern Point, between Elisha Corney’s house and William Nelson’s house, on the westerly side of the highway.” They also introduced evidence showing the position of the two houses referred to; and it further appeared that two lots of land between them were, and for a long time have been, the property of private persons, and it did not appear whether they ever belonged to the commoners or not. There was evidence tending to show that, at the earliest period to which the memory of any of the witnesses extended, in 1790, the land was open and uninclosed from Nelson’s to Corney’s, excepting one of the lots above referred to.</p> <p>The tenant requested the court to rule as follows, to wit:</p> <p>“ That, the demandants relying upon the vote claimed to be that of the commoners to prove their title, and there being no evidence of title or ownership by the commoners of the land claimed except the said vote of the commoners, this is not competent or sufficient to prove title in the demandants to the land claimed.</p> <p>“ That the description in said vote is uncertain and conveys no title, without other evidence, to any particular parcel of land, or to any land.</p> <p>“ That said vote is not competent or sufficient to show that the commoners owned any land between the points named in it.</p> <p>“ That it is not competent and sufficient, without other evidence, to prove that they owned the parcel claimed, or any part thereof.</p> <p>“ That in order to prove title to the place claimed, or any part thereof, the demandants must show that it was owned by the commoners at the time of said vote, and, there being no other evidence of that fact than the vote itself, that is not sufficient or competent for the purpose.</p> <p>“ That if it appears that there were at least two other parcels of estate, and those owned by private persons, between the houses named, as there was evidence tending to show, besides the parcel of land claimed, the said vote does not furnish evidence of the ownership of the place claimed in the commoners at the time of their vote, and, without other evidence that the land claimed did then belong to the commoners, the demand-ants do not prove their title by said vote, and cannot recover.”</p> <p>The judge declined to rule as above requested, but instructed the jury that the demandants must satisfy them that the whole or a portion of the premises described in their declaration was covered by and included in the commoners’ grant; that if they were satisfied that the vote of the commoners granting certain lands to the demandants covered and included the premises claimed, or any part of them, and the demandants went into the occupation and control of the premises claimed, so included in the grant, and under the samej and continued in possession thereof claiming title thereto until the commencement of this suit, such grant and continued possession under it would be sufficient to enable the demandants to maintain this action, and to recover the whole or such part of the premises claimed as was thus covered by the grant; and that, in the absence of all other evidence, it was not necessary for the demandants to prove by any other evidence than that of the grant itself that the commoners had a seisin or possession sufficient to enable them to convey these premises.</p> <p>The jury returned a verdict for the demandants, for the whole of the demanded premises; and the tenant alleged exceptions.</p>

Bill in equity, originally filed by the plaintiff as guardian of Annie N. Atkinson, William B. Atkinson, Lucy E. Atkinson and Harriet A. Atkinson, minors, against John M. Atkinson and the West Amesbury Manufacturing Company, a corporation.

<p>Tort against a deputy sheriff for the conversion of goods, which the plaintiff claimed under a mortgage. Upon agreed facts, which sufficiently appear in the opinion, judgment was rendered in the superior court for the defendant; and the plaintiff appealed to this court.</p>

Tort for breaking and entering the plaintiffs’ close, and removing a large quantity of gravel. The defendants justified their acts on the ground that they were the selectmen of Haverhill, and that they removed the gravel, which was within the limits of a highway, for the purpose of repairing the highways of that town.

<p>Petition to the superior court for a review of a judgment rendered by a justice of the peace, setting forth, as the reason, that the petitioner claimed an appeal, and that there was an appeal .from the judgment.</p> <p>At the hearing, before Ames, J., the petitioner put in evidence a copy of the record of the judgment rendered by the magistrate, which did not show that any appeal was claimed, or that there was any appeal. The respondent asked the judge to rule that an appeal or claim of an appeal could only be proved by the record. The petitioner then claimed as a ground for review that he intended to appeal and thought he had appealed; and the judge, being satisfied that this was so, and that he had only failed to have his appeal entered in consequence of a misunderstanding and mistake on his part, ordered a review. The respondent alleged exceptions.</p>

Tort for breaking and entering the plaintiffs’ close. At the trial in the superior court, before Brigham, J., it ap peared that the plaintiffs and the defendant were the owners of adjoining tracts of woodland, and the plaintiffs contended that the boundary line between them was marked by an old stone wall; but the defendant contended and introduced evidence tending to show that the wall had been put there by mistake, and that the true boundary was a straight line from a…

<p>Proof that a depositor in a savings bank left her bank book with her mother, for the purpose of enabling the latter to draw out money upon special orders, from time to time, and that moneys were at different times deposited and withdrawn by the latter for the former, is not sufficient to authorize a jury to infer an agency on the part cf the latter to receive payment of other money due to the former.</p>

Contract to recover the amount of assessments laid by a mutual insurance company upon deposit notes given by a member upon obtaining insurances. The case was referred to J. W. Perry, as auditor, who reported the following facts, whic'a the parties agreed to take as an agreed statement of facts: At the annual meeting of the company in January 1861, twenty directors were chosen.

<p>A lien on a ship will be dissolved if the person claiming it knows that large credits exist, which exceed a certain sum, and knows very nearly though not exactly their amount, but gives no further account of them, in his statement, than that such credits exist, to an amount which is not known and cannot be computed by him; or if in his statement he says that the owner of the vessel is unknown, when he has been informed and believes that she was owned by the person who in fact owned her.</p>

Contract against the indorsers of a promissory note for $550, dated October 19, 1861, and signed by S. M. Boardman.

Bill in equity, alleging that the defendant is the adminis trator of the estate of E. H. Stacy, deceased; that E. H. Stacy and the plaintiff were the payees of a note executed by Ignatius Winter, and indorsed the same for Winter’s accommodation ; that E. H. Stacy took a mortgage of personal property from Winter to secure him from loss by reason of his said indorsement ; that Winter failed to pay the note, and the plaintiff has since paid the same, and has been unable to…

<p>If a promissory note is given payable by instalments, “ with interest on the said jam,” no interest is due upon the last instalment until the instalment becomes due.</p> <p>Oral admissions made by an attorney out of court in a conversation had for the purpose of settling a suit, though relating to facts in controversy in the suit, are not admissible in evidence against his client.</p> <p>The payee of a promissory note payable by instalments has a right to apply the proceeds of personal property held by him under a mortgage as collateral security, and sold under a power of sale contained in the mortgage, towards the payment of any instalments which may be due, at his option, if there is no agreement or direction to the contrary.</p> <p>In a suit upon a promissory note, in which the amount of the proceeds of certain collateral security realized by the plaintiff, consisting of standing trees, was in controversy, it appeared that the plaintiff had indorsed upon the note a certain sum as received by him therefor; and the defendant introduced and offered evidence to show that at one time the plaintiff and his brother said to him, “ We have taken possession of the wood, and cut it off, and sold a part of it to Reed; ” that Reed bought a lot of the plaintiff’s brother for a larger sum than that indorsed upon the note, and never at any other time bought any wood of the plaintiff or his brother; that there was also a large quantity of wood left there after the sale to Reed, the amount and value of which he offered to prove; and that the defendant never had any of it. Held, that this evidence ought to be submitted to the jury for them to determine how much the plaintiff realized from his security, and that a direction to the jury to find a verdict founded upon the amount indorsed by tho plaintiff was erroneous.</p>

Contract upon a promissory note signed, bv the defendant and payable to the plaintiff or order.

<p>If one who "by a written assignment is entitled to receive the earnings of another accepts an order to pay the same to third parties, when earned and received, he is bound to apply upon the acceptance all sums afterwards received by him, and has no right when receiving the same to agree to apply a portion thereof to the payment of other debts of the drawer, or to receive the same on condition that he will so appty them, or to assign to another person his right to receive such earnings, without the consent of the holder of the order.</p>

<p>It ig the duty of a highway surveyor, under Gen. Sts. c. 44, § 14, if he has not sufficient means to repair a highway in his district, to make a formal application to the selectmen for their written consent to the employment of persons to repair the same, so that it shall be safe and convenient, although he may have reason to believe that they will refuse to give it; and if he does not do so within a reasonable time, he cannot recover for an injury sustained by reason of a defect in such highway.</p> <p>A highway surveyor has no authority to expend any portion of the money committed to him for the repair of highways in changing the line of travel and constructing a new road; and if he does so, and thereby exhausts his funds with which he might have repaired the roads already in use, he cannot recover for an injury sustained by reason of a defect in a highway within his district, which he might have repaired by the proper ap plication of the funds.</p> <p>If, in an action to recover for an injury sustained by reason of a defective way, it becomes a material question whether the plaintiff’s horse had a habit of shying at the time of the accident, the defendants, after introducing evidence of instances of his shying before that time, may also prove similar instances afterwards.</p>

Contract to recover the price of lumber sold and delivered. The answer denied that the purchase was made of the plaintiff, or that the plaintiff then owned the property.

<p>After a verdict for the demandant in a writ of entry, for a described portion of the de manded premises, and judgment thereon, a writ of error to reverse the judg lentwill not be sustained on the ground that there are no sufficient monuments or other means to enable the parties accurately to ascertain the land described in the verdict.</p>

Writ op error to reverse a judgment recovered by the defendants, seven in number, against the plaintiff, for a legacy.

<p>Tort for breaking and entering the plaintiff’s close in Manchester, consisting of upland and beach, and removing seaweed therefrom. The answer denied the plaintiff’s title, and justified the alleged trespass under a license from the town of Manchester.</p> <p>At the trial in the superior court, before Vose, J., the plaintiff’s ownership of the upland was admitted; and he testified that at the time of the acts charged, in 1861, he was in possession of the beach described, and had been in possession thereof since 1847, supposing it to be his own ; and that since then he had taken muck from it each spring and fall. He also testified on cross-examination that in 1823 he married the daughter of Benjamin Foster, who died in 1847; that he held the premises in the right of his wife in the estate of Benjamin Foster; that Benjamin Foster was the son of Samuel Foster, who bought the premises of one Babcock; that be took possession of the beach by going upon it and taking muck or seaweed therefrom ; that he had been upon it many years before 1847, and had taken muck there, but after that time took it in much larger quantities; that he did nothing else on the beach, except to take muck ; and that when there from 1847 to 1854 he has seen other persons take muck from the beach, in the same manner that he did, though not more than once or twice in a season.</p> <p>The defendant was allowed, against the plaintiff’s objection, to introduce evidence to show that, for about fifty years prior to the acts complained of, various persons had been in the habit, nearly or quite every year, of going upon the beach and taking away seaweed therefrom, without objection from anybody, and without claim of title or right of possession ; that from 1787 to 1861 the town by various votes and acts assumed the ownership and control of the beach ; and that they sold the right to take muck therefrom in 1837, and from 1858 to 1861. It also appeared that there is a wall, called the new wall, extending from one end of the beach to the other, and that between this wall and the low water there is for a part of the distance the foundation of an old wall, which was removed about fifty years ago. For the purpose of proving that the plaintiff owns only to the beach, the defendant was permitted to put into the ease, against the plaintiff’s objection, the deed of Thomas Babcock to Samuel Foster, dated in 1787, and referred to by the plain- . tiff on cross-examination, in which the granted premises were described as bounded on the south “ on land or the beach called Black Cove.” There was much evidence as to the precise place where the acts of the defendant were done; and the defendant produced a license from the selectmen of Manchester to go upon the beach and take away seaweed in 1861. The defendant was also allowed, under objection, to introduce in evidence several reports of committees appointed by the town to lay out and renew the bounds of the public landing-places, and the roads to the same, for the purpose of proving title in the town, and of showing that the town and the owners of the upland had agreed upon a conventional division line between them, different from the ordinary high water mark.</p> <p>As further evidence of the town’s title to the beach, the defendant was allowed, under objection, to put in evidence the following records: 1. A copy of a petition in 1640, taken from the town records. “ Wee whose names are subscribed, belonging to the church & town of Salem, being straitned in our accomidations so that we are not able comfortably to subsist, having advised and taken councell about our present estate and condition, it being judged fitt & free liberty being granted us to remove, & no place being soc convenient for our easy removall as Jeffreyes Creek lying soc near us, & most of us having some small quantity of ground allowed to us there already, do therefore joyntly and humbly request the hon court to give us power to erect a village there, and to allow us such enlargement thereabouts as is not granted to any other plantation. Thus leaving our request to yr wisdom & consideration, with our prayer for a blessing from heaven on yre & proceedings, wee rest yre bumble petitioners.” 3. Copies from the records of the general court.</p> <p>“At a Generali Court of Elections, held at Boston, the 13th of the 3th M°, @ 1640.....The petition of the inhabitants of Salem for some of their church to have Jeffryes Creeke, & land to erect a village there, for Mr Willi: Walton, John Blacke, Willi: Allen, Sam: Orchard, Geo: Norton, &c. campa; what land & inlargment may bee convenient, & is not granted to any other plantation, is granted them ; & it is referred to Mr John Winthrope, Iunior, & Mr Symon Bradstreete, to settle the bounds of the said village.” 1 Col. Rec. 388.</p> <p>“A. Genrall Cort, held at Boston, the 75h Day of the 8'h M°j 1640......Mr John Winthrope, Iuni:, Mr Symon Bradstreete, Mr Ema: Downinge, Mr Hauthorne, & Mr Tynge, or any three of them, are appointed to set out the bounds between Ipswich, Jeffryes Creeke, & Cape Ann, & to certify to the next Courte.” 1 Col. Rec. 304.</p> <p>“ 3th 3th m°, 1643. Wee, whose names are under written, have determined and agreed wth the consent of Ipswich, Cape Ann, ¿6 Jefferies Creeke, that their bounds shall lye as followeth: That all the land lyinge between Ipswich & Cape Ann meeting bouse shall be divided, 6 miles to Ipswich & 4 miles to Cape Ann, -where there are 10 miles, and so by proportion where less, — that is, by fifths, 3 parts to Ipswich for 2 to Cape Ann, — & where there is more than 10 miles, the remainder to lye to Jefferies Creeke, and this to be measured before the next Generali Court. William Hauthorne, Edward Hollioke, Matthew Boyes.” 2 Col. Bee. 4.</p> <p>“At a Cort of Election, at Boston, the 14th of the 3th Month, @ 1645.......It is ordered, y‘ Jeffryes Creeke shal be called Manchester.” 2 Col. Bee. 109.</p> <p>After all the evidence was in, the judge stated that the evidence did not in his judgment show such an exclusive possession of the beach by the plaintiff, as against the defendant, as -would enable him to maintain an action against the defendant for any acts done thereon, and that the questions to be submitted to the jury were, whether the defendant took muck above the ordinary high water mark, if that was found to be the line of division between the parties; or, if the parties had adopted a different line of division, then whether the defendant took muck above such line; and that it would be submitted to the jury to determine whether such line had been adopted; and he instructed the jury that the burden of proof was on the plaintiff to show where the alleged acts of trespass were committed ; that, upon the evidence, the plaintiff owned to the ordinary high water mark, unless he and those under whom he claimed, and the owners of the beach, had adopted a different division line between them-; that if such line had been adopted and assented to, then the plaintiff owned to that line, and could recover for any act of trespass above it; that upon the evidence the plaintiff had no such exclusive possession of the land below such division line as would enable him to maintain an action for acts of trespass done thereon by the defendant; and that the proceedings of the town for more than sixty years prior to 1847, assented to by the plaintiff and by those under whom he claims, are evidence that the town was in exclusive and notorious possession of the beach, claiming title, during that time, and owned the fee of the beach in 1847.</p> <p>Various other questions were raised during the trial, which ultimately became unimportant. The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

Contract biought to recover for goods sold and delivered. It was agreed, in the superior court, that the plaintiff furnished goods, to the amount and of the value alleged in his declaration, upon the written orders of the overseers of the poor of Newburyport, at various dates between August 23, 1862, and the date of the writ. The goods were supplied to persons needing relief, who were not supported in the almshouse.

<p>A declaration in an action of tort, which alleges that the plaintiff through his agent procured the defendants to fhrnish and deliver to him a certain article, and that they negligently and carelessly furnished a different article, and that he sustained an injury b}* the use of the article furnished, believing it to be that which he ordered, is not sustained by proof that the plaintiff bought the article of a third person who obtained it of the defendants.</p>

<p>Appeal from a decree of the judge of probate dismissing a petition praying that the respondents, as administrators of the estate of Nathaniel R. Webster, might be ordered to pay to the petitioner the amount of a claim held by him against said estate. It was agreed that after the expiration of two years from the date of their bond the respondents, by leave of the probate court, sold land of the intestate for the payment of debts, and that the petitioner commenced no proceedings to recover his claim until after that time, The case was reserved by Hoar, J. for the determination of the whole court.</p>

<p>In a suit to foreclose a mortgage, the mortgagor is entitled to the benefit of the statute peu* ally for usury in reduction of the sum for which conditional judgment is entered. No deduction, however, is to be made for usury paid under a verbal agreement, which is not incorporated into the written contract.</p> <p>If, in a suit to foreclose a mortgage, a deduction is made, in entering conditional judgment, from the sum payable by the terms of the contract, on account of usury, the defendant is entitled to recover his full costs.</p>

<p>Bill in equity by ten tax-payers of Danvers, setting forth that on the 11th of September 1862 the inhabitants of the town passed the following vote in town-meeting: “ Voted, that the town of Danvers pay a bounty of one hundred and twenty-five dollars to each person, a resident of the town, or his legal representative, who has enlisted in the United States service for three years or the war, who has not already received a bounty from the town, provided said person has served nine months, or has been earlier discharged on account of injuries received in such service ; said bounty to be payable at the end of said volunteer’s service.” That on the 8th of August 1863 the inhabitants of the town in town-meeting passed a vote appropriating a sum not exceeding fifty thousand dollars to meet the expenditure contemplated by the above vote, and authorizing the treasurer to borrow from time to time such sums of money as might be necessary to pay the said bounty, as the same should become due, and be demanded by the persons entitled thereto; that accordingly certain persons coming within the terms of first vote have demanded of the defendants payment of the bounty so voted; and that the purpose for which the appropriation was made is illegal. The prayer was for an injunction, prohibiting the borrowing or payment of any money under said vote, and for other and further relief.</p> <p>The defendants filed a general demurrer, and the case was reserved by Dewey, J. for the determination of the whole court.</p>

<p>The declaration in this case contained counts in contract and in tort, with an averment that they were for the same causes of action, setting forth that the defendant and others associated themselves together as a corporation under the name of the St. Maurice Lumber Company, under the provisions of jSts. 1851, c. 133, and 1855, c. 478; that in 1856 the defendant became the treasurer of the company, and that in that year the corporation, by the defendant as treasurer, executed three several promissory notes payable to the order of the defendant as treasurer, and indorsed by him to the plaintiff, amounting together to $20,000, which notes are still due; that the officers of the corporation neglected and refused to comply with the provisions of the statutes aforesaid, or of Rev. Sts. c. 38, §§ 17, 18, and that the capital stock of the corporation was never paid in, whereby, by St-1851, c. 133, §§ 10,11, the officers are jointly and severally liable for the corporate- debts contracted during such neglect. The writ was dated December 31, 1862. The defendant filed a general demurrer, and thereupon the case was reserved by Dewey, J. for the determination of the whole court.</p>

<p>If one in possession of land as a disseisor has died insolvent before his adverse possession had continued for twenty years, the purchaser of the land at a sale by his administrator for the payment of debts will be entitled to hold it against his devisee, who has entered under the devise and continued in possession until the expiration of twenty years from the original disseisin, although such license and sale were after the expiration of the twenty > ears.</p>

Replevin of a piano. At the trial in the superior court, before Putnam, J., it appeared that since the commencement of the action the defendant had gone into insolvency, and an assignee had been appointed, who did not appear and take upon himself the defence. The plaintiffs objected that the defendant had no right to appear and contest the action; but the judge ruled otherwise.

<p>Replevin of a stock of millinery goods.</p> <p>At the trial in the superior court, before Putnam, J., the only question was as to the plaintiff’s title. To prove his title he offered in evidence a bill of sale of the goods from Charlotte J. Carlton to Stephen C. Carlton, in December 1861; a bill of sale from said Stephen to Elizabeth Cheever, in January 1862 ; and a bill of sale from said Elizabeth to himself, in April 1862. It appeared that, in said January, after the bill of sale to said Elizabeth, David Boynton caused the goods to be attached upon a writ against said Charlotte, and upon the same day the goods were replevied by said Elizabeth. Subsequently to the replevin, Bryant Stephenson and others sued out a writ against said Charlotte, upon which a further attachment of the goods was made in the manner provided by Gen. Sts. c. 123, \\ 35-39, as shown by the officer’s return upon the writ. The said Elizabeth recovered judgment in the replevin suit, upon a default. In July 1862 the said Stephenson and others sued out another writ against said Charlotte, upon which the goods in question were attached by the defendant, as deputy sheriff.</p> <p>It also appeared that the last attachment embraced certain goods purchased and added to the stock since the sale to Elizabeth Cheever, and the defendant contended that these, though purchased in the names of said Elizabeth and of the plaintiff, really belonged to said Charlotte, and that all of the above conveyances were fraudulent, and that the goods mentioned in them belonged to said Charlotte.</p> <p>The judge instructed the jury that they were to determine, upon the evidence, whether Stephenson and others, or their attorney, knew of the first attachment and of the replevin suit by Elizabeth Cheever; and whether, if they had such knowledge, they had reasonable cause to believe that the replevin suit was defended by Boynton ; that the return of the officer upon their writ was conclusive evidence that they had such knowledge ; that they, having such knowledge, were bound to defend the replevin suit, unless they had reasonable cause to believe that Boynton was defending it; that if they had not such cause, then the judgment in the replevin suit would be conclusive in this case against the defendant; and that otherwise the judgment would not be conclusive against the defendant, and they might consider all the evidence as to the various conveyances before as well as after the judgment, and determine whether they were made in fraud of Charlotte’s creditors, and whether the goods subsequently purchased were in reality purchased for her, and, from the whole evidence, determine the title to the goods now in controversy.</p> <p>The jury returned a verdict for the defendant, and the plain tiff alleged exceptions.</p>

Tort for the conversion of a horse, two wagons, a harness and a cow. At the trial in the superior court, before Brigham, J., it appeared that on the 13th of July 1861 the plaintiff, being the owner of the property, executed a mortgage thereof to the defendant which contained a power of sale in the usual form, requiring seven days’ notice of the time and place of sale to be given to the mortgagor, to secure the payment of a note for $179.83 within three months.

Writ of entry. Plea, mil disseisin. At the trial in the superior court, before Vose, J., it appeared that in 1839 David Morrill, the father of the tenants, executed a deed of the premises to Timothy P. Morrill, the father of the demandants, and continued in the possession of the premises for more than twenty years thereafter; and the only question was, whether he gained a title by adverse possession after the execution of his deed.

<p>If the price to be paid for the use of a horse and wagon is in controversy, one who uas bought, sold and used similar ones may testify to his opinion of the value of such use.</p> <p>In an action against the surviving partner of a firm, the plaintiff is a competent witness.</p>

Contract brought against the assignees of the estate of George F. Wonson, Samuel G. Wonson, Jr. and William S. Wonson, partners under the firm of George F. Wonson & Brothers, insolvent debtors, to recover the amount received by them upon the sale of vessels formerly owned by the firm.

<p>Bill in equity, to which the defendants filed a plea in bar setting forth that the plaintiff formerly commenced in the United States circuit court for the district of Massachusetts a bill in equity against the defendants for the same cause, which was dismissed, and on appeal to the supreme court of the United States the decree dismissing the same was affirmed, “ by a divided court.” The defendants also filed another plea in bar and an answer, and the case was reserved by Dewey, J. for the determination of the whole court, upon facts which are sufficiently stated in the opinion.</p>

<p>If the inhabitants of a town have authorized their treasurer to borrow a certain sum ci money for a specific purpose, and to give his note as treasurer therefor, and he has exercised this authority, they are not liable upon a note given by him in their name for money subsequently borrowed by him and converted to his own use, although he assumed to be acting under the authority conferred upon him, and the lender supposed that he was doing so.</p>

<p>It is culpable neglect, within the meaning of St. 1861, c. 174, § 2, not to bring a suit against an administrator within the time limited by law, if the party having the claim has knowledge of the existence of the debt, of the statute limitation, and of the time when it will expire, and no fraud or imposition has been practised upon him, and the delay is not caused by accident or mistake.</p>

Contract upon a promissory note dated October 24, 1849, signed by the defendant and a surety, payable to “ the treasurer of the First Parish in Hopkinton, or his successor in said office.” Copies of various indorsements of interest were appended to the copy of the note, the last of which, in 1861, was signed by “ Edward E. Whittemore, treasurer.” The declaration alleged that on the 24th of October 1849 the plaintiff was the treasurer of the parish, &c.; that the defendant…

Appeal by the administrator of the estate of William W Moe from a decree of the judge of probate, allowing in part the account of Ira Moe as guardian of said William W. Moe, who was his son.

<p>No action lies against a city for a failure to keep a public sewer and cesspool in repair, whereby waste water accumulates and flows into the cellar of a neighboring house, which is not connected by a drain with the public sewer.</p>

<p>Tort for breaking and entering the plaintiff’s close in Groton, and cutting and carrying away wood and timber therefrom. The defendant amongst other things relied upon the statute of limitations. At the trial in the superior court, before Rockwell, J., a verdict was returned for the plaintiff, upon facts and under instructions which sufficiently appear in the opinion. The defendant alleged exceptions.</p>

Replevin of a horse and other property. It was agreed in the superior court that while the plaintiff, as constable, had possession of the property under a valid attachment upon a writ against the owner, Paine G. Ballou, the latter went into insolvency, and the defendant, as messenger, seized the same with other property of the debtor, and refused to deliver the same to the plaintiff on demand, but subsequently delivered the same to the assignee of the estate.

<p>If, in an action to recover for damages sustained by falling upon the ice on a sidewalk, it becomes a question whether the defendants had taken reasonable pains to remove the ice, the plaintiff may show that in other places on the same sidewalk, similarly situated, the ice had been removed with a shovel only.</p>

Tort to recover for a personal injury sustained by the female plaintiff, in consequence of a defective highway. At the trial in the superior court, upon an agreement of the parties as to the facts established by the evidence, which are sufficiently stated in the opinion, Lord, J., ruled that the plaintiffs were not entitled to recover; and a verdict was returned for the defendants. The plaintiffs alleged exceptions.

Tort for the obstruction of a way. At the trial in the superior court, before Ames, J., it appeared that on the 31st of May 1843 the Charlestown Wharf Company conveyed to Henry Jaques, his heirs and assigns, a wharf in Charlestown, and also “ a right of way with horses, carts, carnages and other vehicles over and across the said land of the Charlestown Branch Railroad Company to a street forty feet wide, leading into Water Street, between lots numbered one hundred and…

<p>If, ill an action to recover the value of the labor of the plaintiff’s intestate for several years before his death, the defendant has introduced evidence to show that by reason of confirmed intemperance and a chronic bodily disease his labor was not worth more than his board and clothing, and such small sums of money as were furnished to him for holidays, evidence is inadmissible in reply to show the amount and value of his labor the year before he commenced working for the defendant, and that there was no visible change for the worse in his health and habits thereafter.</p>

Tort for the conversion of a promissory note, horse and other property, of the value of $500. The defendant claimed title to the property under a release or bill of sale from the plaintiff; to which the plaintiff replied that the release was obtained from him through duress and fraud, by means of arrests under three complaints and warrants charging him with larceny of money of the defendant, who was his employer.

Tort for seizing and carrying away the plaintiff’s seines and fishing tackle.

Contract against an attorney at law, to recover money collected in a suit in favor of the plaintiff. The answer admitted the collection of the money, but averred that the plaintiff was only a nominal party to the suit in which it was recovered, and that the suit was in fact prosecuted for the benefit of Alfred Pollard, to whom the note which was the subject of ttie suit belonged.

<p>Contract upon a recognizance, taken under Gen. Sts. c. 124, § 17, originally running to the Mutual Life and Fire Insurance Company, with condition that the defendant Woodward, who had been arrested on an execution in their favor, and desired to take the oath for the relief of poor debtors, should appear at a time and place named, which had been appointed for his examination, and submit himself to such examination.</p> <p>At the trial in the superior court, without a jury, it appeared that Woodward was arrested on an execution in favor of the plaintiffs, and taken before a magistrate, who took the above recognizance, and afterwards issued a notice describing the plaintiffs by the same mistaken name, in which a time and place were named at which Woodward desired to take the oath for the relief of poor debtors, and delivered it for service to an officer who sent it in a letter to the person who then acted as the creditors’ attorney, who acknowledged the receipt of it in a letter to the officer as follows: “ Circumstances are such that it is doubtful whether I shall be present at the hearing of A. W. Woodward, arrested on execution in favor of the Mutual Safety Fire Insurance Company. And even if I should be present, it would probably make but little difference in the result, as 1 doubt not the examination will be conducted in a fair and impartial manner.” After examination the oath was administered to Woodward ; and, after the commencement of this action, the plaintiffs’ said attorney informed the magistrate of the error in the recognizance, and requested him to correct his record, which was accordingly done.</p> <p>Upon these facts, judgment was rendered for the defendants, and the plaintiffs appealed to this court.</p>

Contract on a recognizance taken under Gen. Sts. c. 134, § 10, with condition that the defendant Goodrich, who had been arrested on an execution in favor of the plaintiff, should within thirty days from the time of his arrest deliver himself up for examination, giving notice as therein provided, and making no default, and abide the final order of the magistrate thereon.

<p>if the ~wner of land which is subject to a mortgage conveys a portion thereof the value of whicn. is more than sufficient to pay the mortgage debt, with a provision in the deed that the purchaser shall assume and pay the whole of the same, and afterwards conveys the residue of the lot with the understanding that the mortgage is to be paid by the former purchaser, and the mortgagee subsequently takes a new mortgage upon the portion of the lot first conveyed, with notice, the purchaser of the second lot may maintain a bill in equity to redeem the same without contribution towards the debt secured by the first mortgage*</p>

<p>Writ of entry to foreclose a mortgage of real estate.</p> <p>At the second trial in the superior court, before Lord, J., after the decision reported in 3 Allen, 518, it appeared that the plaintiff, as executrix of David W. Grimes, held a mortgage of the demanded premises to secure a note for $1000 from Emerson Gardner, who, in November 1855, obtained possession of them by giving to her a new note and mortgage. It was in controversy whether this surrender was procured through the fraud of Gardner, and whether or not the mortgage had a discharge-written upon it; but it appeared that his object was to enable himself to convey the premises free from incumbrances; that the plaintiff understood this to be his purpose; that she surrendered to him the note and mortgage to enable him to make such conveyance ; and that he procured a loan from a loan and fund association, secured by a mortgage of the premises, upon producing to them the original note and mortgage. No further facts were reported in the bill of exceptions.</p> <p>The judge ruled that “ if Gardner gave the new note and mortgage, and took the old note and mortgage, for the purpose of being able to convey the estate free from all incumbrances, and the plaintiff, with full knowledge that such was his purpose, and intending to enable him to do so, gave up the old note and mortgage and took the new ones instead, and if the loan and fund association in good faith, upon the production by Gardner of said note and mortgage, and without knowledge of any fraud, lent money upon the estate, taking a mortgage, and then said Gardner sold the estate, and the defendant in good faith and without notice purchased the estate, and paid the mortgage to the association and the balance to Gardner, the title of the defendant would be good against the said Grimes’s mortgage, although the consent of the plaintiff to the arrangement between her and Gardner, and the surrender of the note and mortgage by the plaintiff, and the taking of the new note and mortgage, were obtained and brought about by the fraudulent misrepresentations of Gardner, even if there was no written discharge upon the mortgage, and the mortgage was undischarged on the record, and although the new note and mortgage were given to the plaintiff in her own right in matter of form, while the previous note and mortgage were given to her testator.”</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>A power of sale contained in a mortgage of real estate may be executed after the mort- * gagor’s death.</p> <p>If such power of sale, so executed, provides that the surplus of the proceeds, after payment oí the debts and expenses, shall be paid to the mortgagor or his assigns, his executor may maintain an action therefor, although the mortgagor by will devised the land to others; and, upon recovery of it, will hold the same in trust,first, to the use of the widow, so far as she may be entitled thereto, in preference to creditors; secondly, for the payment of debts; and thirdly, to the uses of the will.</p> <p>II such power provides that the mortgagee may retain all costs and expenses of the sale, he may retain a reasonable sum paid for legal advice respecting it, and also for his own time and trouble.</p>

<p>An entry by a mortgagee upon mortgaged premises, made, certified and recorded as provided in Rev. Sts. c. 107, § 2, will have the effect to foreclose the mortgage, after the expiration of three years, although the entry was purposely made in secret.</p>

<p>The title of a mortgagee to land may be conveyed by a deed of release duly executed and recorded, to one who has no notice of a prior unrecorded assignment of the mortgage</p>

Whit of entry to recover a parcel of land in Waltham. It was agreed that in January 1855 Michael O’Halloran, being the owner of the demanded premises, conveyed them to the Waltham Mutual Loan and Fund Association by a mortgage containing a power of sale ; that in April 1856 O’Halloran conveyed the premises to the tenant, who has since been in the exclusive possession thereof, with a claim of exclusive ownership; and that in May 1862 the mortgagees sold and conveyed the…

Tort for the conversion of a watch and chain. The answer denied the conversion, and the title of the plaintiff to the property; set forth the special contract of the plaintiff hereafter copied; and averred that the plaintiff borrowed the watch and chain from James M. Hildreth, Jr. for a temporary purpose, and wore them for several weeks, and then lent them to the defendant for a like purpose, and that James M. Hildreth, Jr. thereupon demanded them of the defendant, and that…

<p>In an action against a gas light company to recover damages for an injury to the plaintiff's health caused by an escape of gas from a main pipe in a public street, from which it passed through various sewers and drains into the cellar of the house and thence into the house occupied by the plaintiff, evidence is competent to show that all the other persons living in the same house, who had been in good health before the time complained of, after-wards became ill, for the purpose of showing the effect of the gas upon others who inhaled it at the same time with the plaintiff; and it is immaterial whether the injury was caused by inhaling gas of the defendants, or other gases from the sewers and drains which it set in motion, provided the plaintiff was not guilty of negligence, and the defendants were guilty of negligence.</p> <p>There is no established form for questions to experts in this commonwealth, and any question may be proper which will elicit their opinions as to the matters of science or skill which are in controversy, and at the same time exclude their opinion as to the effect of the evidence in establishing controverted facts.</p>

<p>If a bill in equity is brought in behalf of the plaintiff and such others having a like interest as may come in to prosecute the suit, and no others come in, the plaintiff, in order te maintain his bill, must show that he is himself entitled to equitable relief.</p> <p>If no permanent restriction upon the use of an estate is created by deed, a court of equity will not imply one under an alleged independent agreement, unless such agreement is clearly established.</p> <p>A simple agreement between the owners of adjacent estates for the erection of buildings thereon in a uniform manner, and at a certain distance from the street, does not by implication require that the buildings shall thereafter remain in the same position or of the same size or shape as when erected.</p> <p>If the owner of two adjacent lots of land conveys one of them subject to a condition that the buildings to be erected thereon shall be set back a certain distance from the street, and with a warranty that the premises are free from all incumbrances made or suffered by him, a previous mutual oral agreement between the grantor and grantee that they will set back the buildings to be erected by them a greater distance from the street cannot he enforced by one of them in equity.</p>

<p>A. and B. entered into the following contract: “ The stock entered on this book is delivered to A., to be made into men’s split brogans, and returned to B. as fast as done at 87¿ cents per pair, B. to advance on each case $15.” Held, that the title to stock delivered to A. under this agreement, and entered upon the book, remained in B., and that it was immaterial that A. used some portion of it in making brogans for others, and other portions of it, together with stock of his own, in making brogans for B., without objection from the latter.</p>

<p>If one tenant in common of land takes an assignment of a mortgage upon it, his co-tenants . who derive their title as heirs at law of the mortgagor, cannot maintain a petition foi partition against him, although the mortgage and assignment are not recorded.</p>

<p>Contract against common carriers for failing to collect and pay over to the plaintiffs a sum of money. At the trial in the superior court, before Morton, J., a verdict was returned for the defendants upon facts and under instructions which are sufficiently stated in the opinion. The plaintiffs alleged exceptions.</p>

<p>Appeal from a decree of the judge of probate, allowing the probate of an instrument dated August 3, 1860, the material portions of which are as follows :</p> <p>“ In the name of God, Amen; I, J. W. Damon, of Charles-town, in the County of Middlesex, Commonwealth of Massachusetts, being in sound mind and body, and being about to go to Cuba, and knowing the dangers of voyages, do hereby make this as my last will and testament, in manner and form following:</p> <p>“ First, If by casualty or otherwise I should lose my life during this voyage, I give and bequeath to my wife Ann the use and behoof of the house now building in this Charlestown, situated on the corner of High Street and Monument Avenue, during her natural life, and then to descend to our children Teracita and Lottie, together with the house on the corner of Main and Green Streets, with any other house or houses I may be possessed of on Monument Avenue: also one half of the wharf situate in Charlestown, called ‘ Damon’s Wharf,’ and all the property I may hold on the Island of Cuba at the time of my decease. And I hereby give to my nephew John Martin Damon the other half of the said Damon’s Wharf,’ to hold and to have for his use.”</p> <p>[The second and third clauses contained devises to his nephews and brothers, and appointed his wife executrix.]</p> <p>“ Signed and. deposited among my papers, making my wife Ann accountant, with those she may choose to settle all affairs in Cuba and all other places where I may have business at the time of my decease, of this my last will and testament.”</p> <p>It was agreed that J. W. Damon died in Charlestown, where he then resided, on the 26th of March 1863, leaving a widow, the appellee, and two minor children, Teresa and Charlotte, the appellants. The above will was a holograph, executed in Charlestown. In the fall of 1860 the testator went to Cuba and returned safely in 1861. He had for many years carried on business in Cuba, where he had a large property.</p> <p>The case was reserved by Hoar, J. for the determination of the whole court.</p>

Tort in the nature of trespass quare clausum. At the trial in the superior court, before Ames, J., it appeared that the premises in question were a mill and mill privilege, and the acts complained of were alleged to have been committed oetween April 24th 1861 and May 14th 1862.

Contract against the sheriff of Middlesex upon a judgment recovered against one of his deputies for the wrongful taking of the plaintiff’s goods. It appeared that no property of the deputy could be found to satisfy the execution which issued upon the judgment, and that the defendant refused to pay the same. Judgment was rendered in the superior court for the plaintiff, and the defendant appealed to this court.

Contract upon a promissory note signed by the defendants as maker and indorsers. The defence was that the note was given on a usurious consideration, and also that it was in violation of Gen. Sts. c. 57, § 68.* At the trial in the superior court, the defendant Fiske was the only witness, and, upon undisputed facts, which are stated in the opinion, Rockwell, J. ruled that the plaintiffs were entitled to recover; and a verdict was returned accordingly.

<p>Contract to recover a month’s rent of a tenement which had been occupied by the defendant as tenant at will to the plaintiff At the trial in the superior court, before Morton, J., there was evidence tending to prove that before the commencement of the month in question the defendant left the premises by the express consent of the plaintiff, who said that he should not require a written notice; and the judge instructed the jury that if this fact was established the defendant was entitled to a verdict. It also appeared that, after the defendant had left the tenement, he sent to the plaintiff a portion only of the keys belonging to it, which the plaintiff declined to receive. It was in controversy whether this was before or after the commencement of the month, and the judge ruled that it was immaterial. The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>If a writ of entry is brought by two demandants, and they prove a good title in themselve* jointly at a period prior to the date of the writ, the tenant, under a plea of nul disseisin, may show that subsequently, and before the date of the writ, one of them conveyed his title to the other.</p>

Contract. The declaration set forth that in February 1853 the plaintiff, the defendant, J. C. Dodge and Alanson Tucker, Jr. were the owners of the shares of the Belknap Manufacturing Company, a corporation established in New Hampshire; that they then agreed in writing that the plaintiff and the defendant should take the mill property “ and pay the debts; ” that after-wards, in September of that year, the defendant purchased of the plaintiff all of the shares, and agreed in…

<p>Tort. The declaration alleged, in two counts, that the defendant was the treasurer and managing director of the Malden and Melrose Railroad Company, and that, in order to induce the plaintiff to accept certain notes of the company, signed by the defendant as treasurer, in payment for horses sold by the plaintiff to the company, the defendant represented to the plaintiff that the company was perfectly good, and did not owe anything, but was short of funds for ready use on account of the snow; whereas the company was in fact utterly insolvent, as the defendant knew; and the plaintiff accepted the notes accordingly. It was agreed that none of these representations were made in writing; and the case was reserved by Metcalf, J. for the determination of the whole court, to be tried if, upon paroi proof of the representations charged, the action could be maintained.</p>

Contract on a judgment recovered by the plaintiff against the defendant.

<p>A woman who, to release dower, has joined with her husband in a mortgage of land, cannot upon his death maintain a writ of dower against the mortgagee or his assignee in possession.</p>

<p>If a deed of land, in describing the granted premises, after naming a certain monument, adds, “ thence running southerly by land improved by A. to the road,” and a straight line to the road, running a little east of south, will include the land improved by A. in the granted premises, while a line running a little south of west, to the corner of the land improved by A., and thence along the line of said land a little east of south to the road, at a point nearly south of the monument, will exclude said land from the granted premises, the latter construction is to be adopted as the true one.</p>

<p>Contract brought by a mutual insurance company, to recover an assessment of fifty-five dollars upon a deposit note executed to them by the defendants, on a policy upon a distillery insured in the company’s second class. The answer alleged that the property insured by the plaintiffs had never been legally divided into two classes, and that no second class had ever been legally established, and that the assessment was unequal and illegal, and denied that the defendants were legally insured in that class.</p> <p>At the trial in the superior court, before Lord, J., without a jury, it appeared that the plaintiffs accepted their charter on the 1st of October 1846, and at the annual meeting on the 9th of January 1849, and at meetings of the directors held thereafter votes were passed looking to a division of the property to be in« sured by the company into two classes; and at a directors’ meeting held on the 5th of June 1849 it was voted that the secretary be requested to call a meeting of the policy holders to be held on the 2d of July to consider the subject of accepting St. 1849, c. 104, concerning mutual fire insurance companies, and that said notice be given by publishing notice of the same, agreeably to the roles of the corporation. The meeting was accordingly called, notified and held, and the record thereof showed that there were twenty-three policies represented ; and a committee was chosen to ascertain the necessity of accepting said legislative act, and the meeting was adjourned to the 7th of August. At the adjourned meeting the record showed that twenty-four policies were represented, and, the report of the committee having been made, it was voted to accept the statute. And at various meetings of the directors held thereafter, votes were passed recognizing a practical division of the property insured by the company into two classes.</p> <p>The 19th article of the by-laws of the company provided that fifteen members being present at a meeting, either personally or by proxy, should constitute a quorum for doing business; and article 20th contained the following provision: “A special meeting shall be called by the president, or in his absence by the secretary, on application made to them in writing by ten members.”</p> <p>Stephen W. Trowbridge testified that he was secretary and treasurer of the company; that it appeared from the books of the company that on August 2d 1849 the sum of $453,000, or thereabouts, bad been subscribed to be insured in the second class in said company, and that between that time and October 1, 1849, $100,000 additional was subscribed; that the directors began to issue policies in the second class after the vote of the annual meeting of the company in January 1849; and that the $453,000 consisted of policies issued as in the second class on or before August 2d 1849, which, with new subscriptions as they came in, constituted that class after the acceptance of St. of 1849, c. 104. It also appeared that, after January 1849, a set of books was opened for the second class ; that the business of the two classes had ever since been kept distinct; that policies were issued on and after August 7th 1849, without interruption, in the two classes; that the annual returns required by law had been made for both classes since 1849, and that the annual report of the treasurer and auditing committee contained a separate account for each class.</p> <p>The defendants’ application was put in, and bore date June 20th 1860, in which they request insurance in said company, and upon said application a policy was issued and accepted by them, approved June 22d, by which the plaintiffs insure the defendants, in their second class, against loss or damage by fire in the sum of $2000 on the “ stock in trade of a rum distillery, contained in wood and brick building” in Somerville. The act of incorporation and by-laws of the company are printed on the policy. The signature to the note was admitted.</p> <p>A monthly committee of two directors was regularly chosen, who passed upon all applications for insurance, and approved the issuing of policies, and allotted applicants in the first or second class, and whose doings were reported at the monthly meeting of the directors and by them approved. The method of the assessment and computation was not gone into in this case.</p> <p>Parol evidence was offered that from October 7th 1849 all the acts of the directors, both as to the taking of risks and their division into classes, payment of losses and of dividends, and laying of assessments, have been conducted strictly with reference to a classification of risks into two classes.</p> <p>The judge ruled that, upon the evidence presented, the company had not proved a legal division of risks into two classes by the directors, and that the assessment was therefore illegal, because not laid upon all the members of the company, and ordered judgment to be entered for the defendants. The plaintiffs alleged exceptions.</p>

Tort to recover damages for a personal injury received by the plaintiff, by being ran over by the defendants’ locomotive engine.

<p>The court cannot say, on a bill of exceptions, that riding upon the outside platform of a horse railroad car is such a want of ordinary care as to prevent a recovery for an injury sustained by being thrown therefrom.</p>

Tort to recover damages for a personal injury sustained by reason of a defective highway.

Tort to recover compensation for injuries sustained by being run over by the defendant’s horse and wagon. At the trial in this court, before Merrick, J., it appeared that the injury was received in that portion of Auburn Street, in Boston, which is north of Livingston Street, and which was a private way, laid out with brick sidewalk^ and a carriage way between, and with nothing to show that it was not a public street.

<p>Tort to recover for damages to the plaintiffs’ car, and for damages recovered of the plaintiffs by passengers therein, sustained by reason of the car’s coming in contact, on Malden Bridge, in Charlestown, with a swinging gate, which the defendants had carelessly left unfastened. The declaration contained several counts. After the plaintiffs had opened their case, in the superior court, Allen, C. J. ruled that, upon the true construction of the statutes upon which the liability of the defendants depended, the plaintiffs were not entitled to recover, and ordered a verdict for the defendants, which was returned accordingly ; and reported the case for the determination of this court.</p>

<p>The of 1863, c. 218, providing for the reimbursement of bounties paid by cities and towns to volunteers, and apportioning and assessing a tax therefor, will not be declared invalid on the ground that the tax which it imposes is disproportionate and unequal, or •that the sums to be raised under the same are to be unequally distributed among cities and towns, or that the legislature have no authority to raise money by taxation for the payment of bounties to soldiers of the United States, or to reimburse bounties already paid to them by cities and towns, or that it is apparent from the statute itself that the legislature did not intend that a tax should be levied under it.</p> <p>This court cannot say that a city or town may be excused from levying a tax according to the requirement of St 1863, c. 218, on the ground that an insufficient time was allowed for the assessment and collection thereof, although the warrant for the tax was not received from the state treasurer until the ordinary taxes of such city or town had been assessed and committed to its treasurer for collection.</p> <p>Under Gen. Sts. c. 15, § 32, the governor may instruct the state treasurer to withhold the payment of a portion of a sum of money due to a city or town, after he has, with the advice of the council, executed and delivered to the treasurer a warrant for the payment thereof, if such city or town illegally withholds money due to the Commonwealth.</p>

<p>If ancillary administration is taken out in another state upon the estate there of a deceased citizen of Massachusetts, a judgment there rendered, establishing a claim against the estate, is not binding here, and cannot be proved against the estate here; nor can the creditor establish his claim here against the executor, or against the legatees, to compel them to refund money paid to them by the executor, after the expiration of the time limited for the presentation of claims against executors, although the judgment was rendered after the expiration of such time.</p>

<p>If citizens of the United States build a vessel in Nova Scotia for themselves, and without consideration execute a builder’s certificate to a citizen of Nova Scotia, stating that he Is her first purchaser, and he thereupon causes her to be registered there in his name, but never takes possession of her, and afterwards at their request executes a mortgage upon her, with power of sale, to secure advances made to them, and writes upon the mortgage a statement that when she is sold he shall have no claim for any surplus nor be liable for any deficiency, in case she brings more or less than the sum for which she is mortgaged, he retains no attachable interest in her, as mortgagor or otherwise.</p>

Contract to recover for the carriage of mackerel from Halifax to Boston. It was agreed in the superior court that the defendants shipped the mackerel at Halifax, upon a vessel of which the plaintiffs were part owners, said Wooster being master, under a bill of lading in the usual form, to be delivered at Boston “ unto Messrs.

<p>Trustee process. It was agreed in this court that, at the time of the service of the writ upon the supposed trustee, he held a mortgage upon the property which was attached upon the writ, to secure a certain existing claim and also all such sums as might become due to him from the mortgagor; and the only question was, whether the trustee could avail himself of this mortgage to secure certain sums which became due to him from the mortgagor after the making of the attachment and the service upon the trustee. The interrogatories to the trustee and his answers were relied on to show when he had notice of the attachment.</p>

<p>Contract brought on the 18th of December 1862 by the administrator of the estate within this commonwealth of Leonard Jarvis, against the executrix of the estate of Nathaniel J. Wyeth, to recover the sum of $15,000, and interest, for money advanced by the plaintiff’s intestate to the defendant’s testator, and also to recover upon the covenants of a lease.</p> <p>At the trial in this court, before the chief justice, it appeared that on the 20th of August 1851 Leonard Jarvis, of Baltimore, for the accommodation of Nathaniel J. Wyeth, opened a continuous credit for six thousand pounds sterling with George Peabody of London, which Wyeth used to the full amount thereof, having given to Jarvis a mortgage on certain parcels of real estate for security. Subsequently, on the 17th of August 1852, a new arrangement was made between Jarvis, Wyeth, and another person who was interested in the matter with Wyeth, by which the latter, to furnish security for his portion of the sum received under the letter of credit, executed to Jarvis a deed of the “Assabet Estate,” absolute in form, for the consideration of fifteen thousand dollars. This estate consisted of land in Sudbury, with an ice-house thereon, and machinery and apparatus for cutting, transporting and storing ice. On the same day, Jarvis and Wyeth executed an indenture, by which Jarvis leased the same property to Wyeth for three years, for the rent of nine hundred dollars a year, payable semi-annually Certain provisions of this indenture are recited in the opinion. On the same day, Jarvis and Wyeth executed another indenture, reciting the above deed and lease, and providing that the same were made on condition that, if Wyeth should observe the covenants of the lease, Jarvis should convey to him the said property at any time within three years, upon payment of fifteen thousand dollars, and that if Wyeth should fail to observe the said covenants, or to pay the said sum within the specified time, Jarvis should have the right to sell the property, upon terms and conditions similar to those usually incorporated into a mortgage with power of sale. Subsequently the lease was extended, by a written memorandum upon the back of it, until January 1st 1862, and the following agreement (marked “ M”) was executed by Jarvis upon the other indenture, on the 13th of November 1854:</p> <p>“ The lease mentioned in this agreement having been, by memorandum upon the back of the lease, extended to seven years after the 1st of January 1855, the said Leonard Jarvis agrees also to extend the right to redeem the land herein mentioned, upon the payment of the sum of fifteen thousand dollars at any time within said term of seven years, and not to foreclose within said term.”</p> <p>Jarvis died in 1855, and on the 12th of August 1862 the plaintiff was appointed administrator of his estate within this commonwealth. Wyeth died in 1856, and the defendant was appointed executrix of his estate on the 14th of October in that year, and gave bond and notice of her appointment according to law. She has received the rents of the Assabet Estate since Wyeth’s death, and paid to the plaintiff the semi-annual payments provided for in the lease, to April 15th 1859.</p> <p>Upon the foregoing facts, the chief justice directed a verdict for the plaintiff for $15,000, and interest thereon from April 15th 1859, and reported the case for the determination of the whole court. And it was provided that if the court should be of opinion that said sum was not a debt due from Wyeth’s estate, oi that the same was barred by the statute of limitations, then the verdict should be set aside, and the case stand for trial upon the other counts in the declaration, under such instructions as the court should give.</p>

Bill in equity praying for an injunction to restrain the defendants from building a street railway over a portion of Shawmut Avenue in West Roxbury, lying between the junction of said avenue with the Boston and Providence Railroad and the line separating West Roxbury from Roxbury.

Audita querela to annul a judgment recovered by the defendant against the plaintiff.

<p>Writ of entry to recover a parcel of land with a building thereon, situated in the rear of a certain store on Milk Street in Boston. The following facts were agreed in this court:</p> <p>On the 5th of August 1842, Henry M. Holbrook, under whom both parties claimed title to the demanded premises, received a deed of a lot of land on Milk Street, with á store thereon, ffora Edmund Dwight, James K. Mills and Charles H. Mills, and on the same day mortgaged the same to the Massachusetts Hospital Life Insurance Company to secure a certain sum. On the 18th of September 1845, Holbrook received a deed of a lot of land in the rear of several lots fronting upon Milk Street, including the demanded premises, from Lucius M. Sargent; and afterwards conveyed portions thereof to Abbott Lawrence and to Chace & Grew, retaining the demanded premises, being the portion in the rear of his lot upon Milk Street. On the 8th of April 1846, Holbrook, Lawrence, Chace & Grew and others executed an indenture, which recited that they were the owners of a block of six stone stores on Milk Street, extending easterly from the corner of Pearl Street, and contained the following provisions:</p> <p>“ Now be if known that we do hereby mutually grant, covenant and agree, each of us severally, for himself and his respective heirs and assigns, to and with the other of the parties hereto, their heirs and assigns, jointly and severally, in manner following, that is to say: the several yards in the rear of said stores, respectively, extending back from said stores about fifteen feet, shall be forever kept open, as they now are and have been since the erection of said stores, for the common use and benefit of the parties hereto, their respective heirs and assigns; and each of the parties hereto, their respective heirs and assigns, shall forever have, hold and enjoy the right to pass and repass through and over the said yards lying between his particular store and Pearl Street, and to convey any and all goods to and from his said particular estate to and from said Pearl Street; and neither of the parties, his heirs and assigns, shall at any time hereafter build upon the said land heretofore used as a passage way in the rear of their respective stores, nor incumber the same in any way with coal, boxes or any other article, any further than may be necessary in receiving and delivering goods, and hoisting and lowering the same into and out of their several stores ; it being the meaning and intention of the parties hereto that no one of them, his heirs and assigns, shall ever erect any building in or upon their respective yards aforesaid, but that the said land, so used as a passage way in the rear of their respective stores, shall always be kept open and unincumbered, for the benefit of light and air to the estates of all the parties, a*, well as for the purpose of passing and repassing as aforesaid. And the said Holbrook, Lawrence, Chace & Grew, their respective heirs and assigns, shall have and enjoy the privileges hereby granted for the benefit and accommodation of their respective estates, on the southerly side of their respective yards aforesaid, in the same manner and to the same extent they are herein granted for the benefit and accommodation of their several es. totes fronting on Milk Street. Provided, however, that nothing herein contained shall preclude the said Lawrence, Holbrook and Chace & Grew, from building covered bridges from their respective stores aforesaid to the stores about to be erected by them on their respective estates in the rear of their respective yards aforesaid ; said bridges to be built, commencing and running from the first floor above the cellars of the stores, in Milk Street, of said Lawrence, Holbrook and Chace & Grew, and not to exceed in height twenty-four feet from the pavement running to the corresponding stories of the stores now being built in the rear. And it is mutually agreed and covenanted that neither of said back stores shall be rented or occupied by any person or persons except the owner or occupants of the above-mentioned stores on Milk Street, as appendages to the same. And, in consideration of these last grants, the said Holbrook, Lawrence and Chace & Grew severally covenant with each of the other parties hereto that no building shall ever be erected on their respective rear lots aforesaid, the height of which shall exceed thirty-six feet six inches from the said yard to the eaves, and that the pitch of roof of said buildings respectively shall not exceed nine inches to the foot.”</p> <p>In 1846, Holbrook, Lawrence, and Chace & Grew erected buildings on their rear lots, leaving a passage twenty-one feet and three inches wide between the front and rear buildings, and connecting said buildings by a covered bridge, according to the provisions of the indenture. On the 10th of July 1854, Holbrook executed to George R. Sampson a mortgage of “ all that lot of land in said Boston, with the new store thereon, bounded northwesterly by Milk Street, on two lines, six feet ten inches, and nineteen feet five inches; southwesterly on land and store now or late of Almy, Blake & Patterson, eighty-five feet and seven inches; southeasterly on land late of Lucius M. Sargent, in part, and in part on land now or late of Edward Clarke and others, thirty-one feet five inches; and northeasterly by land and store now or late of Edward Clarke and E. L. Penniman, eighty-seven feet three inches, or however otherwise bounded or described ; together with all the rights, easements, privileges and appurtenances thereto belonging, and now had and used and enjoyed therewith; being the same premises which Messrs. Edmund Dwight, James K. Mills and Charles H. Mills conveyed to me by deed dated Aug. 5, 1842, recorded,” &e. On the 10th of September 1855, Sampson assigned this mortgage to the tenants, who in the next month entered the premises for foreclosure, for breach of condition. On the 12th of January 1856, the Massachusetts Hospital Life Insurance Company assigned their mortgage to the tenants, who in the following March entered the premises for foreclosure for breach of condition, since when they have been in possession thereof, and of the demanded premises. On the 13th of September 1855, Holbrook conveyed the demanded premises to the demandant.</p> <p>The building on the demanded premises has always been leased with and as a part of the store on Milk Street, and has always been used and occupied therewith. The whole has always been leased together for one sum. The only mode of access to the building standing on the demanded premises is through the passage established by the indenture, opening upon Pearl Street, and by the bridge from the front store.</p>

Writ of entry to recover a small parcel of land situated in the rear of a dwelling-house on Beacon Street in Boston.

Contract brought in this court upon a written agreement, the material parts of which are sufficiently stated in the opinion. The defendants demurred to the declaration, and the case was reserved for the determination of the whole court.

<p>Contract to recover damages for a breach of warranty of a horse.</p> <p>At the trial in the superior court, before Putnam, J., it appeared that the consideration paid by the plaintiff for the horse, at the purchase when the warranty was given, was spirituous liquors which the plaintiff was not legally authorized to sell; and the judge ruled that the plaintiff might nevertheless recover, upon proof of the other facts necessary to sustain the action.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Contract upon the following written agreement, signed and sealed by the defendants : “ Boston, May 24th 1861.

<p>Bill in equity against Artemas Hammond, an insolvent debtor, and his assignees in insolvency, alleging, amongst other things, that said Hammond entered into a written agreement, under the name of A. Hammond & Co., to sell coal, wood and bark for the plaintiffs, and that, at the time of his insolvency, he had sold large quantities of the same for them, payment for which had been made to the other defendants, as his assignees ; and praying for a decree ordering the defendants to account for and pay over the sums collected by them, and to deliver the books of Hammond to the plaintiffs, to enable them to collect such of the debts as are still outstanding.</p> <p>The material portions of the written agreement were as follows :</p> <p>“ Memorandum of an agreement, made April 20, 1860, between A. Hammond Sc Co., of Boston, and Lewis Audenried & Co., of Boston and Philadelphia, which is to continue for two years from the first day of May next, viz:</p> <p>“ Lewis Audenried 5c Co. agree to stock the wharves and yards of A. Hammond 5c Co. with a full and sufficient supply of anthracite and bituminous coal, hard and soft wood, and bark, and to furnish said A. H. 5c Co. with as much of the same as they can sell at retail, and pay them ninety cents per ton of 2000 lbs., as specified below, for doing the business; and A. H. 5c Co. to purchase such kind and quantities of wood and bark as they may require, and to account to L. A. 5c Co. for all sold monthly at cost price per cord, allowing L. A. 5c Co. all overrun in measure for their profit.</p> <p>“ L. A. 5c Co. agree to furnish A. H. 5c Co. with anthracite and Cumberland coal, to sell by the cargo or in larger quantities, at their current prices, and allow A. H. 5c Co. such commission as may be agreed upon from time to time as fair and equitable.......</p> <p>“ A. H. 5c Co. agree not to sell or deal in any other coal, wood or bark, other than furnished by L. A. 5c Co., or purchased on their account, with their consent in writing; and to devote their time and energies to carrying on vigorously and extensively the foregoing business ; and agree to receive, wharf, screen, sell, deliver and guarantee the payment of all coal sold by them at retail for ninety cents per ton of 2000 lbs., which shall cover all expenses and charges from the time said cargo is received from the vessels until delivered to the purchasers.</p> <p>“A. H. 5c Co. agree to keep a strict account of all coal, wood and bark received and sold; and, on the fourth day of every month, to render to L. A. 5c Co. a true and correct account of all sold up to and including the last day of the month preceding ; and to credit L. A. 5c Co. with the same, as cash, on that date, at the price previously fixed upon by L. A. & Co. as their selling price.</p> <p>“A. H. & Co. agree to accept the drafts of L. A. & Co., on four months, for about the regular wholesale market price for similar coal, on the receipt of bills of lading; and, should they not be in funds to pay the freight on said coal as it is received, they shall, if L. A. & Co. request it, give their acceptances on such times as shall be agreed upon, not exceeding four months, for the amount of such profit; and, should they not be in funds from sales when such notes fall due, they are to be renewed until such times as they are in funds.</p> <p>“A regular interest account shall be kept between the parties, L. A. & Co. to be debited with interest on all moneys paid by A. H. & Co. for freights or acceptances given for coal from the time such payments are made; and A. H. & Co. to be debited by L. A. & Co. with interest from the first day of every month for the coal, &c., sold the previous month. Should A. H. & Co. advance on freight or on coal more money than they are in receipt of from the sale of coal, they shall receive interest on the same; and should they receive money for the sales of coal faster than is required for the payment of freight and acceptances given on account of coal, they shall have the privilege of paying it over to L. A. & Co., thereby saving interest,</p> <p>“ L. A. & Co. reserve the right to fix the price of coal from time to time, both at retail and wholesale, provided the price so fixed shall not be above the lowest market price selling at the time; and A. H. & Co. agree to sell no more coal ahead than they can deliver in one week, without the written consent of L. A. & Co.</p> <p>“A. H. & Co.’s books, accounts, &e., to be open to the inspection and examination of L. A. & Co. at all times. The quantity of coal, wood, &c., on A. H. & Co.’s wharves, on the first day of May next, to be estimated by ourselves, if mutually agreed; but, if not, then by three disinterested persons, and taken by L. A. & Co. at the market price for a similar quality on said day.</p> <p>“All coal at the risk of L. A. & Co. until it arrives at the wharf where it is to be discharged; and L. A. & Co. authorize A. H. & Co. to effect insurance for a reasonable amount on the stock of coal on their wharves, payable to A. H. & Co. in case of loss.”</p> <p>After the former decision in this case, (5 Allen, 382,) the case was referred to a master, to find and report the facts in relation to the alleged subsequent paroi agreement, and to state and report an account between the parties; and he reported the following facts:</p> <p>“In pursuance of this contract, the plaintiffs from time to time furnished Hammond with coal, and Hammond purchased for them wood and bark. He made sales of the coal, wood and bark; and rendered to them monthly accounts of these sales, including sales made on credit as well as sales made for cash.</p> <p>“ Hammond, in books kept in his own name, entered all sales of coal, wood and bark, and charged to the purchasers those which were made on credit. He accepted the drafts of the plaintiffs, or gave them his notes, amounting in the aggregate to the cost of the coal at wholesale prices ; taking their receipt for each draft or note, in which they promised to account for the same at maturity. Whenever he paid a note or draft, the amount thereof was put to his credit in the monthly account which he rendered. The notes and drafts which he did not pay, amounting in all to $15,982.54, the plaintiffs produced and offered to surrender. At their request, they are filed with this report.</p> <p>“ When Hammond applied for the benefit of the insolvent act, there was due from him to the plaintiffs, for sales of coal, wood and bark under the contract, the sum of $6732.90. The coal which remained on hand was appraised at $9052, and was taken from the assignees on a writ of replevin.</p> <p>“ Betteley and Sawyer, at the time of their appointment as assignees, were aware that the plaintiffs claimed the book debts and coal as their property. On the 26th day of July 1861, the plaintiffs demanded of the assignees the books aforesaid, or an opportunity to examine and take copies of them.</p> <p>“ The assignees have collected of these debts $4606.03. And they now have gas stock to the amount of $100.51, and two due-bills, amounting together to $90.99, taken in settlement, of some of the debts. Many of the debts are not yet collected. Of the money collected, a part, viz., $547.03, was received by the assignees before the 26th day of July aforesaid. The assignees placed some of the demands in the hands of an attorney for collection. He made collections to the amount of $696.28, and charged for his services $350. These charges the assignees, in good faith, allowed and paid. The assignees claim to have allowed to them the money so expended, and compensation for their trouble in making other collections. I find that a commission of eight per cent, on the entire amount collected would be a reasonable compensation for making the collections, if the court should be of opinion that, upon the facts, they are entitled to any. There was no evidence offered of any subsequent paroi agreement.”</p> <p>The parties also agreed that monthly accounts were rendered by Hammond to the plaintiffs, on one side of which was placed in one sum the net amount of the sales of the preceding month, and on the other the payments made by him during that month, for freight, insurance, purchase of wood and bark, and of such kinds of coal as were not furnished by the plaintiffs, including such notes or drafts as had been paid by him. The balance of each account thus made up was carried forward into the next account. No interest account was ever made up or stated upon the items in these accounts, and no settlement was ever made or attempted to be made upon them. Copies of these accounts were annexed, by which it appeared that, by the account for December 1860, the balance against Hammond, as there stated, was $83.71.</p> <p>The case was reserved by the chief justice for the determination of the whole court.</p>

Contract. The declaration was as follows : “ And the plaintiff says that he and the defendant entered h. lo a contract together, a copy whereof is annexed ; and the plaintiff has always been ready to perform the contract on his part, but the defendant has disabled himself from performing said contract, and has prevented the plaintiff from performing the same. “ (Copy of Contract.) “ Boston, May 23, 1863.

<p>Petition filed by two of the children of Reuben S. Denny and Lydia B. Denny, in a suit for divorce brought by said Lydia against said Reuben, representing that the libellant, at the time of filing said libel, was and still is insane; and praying that a guardian ad litem may be appointed to take charge of the suit. The libellant filed a motion to dismiss the petition, on the ground, among others, that the court had not authority in law to grant the prayer thereof; and this question was reserved by the chief justice for the determination of the whole court, with the agreement that, if the court should be of opinion that the petition can properly be prosecuted, the case should stand for a hearing on other grounds alleged for the dismissal of the petition.</p>

<p>Tort for breaking and entering the plaintiff’s workhouse and store-room, and taking and carrying away therefrom a large quantity of the plaintiff’s goods. An arbitrator, to whom the case was referred, awarded that the plaintiff was entitled to recover the sum of $2715.98, with interest and costs, and that, after the commencement of the action, the defendants filed their petition in insolvency, and duly obtained their discharge. The case was thereupon reserved by the chief justice for the determination of the whole court.</p>

<p>II the holders of a promissory note have been allowed to make a double proof, against the insolvent estate of the maker and also of the indorser, and a second dividend has been declared from one of these estates, which, with a dividend already received from each of them, amounts tc more than the claim as proved, though less than the claim with inter* est, they are not entitled to receive any more of such second dividend than will satisfy the amount of their claim as proved, until the other creditors have also received the full amount of their claims as proved.</p>

<p>Writ of entry. It was agreed, in the superior court, that the tenant, James D. O’Sullivan, being the owner of the demanded premises, mortgaged the same to the Suffolk Mutual Loan and Accumulating Fund Association on the 28th of April 1857; that in 1859 his equity of redemption thereof was attached in suits brought against him by creditors, and sold by Bayley, a deputy sheriff, on the executions which were obtained, to the tenant Ellen O’Sullivan, then and now the wife of the other tenant, and said Bayley executed a deed of the same to her on the 19th of September 1859; that she paid no money upon receiving said deed, but on the same day gave therefor the joint note of herself and her husband, payable in six months, and secured by mortgage of the equity, to Crafts and Ward, who were attaching creditors; that she paid fifty dollars from her separate property upon this note at its maturity; that on the 23d of March 1862 said James paid to her the sum of seven hundred and thirty dollars, which he had previously borrowed of her; that with this money, on the 27th of March 1862, and in her husband’s presence, she paid the amounts due upon both of said mortgages, the first of which was assigned to him, and the other was discharged; that on the 1st of May following he conveyed the premises, for a nominal consideration, to Charles J. McCarthy, who on the same day conveyed the same to her; and that on the 5th of said May said James went into insolvency, and his assignee sold and conveyed the premises to the demandant.</p> <p>Upon these facts judgment was rendered in the superior court for the demandant, and the tenants appealed to this court.</p>

Conteact upon the following written agreement: “ $260.90. Boston, Oct. 20, 1857. Borrowed and received of Cochran & How two hundred and sixty ^ dollars, which I promise to pay on demand with interest. N. P. Duty.” The defence was, a want of consideration, and that the paper was given for the accommodation of the plaintiffs.

<p>Bill in equity brought by the selectmen of the town of Winthrop, acting as a board of health, there being no board of health chosen by the inhabitants of said town, praying that the defendant might be restrained from operating bis works for the manufacture of kerosene oil therein. A temporary injunction was issued, and afterwards dissolved.</p> <p>At the hearing in this court, before the chief justice, it appeared that the defendant was engaged in the manufacture of kerosene oil in that town, and' on the 29th of May 1862 the selectmen, acting as a board of health, passed a general order, determining that the making of kerosene oil was a nuisance, and dangerous to the public health in the town, and attended by noisome and injurious odors, and otherwise injurious to the estates of the inhabitants, and forbidding the exercise of such trade or employment within the limits of the town; that said order was recorded in the records of the town on the same day; and that no prior notice was given to the defendant, but a notice of the passing of the order was served upon him on the 7th of June 1862.</p> <p>The question was reserved for the determination of the whole court, whether the selectmen, acting as a board of health, bad authority to pass said order, so as to be binding on the defendant, without first giving him notice.</p>

Contract to recover back the amount of a tax upon the real and personal estate of the plaintiffs, paid by them to the defendants. The writ was dated January 28, 1863.

<p>If a woman who has made a complaint under the bastardy act neglects to prosecute the same, apd the case is thereupon prosecuted by one of the officers named in Gen. Sts. c. 72, § 2, the supplementary complaint tiled in the superior court must aver all the facts necessary to sustain the prosecution.</p> <p>Such supplementary complaint may be amended.</p> <p>If such complainant has taken out a warrant, and has omitted for six weeks to cause it to be returned, this court cannot say on exceptions that this was not a sufficient neglect to prosecute the case to authorize the prosecution of it by one of the officers named in Gen. Sts. c. 72, \ 2, although such neglect is not otherwise shown, and the original complaint is undisposed of.</p>

<p>An action for deceit in the sale of real estate cannot be sustained by proof of fraudulent misrepresentations as to the price paid for it by the vendor.</p>

<p>Contract upon a recognizance entered into by Eliza Stone, wife of William Stone, as principal, and the defendant as surety, with condition that she should prosecute with effect an appeal from a judgment rendered by the police court of Boston in favor of the plaintiff against her, in a personal action, and pay all such costs as might arise after the appeal.</p> <p>The action was originally brought in the police court, and came into the superior court on appeal; and it was there agreed that in the action in which the recognizance was taken the real estate of said Eliza was attached, to an amount sufficient to satisfy any judgment which the plaintiff could obtain, and that he subsequently discharged the attachment, upon the payment by a purchaser of the real estate of a portion of the amount of the judgment, which payment was applied by the plaintiff in satisfaction of his debt, and the costs which accrued before the taking of the recognizance.</p> <p>Upon these facts, judgment was rendered for the plaintiff; and the defendant appealed to this court.</p>

<p>A testator who died leaving a wife and several children devised the residue of his estate, real and personal, in trust, to pay a certain sum annually to his wife, for her sole and exclusive use, and to pay over from time to time to his wife u such sums of money annually as to my wife and the said trustee shall seem to be necessary for the maintenance of my family, and the support and education of my children; ” and after her death to divide the trust fund equally among all his children, and the representatives of any deceased child or children, and to pay over and convey the same to them as follows: the portions of his sons to them as they should severally become of age; and the income of the portions of his daughters to them during their lives, and after their deaths the principal of each to her heirs at Jaw. He also directed the trustee to retain the dwelling-house for the use and occupation of his widow and family. All of the children afterwards died without issue; the dwelling-house was sold; and the testator’s wife ceased to keep house. JTeZtf, that a termination of the trust might be decreed; that the widow was no longer entitled to receive the sum directed to be paid to her for the maintenance of the family; and that the children took a vested interest under the will.</p>

<p>If a testator by his will, executed in his last sickness, creates a fund and directs the trustees thereof to pay over to each of his children a certain sum, but provides that “ any legal debt due from either of said children to my estate at the time of my decease shall first be deducted by said trustees, and the balance only be paid over to such child as aforesaid,” a married daughter is entitled to receive the whole sum so directed to be paid, without deduction, although she had signed notes with her husband to her father for moneys furnished to her husband by her father, which the latter held at the time of the execution of the will and of his death, and upon which he had collected interest in his lifetime, and which he included in a memorandum of his assets, and although for other sums advanced by him to her and to others of his children he had taken no notes and made no charge, and no debts were due to him from any of his children, unless these notes and a similar one executed by another married daughter and her husband are to be regarded as such.</p> <p>If a testator directs the trustees of a fund created by his will to pay over to each of his children a certain sum, an action at law may be maintained by one cf the children to recover the same,, if the fund is sufficient, and the only matter in dispute is whether the dgacy is subject to certain deductions under another clause of the will.</p>

<p>A testator, who died leaving a wife and three children, by his will directed that his personal property should be applied to the payment of his debts and the removal of incumbrances upon his real estate; “that my property, when thus consolidated in real estate, may thus remain during the lifetime of my wife and of each of my children, and, at the decease of the last surviving one of them, that said property may then [after certain specific legacies] be divided between my surviving legal heirs, each receiving an equal portion of the same.” By a codicil, he directed that the income of his real estate should be divided into four equal parts, of which one should quarter-yearly be given to his wife and one to each of his children; that after five years from the date of his decease, at any time when his legal heirs should unanimously agree, his property might be divided into equal shares, not disposing of the real estate any further than necessary, but retaining it in the possession of his heirs, one share for his wife and one for each child, and being thus divided should be placed in the hands of trustees, in trust for his wife and children. The widow waived the provisions of the will in her behalf, and the specific legacies were paid or secured. Jleld, that the children took a vested interest in the estate, in fee simple.</p>

Contract brought by one member of a firm against his partner to recover a balance due from the defendant to the firm. An auditor to whom the case was referred found that the plaintiff, the defendant, and one Robinson composed the firm, which was dissolved in October 1859 ; and that in January 1860 the defendant and Robinson assigned to the plaintiff all theii right and interest in the partnership assets.

<p>In an action against a bank to recover the penalty provided by Rev. Sts. c. 36, § 29, for delaying payment of its bills, it is not necessary to set out copies of the bills in the declaration.</p>

Bill in equity by the administrator of the estate of Loring Norcross, setting forth, among other things, that in September or October 1860 the said Norcross, having been previously connected with the defendant in the business of printing and dyeing goods at Lynn, entered into an agreement with him for the future transaction of the same business, by which the stock, machinery and fixtures then on hand were declared to belong to said Norcrosfc 5s Craig as tenants in common ;…

Bill in equity to redeem certain land, with buildings and railroad tracks thereon, from a mortgage executed by the Grand Junction Railroad and Depot Company to the defendants and Robert. Held: as above described, by the plaintiffs and Adams and another, which were still pending when the assessor’s report was made. See post, 363, 369.

Writ of entry. After it had been determined that the demandants were entitled to recover, (4 Allen, 80,) questions arose concerning the value of the rents and profits, and of the improvements made by the tenants, which were referred to an assessor, who reported the following facts: The action to foreclose the mortgage was commenced on the 11th of April 1857. The lease to the tenants was dated May 1, 1858.

Writ of entry. After it had been determined that the demandants were entitled to recover, (4 Allen, 80,) questions arose concerning the value of the rents and profits, and of certain improvements made upon the premises, which were referred to an assessor, from whose report it appeared that the facts relating to the execution of the mortgage, the commencement of a suit for the foreclosure thereof, the rendition of conditional judgment therein, the delivery of formal…

<p>The sureties on the bond of the treasurer of a railroad company, the condition of which provides for his faithful discharge of the duties of the office “ during his continuance in office, during the present year and for such further periods as he may from time to time be elected to said office,” are not liable for defaults which occur after an omission to reelect him at a regular meeting for that purpose, and after such further time as may be reasonably sufficient for the election and qualification of his successor, although he continues to act as treasurer, and is reelected at the next regular meeting thereafter; butthey are not discharged from their liability by a vote of the corporation postponing for five weeks the time of the regular meeting for the election of officers, and the consequent postponement of an election for that period, nor by the corporation’s assuming the entire management of the railroad, after having leased it to another corporation.</p> <p>No formal vote of a corporation accepting their treasurer’s bond needs to be shown, in order to entitle them to maintain an action upon it.</p> <p>A corporation is not estopped to maintain an action upon their treasurer’s bond by having accepted a report of an auditing committee who had approved his accounts, nor by making a report founded thereon to the legislature.</p> <p>An indorsement by the treasurer of a corporation upon notes signed by himself, and running to the corporation, is sufficient evidence to render the sureties upon his bond liable for the amount indorsed, as for moneys received by him in his official capacity.</p> <p>If the treasurer of a corporation has appropriated to his own use sums of money received from a certain source during the time covered by his official bond, and other sums received from the same source after the bond had expired, and he has afterwards entered upon the books a sum as received from that source, and such sum was not in fact received at the date of the entry, and there is nothing to show when the same, or the items of which it was composed, should have been entered, it is proper, in an action upon the bond, to apply one half of it to the time covered by the bond.</p>

<p>A time policy of insurance on a vessel contained an extension clause, as follows: “ If on a passage at the end of the term, the risk to continue at pro rata premium until arrival at port of destination.” At the end of the term the vessel was on a passage to Woosung, under a charter party which provided that, “on arrival at Woosung, the captain shall take his orders from the chief of the French marine service at that port, who will indicate to him within twenty-four hours if he is to discharge at Woosung, or go on to Cliusan, and that after the arrival of the ship at Woosung the marine might keep her as long as it might wish, and send her to such safe and accessible port as it might judge desirable.” fieZd, that if no orders to go to another port were received within twenty-four hours after notice to the chief of the French marine service at Woosung of her arrival there, that should be regarded as her port of destination, within the meaning of the extension clause.</p>

<p>A bill in equity lies to enforce payment out of the separate estate of a married woman, so far as she has the right of disposal thereof, of a bond given by her for the price of land conveyed to her to her sole and separate use, provided that no effectual remedy exists at law. And the creditor is not confined to collateral security held by him for the bond.</p> <p>Such bill need not set out any specific estate or property belonging to the defendant in her own right, but may allege generally that she is possessed of property to her sole and separate use, and subject to her disposal, which is chargeable with the payment of the bond.</p> <p>The fact that the bond was given before the enactment of the statute conferring full equity jurisdiction upon this court is immaterial.</p>

<p>If, upon the dissolution of a partnership, it is agreed that the partners who remain shaL take the property and close up the business of the firm, and a final settlement betweer the outgoing and remaining partners is postponed until the adjustment of the outstanding accounts, and the remaining partners subsequently receive upon a particular adventure of the firm an advance which proves to be more than is realized from the adventure, and do not repay the excess, such advance is to be treated, in a suit in equity against the outgoing partner for a settlement, as having been made for the benefit of all the partners.</p> <p>In closing up the business of the firm, under such an agreement, the remaining partners have a right to use their best judgment in incurring such expenses as seem to be reasonable and necessary, and they are entitled to be allowed therefor; nor can it be objected for the first time, at the argument in this court on exceptions to the report of the master to whom the cause has been referred, that the sum allowed by him was greater than the amount claimed in the pleadings.</p> <p>There is no error in the admission in evidence, at the hearing before a master to whom a cause has been referred by this court, of a deposition taken out of the Commonwealth on commission, although it does not appear that all the formalities required in depositions taken within the state were observed.</p> <p>In a suit in equity between partners for a settlement, no final decree can be made while debts due from the firm remain unadjusted, unless the plaintiffs will deduct the amount of such debts from the sum which they seek to recover.</p>

<p>It is not necessary, in a writ of replevin, which is directed to a deputy sheriff, to allege the value of the goods to he replevied.</p> <p>A defendant in replevin, who has prevented the officer from delivering the replevied property to the plaintiff by attaching it upon a writ in his own favor, cannot object to the prosecution of the replevin on the ground of such non-delivery.</p> <p>It is no ground for dismissing a writ of replevin, that an animal described in the writ as a heifer is described in the certificate of appraisement as a cow; or that the plaintiff has caused the officer, to whom the writ was committed, to bring an action against the defendant and another officer for taking the replevied property out of his hands, before its delivery to the plaintiff; or that the plaintiff, as executor, has commenced an action against the defendant and his officer for the conversion of the replevied property, if it does not appear that the conversion relied upon was the same act for which the replevin was brought.</p>

Contract upon the following written agreement: “ Pittsfield, May 28, 1862. This may certify that I have this day bought of Mr. Ansel Nichols all his right and interest in the marble business in this town, including also one business wagon, for the sum of ninety-three dollars and eighty-six cents, agreeing furthermore to discharge him from all liabilities on account of purchases of stock and materials as one of the original firm of Joyner & Co. Ariel A. Prince.

Tort to recover for the burning of a dry-house and certain personal property. At the trial in the superior court, before Vose, X, it appeared that the arch of the dry-house consisted, at the top, of one thickness of brick, upon which a marble slab two inches thick was laid ; and that the defendants, having the right to dry stoves in the dry-house, placed some wet hemlock ones upon the marble slab and kindled a fire in the arch.

<p>Contract against the maker of a promissory note.</p> <p>At the trial in the superior court, before Vose, J., the plaintiff was called as a witness to testify in his own favor, to which the defendant’s counsel objected on the ground that the defendant was insane, and offered the following testimony:</p> <p>Dr. Julius A. Rising, the family physician of the defendant for many years, testified that the defendant was between sixty-five and seventy years old; that in December 1861 he had a paralysis; that he was of very weak mental capacity, and had a feeble m'emory and an idiotic look; that within a few days before the trial, upon being asked how old he was, he hesitated and did not reply; that he could not understand an inquiry whether he recollected giving a note to the plaintiff, and finally said he did not know about giving such a note, and remarked that the present suit troubled him, and his eyes filled with tears. Another witness testified that about ten days before the trial the defendant was unable to move or dress himself alone, was “ all of a tremble ” and did not seem to understand anything about his business ; that sometimes he was very stupid, and gave no indication of his natural wants ; but was brighter some days than others.</p> <p>Upon this evidence, the judge, being of opinion that the defendant was not insane, within the meaning of Gen. Sts. c. 131, § 14, permitted the plaintiff to testify ; and the jury returned a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>Bill in equity brought to reform a deed of land from the plaintiff to the defendant, dated in February 1861, by inserting therein a reservation of the right to cut and remove certain trees standing thereon. The plaintiff held the premises under a deed from Salmon K. Norton to him, which contained the same reservation which he sought by this bill to have inserted in his deed to the defendant.</p> <p>At the trial in this court, before Metcalf.\ J., issues were framed for the jury on the following allegations in the bill: “ 1. That, before .and at the time of the execution of the plaintiff’s deed to Spurr, it was understood and agreed between the parties that the wood, &c., as reserved to Norton in his deed, was not to be included in the conveyance. 2. That by misunderstanding and mistake between the parties the wood reserved by Norton was not reserved in the said deed from Andrew to Spurr.”</p> <p>The plaintiff testified as follows: That, in the preliminary negotiations, he informed the defendant of the reservation in the deed from Norton to him, and of Norton’s right to remove the timber, and the parties thereupon agreed upon the terms of the sale ; that they went together to a justice of the peace, and requested him to draw the deed; that the justice asked for the deed of Norton, but, as it was not present, it was concluded to describe the land by bounding it upon the adjoining owners; that the justice, while drawing the deed, overheard some talk of the reservation, and asked what it meant, and, upon being informed, said that a new deed had better be made. The defendant said he did not see how he could wait. The plaintiff inquired if it would make any difference whether the reservation was put in or not, as the trees would soon be cut off, and the defendant and he had a perfectly good understanding about it. The justice replied that it would make no difference if they were ready to carry out their contract as they understood it, but thought it better to have a new deed. The plaintiff asked the défendant if it would make any difference on his part, and the defendant replied that it would not. The plaintiff said that the defendant would deal honestly and uprightly by him. There was considerable talk about inserting an interlineation in the deed. The plaintiff proposed putting in this clause: “ Being the same I purchased of Salmon K. Norton,” and referring to the old deed. The plaintiff stated that he left, supposing it would be put in and was put into the deed, and was thunderstruck when he was informed, after the commencement of a suit against him upon the covenants of his deed, that it was not. The deed was read over to him after it was written, at the closing up; he was not positive whether it was before the talk last narrated.</p> <p>The justice testified substantially as follows: “At the time when the deed was drawn, and I had nearly completed it, I heard something said as to a reservation of wood, and, upon inquiry, both the plaintiff and the defendant informed me that there was such a reservation, and pointed out upon a plan the portion covered by the reservation. I said, I thought the reservation should be in the deed. The plaintiff asked if it would not be enough if it was inserted in the deed as being the same premises conveyed to him by Norton, and referring to the deed, I think I stated that it would be of no avail, unless the reservation was in. I took the deed to put something in as to the reservation. The plaintiff turned to the defendant and asked if. it would make any difference whether that was put into the deed or not. The defendant made no reply at first, but, upon the plaintiff’s repeating it, said, ‘ No, not as I know of.’ I think I then took up the deed and said I thought I had better put in a clause including the reservation. The plaintiff wanted to know if it would make any difference. I told him, No, if they carried out their contract in good faith, but that all reservations should be in deeds, as they were matters of record. I think the reason why it was not put into the deed was, because we did not agree as to the words. In consequence of the parties agreeing that it was not necessary to put it into the deed, I did not put it in.”</p> <p>There was some further evidence to show that the defendant understood that he was not to have the trees in question.</p> <p>Upon this evidence the plaintiff rested, and the judge, being of opinion that it did not sustain the issues, and would not justify the entry of a decree reforming the deed, took the case from the jury, and reported it for the determination of the whole court.</p>

<p>Libel for divorce for the cause of desertion for five years. At the trial in this court, before Metcalf, J., the jury were instructed that if they should find that the respondent left her husband with his approbation, wishes or consent, it did not constitute a desertion in law. The jury returned a verdict for the respondent, and the libellant alleged exceptions.</p>

Bill in equity, brought in March 1863, alleging that the plaintiff, Lydia Hathaway, is a daughter of John Page, late of Clarksburg, deceased; that his estate was administered upon in Berkshire county, and commissioners who were appointed to make partition of the real estate among his heirs, and those entitled thereto, made a report, setting out to the various children, of said John their Various shares of his real estate; that in describing the share intended to be set out…

<p>If the grantor in a deed describes the granted premises in general terms, and reserves the wood and timber “ on said premises, south of the meadow or low land,” the reservation includes the wood and timber upon all of the granted premises which lie further to the south than the meadow, and is not limited to that upon the portion of the premises lying directly south of the meadow.</p>

Writ of entry, brought June 8th 1883, to recover possession of a parcel of land from William J. Carley, Jr., Elizabeth Carley, his wife, and William J. Carley.

Garfield, for $1200, in payment for a farm belonging to his ward’s estate. In 1859 and 1860 the son held two notes, one for $457.76 and the other for $173, each payable in six months, against Plainer & Smith, who were paper manufacturers in good credit and doing an extensive business. These notes were transferred before their maturity to the guardian, who paid a portion of their amount in money of his ward, and indorsed the residue upon the note for $1200.

<p>In an action on a judgment rendered in another state, on which an execution has there been returned satisfied in part only, the plaintiff can recover no more than the sum for which it was returned unsatisfied, although damages have been recovered against the officer who served it, for seizing and selling thereon property not liable thereto, the avails of which sale were included in the sum for which he returned it satisfied, and although by the law of the state in which the judgment was rendered (as in this commonwealth) the plaintiff might, for such cause, obtain a new execution, on scire facias.</p>

Complaint for flowing land, which was referred under a rule of court to arbitrators, who made an award, assessing damages in favor of the complainant, and containing at the end, before their signatures, the following : “ The complainant’s cost of reference, as taxed and determined by the referees,” with a statement of items, which included five dollars for attorney’s fee, and sixty-one dollars and fifty cents for referees’ fees and expenses.

Tort against a person who was appointed, and gave bond in the form required by the statute, as agent of the town of Washington for the sale of intoxicating liquors.

Tort. The writ was served by an arrest of the defendant, who moved for a dismissal of the action on the ground that the affidavit indorsed upon the writ was insufficient to authorize the arrest, under Gen. Sts. a. 124, § 2.

<p>Contract against the indorser of a joint promissory note.</p> <p>At the trial in the superior court, before Morton, J., it appeared that on the day when the note became due, Theodore S. Stratton, in behalf of the plaintiff, demanded payment thereof of the two promisors, but did not have the note in his possession at the time ; and the note was not paid. The plaintiff testified that on the same day he called upon the defendant, and gave notice to him that demand had been made on the makers; that one of the makers called during the interview, and both he and the defendant said that the note should be paid soon.</p> <p>Upon this evidence, the judge ruled that the plaintiff was not entitled to recover, and directed a verdict for the defendant, which was accordingly rendered, and the plaintiff alleged exceptions.</p>

Tort to recover damages for an injury sustained from a collision upon a highway. At the trial in the superior court, before Morton, J., it appeared that the plaintiff, a boy of less than twelve years old, was running in the road a short distance behind a horse and sleigh, which met and turned out for the defendant, who was coming from the opposite direction with a horse and sleigh, and very soon afterwards the defendant came into collision with the plaintiff.

<p>Under the statutes of this commonwealth, a railroad company which has leased its railroad to another company, with stipulations that the whole transportation of passengers and freight upon the railroad shall be done by the lessees, is responsible in damages for buildings upon its route, which are destroyed by fire communicated by a locomotive engine owned and used upon the railroad by the latter company. And it is immaterial that one of the buildings was destroyed b} the spreading of the fire from other buildings, and that, by consent of the railroad company, it stood partly within the location of the railroad.</p>

Tort to recover damages for an injury sustained by the plaintiff in consequence of a want of repair of the road-bed of the defendants’ railroad. At the trial in the superior court, before Vose, J., it appeared that the injury was received at a place in West Stockbridge where the railroad of the defendants crossed a highway, and .near an intersection with the Hudson and Boston Railroad.

<p>If the validity of a mortgage made by an insolvent debtor upon his homestead to secure a preexisting debt, within six months previous to the commencement of proceedings in insolvency, is questioned on the ground that it was not made in the usual and ordinary course of his business, and the evidence simply shows that he was a millwright, and had no other occupation or business, the jury should be instructed that the mortgage was not made in the usual and ordinary course of his business.</p>

Tort. The declaration, after setting forth the plaintiffs’ title, alleged, in one count, that on divers days and times between the 9th of October 1857 and the 17th of December 1860 the defendant wrongfully closed the gate of the plaintiffs, at their reservoir dam in Stockbridge, and shut back the water from the plaintiffs’ mill. Writ dated October 9th 1863. The defence was, a former recovery for the same cause of action.

<p>A note in this form: $23.00. Lee, April 26,1858. On demand, I, as treasurer of the Congregational Society, or my successors in office, promise to pay A. B. or order twenty-three dollars, value received, with interest. S. S. R., Treasurer,” is the note of the society, if the treasurer had authority to bind them by it. ¡</p>

<p>One who takes a deed of warranty of land, which is duly recorded, and afterwards takes an assignment of a prior mortgage upon the same and another lot, may enforce the mortgage for its full amount upon such other lot, against the mortgagor or his subsequent grantee. And the fact that such grantee has become the assignee of a subsequent mortgage upon such other lot is immaterial.</p> <p>Proof of a purchase of land, with full covenants of warranty, for less than its value, is no proof that the purchaser undertook to discharge a mortgage thereon, of the existence of which he does not appear to have had actual notice.</p> <p>If a purchaser of land, with full covenants of warranty, afterwards takes an assignment of a prior mortgage upon the same and another lot, and the mortgagor afterwards conveys the other Jot to one who takes possession thereof, and the assignee of the mortgage after-wards demands of such grantee the payment of the full amount of the face of the debt secured thereby, and payment is refused, and the assignee of the mortgage afterwards fails to comply with a request for an account of the money due upon his mortgage, and of the rents and profits of the mortgaged premises, and of the moneys paid for taxes, repairs and improvements thereon, and various other particulars relating to the same, and also omits for several years to renew the demand for payment of his mortgage debt, he is not thereby estopped to enforce his mortgage against such grantee, or one who has taken a title under him with notice of all the facts.</p> <p>If a deed of land contains an express stipulation that the grantee shall assume and pay a debt secured by a mortgage existing thereon, a payment of such debt in pursuance of such stipulation, and a discharge of the mortgagor therefrom, will operate as a discharge of the mortgage.</p> <p>A second mortgagee of land may maintain an action to foreclose his mortgage against one who holds the first mortgage and also the equity of redemption.</p> <p>If a suit to foreclose a mortgage has been instituted, this court will not by injunction restrain the prosecution of it, although the holder of the equity of redemption offers in hia bill to redeem.</p>

<p>Tort to recover damages for a trespass to the plaintiff’s land within the limits of a highway known as the Plain road in Egremont, by putting rocks and rubbish thereon.</p> <p>At the trial in the superior court, before Rockwell, J., it became necessary for the plaintiff to prove the boundary line of the highway in question, upon the northerly side of which his land was situated. For this purpose he offered certain record evidence of the action of the co.unty commissioners respecting the same, which, upon the objection of the defendant, was excluded. He then offered to show that the distance between the fences was about five rods, and that a certain fence was the north boundary of the highway, and had stood in its present position for more than twenty years before the commencement of the action. The defendant objected to this evidence, unless it was first shown that from length of time or otherwise the boundaries of the highway could not be made certain by records or monuments; but the evidence was admitted. A witness afterwards testified that surveyors had been out four times to ascertain the boundaries of the highway, and that no two of their surveys were alike.</p> <p>There was other evidence tending to show that within twenty years a portion of the fence had been moved to the south ; but this was contradicted. The judge ruled that if the fence was shown to have been, for more than twenty years, substantially in the same place and line, it was competent testimony to show the north line of the highway.</p> <p>The plaintiff derived his title under two deeds, in one of which the land was described as bounded “ south by the highway known as the Plain road,” and in the other as “ south on the Plain road, so called.” The judge instructed the jury that under these deeds the land was bounded by the centre or thread of the highway.</p> <p>The defendant offered a photographic view of the premises in controversy, without the testimony of the photographer who took it; but he offered to prove its correctness by persons well acquainted with the premises. The photograph was offered to be used as a “ chalk representation ” of the premises. The plaintiff objected, especially on the ground that it exhibited but part of the premises; and it was excluded.</p> <p>There was evidence tending to show that some stones and rubbish were placed upon the north side of the travelled part of the highway, and thus widened and improved the road, and rendered it moré safe and convenient for travellers; and the defendant asked the court to rule that he was not liable in this action if he did no more than a highway surveyor might reasonably have done in the ordinary discharge of his duties. The judge declined so to rule, and instructed the jury that if trespasses were committed north of the travelled part of the highway, and upon the plaintiff’s land, they were not justifiable, although they effected a beneficial widening of the road; but that the defendant was not liable for such acts done within the travelled part, to repair it.</p> <p>The defendant offered evidence tending to prove a license from the plaintiff to do the acts complained of; but, as no such ground of defence was set up in the answer, the judge excluded the evidence.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Contract upon an offer of a reward of $500, made on the 15th of September 1862, in the name of the defendants, by their selectmen, “ for the apprehension and conviction of the person or persons who murdered Emily L. Jones, George A. Jones and Sarah E. Jones,” at a time named.</p> <p>It was agreed that on the 1st of October 1862 the plaintiff" caused a complaint to be made before a magistrate against James Callender, for the murder of the persons named, who was thereupon arrested, and was afterwards tried, convicted and bung for the murder of Emily L. Jones; and that all three of the persons named were murdered at the same time, either by Callender alone, or by him with others. Certain other facts were agreed to, respecting the participation of the plaintiff in the proceedings, which are now immaterial.</p> <p>Judgment was ordered in the superior court for the plaintiff, and the defendants appealed to this court.</p>

<p>Merely signing a paper in the hands of a municipal officer, containing a promise to serve as a volunteer for three years from the date of being mustered into the United States ser vice, unless sooner discharged, is not sufficient to constitute one a soldier, and render him liable to be seized against his will and taken into camp; and for such a seizure by municipal officers and their agents, he may maintain an action against them, and may prove, in aggravation of damages, his mental suffering caused by the injury, and also ths fact of his confinement in the guard tent, upon and immediately after being taken into camp.</p> <p>Fn such action, votes of the town where the plaintiff lived and signed the paper referred to, instructing the selectmen to cause all enlisted men to be taken to camp, the plaintiff’s declaration and acts showing his intention to enlist as a soldier, and the facts that others who signed the same paper with the plaintiff entered into the military service, that the paper signed by the plaintiff was in the usual form for enlisting recruits, and that persons who signed such papers were usually held to military service, are alike incompetent.</p> <p>If in such action one of the defendants has denied on cross-examination that he said, after the seizure of the plaintiff, “ We have got him, and I hope they will send him to Fort Warren,” the plaintiff may introduce evidence to contradict him.</p>

<p>If the subject matter of a suit at law is submitted to arbitration, an award that the plaintiff shall pay all the costs of the suit is by necessary implication a finding that he shall recover no damages.</p> <p>Under a submission authorizing arbitrators to determine how much shall be paid for the grant of a right of way, they may award that nothing shall be paid therefor.</p> <p>If parties to a suit at law submit the subject matter thereof to arbitration, and include in the submission separate matters, one of which affects the rights of a third person, an award in favor of the defendant, as to the subject matter of the suit, will be a bar. to the further prosecution of the action, although it may not be binding upon such third person.</p> <p>A valid award needs no ratification.</p>

<p>Contract to recover for a failure to deliver to the plaintiffs $2600 in bank bills, which the defendants had undertaken to forward from Boston and deliver to the plaintiffs at South Deer-field.</p> <p>At the trial in the superior court, before Rockwell, J., it appeared that the defendants were an express company, having an office at South Deerfield, which is about six miles from Conway ; that they were in the habit twice a week of carrying from Boston to South Deerfield the bank bills of the plaintiffs redeemed by them in Boston, and there delivering them to the plaintiffs’ cashier, or his agent, Lemuel Cross, the stage-driver from South Deerfield to Conway; that there was no stipulation as to the time when the packages of bills should be delivered to Mr. Cross, but his custom was to call for them in the afternoon, when his stage left the station for Conway; that the defendants’ agent, who was also the freight agent of the Connecticut River Railroad Company, was in the habit of placing these packages, when they were not delivered to the plaintiffs’ cashier in the morning, in a wooden desk in the ticket office in the railroad station; that the door of the ticket office was always locked, except when occupied by this agent and another person, one Maynard, employed by the railroad company as his assistant, who were the only persons that had keys to the office; that the windows of the office were fastened by springs; that on the 27th of December 1862 a package of bills, containing $2600, arrived as usual at South Deerfield, at a little after nine in the forenoon; that it was locked up in the desk, as usual; that during the day the defendants’ agent discovered that the desk had been forced open, and the money taken away; and that during that day the station had been left with no person in charge of it from half past ten in the forenoon till three in the afternoon. The plaintiffs introduced evidence tending to show that the money was stolen by Maynard.</p> <p>It further appeared that the plaintiffs’ cashier was well ac quainted with the manner in which the packages of money were kept in the desk, but never objected thereto. The plaintiffs’ president testified that on one occasion, in the latter. part of 1859 or the early part of 1860, he inquired of the defendants’ agent where the packages of money were kept, and, upon being informed, replied that it was unsafe, without the use of an iron safe; and the agent replied that, if the defendants could run the risk, he could; and no change was made in the manner of keeping the money. It also appeared that the amount of money which the plaintiffs annually received and transmitted through the defendants’ express office was from $500,000 to $750,000. Two attempts had previously been made to break into the ticket office at night. It did not appear that the plaintiffs ever knew of these attempts, or that Maynard had a key to the ticket office. The defendants’ agent testified that Maynard, who was not in the employment of the defendants, was hired by himself for the railroad company; that he had occupied his position for six months; that he supposed him to be honest, and had no reason to think otherwise, until the time when the money was stolen.</p> <p>The above is substantially all the evidence that was offered in relation to the manner and place of keeping the money, and its loss; and the defendants asked the court to rule that there was not sufficient evidence of a want of care on the part of the defendants, in keeping this package, to render them liable for its loss ; that if the defendants took the same care of this package that they did of other packages of money sent to the plaintiffs, and the plaintiffs knew of the degree of care exercised in keeping them, and had no reason to expect a different degree of care in this instance, and no objection to the place and manner of keeping them was made except that testified to by the plaintiffs’ president, and the package was lost, the plaintiffs could not recover, even if the jury should find that ordinary care was not exercised; and that, if the jury were satisfied that Maynard forced open the desk and stole the package, the defendants were not liable. The judge declined so to rule, and instructed the jury that they need not consider the question of a waiver by the plaintiffs of the use of ordinary care by the defendants, or the question raised concerning Maynard ; that, if the plaintiffs bad satisfied them affirmatively that the defendants were not in the exercise of ordinary care, then the defendants were liable; but, if the defendants were in the exercise of ordinary care, they were not liable.</p> <p>The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

Tort for the conversion of a horse. At the trial in the superior court, before Rockwell, J., it appeared that Solomon Todd, the former owner of the horse, had mortgaged him to one of the defendants, and afterwards sold him to the plaintiff. There was no evidence of a written consent by the mortgagee to the sale, and the evidence was conflicting whether oral consent had been given, and whether the plaintiff at the time of his purchase was informed of the mortgage.

Two actions of tort, for the conversion of a quantity of tobacco. The cases were tried together in the superior court, before Rockwell, J., and it appeared that the tobacco originally belonged to William Brown, who mortgaged it to Charles Hayward on the 30th of June 1862. Brown subsequently went into insolvency, and Henry Johnson was chosen assignee of his estate.

<p>The court cannot take from the jury a case in which the evidence is conflicting, and the testimony of one or .more witnesses, if believed, would, taken by itself, support a verdict.</p> <p>This court cannot decide, on a bill of exceptions, that driving a safe horse, with a tight rein, at night, at his usual speed of ten miles an hour, by a skilful driver, over a wide and level road, with which he is familiar, and over which he has passed in safety within an hour without perceiving any obstruction, is such a want of ordinary care as to prevent a recovery for an injury sustained from a defective highway.</p>

<p>If the defendant in a writ of forcible entry and detainer seeks to justify his possession under the authority of some other person than the plaintiff, the burden is on him to prove the title of such person.</p>

<p>Tort to recover damages for breaking and entering the plain* ftiff’s close, and breaking down a gate thereon. Answer, that the defendant had a right of way over the same, which was interrupted by the plaintiff, and that the acts of the defendant were in the lawful use of the way and removal of the obstructions.</p> <p>At the trial in the superior court, before Rockwell, J., it appeared that there was a drive way from a public road northerly •over three lots of the plaintiff, to the land above, upon which two gates were put by the plaintiff, one at the commencement of the drive way, at the public road, and the other upon the plaintiff’s land above. The defendant introduced evidence tending to show a use, by the public and by himself, since 1822, of a way from the public road to land north of the plaintiff’s premises; that in 1835 Mosely Clapp, who then owned the premises now owned by the plaintiff and also the adjoining land, conveyed the premises now owned by the plaintiff to B. F. Cheney, who shortly afterwards, in the same year, erected buildings which interrupted the way; that the land thus sold was unfenced; that in the autumn of 1835, complaint being made of the interruption of the way, Clapp, supposing that there was a right of way to pass from the land above to the highway, gave directions to have the course of the way changed, so as to pass round the corner of Cheney’s land, and over his own land; that in acting upon these directions the course of the way was changed, but so as still to pass over a portion of Cheney’s land; that Cheney made no objection when this change was made; that, after erecting his buildings, Cheney fenced his land, and occupied a portion of that over which the way is claimed, as a garden ; and that the plaintiff purchased the same in 1849. There was evidence of more or less use of the way since 1835 by the defendant and others, and also of the character of such use; the plaintiff contending that it was not of such a character as to give a right. And there was evidence tending to show that it was made through wild land, for the use of persons going to mills at its northern end, and that it was over hills which were too steep for the use of carriages.</p> <p>The plaintiff asked the court to instruct the jury, amongst other things, that no designation by Clapp of a new or substituted way upon land which he had before sold to Cheney could have any effect to create such substituted way; that there was no evidence to warrant the jury in finding that the part of the way at and immediately north of the upper gate had ever been substituted for the old way by any agreement mutually executed between parties competent to make such agreement and substitution; and that on the whole evidence the right of way claimed by the defendant had not been established. The judge declined so to rule, and instructed the jury, amongst other things, substantially as follows :</p> <p>The defendant claims a right of way over the plaintiff’s land on three grounds: Í. That there was a public road over the same; 2. That the public had acquired a right to pass there, by prescription and user; 3. That the defendant had acquired such right, by prescription and user. The first ground cannot be maintained, upon the evidence. The defendant may rest a legal defence upon his second ground, upon proper evidence, and this is a question of fact for the jury in the light of the following legal principles: If a road has been used by the public in a proper manner, for a sufficient time, the public may have acquired a right of way by prescription. To establish such a way, the defendant must prove actual public use, general, uninterrupted, under claim of right so to use it, and continued for a period of more than twenty years. Although the testimony may not be sufficient to show that the public had acquired a right to a full public highway, used by footmen, horsemen and carriages in all the modes in which highways may be used, and without any bars or gates, yet it may be sufficient to show a public right to pass over a road, worked for such purpose, on foot or on horseback, and driving cattle, and subject to the duty of taking down and putting up bars, or opening and shutting gates. This was the right which the defendant claimed; and if he shows an actual public use of a defined and beaten road, general, uninterrupted, under a claim of right on the part of the public so using it, and continued for more than twenty years, ac, as one of the citizens, had a right thus to enforce his claim and exercise his right.</p> <p>The defendant may justify, upon sufficient evidence, upon his third ground, in the light of the following principles of law: To establish a private right of way over the lands of another by prescription and user, the claimant must show, not merely that the way was enjoyed by him twenty years, but also that the enjoyment was continuous, uninterrupted, adverse, under a claim of right and with the knowledge and acquiescence of the owner of the land over which the alleged way passes, in the absence of any evidence of permission or license; and such facts, if proved, are sufficient to establish his right. If the jury are satisfied that the use, during the whole time, was under a claim of right, and that the owner of the land knew of such use and claim, it is sufficient, although the evidence may not show a claim in words on the part of the person using the way, or a declaration in words on the part of the owner of the land, of his knowledge and acquiescence in the use. To establish a right of way by prescription, the way must be shown to have been used substantially in the same place, and following its course substantially upon the same track. But if the owner of the land, recognizing the right, wishes to change the route in a particular point, he may do so upon his own land, to accommodate himself: and if the new piece of way is accepted by those having the right of way, and afterwards the way thus modified is used as the way was before, in the exercise of the same right, the right of way continues as before, and the right remains perfect as against the owner of the land and his grantees, in the modified route. In this case, evidence has been introduced tending to show that Mosely Clapp, who originally owned all the premises over which the alleged way passed and now passes, did make a slight alteration, and that the cause of the alteration was this: Clapp sold a piece of land to one Cheney, which, cornered upon this way; finding the corner of the Cheney land extended upon the way, he changed the way a few feet, with the intent of carrying the whole way on to his own unsold land, and so leaving the Cheney land untouched by it. But the plaintiff contends upon the evidence, that, even if that was Clapp’s purpose, he did not effect it, but that after the alteration some part of the way remained upon the corner of the Cheney lot, and that the upper gate, which was removed by the defendant, was upon that part, and that such alteration destroyed the right of way. The court rules that if Clapp made this alteration in good faith, supposing that the new location was on his own land, and the use of the way continued thereafter as before, these facts did not destroy the right of way, but the land of the plaintiff is now subject to the right of way in its present condition.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>A bond without surety, given by an executor and approved by the judge of probate, with out notice to creditors, is not such a bond as the statutes of this commonwealth require and the statute of limitations against executors will not begin to run from the filing of such a bond.</p> <p>[n an action against an executor to recover a note of long standing, signed by his testator, payment of the note cannot be proved by evidence that it was the testator’s habit to pay his debts promptly, or that another person had agreed to pay them for him, or that be made a list of his debts in which the note in question was not included.</p>

Bill in equity, filed April 16th 1861, alleging that in 1849 the plaintiff was a skilful miner, employed at Crown Point, and was induced by persons who owned lands in Northampton, Southampton, Easthampton and Westhampton, to leave his employment for the purpose of conducting mining operations upon said lands ; that those persons, after executing to the plaintiff a mortgage on the mineral rights in said lands to secure the sum of $1500, for his services and moneys agreed to…

Contract to recover $225 and interest, being the difference between the sum of $2175 paid by the defendant to the plaintiff upon the delivery of a deed of a farm, and the sum of $2400, at which the plaintiff alleged the land had been appraised by arbitrators.

<p>tf labor is done in the erection of a building, under a contract with one who has contracted with the owner for the erection thereof, and no lien exists for such labor at the time when it is done, a subsequent rescinding of the contract will not give a lien therefor against the owner. But a lien may be enforced for labor done in the erection of the building by a person employed by such sub-contractor.</p>

<p>If the defendant in an indictment pleads a former conviction, and also that he is not guilty, he cannot be put to trial, against his objection, upon the last plea, until the first has been decided against him; and if he is put to trial upon both pleas at once, and is found guilty, under a ruling of the judge that the evidence produced by him does nob sustain the plea of former conviction, he will be entitled to a new trial, although the evidence did not sustain his plea of former conviction.</p>

Indictment for being a common seller of intoxicating liquors.

<p>Contract to recover for the support, as paupers, of Julia Ann Calkins and her seven children. The ease was tried in the superior court, before Vose, J., and reported for the determina- ' tian of this court, upon facts which are stated in the opinion.</p>

<p>Writ of dower, brought by the widow of Chester Strong. At the trial in the superior court, it appeared that in June 1849 Cyrus Knox and wife were seised in fee of the premises, and on that day conveyed the same to Harvey Strong and Chester Strong, as tenants in common, who at the same time mortgaged the premises to Knox and wife to secure the sum of $700, with interest, that being the whole consideration of the purchase. In September 1853 Harvey Strong and Chester Strong conveyed the premises to the tenant, by deed of warranty, subject to the said mortgage. The demandant did not sign either of said deeds. In September 1857 the tenant recovered judgment against Harvey and Chester Strong for possession of the premises, and in November 1857 was put in possession thereof, and has since remained in peaceable possession. In January 1859 the tenant purchased the mortgage to Knox and wife, and took an assignment thereof to himself, paying therefor the full amount of the original note and interest from its date, nothing having ever been paid thereon. The demand-ant’s husband died in February 1863, and in May of that year she demanded her dower.</p> <p>Upon these facts, judgment was rendered for the tenant, and the demandant appealed to this court.</p>

Two actions of tort, the declaration in each of which alleged that there is in Springfield a public highway, called Main Street which is crossed by the railroad of the defendants, and the defendants have so constructed and maintained their railroad, at the crossing, as to obstruct the highway and render it unsafe and inconvenient for travellers, whereby the plaintiff, travelling on the highway and across the railroad, with Ms horse and wagon, and using due care, sustained an…

<p>Tort to recover damages for an injury sustained by reason of a defective bridge.</p> <p>At the trial in the superior court, before Brigham, J., it appeared that the plaintiff, while driving over the bridge, was thrown with his wagon into the water below; and there was evidence tending to show that the bridge was defective, and that the accident happened in consequence of the defect. The defendants called one Dwight who was in the habit of crossing the bridge, and asked him how it compared on that day, as to its safety and state of repair, with other bridges of like character on roads of like amount of travel; but the evidence was excluded.</p> <p>The defendants introduced evidence tending to show that the plaintiff’s horse was young and balky, and that he backed the wagon against the railing of the bridge with such force as to throw both railing and wagon into the stream. The judge instructed the jury that ordinary care would require a person driving on the highway to do so with a horse which will not, when exposed to ordinary objects and noises upon and along the highway, become unmanageable by a driver of ordinary skill and prudence in the management of horses; and that, if a vicious or untrained condition of the horse for ordinary public travel contributed with the insufficiency of the rail to produce the injury, the plaintiff could not recover.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

Contract to recover damages for the non-delivery of certain rags. The defence was the statute of frauds. At the trial in the superior court, before Vose, J., the plaintiffs introduced evidence tending to show that they were dealers in rags and paper stock, and had bought them of the defendants prior to the alleged sale in question ; that on the 3d of September 1862 they wrote to the defendants as follows.: “ Please inform us bow many print papers you have for us.

<p>Petition for review of a judgment recovered in the superior court for this county at October term 1863, by the respondent against the petitioner, upon two promissory notes of $1500 each, upon which the petitioner was an accommodation indorser.</p> <p>At the hearing in this court, before Dewey, J., it appeared that the case was ordered for, trial in the superior court out of its order upon the docket, and against the objection of the petitioner’s counsel, and in the absence of the petitioner’s witnesses, and that the evidence applicable to the defence of the original action upon the merits, which the petitioner contended that he was prevented from adducing at the trial, was material, and sufficient to entitle him to a review, if the judgment had been rendered upon a default, without opportunity to ask for a postponement of the trial. It did not appear that the petitioner afterwards applied to the superior court for relief in any form.</p> <p>The case was reserved for the determination of the whole court.</p>

Contract brought to recover, amongst other things, for sums of money paid by the plaintiff for labor done upon certain sewing machines, between the 1st and the 22d of March 1862, which he was making for the defendants, under a written contract, signed by him and them, dated July 23d 1861, the material parts of which were as follows: “ Mr. Curtis agrees to make, within one year, one thousand sewing machines, complete for placing upon tables, except ornamenting and silver…

• Petition to enforce a mechanic’s lien. At the trial in the superior court, before Brigham, J., it appeared that A. L. Chapin agreed in writing to build a house for the respondent, according to certain specifications, for which the respondent agreed to pay sixty-four hundred dollars, “ payments to be made as follows: one thousand dollars when the first floor timbers are on; two thousand dollars when the brick work is done; one thousand dollars when it is ready to plaster;…

Petition filed in the probate court by the widow of Joseph Lazell, to have an estate of homestead set out to her.

Contract brought by a physician to recover for professional services rendered and medicines furnished to the defendant.

Indictment for being a common seller of intoxicating liquors. At the trial in the superior court, before Wilkinson, J., the government, to sustain the indictment, relied upon proof of sales of ale, gin and whiskey by the glass, in the defendants’ dwelling-house, to be there drunk by the purchasers. The defendants, after 'raising the same questions which were taken in Commonwealth í.

<p>Promissory notes may be proved against the estate of the maker in insolvency, although the beneficial interest in them has become vested in his wife, if the legal title to them has not been transferred to her.</p>

Replevin of a heifer. It was agreed, in the superior court, that the plaintiff bought the animal in the summer of 1862, when she was but two days old, and kept her until December 1863, when she was taken from his possession by the defendant, who was a deputy sheriff, upon a writ against the plaintiff, and afterwards, in the following January, sold upon the execution which was obtained in the suit. The defendant afterwards purchased her.

Writ of entry to recover twenty rods of land in West-field. The tenant claimed title under an attachment of the premises, and a levy thereon of an execution against Nelson Alderman.

<p>Bill in equity, brought by the assignees in insolvency of Benjamin Little, against nine persons, to set aside mortgages executed to them by the debtor, for the purpose of giving to them respectively an unlawful preference. The bill set forth that on the 22d of September 1862 the debtor executed seven of the mortgages to seven of the defendants, respectively, each of which was of the same land, and contained a clause referring to the others, as follows: “ Except the mortgages this day executed simultaneously with this ; ” that on the 25th of said September the debtor executed four mortgages of other real estate than that included in the above mortgages, to four of the same seven defendants, respectively, each of which was of the same land, and contained the same clause referring to the others as that copied above; that on the 26th of said September the debtor executed two mortgages of all the real estate included in both of the former mortgages, to the other two defendants, respectively, each of which referred to the other and also to all of the former mortgages. The bill contained the necessary averments to slow that all of these mortgages, were in violation of the insolvent laws, and a prayer that the mortgages might be declared void, and the several mortgagees required to release and surrender the lands and discharge the mortgages, and for other relief. The first seven defendants filed a demurrer, assigning for cause, amongst other things, that the bill was multifarious, and that the plaintiffs had a plain, adequate and complete remedy at law.</p>

<p>Petition to enforce a mechanic’s lien on a house and land in Springfield. The statement of the petitioners, which was filed in the city clerk’s office on the 22d of July 1863, set forth that they had “ performed and furnished labor, and furnished and actually used materials in building and erecting (in part) a house on land owned ” by the respondent, “ and that there was justly due for said labor and materials the sum of $1326.05, according to an account thereto annexed; and that they ceased laboring on and furnishing materials for said house on the 26th of the previous June. The account contained a great many items, the last of which were for work and materials, amounting to $3.43, on the 26th of said June; the last previous items being dated June 20th.</p> <p>At the trial in the superior court, before Vbse, J., it appeared that in February 1863 the petitioners agreed with the defendant to alter and enlarge his house, and to build the fences about it, they furnishing men at a stipulated price per. day; that the items in the account prior to June 26th included charges for the fences; that the charges on the 26tb of June were for steps set in the garden, and steps put up at the back door of the house, on the day before, in the absence of the defendant; and that on the 15th of July one of their men put some stops on the small windows over two doors. The petitioners testified that the job would not have been left in a proper or workmanlike manner, or have been properly completed, if the stops had not been put over the windows; that, when they filed their statement, they supposed that they had a lien for the work done and materials furnished for the fences, and that “they had a right to claim such lien upon the property as they did,” and did not intend to claim more than was due to them upon their lien.</p> <p>The defendant testified that he moved into the house on the 1st of June, and knew of no work done there after the 9th of June; that shortly after that date he called on the petitioners for their bill, which they rendered to him on the 20th of that month. The bill was put in evidence, and identified.</p> <p>The respondent contended that upon the undisputed facts the lien was defeated, because the petitioners had knowingly and wilfully included in their claim of lien upon the house items of charge for the fences; that, there being no evidence to show what portion of the charges of June 26th was for the steps in the garden, no lien upon the house can be enforced therefor, and the labor done and materials furnished therefor will not entitle the petitioners to compute from then the time for filing their statement; and that the charge of July 15th would not prevent the thirty days from running from the rendition of the bill on June 20th.</p> <p>The judge declined so to rule, and instructed the jury that if the petitioners believed, when they filed their statement, that they had a right to claim a lien on the premises for the fences, and that their lien covered all the work done on the premises, and did not intend to claim more than was due to them under their lien, and in good faith filed their statement in this belief, the statement was sufficient to enable them to maintain their proceedings to enforce the lien, although it erroneously included a claim for fences and steps to which their lien did not extend ; that the burden of proof was on the petitioners to show when they ceased to labor or furnish materials ; that if after June 20th they in good faith, in the honest execution of their contract, performed any labor or furnished any materials which the proper and substantial performance of their contract called for, the date thereof would be the time when they ceased to labor or furnish materials ; but if the contract had been substantially performed on the 20th of June, and the petitioners thereafter performed some trifling amount of labor or furnished some materials not necessary to the complete performance of their agreement, for the purpose merely of fixing some date, in reference to filing their statement, the date thereof would not be the time when they ceased to labor or furnish materials, within the meaning of the statute.</p> <p>It was agreed, before the trial, that the jury should only pass upon the right of the petitioners to maintain their petition, and that, if their verdict should be for the petitioners, the amount due should be fixed by an assessor.</p> <p>The jury returned a verdict for the petitioners, and the re spondent alleged exceptions.</p>

<p>\ grant of land adjoining a railroad, with the water power of a brook upon the land, running along by the side of the railroad, and the right of making a dam across the brook, and abutting upon the embankment of the railroad, “ provided said dam shall be so built as to answer for a street to the railroad, and said street is to be opened three rods wide ” across the granted premises to the railroad, and the grantee “ is to make the road,” is not a grant upon a condition subsequent.</p>

<p>Writ of entry to recover land in Springfield. The parties submitted the case to the superior court on facts, which are stated in the opinion, on which Brigham, J. gave judgment for the tenant, and the demandant appealed.</p>