Volume 91 — Massachusetts Reports

<p>A contract in this form: “ We, the undersigned, a committee chosen by the town of A. to finish the basement of their town-house, do hereby agree to pay,” &c., for the finishing of said basement, and signed and sealed by the committee as “committee for the town,” is not the contract of the town, but of the individuals who sign it.</p> <p>[f a town authorize a committee to bind them by a contract, and the committee enter into a sealed contract, for the benefit of the town, which binds only themselves, the town, by • subsequently revoking the authority of the committee and prohibiting and preventing the execution of the contract, do not render themselves liable in damages to the individual with whom the contract was made.</p>

<p>Contract. The declaration alleged that in 1837 the defendant, in consideration of a certain farm then conveyed to him by the plaintiff’s father, promised to pay to the plaintiff the sum of five hundred dollars, upon the plaintiff’s arriving at the age of twenty-one years; and that in 1840 the plaintiff arrived at that age, and demanded payment, which was refused. The writ was dated November 30th 1863. The answer, amongst other defences, set up the statute of frauds.</p> <p>At the trial in the superior court, before Rockwell, J., the plaintiff offered evidence to prove the facts alleged in the declaration, and that the deed was made at the date of the promise, and that since the cause of action accrued the defendant has been absent from the Commonwealth. The judge ruled that the action could not be maintained, and directed a verdict for the defendant, which was returned accordingly; and the plaintiff alleged exceptions.</p>

<p>Tort to recover of the defendant the amount recovered ot the plaintiffs by Cornelius T. Day, for an injury sustained by reason of a defect in and over a public sidewalk in Milford. The original case is reported in 5 Allen, 98.</p> <p>At the trial in the superior court, before Allen, C. J., the plaintiffs contended that they were entitled to recover on the ground that the defendant was the owner of the building to which the awning, by the fall of which the injury was occasioned, was attached; and the following facts appeared : The awning was erected by the defendant along the entire front of a building owned by him, called Union Block, being attached to the building by boards and rafters, just above the row of windows in the first story, and supported by several iron rods fastened at the lower end in the curbstone of the sidewalk, within the limits of the highway. The awning was one entire structure of wood. The building was two stories high, having three shops in the lower story, fronting on the sidewalk, of about equal width, and extending back the whole depth of the building. Two of the shops were let to tenants, by written leases which contained no stipulation as to repairs; and the other, under a verbal agreement, and the evidence as to who should make the repairs was conflicting. There was an entrance and flight of stairs between two of the shops to the upper story, in which there was a hall and room connected therewith, another room occupied by the town for a public library, and a room which at the time of the injury had lately been occupied by a fire company belonging to the town. The hall was occasionally let by the defendant. The library room was let with no stipulation as to repairs. The fire company had paid rent quarterly for the room occupied by them, and had vacated the premises without any notice to the defendant to terminate their tenancy.</p> <p>There was evidence tending to show that the awning was built and maintained for the advantage of the shops, that signs were placed on the front edge thereof, and articles were suspended under the same; that the occupant of one of the shops had also repaired and propped up the awning; that the defendant had paid for repairs of the awning; and that he had also repaired the damages done to the shops by the fall of the awning, in breaking the windows, he contending that he did so merely to preserve his property.</p> <p>The plaintiffs were allowed to introduce, under objection, the following notice, signed by their selectmen, and served by them upon the defendant, to defend the original action: “ Sir: You are hereby notified that Cornelius T. Day, of Milford, has commenced an action against the inhabitants of the town of Milfor for damages alleged to have been sustained by him by reason of an injury alleged to have been sustained by him on the sidewalk in front of or near Union Block, so called, in Milford, by writ returnable before the next superior court for the county of Worcester, and you are hereby required to defend said action at your own expense and cost, because, if the defendants are liable at all, you are responsible to them, as the injury, if it occurred, must have occurred by your negligence; and, if you do not defend it, they will claim to be reimbursed by you if judgment is obtained against them therefor.” The plaintiffs also showed that, within a day or two after the injury, the defendant knew of it, and of the place where it happened. The defendant did not appear and defend the original action, nor was he present at the trial thereof. The evidence was conflicting whether or not the plaintiffs made a demand of the defendant to pay to them the amount of the judgment recovered by Day, before the commencement of this action; and the chief justice ruled that no such demand was necessary.</p> <p>The defendant offered to prove that, if the awning was defective and unsafe, its condition had long been known to the town, and they had been requested to attend to it, but had neglected to do so,, after notice that it was dangerous, and that its fall was caused by an extraordinary snow storm during the previous afternoon and evening, but the evidence was excluded.</p> <p>The defendant asked the court to rule that he was not liable to keep the awning in repair, unless there was an agreement between him and the tenants to that effect; that unless he agreed to make repairs in the shops, the occupants of them were liable for the defective condition of the awning; that it was a question for the jury whether he had made such agreement; and that, if the plaintiffs occupied a part of the building without any agreement as to repairs, they could not maintain this action. The chief justice declined to make these rulings, and instructed the jury that the defendant was liable for the defective and dangerous condition of the awning, and was not exempt from repairs on the entire exterior of the building, including the awning, so far as to render it safe; that the notice to defend the original action was sufficient, and the verdict therein was binding on the defendant as to the existence of a defect in the highway, the injury to Day, while using due care, and the amount of such injury.</p> <p>Evidence was introduced by the plaintiffs of several falls of snow on several days previous to the injury, and there was no evidence that the same had been shovelled off from the awning, at the time of its fall; whereupon the defendant asked the court to rule that the former verdict did not conclude the defendant as to whether the defect which caused the fall was its original insufficiency and weakness, or the accumulation of the snow upon it for several days prior to the accident, and, if the jury should find the latter to be the true cause of the defect, the defendant would not be liable unless guilty of negligence as to the existence of such cause; but the chief justice declined so to rule.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

Two writs of entry brought to recover certain real estate in Grafton. The cases were reserved in this court by the chief justice for the determination of the whole court, upon facts which are sufficiently stated in the opinion.

<p>The supreme court of the United States having decided that a discharge under the insolvent laws of this commonwealth is no bar to an action upon a promissory note given to a citizen of another state, who has not proved his claim in insolvency, although the note was payable in this commonwealth, this court will adopt and apply the same doctrine.</p>

Contract for money had and received by the defendant from various insmance comp anies to the plaintiff’s use. Held: and which had been issued to him by mutual insurance companies upon said buildings. These policies were all made subject to by-laws which provided that the policies should be void in case of the subsequent alienation of the insured property without the consent of the respective companies.

Contract. The declaration alleged that the defendants commenced an action against the plaintiffs, returnable at the November term of the superior court 1858, to recover the amount of certain claims, which action was duly entered and continued, and the plaintiffs went into insolvency, and afterwards obtained their discharge; and the defendants claimed to have a lien upon certain property which had been insured by them, as security for the claims sought to be recovered in said…

Contract brought to recover the sum of $99.50, paid by the plaintiff to the defendant for ninety gallons of neat’s-foot oil.

<p>Contract upon a promissory note for $1000, signed by the defendant, dated April 18th 1860, and payable to the plaintiff or order in nine months from date.</p> <p>At the trial in the superior court, before Allen, C. J., the signature was admitted, and the defence -was that the note was obtained fraudulently, and was without consideration. The following facts were proved: On the 18th of April 1860, the plaintiff conveyed to the defendant an interest under certain patents for heating and ventilating furnaces, stoves, ranges and grates, in certain states, in consideration of which the defendant executed to the plaintiff notes for $10,000, one note being for $3000 payable in three months, another for $3500 payable' in nine months, and a third for $3500 payable in fourteen months. At the same time the parties entered into a partnership for manufacturing and selling the patented articles, by the terms of which the defendant was to pay to the plaintiff an additional sum out of the profits of the firm.</p> <p>On the 25th of July 1860 the defendant and William W, Northrop (who had become interested in the firm) entered into an agreement with the plaintiff, reciting that the plaintiff “ has this day agreed tó sell out to said Wiswell and Northrop all his interest in the said patents, .... upon condition that said Wiswell and Northrop will well and truly settle and pay all obligations that were given by them, either as the firm of Wis-well, Northrop & Co., or individually, to said Sawyer and others,” and do certain other things therein specified, and providing that “ in consideration of the premises the said Wiswell and Northrop hereby indemnify and hold said Sawyer harmless of all liability on account of debts, contracts or obligations incurred in the management of the business aforesaid, and fully and completely release all their interest in the patent rights ” in certain specified states.</p> <p>The note for $3500 payable in nine months was before its maturity indorsed by the plaintiff to F. A. Haskell, for a valuable consideration. About the 1st of October 1860, an arrangement was made between the plaintiff and Haskell, by which the plaintiff agreed to transfer to Haskell certain interests in the same patents, and to take therefor the defendant’s note for $1000, which Haskell agreed to procure. Accordingly, by request of Haskell and with the plaintiff’s knowledge, the defendant gave as a substitute for said note of $3500 two notes, one for $2500, which has been paid, and the note in suit, which was dated back to April 18th 1860.</p> <p>The plaintiff contended that, even if the original note of $3500 was invalid in its inception, by reason of fraud, yet as i‘ passed before its maturity into the hands of a bona fide holder, and as the note in suit, given in part substitution therefor, was negotiated to the plaintiff upon a new and valuable consideration, the action might be maintained; and that the last sale and transaction constituted a sufficient consideration to support the note in suit, and that the alleged frauds of the former transaction could not be used to impeach it. The chief justice declined so to rule, and instructed the jury that the fact that the note had, under the circumstances of the case, passed through the hands of Haskell, would not confer upon it any additional validity in the plaintiff’s hands; that, several months having elapsed since the first transaction, and a new bargain having been made and a new note given, the fraud would be purged, if the defendant knew that there was fraud in the original contract ; that if the defendant affirmed the note in July or October 1860 with knowledge of the facts, he could not now set up that it was obtained by fraud; but if the last agreement was made in ignorance of fraud in the first transaction, such fraud would not be purged by the second transaction, so far as to render the note valid on its return into the hands of the' original perpetrator of the fraud.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>Contract upon three promissory notes, signed by the defendant, one of which was payable to the plaintiff or order on demand. There was no controversy as to the others.</p> <p>At the trial in the superior court, before Wilkinson, J., the defendant offered to show in defence that the note was given for a water-wheel sold to him by L. F. Thompson, with warranty of quality, and was made payable to the plaintiff by Thompson’s request; and that the water-wheel proved worthless. The defendant also stated that he was not prepared to show that the daintiff had any knowledge of the transaction between himself and Thompson, or that he took the note otherwise than in good faith and for value, as between him and Thompson. Whereupon the judge ruled that the facts offered to be proved would constitute no defence, and the defendant submitted to a verdict, and alleged exceptions.</p>

<p>If a mortgage of a railroad has been executed to trustees, for the benefit of bondholders, and the trustees, after entering into possession, lease the railroad to others, but, under a verbal agreement, continue to operate the road for the lessees and receive the earnings pay the expenses, select, contract with and discharge the persons employed on the road, and exercise all the powers usually exercised by railroad corporations over their own roads, the trustees are personally responsible for an injury sustained by reason of the negligence of one of the persons so employed.</p>

<p>The admission of incompetent evidence to prove undisputed or immaterial facts furnishes no ground for a new trial.</p> <p>Evidence of frequent sales by one person of the property of another, which were known and not objected to, is competent as tending to show that they were made by his permission; and his knowledge of such sales may, in the absence.of direct evidence, he inferred from their frequency and amount, coupled with proof of ample means of knowledge.</p> <p>One whose property has been sold from time to time by another person, without authority is not estopped from maintaining an action against the purchasers to recover its value, if he was not present at any of the sales, and did nothing to induce them to buy the property, and has not been guilty of any fraudulent act or contrivance, or meditated or promoted any express fraud; although he knew that they were making the purchases under the mistaken belief that the person who assumed torsell the property had authority to do so, and gave them no notice to the contrary.</p>

<p>lie price at wlich goods have been sold at auction is admissible as evidence of theil value.</p> <p>A new trial should be had upon the question of damages only, if exceptions which are sustained relate to that question only.</p>

<p>Contract to recover for board of the defendant’s minor son. The defendant in the answer denied that he was liable therefor, and filed a declaration in set-off, claiming the same sum, as compensation for his son’s labor, which the plaintiff in the writ claimed for his board.</p> <p>At the trial in the superior court, before Ames, J., it appeared that the plaintiff furnished the board for the time alleged, and that her charge therefor was reasonable, provided she was entitled to recover at all; and that at the outset the defendant agreed to pay therefor. The defendant introduced evidence tending to show that the plaintiff afterwards agreed that the boy’s labor should be taken as an equivalent for his board, and asked the court.to rule that the burden was on the plaintiff through the whole case to satisfy the jury that the defendant agreed to pay for the boy’s board, and that if this were left doubtful the plaintiff could not recover. The judge so ruled; but added that, “ under the pleadings in the case, there being a declaration in set-off, and it being conceded that the agreement originally was to pay board, and there being no controversy as to the amount or length of time, provided the defendant was liable at all, if the defendant relies upon such new and subsequent agreement, modifying and altering the original one, the burden of proof as to such new agreement is upon him.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Tort to recover damages for an assault and battery.</p> <p>At the trial in the superior court, before Ames, J., the committing of an assault and battery was admitted; and the defendant, for the purpose of showing provocation, introduced evidence to show that the plaintiff had charged him with attempting to pass counterfeit $500 bills at Brighton market, to which the defendant was in the habit of going. The plaintiff denied that he had made this charge, but testified that he said to the defendant, “ People do say that you show bad money; ” and he was allowed to testify, under objection, that he had seen the defendant frequently show his money at Brighton; that the defendant would take it out in papers, and show it, several thousand dollars at a time.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>The Gen. Sts. have not altered the rule in this commonwealth that, in a writ of entry to foreclose a mortgage made to secure the payment of money, the amount due is to be ascertained according to eauity and good conscience.</p> <p>f the assignee of a mortgage made to secure the paj'inent of money, being indebted to the mortgagor, orally agrees with him that he may have the mortgage for the amount of the debt due to him from such assignee, a writ of entry to foreclose the mortgage cannot be maintained for his benefit by one to whom he has subsequently assigned it, upon a secret trust to hold it for him.</p>

Writ of entry to foreclose a mortgage upon two parcels of land in Clinton, in the county of Worcester. At the trial in the superior court, before Rockwell, J., it appeared that the mortgage in question was executed at Nashua, in the State of New Hampshire, on the 1st day of January 1859, by Gustine Marshall to the plaintiff, and that they both resided there then, and still do so. The defendant subsequently purchased the equity of redemption of Marshall.

<p>A mortgagee of land may release a portion thereof from the operation of his mortgage without impairing his security upon the remainder, provided he has no actual or constructive notice of the existence of a right of any other part thereof to exemption from contribution; and the record of a subsequent conveyance of such other partis not constructive notice to Mm thereof.</p> <p>fa a bill in equity to redeem a mortgage, a right to contribution from a subsequent grantee of a portion of the mortgaged premises cannot be settled, unless such grantee is made a party to the bill.</p>

<p>A mortgagee of land who is disseised cannot make a valid assignment of his mortgage.</p>

Scire facias against the trustee in a trustee process instituted by the plaintiff against George B. Harris, Stephen Gould and Edward Gould, partners under the firm of George B. Harris & Co. It was agreed in the superior court that, at the time of the commencement of the trustee process and for several months prior thereto, Stephen Gould lived in the State of Rhode Island, and that the only service made upon him- was by leaving a copy of the writ at his former place of abode…

Contract to recover for expenses incurred in the relief and support of Lewis Johnson and his family. At the trial in the superior court, before Lord, J., the plaintiffs contended and the defendants denied that the settlement of the paupers was in Coleraine, and evidence was introduced upon this'question which it is immaterial to report here.

<p>Tort against the school committee of the town of Uxbridge, for breaking and entering the plaintiffs’ school-house, and also for refusing to approve of a teacher whom the plaintiffs’ prudential committee had employed to keep their school.</p> <p>At the trial in the superior court, before Allen, C. J., the plaintiffs offered to prove that the town of Uxbridge authorized the prudential committee in the several school districts to hire teachers, according to the provisions of the statutes, and that the plaintiffs’ prudential committee contracted with a person to teach their school for three months from the first Monday of December 1862, which was the usual time for commencing the school and presented her to the defendants for examination that the defendants found her to be of good moral character and possessed of the requisite literary qualifications and general capacity to govern, but refused to give her a certificate for the reason that difficulties existed in the district in relation to her as a teacher, she having taught there before, and they thought she had better not engage in the same school again. It was admitted that on or about the 1st of December 1862, the prudential committee were informed that the school committee had refused to give the certificate, and that they gave notice to the school committee that they should not employ or present another person ; and the school committee, after waiting until about the 1st of February 1863, employed a teacher, examined her and gave her the requisite certificate, took possession of the schoolhouse for the purpose of establishing a school therein, and put her into the school, which she kept for the term of three months under the direction of the school committee.</p> <p>Upon these facts, the plaintiffs contended that the defendants were not authorized to refuse to give a certificate to the teacher first employed, and to exercise the power of appointing one themselves, or to take possession of the school-house for the purpose of establishing the school; but the chief justice instructed the jury that the defendants were justified in their acts. A verdict was accordingly returned for the defendants, and the plaintiffs alleged exceptions.</p>

<p>if the grantor in a deed has orally agreed to warrant that a tract of land therein conveyed should amount to seven acres, or, if it should fall short, to pay for the deficiency at a certain rate per acre, and a deed is accordingly prepared for him to execute, containing a covenant to warrant the land to contain seven acres, or, if it should fall short, to refund to the grantee in proportion to the quantity and price, and the grantor fraudulently erases the whole of the covenant, and delivers the deed, to the grantee without informing him ' of the erasure, and thereby deceives him, a bill in equity lies to reform the deed by inserting the covenant agreed upon.</p>

<p>A creditor of one who has paid for land which, for the purpose of defrauding his creditors, . is conveyed to others who have knowledge of the fraudulent intent, cannot maintain a bill in equity against the grantees, to compel an application of the land in payment of his debt.</p> <p>A statement in the nature of a demurrer, for want of equity, contained in the answer to s bill in equity, need not be accompanied by a certificate that it is not intended for delay, under Gen. Sts. c. 113, § 5.</p>

<p>Bill in equity, alleging that in October 1847 one Chamberlin was appointed by the probate court guardian of the plaintiff, then under age, and accepted and gave bonds for the discharge of his trust; that he received in cash the sum of $6000 belonging to the plaintiff, paid him the interest, but never any part of the principal, and continued to act as guardian until the plaintiff became of age, and then owed him the sum of $6000; that in June 1861 Chamberlain, as such guardian, being then insolvent and unable to pay his debts and liabilities, knowing that the plaintiff was of age, and being desirous of paying him what was due him, and intending to set apart and apply a portion of his own general assets in part payment of what was due to the plaintiff and to be his property and to be held in trust as a part of the fund which Chamberlain had originally received, belonging to the plaintiff, by proper deeds of assignment duly executed, assigned, for the purpose aforesaid, to the plaintiff five recorded mqrtgages of real estate and the promissory notes secured thereby, for the sum in all of about $2500. The assignments were referred to in the bill, and upon inspection appeared to have been “executed and delivered in presence of” an attesting witness by Chamberlain on the 1st of May, and acknowledged by him before a justice of the peace on the 3d of June 1861.</p> <p>The bill also alleged that in January 1863 Chamberlain applied for the benefit of the insolvent laws, and the defendant was chosen assignee, and Chamberlain’s estate duly assigned to him ; that Chamberlain, having retained possession of these mortgages, notes and assignments, in March 1863 caused the assignments to be recorded in the registry of deeds, for the purpose and with the intent aforesaid; that the plaintiff early in 1863, when and as soon as these facts came to his knowledge, assented to the assignments so made to him; and he submitted that the mortgages and assignments were his property; and alleged that Chamberlain afterwards took the mortgages and assignments from the registry, and held them with the notes in trust for the plaintiff, and never, after making the assignments, treated them as any part of his private assets, and did not deliver them as such to the defendant; but that the defendant afterwards took and now had possession of them, claiming to hold them as part of Chamberlain’s general assets, and refused to deliver them to the plaintiff. The pj.ainti.ff submitted that he was entitled to have them applied in payment of the fiduciary claim against Chamberlain, and prayed for a decree that they belonged to him as a trust fund set apart by the guardian from his general assets, that they might be subjected to the payment of his claim, and for an account, and for general relief.</p> <p>The defendant, admitting the facts alleged, demurred generally to the bill for want of equity.</p>

Trustee process, in which Paul W. Dudley and Charles P, Whitin, copartners, and John C. Whitin were summoned as trustees. Dudley and Whitin disclosed, in answer to interrogatories, that at the time of the service of the writ the defendant owed them the sum of $106.57.

<p>Contract against the executor of the will of Abigail Ruggles, to recover moneys due to her at the time of her death from the Dedham Institution for Savings.</p> <p>The following facts were agreed in the superior court: Abigail Ruggles, late of Walpole in the county of Norfolk, died in January 1863, leaving a will which contained the following bequest: “ I give and bequeath to the American Bible Society all moneys due me at the time of my decease from Dedham Bank, Dedham, Mass., which money shall be paid within three months after my decease, by my executor, to the treasurer of said society.” For years previous to the time of making her will, she had deposited moneys in the “ Dedham Institution for Savings,” a corporation known among its depositors and a large portion of the community as the Dedham Savings Bank, and at the time of her death there was due to her from said corporation the sum of $569.11, which sum the defendant had collected, and refused to pay to the plaintiffs. There was also in Dedham before the date of the will another corporation generally known as the Dedham Bank, its corporate name being “ The President, Directors, and Company of the Dedham Bank”; but she has never been a stockholder or depositor in this corporation.</p> <p>Upon these facts judgment was rendered for the defendant, and the plaintiffs appealed to this court.</p>

<p>Platform scales, set in an excavation in a highway and extending under a building upon adjoining land and up into a room to which that part of the scales by which the weight is ascertained is firmly attached, are a fixture; and, if put there by a tenant, must be removed by him before the expiration of his term, or they will pass to the owner of the real estate.</p>

<p>Replevin of hay, alleged in the writ to be of the value of thirty dollars, and valued in the certificate of appraisement indorsed thereon at twenty dollars. The replevin bond was in the sum of forty dollars.</p> <p>The action was commenced before a justice of the peace. The defendant was defaulted, and appealed to the superior court, and, after the action had been in that court several terms, moved to dismiss it for want of jurisdiction. The plaintiff offered to prove that the value of the hay replevied exceeded twenty dollars, at the time of the service- of the writ. But Lord, J. refused to try any such issue of value as was tendered, and dismissed the action. The plaintiff alleged exceptions.</p>

The only reason of appeal insisted on at the hearing before the chief justice was, that the will was signed, declared and published on the Lord’s day, and is therefore void. The will bears date January 12th 1862, which was Sunday, and it was proved that it was signed by the testatrix, in presence of the three subscribing witnesses, on the forenoon of that day. The testatrix died March 31st 1863, at the age of eighty-seven years, six months, and fourteen days.

Bill in equíty setting forth that the Suffolk Fire Insurance Company and the Dorchester Fire Insurance Company insured a building and the machinery in it, situated in Worcester, from May 1st 1863 to May 1st 1864; that the premiums were paid by the defendant, who was the mortgagee in possession, and so described in the policies; that the premises insured were destroyed by fire during the continuance of said policies; that the plaintiffs have offered to pay said loss to the…

<p>A bond by an heir apparent that he will devise an estate which may come to him by descent is valid, if entered into fairly, on an adequate consideration, with the assent of the ancestor, and if the bargain is not unconscionable, or obtained by oppression, or by taking unjust advantage of the necessities of the heir. 1</p> <p>it is not sufficient proof of a breach of a bond to support] another during his natural life, to show that he left the house of the person bound to furnish such support and resided elsewhere for several years, without at any time requesting him to fulfil his agreement or in any way exhibiting to him an intention or desire to hobl him to the performance thereof.</p> <p>A bond to bequeath to another “ all my personal estate, jof every description, as well what I now have in possession as what I may receive at the [decease of my mother,” is broken by the act of the obligor in leaving at his death a duly executed will, which is proved así allowed in the probate court, and by which the property is conveyed fi. a different person; and an action may be brought for the breach thereof before the executor has settled the estate in the probate court, and been charged vjith a balance in his hands.</p> <p>Such a bond is not void for uncertainty, although it contains a provision that the obligor may have the management and use of the property during life, and does not provide an* means of ascertaining with accuracy what property is covered by its terms.</p> <p>An action at law lies upon such a bond.</p>

Contract brought to recover for services rendered in taking care of Nathaniel Ellis, a pauper, whose settlement was in the town of Hanson.

Contract brought to recover for supplies furnished to a jauper.

Petition for a sentence of nullity of marriage on the ground that at the time of the marriage the respondent was with child by another man, and fraudulently induced the petitioner to believe that she was chaste. The respondent asked the court to rule that the petitioner should offer evidence of the representations of the respondent of her chastity before the marriage, but Chapman, J. ruled that evidence of express representations was not necessary to sustain the petition.

<p>U & mortgagor of land performs labor for the mortgagee under an agreement that his wages shall be applied upon the mortgage debt, and earns more than enough to satisfy the same, the debt nevertheless remains undischarged until the actual application of the wages thereupon; and if such application has not been made, and the condition of the mortgage has been broken, the mortgagor may maintain a bill to redeem.</p> <p>A mortgagee of land who has assigned his interest in the mortgage since the breach of the condition may be included as a defendant in a bill to redeem; especially if it appears that he is interested in the taking of the account.</p> <p>Although a suit in equity to redeem land from a mortgage has been set down for a hearing on the bill and answer, and a hearing had on the question of jurisdiction, the court may allow the filing of a replication, and send the case to a master to take evidence and state the account between the parties.</p> <p>A. suit in equity to redeem land from a mortgage may be sent to a master to take an account of payments made upon the mortgage debt, although the mortgagee has never been in possession of the premises, and has received no rents and profits.</p> <p>A plaintiff in equity is a competent witness in his own behalf, although one of the defendants dead; and he may also introduce in evidence his books of account, provided they have been properly kept, to prove charges against the defendants for labor performed by hini.</p>

<p>A testator in his will devised the residue of his estate to trustees, to invest, and “to pay over a sufficient amount for the maintenance and education of my six children,” on the separate receipts of their guardians during their minority, and “ to pay over to each of my children one quarter part of the principal of each one’s portion of said sixth part when they shall have attained the age of twenty-one years, retaining the balance to be held in trust ” during their natural lives, the interest upon which was to be paid over on their separate receipts. Held, that each child, upon coming of age, would be entitled to receive one quarter part of one sixth of the capital of the trust fund, computed as a fund formed at the testator’s decease, and the whole of the income of that one sixth, up to the time of coming of age, deducting the sums advanced for such child’s maintenance and education while under age.</p>

Writ of entry. Plea, nul disseisin. At the trial in the superior court, before Russell, J., without a jury, it appeared that on the 3d of January 1855 the demand-ants obtained a judgment against the tenant for $297, damages, and costs of suit, including the cost of the execution, $15.55, and took out execution, and caused it to be levied upon certain personal property, and upon the tenant’s undivided sixth part of land in reversion, subject to a life estate.

<p>Contract brought by the administratrix of the estate of Lysander Richards, deceased, to recover back the excess paid by her to a creditor of said estate over and above the amount of the dividends which were subsequently ordered to be paid to all the creditors thereof. Writ dated November 21st 1862.</p> <p>The following facts were agreed, in the superior court: The plaintiff was duly appointed administratrix on the 3d of April 1852, and gave due notice of her appointment. The inventory showed real estate to the amount of $17,203, and personal estate to the amount of $29,328.33. In January 1853, believing the estate to be solvent, she paid to the defendant a promissory note which he held against it, amounting with interest to $1405.59. In June 1854 her first account was presented and allowed, in which she asked to be allowed for certain doubtful items in the inventory of personal property, amounting to $25,010.67. At the same time she filed a list of the claims against the estate, and the estate was thereupon, on her representation, adjudged insolvent, and commissioners were appointed to receive and allow the proof of claims. Their return was duly made, and afterwards, on the 11th of November 1854, the judge of probate ordered a dividend to be paid to the creditors of fifty-six and one half per cent.; and on the 2d of November 1862, after the settlement of the plaintiff’s final account, a further dividend was ordered of four and a fraction per cent. Both of these dividends were duly paid. The plaintiff presented to the commissioners the note of the defendant against the estate, and retained the amount of the dividends thereon, which left a balance of $591.32, as the excess paid out by her to the defendant. The condition of the estate was such that it could not have been settled sooner.</p> <p>Upon these facts, judgment was ordered in favor of the plaintiff ; and the defendant appealed to this court.</p>

<p>If a reward is offered by the owners of stolen property for its recovery and the detection oí the thief, one who gives to them information by which, with reasonable diligence on their own part, they are enabled to recover the property and detect the thief, is entitled to the reward, although he does nothing further to aid in the recovery of the property and conviction of the thief.</p>

Writ of entry brought on the 12th of April 1862, to foreclose a mortgage from the defendant to the plaintiff. At the trial in the superior court, before Russell, J., without a jury, it appeared that on the 1st of October 1856 the plaintiff executed upon the back of the mortgage an assignment thereof, absolute in form, to William 8.

<p>Under Gen. Sts. c. 133, § 32, eJ. 6, materials and stock designed and procured by a debtor and r/ccessary for carrying on more than one trade or business, and intended to be uses or wrought by him therein, not exceeding one hundred dollars in value, are exempt fronr execution; and the fact that he occasionally sells to a customer or stranger some of these articles, if called for, without ever advertising or holding himself out as a vendor thereof, will not render them liable to be seized on execution.</p>

<p>Writ of entry for the recovery of three parcels of land.</p> <p>The demandants’ immediate grantor of the demanded premises was George H. Williams, by deed dated October 19th 1857. His grantor was the city of Boston, by deed dated January 1st 1857, and the city was the grantee of the aqueduct corporation, by deed dated May 12th 1851. All these deeds were simple releases, without description or covenants. That of the aqueduct corporation conveyed to the city of Boston “ all and singular the property, estates, rights and privileges ” of the corporation, and similar terms were used in the conveyance of the city and that of Williams. The aqueduct corporation’s title to a portion of the demanded premises rested on a deed from Luther Eames, dated November 28th 1795, conveying a grist-mill with twenty rods of land and the ponds, dams, &c, appurtenant to the mill, together with the “ privilege of a certain highway twenty feet wide appertaining to said mill.” In some of the earlier deeds under which Fames claimed title, this passage was described simply as a highway appertaining to the mill, As to this way, it was ruled by Metcalf, J., before whom the case was tried, without a jury, that these deeds conveyed only an easemenf.</p> <p>Another portion of the demanded premises was that lying southerly of the abovenamed passage way, and between that and the lot conveyed to the corporation by Giles Alexander hereinafter mentioned. Concerning this the judge found, upon the whole evidence, that the aqueduct corporation had made no use of the land or any claim of right therein for many years, besides such use and claim as would enable them to preserve their aqueduct in repair through it; and that, if they ever claimed any estate therein recoverable by writ of entry, they were disseised thereof when they made their deed to the city of Boston, so that no title which could be demanded in a writ of entry passed to or has been conveyed by the city. The demandants had permission to exhibit to the whole court all the deeds which they put in evidence and the testimony relating to a disseisin.</p> <p>Among other things to show that the aqueduct corporation were not disseised of a portion of the demanded premises, they put in evidence a deed from the aqueduct company to John Ward, dated July 12th 1804, but not recorded, the material portion of which is as follows :</p> <p>“ Whereas, John Ward of Roxbury in the county of Middle-sex, blacksmith, has this day made a grant to the aqueduct corporation of the privilege of laying logs or wooden pipes in his land between Jamaica Pond and the old mill called Pierpoint’s Mill in Roxbury, to convey fresh water from the same pond to the town of Boston, the said corporation, in consideration thereof and for five dollars money paid by the said Ward, does lease to him their land in said Brookline, described as follows.’ [Here followed a description of the premises.] “But the said corporation does hereby reserve to itself and its successors, so long as this lease shall continue and be in force, the right to any logs or pipes in the same leased premises for the purpose of conveying water from Jamaica Pond, or any of the streams, fountains and springs issuing from or near the same, through all and every part of the premises hereby leased; and of raising any dam above or on the Westerly boundary of the leased premises, to raise, stay or conduct the water for the use aforesaid ; and to dispose of, check, impede or use any water tending to or issuing through the same leased premises at its pleasure ; and also reserving a right to use and improve the corn mill thereon, being and standing at the pleasure of the said corporation to use the same as mills for their former use, or to put tools and lodge laborers employed in the same aqueduct therein occasionally; but the said corporation shall not put or place any family to reside there. To have and to hold the same to the said Ward, his heirs and assigns, so long as said corporation shall keep pipes in his land, as aforesaid, and no longer.”</p> <p>As to the remaining portion of the demanded premises, Giles Alexander, by his deed of warranty dated August 10th 1796, conveyed to the aqueduct corporation four acres and three perches of land in Roxbury, (minutely bounded,) “to have and to hold the aforegranted premises to the said corporation, and the successors and assigns of said corporation, to their use and behoof forever; ” “ Provided, nevertheless, and it is the meaning and intention of the parties to this grant, that whereas the said corporation intend to flow or cover with water some part of the aforegranted premises, now it is intended and understood by the said parties that the said corporation shall flow and cover with water as much of the premises as they may think necessary, and that the part of the premise's which shall not be so flowed or covered with water, the said Alexander shall have good right to improve and cultivate, and to take the emoluments thereof to his own use,”</p> <p>It was contended by the tenants that this deed conveyed only an easement to the grantees; but the judge ruled that it conveyed a fee simple estece to the aqueduct corporation, subject to the grantor’s right to the use, during his life, of such parts thereof as should not be flowed by the grantees. He further found that the grantees were not disseised thereof before they conveyed to the city of Boston, and that the demandants were entitled to recover the land described in that deed ; but that as to all the other parts of the demanded premises, the tenants had not disseised the demandants thereof.</p> <p>Some of the deeds are more fully referred to in the opinion.</p>

<p>Tort for the conversion of a horse.</p> <p>At the trial in the superior court, before Putnam, J., there wag evidence tending to show that the plaintiff, being the owner of the horse in question, let him to one Barrows, who subsequently exchanged him with the defendant for another horse, and that the defendant afterwards let him to a person who ran away with him, and neither the person nor the horse has since been heard of. The defendant supposed his title to the horse to be perfect; and no demand was made by the plaintiff before commencing this action.</p> <p>The jury returned a verdict for the plaintiff, under instructions authorizing them to do so ; and the defendant alleged exceptions.</p>

Writ of error to reverse a judgment rendered in the superior court in favor of the defendant in error upon an award. The submission upon which the award was made purported to be between the plaintiff, as administratrix upon the estate of John Chadbourn, deceased, and the defendant, in her own right and as administratrix of the estate of Seth Chadbourn, deceased; and was signed by the latter simply with her own name.

<p>If the maker of a promissory note gives a mortgage as security to an accommodation indorser, whose liability upon the note afterwards becomes fixed, the indorsee, after the insolvency of the maker and indorser, is entitled to have the mortgage assigned to him, although the condition of it is only for the security of the indorser, and not to pay the debt. If, however, the indorsee has proved the note against the several estates of the maker and indorser in insolvency, and by his vote has secured the discharge of the indorser, he cannot afterwards, upon withdrawing his proof, compel an assignment of the mortgage to himself.</p>

<p>A minority report made by one of three auditors to whom a case has been referred is inadmissible in evidence.</p> <p>[f a case has been referred to auditors to determine whether the defendants have injured the plaintiff’s land in a particular manner, and whether his land has depreciated in value, and if so how much, and to what extent the depreciation has been caused by the defendants, if any, and the auditors have reported that the land has depreciated to a certain specified extent, but that the depreciation has not increased within six years before the commencement of the suit, and that they did not find that such depreciation had ever to any appreciable extent been caused by the defendants, the whole report maybe read to the jury, although the defence of the statute of limitations was not set up in the answer»</p> <p>In an action to recover damages for an injury to the plaintiff’s land by the working ot 6 copper mill which produced voxious gases, and from which poisonous substances were discharged, so that the gises and water from the mill afterwards reache 1 and injured the land, the evidence of persons other than experts is inadmissible to show that other lands in the vicinity, not owned by the plaintiff, but exposed to the same influences, have been injured from the same cause ; or that other lands in the vicinity, not owned by the plaintiff, and not exposed to the same influences, have remained unimpaired in their productiveness.</p> <p>Ef in such action an expert called by the plaintiff has testified that he has obtained copper from grasses taken from the plaintiff’s land, the defendants may introduce similar testimony to show that copper exists and has been obtained in grasses not exposed to influences like those complained of.</p>

Contract. The defendant filed an answer and a declaration in set-off. The plaintiff filed an answer to the defendant’s declaration in set-off, averring that the defendant was indebted to him in the sum of one thousand dollars, for a cause not set forth in his original declaration.

Indictment under St. 1863, c. 91, § 1, charging the defendants with recruiting in and for the military service of the United States one Charles H. Fuller, without authority, al Taunton. At the trial in the superior court, before Fose, J., there was evidence tending to show that the defendants, by fraud, and by plying Fuller with liquor, induced him to go from Taunton to New Hampshire, where he enlisted in the military service of the United States as a substitute.

Bill in equity by the executors of the will of Anselm Bassett, alleging that in 1848 said Bassett was chosen assignee of the estate of… Held: and Nathan S. Hoard was chosen assignee, gave bonds, took upon himself the trust, and demanded of the petitioners the books, papers and accounts relating to Wash-burn’s estate; that these books and papers were numerous and voluminous, extending over a long period of time, and comprehending transactions with a great number of people;…

<p>No appeal lies to the superior court from the decision of a judge of insolvency ordering the election of a new assignee of an insolvent estate.</p>

Tort to recover damages for an injury sustained by reason of a defective highway. The answer denied that the highway was defective, and that the plaintiff exercised due care. • At the trial in this court, before Chapman, J., it appeared that the way in question made a curve and continued up a hill; and that at the bottom of the hill, and in the curve, a paved gutter ran across the way, so that the usual travel would cross the gutter obliquely.

<p>Petition for a writ of certiorari, to quash the proceedings of the county commissioners of Bristol in laying out a highway, upon a petition which prayed for the establishment of one from a particular place “ to a point near the dwelling-house of Pardon C. Potter,” on the road leading from Westport Point to the town-house in said town, and in allowing “ to-Tripp ” the sum of twenty-five dollars for land of his which was taken for the purpose, and ordering the petitioners to pay the same to him.</p> <p>After adjudicating that the highway was a matter of common convenience and necessity, the county commissioners gave notice that they would meet at a certain place on the 31st day of July 1862, and proceed to lay out the highway and appraise the damages. On that day they met, and all parties interested were heard; and on the 8th of the following September, without any new notice, they laid out the highway, and allowed damages to Tripp, and ordered the same to be paid, as set forth in the petition.</p> <p>Upon these facts, the case was reserved by Chapman, J. for the determination of the whole court.</p>

<p>Petition for a writ of mandamus, to order the county commissioners of Bristol to issue their warrant for a jury, in accord anee with a prayer of the petitioners, to revise the judgment of the respondents in laying out the highway referred to in the preceding case.</p> <p>The petition to the county commissioners, after reciting their doings in the premises, prayed that a jury might be summoned to change certain grades of the highway, as ordered by the commissioners, and also to make various other specific alterations, the general character of which is sufficiently shown in the opinion.</p> <p>The case was reserved by Chapman, J. for the determination of the whole court.</p>

<p>Contract brought to recover for moneys expended in the support of Elizabeth Kinney and her four minor children, as paupers.</p> <p>At the trial in the superior court, before Morton, J., evidence was admitted, under objection, of the acts of former overseers of the poor of Taunton, which are sufficiently recited in the opinion, for the purpose of showing an admission, by which the defendants were bound, that the settlement of the paupers was in Taunton. A verdict was rendered for the plaintiffs, and the case was reported for the determination of this court upon so much of the evidence as should be found to be competent.</p>

<p>If the plaintiff in an action to recover damages for bringing a malicious suit against him upot a note, has, for the purpose of showing a want of probable cause, introduced in evidence a discharge in insolvency previously obtained by him, the defendant may introduce evidence to show that the discharge was invalid; and for this purpose evidence of the plaintiff’s declarations is competent.</p> <p>In an action for a malicious suit, declarations of the plaintiff that he did not direct the action to be brought and wished to stop it are competent evidence against him.</p> <p>If no specific instructions are asked for as to damages, in an action for a malicious suit, it ie sufficient to instruct the juiy that, if they find for the plaintiff, they are to give such a sum as will indemnify him for the injuries he has sustained by the wrongful acts of the defendant.</p> <p>A new trial will not be granted on account of a remark by the officer who had charge of the jury, in reply to an inquiry by one of them how long the court would keep them together, that “ he did not know but they would have to stay till Saturday night; ” there being no evidence of any design on the part of the officer to favor either party, or that any such effect was produced by his reply.</p>

Contract brought by the collector of Freetown to recover taxes assessed in that town upon Job Terry, the defendant’s testator, for the year 1861. At the trial in the superior court, before Brigham, J., the only question in issue was whether Job Terry had his domicil in Freetown on the 1st of May 1861.

Contract against the administrator of the estate of Sylvanua T. Sanford. At the trial in the superior court, before Morton, J., the defendant offered to introduce, with his suppletory oath, a certain account book of his intestate, which is sufficiently described in the opinion. The book was excluded, and a verdict returned for the plaintiffs. The defendant alleged exceptions.

<p>Contract upon a policy of insurance on the ship Junior and whaling outfits.</p> <p>The case was heard in this court before Chapman, J., who on the facts shown, which are sufficiently stated in the opinion, ruled pro forma that the plaintiff was not entitled to recover, and reported the case for the consideration of the whole court. > If, upon the evidence, it was competent for the jury to find a verdict for the plaintiff, judgment for the plaintiff is to be entered; otherwise, for the defendants.</p>

Contract upon a policy of insurance issued by the defendants, an incorporated company of New Haven, Connecticut, upon the plaintiff’s dwelling-house in Fall River.

<p>By an ante-nuptial agreement, a man agreed to procure and convey certain bank shares, and, in the event of the marriage and the continuance in life of the parties for five years thereafter, to pay two hundred dollars a year, all to be held in trust for the benefit of his intended wife, provided he should die in her lifetime; and she agreed to accept the provisions so “ undertaken to be made for her comfortable maintenance and support, when the same are duly and legally made, so as to become valid and obligatory,” in lieu of dower, and as a bar to ever)7 other claim by her upon his estate after his death. The parties married and lived together over fifteen years, when the man died. The bank stock was not transferred to the trustee until nearly four years after the marriage, and none of the payments of money were made during his life, and no reason was shown for the delay. Under these circumstances, the court refused to compel the widow specifically to perform her agreement.</p>

<p>Petition, dated April 28th 1862, by the widow of David Woodward to the judge of probate for an order to set off to her an estate of homestead in the real estate left by her late husband. The judge of probate granted the petition, and an appeal was taken to this court.</p> <p>The following facts were agreed: On the farm owned and occupied by said David during his life, there were two dwelling-houses, in one of which he and the petitioner lived, and the other was occupied by tenants. The latter house was assigned to the petitioner as her dower on the 4th of February 1862, and no appeal was taken. Shortly afterwards, she moved into the house so assigned to her as dower, and in September 1862 removed into another house owned by her as her separate property. On the 16th of May 1862, partition of the real estate left by said David was decreed by the probate court among his heirs, and no appeal was taken. The heirs at law appeared and disputed the right of the petitioner to maintain her present petition, from the beginning.</p> <p>Upon these facts, the case was reserved by Chapman, J. for the determination of the whole court.</p>

Writ op entry. The tenant claimed an estate of homestead in the demanded premises, as the widow of Allen Chace. The demandant contended that the tenant was estopped to set up such claim, by the decrees of the probate court dismissing two several petitions by the tenant to have an estate of homestead set out to her in the demanded premises, upon which petitions the heirs at law appeared and disputed her right to a .homestead.

<p>Although an executor has advanced his own moneys to pay valid claims against the solvent estate of his testator, and died without settling his account or receiving enough from the estate to reimburse himself, and the balance due to him has been settled in the probate court upon an account filed by his administrator, the latter cannot maintain an action against the administrator de bonis non of the testator’s estate to recover the amount sc found due.</p>

<p>Bill in equity by various creditors of the estate of Philip Wilcox, deceased, against the executors thereof, setting forth that their several claims were justly due and are now barred by the statute of limitations; that after the appointment of the defendants as executors a large amount of the real and personal estate of the deceased was destroyed by fire; that the defendants thereupon earnestly requested the plaintiffs to wait till funds should be realized .from property then at sea, and assured the plaintiffs that their claims should certainly be paid; that only one of the plaintiffs was then aware of the statute of limitations in relation to suits against executors, but the rest of the plaintiffs have learned of the same since the expiration of the time limited thereby for such suits, and that without culpable neglect they omitted seasonably to prosecute their several claims. The defendants admitted the truth of the plaintiffs’ allegations and professed their willingness to pay the plaintiffs’ claims, pro vided they could legally do so; and it was ordered by Chapman, J. that a decree be entered in favor of the plaintiffs. The defendants appealed to the whole court.</p>

Petition to the judge of probate by the surviving executor of the will of Abner Pease, setting forth that said Pease, in his will, gave the income of the residue of his personal property, after certain bequests, to his widow, Mercy Pease, during her life, with remainder over; that Pease died in 1852; that the residue of the personal property amounted to a large sum; that Mercy Pease died on the 22d of May 1860, and the respondents were appointed administrators of her estate;…

Contract brought to recover a tax assessed upon the defendant’í pew in the plaintiffs’ church in Fall River.

<p>An entry, under a deed of warranty, upon land over which there is a way, gives a sufficient seisin and possession to maintain trespass against any person who does not show a title to justify his acts thereon.</p>

Writ of entry to foreclose a mortgage. The defendant specified, among other grounds of defence, that the note secured by the mortgage was given to take up other notes, which were given for the price of intoxicating liquors sold to him in violation of law.

<p>Writ of dower. At the trial in the superior court, before Morton, J., it appeared that during coverture the demandant’s husband was seised of one undivided half of the premises as tenant in common with the tenant, and during the coverture the assignee in insolvency of- the demandant’s husband conveyed said undivided half by deed to the tenant, she not releasing hei dower therein No partition of the premises has ever been made. The judge directed a verdict for the tenant, which was accordingly rendered, and the demandant alleged exceptions.</p>

<p>In an action brought before a justice of the peace, the declaration cannot be filed after the entry of the writ, under St. 1862, c. 20.</p>

Bill in equity, praying for the reduction of certain dams, and concluding as follows : “ Wherefore the plaintiff prays that a subpoena be issued, and that the defendant be held to answer the matters hereinbefore alleged, the plaintiff hereby waiving the oath of the defendant to his answer to this bill of complaint.

<p>A testator by his will gave to his widow the use of all of his real and personal estate during widowhood, upon condition that she should support and educate his minor children, and directed that, when the youngest child should arrive at the age of twenty-one, two thirds of the estate should be divided among the children, and that the other third should be and remain for the support of the widow. He also gave to her the privilege of cutting fifty cords of wood yearly, during widowhood, in addition to firewood, u to purchase necessaries, pay taxes and other necessaries for the family.” Held, that after all the children became of age, the}r might have partition of the land, and that after such partition should be made the widow’s right to cut the additional fifty cords of wood a year would not be lost, but would be limited to the real estate set out to her in severalty; and the petition for partition need not set forth her right to such wood.</p>

<p>Contract brought to recover a balance due upon a charter party. The case was reserved for the determination of the whole court, upon facts which sufficiently appear in the opinion</p>

<p>Complaint alleging that the defendant, on a day named, at Cambridge, “ unlawfully did permit a large number of swine, to wit, thirty swine, then and there under the care of him, the said Cyrus D. Curtis, to go upon and injure the sidewalks on certain public streets in the city of Cambridge, to wit, the sidewalks in Harvard Square and North Avenue, by rooting and destroying the same so as to interfere with the convenient use of the same by all passengers,” &c. This complaint was made under the following ordinance of the city of Cambridge:</p> <p>“ No person shall......permit any horse, cattle, swine or sheep under his care to go upon any sidewalk in the city, or otherwise occupy, obstruct, injure or incumber any such sidewalk, so as to interfere with the convenient use of the same by all passengers.”</p> <p>At the trial in the superior court, before Brigham, J., it appeared that Harvard Square and North Avenue form a continuous thoroughfare, and the government offered evidence tending to show that the defendant, on the day named, was driving a drove of hogs through said thoroughfare, when they, by different acts and upon different parts of the sidewalk, both upon Harvard Square and North Avenue, did the acts relied upon in support of the complaint. The defendant objected that the ordinance was unreasonable and void, and that the complaint was bad for duplicity; but these objections were overruled. He also offered to prove that he had a sufficient or reasonably sufficient number of men to keep the hogs from the sidewalks, that he gave orders so to keep them, and that he and his men did what they could to keep them from the sidewalks; but that it was impossible to drive swine through the streets so as to prevent them from going upon the sidewalks in some instances, and so injuring them and interfering with their convenient use for passengers at least to some extent, and that to require them to be so driven would amount to a prohibition of the business of driving hogs through the streets. But the judge instructed the jury that the defendant, in driving his hogs in the public streets, was bound to keep them from the sidewalks, and if he voluntarily drove them into the public streets, and they went upon and injured the sidewalks, and thus rendered them inconvenient for public use as sidewalks, he would be liable under this complaint; that if the jury should find that, on the day alleged, the defendant drove hogs over North Avenue, and the same extends into Harvard Square, and the hogs while there driven went upon the sidewalks of North Avenue and Harvard Square, and by so doing injured said sidewalks by rooting the same or by their dung on said sidewalks, and thus rendered the same inconvenient to persons going over and upon the same, he might be found guilty, although the hogs were not driven intentionally upon the sidewalks, and he intended to prevent them from going upon the same, and made effort to do so; that the requirement of the ordinance was absolute, and he was bound to prevent the acts complained of at all hazards, if he voluntarily drove swine through the streets.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Indictment under Gen. Sts. c. 160, § 32,* charging that th® defendant “ feloniously, wilfully and maliciously did mix and. mingle a large quantity, to wit, one hundred grains, of a certain deadly poison, called cantharides, otherwise called Spanish flies, with the drink of one Mary Galavan,.....then and there well knowing that the said cantharides, otherwise called Spanish flies, was a deadly poison,.......with intent thereby, then and there, the said Mary Galavan…

<p>Indictment under St. 1863, c. 252, § 1,* charging that the defendant, on the 1st of January 1864, at Boston, “ did unlawfully entice and solicit one Benjamin F. Darling of said Boston to leave the Commonwealth of Massachusetts for the purpose of entering upon and enlisting in the military service of the United States elsewhere, out of said commonwealth, to wit, in the State of New Hampshire,” &c.</p> <p>At the trial in the superior court, before Vose, J., evidence was introduced tending to support the indictment, and it also appeared that Darling offered to enlist in New Hampshire, but upon examination by the surgeon was rejected, and that he had previously offered to enlist in Boston, but had been rejected. The defendant requested the court to rule that the jury could not convict the defendant unless they were satisfied that he was competent to be a soldier, and that the offence was committed on or after the day charged in the indictment. The judge declined so to rule, and the defendant, having been convicted, alleged exceptions.</p>

<p>The Gen. Sts. c. 115, § 5, prohibit courts, in charging juries, from expressing an opinion as to the credibility of witnesses.</p> <p>íf in the trial of a criminal case the witnesses for the government were policemen, whose credit was assailed by the defendant on account of their occupation, and the judge in his charge to the jury stated “ that in very many of the cases which had been tried at that term of the court policemen had been the principal witnesses, and he thought the jury would agree with him in the opinion that in all those cases they had manifested great intelligence, and testified with apparent candor and impartiality,” a verdict of guilty should be set aside.</p>

<p>No exception lies to the refusal of a judge to rule, before the jury were sworn in a criminal case, that it was not necessary for the defendant, under St. 1864, c. 250, $ 2, to point out the particulars of certain alleged defects in the indictment until after the testimony for the government should have been put in.</p> <p>An indictment against a woman, which charges that she assaulted a female infant child', and wilfully and maliciously exposed her and left her exposed in the street in the night time, without the care of any person, and without sufficient, proper or necessary clothing, shelter or protection against the weather and the cold, does not allege a criminal exposure or neglect, but will support a sentence for an assault.</p> <p>If the name of a person injured is unknown to the grand jury, it may be so alleged in the indictment, although they might by reasonable pains have ascertained the name.</p>

<p>Bill of revivor by the administrator de bonis non with the will annexed of the estate of Edmund T. Dana, to revive a bill in equity brought by the original administrator de bonis non with the will annexed, praying for the instructions of this court as to the proper discharge of his duty under one clause of said will.</p> <p>Al the hearing before the chief justice it appeared that the twenty-third clause of the will of the testator, which was dated on the 10th of March, 1858, was as follows: “ I give to the said Edmund T. Hastings and to William W. Wellington of said Cambridge, physician, and to the survivor of them, fifteen thous- and dollars, in trust, to appropriate the same in such manner as I may, by any instrument in writing under my hand, direct and appoint.” By another clause of the will, the testator gave to his executor the sum of eleven thousand dollars, in trust, to pay the income thereof to a nephew during life, and authorized the purchase of an annuity for the benefit of said nephew; and directed the capital, if not devoted to the purchase of an annuity, to be considered, upon the death of the nephew, as a part of the rest and remainder of the estate. By another clause he gave to his executor one thousand dollars, in trust, to appropriate the same in such manner as he might, by any instrument under his hand, direct and appoint; and in default of such appointment, the same was to be considered a part of the rest and remainder of his estate. The following paper, dated ■ on the same day, was also executed by the testator: “ To Edmund T Hastings and William W. Wellington, or whosoever else may execute the trust created by the twenty-third clause of my wifi. The sum of fifteen thousand dollars bequeathed by the said wenty-third clause is to be paid over, if and whenever my trustees or trustee shall deem it expedient to do so, to the city of Cambridge, to be held by the said city in trust as an entire fund, the income thereof to be appropriated annually forever to the increase and support of the library of the Cambridge Athenaeum ; provided, however, that if and whenever my said trustees or trustee shall be of opinion that it is not expedient that the said sum of fifteen thousand dollars should be so appropriated, the same to be paid over to my heirs at law; and provided further, that the said capital sum be paid over either to said city of Cambridge o to my heirs at law within three years from my decease.” The testator died in May 1859, and the will was duly proved. On the 16th of February 1861 the said Hastings and Wellington addressed a note to the city council of Cambridge, expressing their present intention of paying the said sum to the city whenever it should be paid to them by the executor; and on the 3d of April following the two branches of the city government resolved to accept the same on the conditions expressed in the will. Edmund T. Hastings was appointed executor, and all the rest and remainder of the estate and property, real and per- - sonal, were devised to him in trust, to be paid ultimately to the children of Francis Dana. The executor died in August 1861, without having taken any steps to make the payment under the clause in question ; and in June 1862 the original bill was filed, seeking the instructions of this court. The parties defendant were Mr. Wellington, the city of Cambridge, and the children of Francis Dana. Evidence was introduced to show that the Cambridge Athenaeum was a public charity.</p> <p>The case was reported for the determination of the whole court, and argued in November 1863.</p>

<p>Contract. The declaration alleged that the plaintiffs put on board of the ship Abcelino, then lying in Boston, of which the defendants were owners, eight hundred and fifty tons of ice, under a bill of lading, a copy of which was annexed ; and that the defendants did not deliver the ice according to the terms thereof. The bill of lading was dated April 8th 1861, and, after reciting that the ship was bound for New Orleans, provided as follows: “ That the hold of the vessel where the ice is placed shall not be opened or exposed to the air, unless by stress of weather or wants of the vessel, in which case due protest shall be made, and an account kept of all ice thrown overboard in case of jettison ; that the vessel shall be regularly pumped out during the passage, so that the ice or fitting materials may not be unnecessarily wasted; that no fish, meat or other article shall be placed in or with the ice, without the consent of the shipper; which is to be delivered in like good order and condition, (excepting what may be lost by the natural waste of the article,) at the aforesaid port of New Orleans, (the dangers of the seas only excepted,) unto Messrs. A. W. Bosworth & Co., or to their assigns, he or they paying freight for said ice, five dollars a ton, with average accustomed.”</p> <p>It was agreed, in this court, that on the 19th of March 1861 the plaintiffs and the defendants made the following agreement: i( Memorandum. Agreement made this nineteenth day of March L861, between Addison Gage & Co. and the owners of the ship Abcnlino of Boston. Addison Gage & Co. hereby agree to load the said ship at East Boston or Charlestown with a full cargo of ice for New Orleans; say, to fill the lower hold, and to load a? much in the between decks as the owners of the ship require ; but give the owners the privilege, at their option, to load other goods in the between decks instead of ice. Addison Gage & Co. hereby agree to pay at the rate of five dollars per ton on the quantity of ice shipped, payable in cash on the delivery of the cargo of ice at New Orleans, and to load and unload the ice and fixings. If other merchandise than ice is to be loaded in the between decks, it shall not detain the ship over four days. The owners of said ship hereby agree to the above price and conditions.” Pursuant to this contract, the ice was shipped, and on the 8th of April 1861, the agents of the owners of the vessel, at the request of the plaintiffs, in order to furnish them with the usual shipping documents for transmission, and without any new consideration whatever, in the usual course of business in shipping transactions, signed three bills of lading of the same tenor, a copy of the material parts of one of which is given above.</p> <p>The defendants, pursuant to the right reserved to them in the contract of March 19th, agreed to take on freight, deliverable in New Orleans, other merchandise, which was to be loaded in the between decks of the ship; but the same did not arrive in Boston in season to be shipped.</p> <p>The Abcelino proceeded on her voyage, and arrived at the mouth of the Mississippi River on the 17th of May 1861, and the next day she with her cargo was seized and forcibly taken possession of by the officers and crew of an armed vessel belonging to the so-called Confederate States, the captain of which exhibited a commission signed by Jefferson Davis, claiming to be president of said Confederate States, and was disposed of, under the circumstances and in the manner stated in the case of Tirrell v. Gage, 4 Allen, 245.</p> <p>The case was reserved for the determination of the whole court.</p>

<p>Contract upon a policy of insurance issued by the defendants, dated April 25, 1862, by which they insured the plaintiff for one year in the sum of $20,000, on the freight of the ship Flying Mist, said freight valued at $30,000, on board or not on board. The following facts were agreed in this court:</p> <p>On the day when the policy declared on was issued, additional insurance was effected at other offices, in the sum of $10,000, under leave granted in this policy. The ship Flying Mist was then under a charter, executed March 4,1862, at Glasgow, in Scotland, to persons living there, by which it was agreed that she should proceed from London, where she was then lying, “to Glasgow, and there receive on board a full and complete cargo of sheep and other cargo,.....and therewith proceed to Dunedin, New Zealand, or one other port, as ordered at Otago,.....freight for the same to be paid at a lump sum of twenty-six hundred and fifty pounds sterling,.....and, on delivery of the outward cargo, the vessel shall at once sail for Melbourne, Sidney, Launcestown or Hobart Town, as ordered by charterer’s agent at Dunedin, &c......The freight to be paid as follows : Two thousand pounds cash on the final clearing ol the ship from Greenock.....and the balance on right and true delivery of the cargo at Dunedin.”</p> <p>Under said charter the ship sailed for Glasgow and arrived there on April 7th 1862, completed her loading, and sailed for New Zealand on the 5th of June, and was totally lost by perils of the seas on said voyage, at the entrance of the harbor of Otago, in New Zealand, on the 27th of August 1862. Due proof of loss was made, and the defendants paid to the plaintiff the sum of $13,235.32, under the policy; and the plaintiff claimed an additional sum as hereinafter stated.</p> <p>The charterer paid to the master of the ship, on her clearing from Greenock, <£2000, as stipulated in the charter, which sum was agreed to be valued at $10,140.37. It was admitted that no reclamation of this sum has been made ; and the defendants contended that the plaintiff" was not liable to refund it, and that the same should be deducted from the gross sum insured on the freight, leaving them liable only for the sum which they had already paid. And the question submitted to the court was, whether said sum of $10,140.37 should be so deducted; and it was agreed that the court should enter judgment for the plaintiff for $6764.68, with interest, or for the defendants, as this question should be determined.</p>

<p>Contract upon a policy of insurance1 for $600, issued by the defendants, upon certain goods “ all contained in the third story of a four-story brick slated building over Nos. 18 and 19 Harvard Place, Boston.” The policy contained a provision that it should be void “ if the said property should be removed without necessity to any other place.”</p> <p>It was agreed in the superior court that, at the date of the policy, the plaintiff occupied two adjoining rooms in the third story of the building described, and the defendants’ agent saw the goods there. These rooms were separated from each other by a brick partition, in which there was a door; and were accessible by a stairway leading to one of them. After the date of the policy the plaintiff hired another room adjoining one of the former rooms, on the same floor, over Nos. 18 and 19 Harvard Place, and moved into the same a portion of the goods insured, and gave up the room to which the stairway already referred to led. After this removal, the two rooms which the plaintiff occupied were approached by another stairway, which ,ed to his new room. A plan was introduced in evidence, showing the relative position of the rooms. The risk was not in creased by the change. By the fire, which happened during the term of the policy, goods in the room originally occupied by the plaintiff, to the value of $200, were destroyed, and in the room into which he removed after the date of the policy, to the value of $600.</p> <p>Upon these facts, judgment was rendered for the plaintiff for the sum of $645.80 ; and the defendants appealed to this court.</p>

<p>Petition setting forth that the People’s Equitable Mutua. Fire Insurance Company, a corporation established at Taunton, have made an assessment upon the members thereof who were liable to assessment on the 1st of January 1864, under St. 1863, c. 249, and praying the court to examine the same, the necessity thereof, and all matters connected therewith, and to ratify, amend or annul the same, or to order that the same be made aa law and justice may require.</p> <p>The case was referred to Charles Allen as auditor, who reported the following facts :</p> <p>In April 1861, the directors of the company made an assessment upon the policy holders then liable to assessment, amounting to.........$11,414.10</p> <p>and in June 1862, they made another assessment, amounting to........ 11,732.66</p> <p>$25,146.76</p> <p>Upon these assessments the company, through its agents, collected and received the sum of $17,808.63, all of which, so far as appeared, was voluntarily paid. This left a balance remaining uncollected, of those assessments, of $5338.13. The above assessments, however, were both adjudged by this court to be illegal and invalid, in an action brought by the company.against George H. Babbitt, which was determined at October term 1863. See 7 Allen, 236.</p> <p>On the 1st of January 1864, the condition of the company was as follows: Assets, $1498.42; Liabilities, notes, various expenses, losses claimed, &c., 3905.00 ; leaving a deficit of $2406.48. In addition to the above liabilities, the company had received upon the assessments which were adjudged invalid, the</p> <p>sum, stated above,- of......$17,808.63</p> <p>Interest on the same to January 1,1864, as computed 1794.97</p> <p>$19,603.60</p> <p>The company contended that the amount of these collections, with interest, should be considered as “just claims” against them, within the meaning of the statute, and that an equal and just assessment upon all who in equity are liable to assessment, and ought to pay the debts of the company, could be obtained in no other way.</p> <p>The amount „f deposit notes on January 1, 1864, was $127,360.73. Upon January 1,1864, a statement of the condition of the company was prepared, showing the above facts, and stating, as the net amount of the deficit, $22,010.08, to which was added, for overlay, $7336.69, making a total result of $29,346.77.</p> <p>At said meeting, on January 1,1864, it was voted, “ That whereas the just claims against the company exceed its funds, an assessment of $29,346.77 be laid upon all the members of the company liable to assessment, in proportion to their premium and deposit,” according to St. 1863, c. 249, § 4, and that the necessary steps should be taken to have said assessment examined and established by the supreme j'udicial court. In pursuance of these votes the assessments now sought to be established were made.</p> <p>A list of the policies issued by the company, upon which the present assessments are made, was prepared, by which it appeared that nearly all of the policies were issued for seven years, and they have been and are constantly expiring at short intervals.</p> <p>The first assessment, determining what each policy holder must equitably pay or receive, in case of withdrawal from the company, and having his policy cancelled — amounting in all to the sum of $29,346.77 — was made thus :</p> <p>A list was prepared of all the policies which were outstanding on the 1st of January 1862, and of all those which had been issued since that time, showing the dates when and the length of time for which the same were issued, and the amounts of premiums paid upon them. All of these policies were included in the assessment.</p> <p>It was found that on January 1st 1862 a large debt was due from the company, amounting to over $8000; and that many of those who had paid the sums assessed upon them by the two former assessments were, on the 1st of January 1864, exempt from assessment, under Gen. Sts. c. 58, § 54, by the limitation of time ; so that, if this debt should be assessed upon policies which were in existence at the time when the items of which it was composed accrued, and which still continued liable to assessment, there were not premium notes to a sufficient amount to pay them all. Some of these items of indebtedness were greater than the amount of premium notes remaining liable to assessment for them, and which were given as far back as the time when the indebtedness arose. The whole amount of the debt of the company existing on the 1st of January 1862 was therefore taken as a unit, and assessed upon all the policies which were then outstanding, in proportion to the time of their existence and the amount of their premiums.</p> <p>After that, the time was divided into months, in order to assess the proper sums for each month upon the policies in existence during that month.</p> <p>The sum to be raised for each month was ascertained thus: The aggregate of the whole net expenses of the year 1862, (for example,) and of the sums received for assessments during that year, was divided by twelve, and the quotient, $1257.53, was considered as the average amount to be raised for each month during that year. To this was added the amount of losses, in each month when losses occurred. The same process was repeated for the next year.</p> <p>The sum upon which the assessment should be made for each month, in order to raise the sums ascertained as above, was arrived at thus: The amount of the whole premium paid upon each policy, outstanding in any month, was divided by the whole number of months for which the policy was issued. In case a policy was issued or terminated during any of the months in question, it was included or rejected, according as it continued for more or less than one half of the month. Then the aggregate of these items was taken as the whole amount of premiums applicable to each particular month.</p> <p>The amount belonging to each policy for each month was then determined by the following ratio: As the whole amount of premiums paid, which were applicable to any month, is to the whole amount to be raised for that month, so is each person’s premium paid, which was applicable to that month, to the amount to be assessed upon him for that month.</p> <p>The aggregate of the amounts thus obtained for each month during which each policy was in force was taken as the sum belonging to each policy for the time after January 1, 1862. This, of course, was added to the amount ascertained in the manner heretofore described as belonging to each policy in respect to the debt existing on the 1st of January, 1862; and the result gives the amount of the first assessment upon each policy holder.</p> <p>Although in establishing the ratio policies were included or rejected, according as they continued for more or less than one half of the month, (as above described,) yet in applying the ratio the aliquot parts of a month were regarded. Thus, if a policy was issued or terminated in any of the months in- questian, the third term of the ratio was the amount of the premium paid by each person, which was applicable to that portion of the month during which his policy was in existence. So if there was a special loss in any month, in which policies were issued or expired, such loss was not assessed upon policies which expired before or were issued after such loss occurred.</p> <p>The variation of expiring or newly issued policies, as used above, in establishing the ratio, could only be very slight, from the result to be reached by a computation in detail of the length of each particular policy. According to the testimony of Mr. Wright, (insurance commissioner,) who made the computations, it would affect the ratio only in the third place of decimals; and the result, in determining the amount to be assessed upon each policy, would be varied only by mills. This testimony was not controverted.</p> <p>Among the by-laws of the company are the following articles :</p> <p>“Art. 7. If, in the opinion of the directors, the continuance of any risk is unequal or injurious to the company, or in case of refusal to pay assessments, they may terminate the same by giving ten days’ notice thereof in writing, signed by the secretary, either by mail or personally, to the insured, provided such termination of the risk shall not affect the validity of the policy or note so far as respects past dues.</p> <p>“Art. 18. Each person insured shall be liable for his proportion of all losses and expenses of the company until he cause his policy to be discharged, and such proportion of losses and expenses paid, notwithstanding he may, by some act or neglect, have rendered his policy void against the company; he shall also be entitled to a dividend at the expiration of his policy, if there are funds in the treasury.”</p> <p>George H Babbitt, who held various policies dated at various times from 1857 to 1863, and running for seven years, was included in both of the assessments which were adjudged to be illegal, and has paid nothing thereon, although due demand was made upon him, and notice given of the above vote, by a circular of the company-dated June 28th 1862.</p> <p>Upon these facts, the case was reserved by the chief justice for the determination of the whole court.</p>

<p>This was a claim presented to the receiver, appointed by this court, of the Trimountain Mutual Fire Insurance Company, for a total loss under a policy for $800, upon a dwelling-house, during the year from April 17th 1863 to April 17th 1864. The claim was rejected by the receiver, and the following facts, assented to by the plaintiff, were reported to this court:</p> <p>At a meeting of the corporation, held before the issuing of this policy, the form of policies was prescribed, and this policy, conforming to the prescribed form, contained upon its face the following condition: “ If, subsequent to the making of the application, any new fact shall exist, either by a change of any fact disclosed in the application, the erection or alteration of any building,” &e., “ by the assured or others, or any change be made not named in the application and specifically permitted by the policy, the policy thereon shall be void, unless written notice be given to the directors, their written consent signed by the secretary obtained, and an additional premium or deposit paid.” In February 1864 Mrs. Evans desired to alter and enlarge the building insured, by the addition of a story to a part of it; and her husband, as her agent, took the policy to the office of the defendants, and informed the secretary and one of the directors, and, after some conversation, the alteration was consented to by them. These officers were under the impression that the consent ought to be signed by the president, and the secretary, accordingly, wrote upon the second leaf of the policy, and after the signatures, the following: “ Boston, February 25,1864. Permission is 1 sreby given to the within insured to occupy the dwelling, insured by policy No. 1084, by mechanics, for the purpose of making such improvements and alterations as she may thinkfi necessary. The risk continues on said property and the policy is not vitiated.” The secretary undertook to prepare the above permission, and the policy was left in his hands for that purpose. Mr. Evans left the policy, supposing that the secretary would sign the permission, and that he could receive the policy, with the permission signed by the secretary, upon calling for it within a short time; but he omitted to call for it until after the loss, which was on the 25th of March 1864. Mr. Evans was informed by one of the officers, with whom he conversed, that the secretary “ had power to fix it.” The permission has never been signed since. No additional premium or deposit was paid or asked for. The officers of the company, who were present at the above interview, understood and consented that Mrs. Evans should go on with the alteration contemplated, without waiting for the permission to be signed.</p> <p>The case was reserved by Chapman, J. for the determination of the whole court. • ;</p>

Conteact brought by a mutual fire insurance company against one of its members.

Contract. The declaration, as amended, contained several counts, the first of which alleged that the plaintiffs, with Francis Codman, deceased, were joint owners of certain premises in Lindall Street, Boston, occupied in part by other persons, and on the 1st of August 1859 entered into an indenture of lease with the defendant, a copy of which was annexed; and that the defendant thereupon entered into and remained in possession of the premises during the whole term mentioned…

<p>Contract brought against the owners of the bark Lauretta, to recover the value of a chronometer let to hire oy the plaintiffs for the use of the bark, by a contract made with the master, who was one of the owners. The bark belonged to a port in the state of Maine, but at the time of the contract declared on was lying in the port of New York.</p> <p>At the trial in the superior court, before Morton, J., it appeared that the Lauretta proceeded on a voyage, and was burnt by the steamer Alabama; and the chronometer was lost by a risk undertaken according to the terms of the contract, by the borrowers. The voyage was prosecuted on behalf of the owners of the Lauretta, but the defence was that the master had no authority to contract with the plaintiffs in the name and on behalf of the vessel and owners, as he assumed to do in this instance. The evidence for the plaintiffs tended to show that chronometers were reasonably fit and proper to be supplied to such a vessel as the Lauretta for the purposes of her voyage, and that no prudent owner would allow his vessel to go to sea without one. Testimony as to general usage and custom of New York was also adduced by both parties: that on behalf of the plaintiffs tended to show that the chronometer was a part of the ship’s furniture and apparel, and" that it was furnished by purchase or hire, at the expense of the vessel and owners; while that on behalf of the defendants tended to show that it vas not a part of the ship’s apparel or furniture, but one of the captain’s instruments or tools of trade, and furnished ordinarily by him.</p> <p>The plaintiffs requested the court to rule that, the Lauretta being away from her home port, if the jury were satisfied that chronometers were, in the legal sense of the term, necessaries, as applied to the vessel and her intended voyage, then the master had implied authority to bind his owners for sucn necessaries supplied to the vessel in good faith; that if this general rule was or could be controlled by a usage or custom, requiring the master to procure a chronometer, although a necessary, for the vessel, at his own expense solely, the burden of proof was on the defendants to establish affirmatively such a prevailing usage or custom as to chronometers. But the judge declined so to rule, and instructed the jury that the burden of proof was on the plaintiffs to satisfy them, not only that the chronometer was reasonably fit and proper to be supplied to a vessel for the purposes' of her voyage, but that it was a part' of the apparel or furniture of the vessel, to be furnished by the owners.</p> <p>The jury returned a verdict for the defendants, and the plaintiffs alleged exceptions.</p>

Contract upon an agreement with the plaintiffs, who were partners under the name of William Bond 5c Son, upon an agreement, the material portions of which are as follows : “ Whereas, the bark Rambler of Pictou, N. S., of which Duncan McKenzie is master, and Hugh McKinnon and others are owners, now lying in the port of Boston, is in need of a chronometer for the necessities of her navigation, and Messrs.

<p>If the charterer of a vessel violates a statute of another state by sailing from there without an inspection and permit, and the vessel, upon returning there subsequently, is seized on account thereof, the owners cannot maintain an action of tort against him to recover a sum paid by them for the penalty provided by the statute, and expenses, to procure her release, without any judicial determination of her liability to seizure. But if, upon being informed of such seizure, the owners inform the charterer thereof, and request him to take charge of the matter and procure her release, which he refuses to do, and they thereupon ask him what he wishes them to do, and he tells them to pay the penalty and expenses, and procure her discharge, and they accordingly do so, it should be left to the jury to determine whether or not this amounts to a contract by him to repay them.</p>

<p>A ship broker does not entitle himself to receive commissions from the sellers of a ship, merely by introducing their customer to them, unless he is employed by them as their broker or agent, upon a contract express or implied, or unless he proves & custom fat ship brokers to receive commissions from the sellers in such cases.</p>

Contract brought to recover damages for a breach of warranty of three tons of canvas paper stock sold by the defendant to the plaintiff.

Contract. The declaration was upon an account annexed, containing, amongst other items, a charge for i: tanning and delivering 6688 pounds of leather, at 5's cts. per pound, as per agreement.” The answer averred that the work was done under a special written agreement, the terms of which the plaintiff had failed to fulfil.

Contract brought to recover for the use and occupation of a tenement. The answer denied each and every allegation of the declaration. At the trial in the superior court, before Morton, J., the defendant offered to prove that his occupation of the tenement was under a written lease from the plaintiff; but the judge ruled that under the pleadings the evidence was incompetent. A verdict was returned for the plaintiff, and the defendant alleged exceptions.

<p>k count for money had and received, which refers to another count where the particular* or the claim are set forth, is not subject to demurrer for the reason that no bill of particulars is filed with it.</p> <p>A count for money had and received as the profits received from a purchase made by the defendant for the joint account of himself and the plaintiff, and a special count setting forth such purchase and profits, must be supported by proof that at the time of the commencement of the action the defendant had actually received more than his disburse* ments, on the joint account.</p> <p>A count in contract alleging that the plaintiff and defendant purchased on their joint account certain goods; that the plaintiff was bound and ready and offered to pay for one half of the price; that the defendant took possession of all of the goods, and refused to deliver up the same, or to render any account thereof to the plaintiff, though requested; that the goods were worth more than they cost, and could and ought to have been sold at a profit; but that the defendant refuses to account to the plaintiff for such profit or to pay him anything thereon, is bad on demurrer.</p>

<p>The plaintiff, in an action to recover the value of personal property, may testify that he wai the owner of it, although one of his witnesses has testified to facts tending to show owner» ship in another person; and if the plaintiff has so testified, the case should not be withdrawn from the jury, and a verdict directed for the defendant, for want of evidence by the plaintiff of a transfer of the property to him by the person referred to in the testimony of his witness.</p>

Bill in equity, in the nature of a bill of interpleader, brought by the executor of the will of Joseph Russell, to obtain the instructions of this court as to the proper execution of his trust. The following facts appeared from the bill and answers of the various parties interested: The testator died in May 1858, and his will was duly proved, and the plaintiff was appointed and gave bond as executor in the same month.

Writ of entry, to recover possession of “ a certain parcel of land, with the buildings thereon, situate in said Boston, being lot numbered seven, on a plan made by A. Wadsworth, dated April 29, 1845, recorded with Suffolk deeds, lib. 550, fol. 254; and bounded southerly byxEliot Street, twenty feet; westerly on a passage way six feet and nine inches in width, as laid down on said plan, sixty-one feet eleven inches; northerly on a passage way three feet wide, shown on said…

<p>A commissioner appointed by the superior court to admit prisoners to bail may act, although the court is in session for proceedings before the grand jury.</p> <p>If such commissioner has taken and returned into court a recognizance which is imperfect in form, from one who upon the finding of an indictment against him has been ordered to stand committed until he should recognize with sureties in a certain sum, he may after-wards make and return an amended recognizance, although in the mean time the parties have been called and defaulted upon the defective recognizance; and an action may thereupon be maintained upon the amended recognizance, without the entry of a new default.</p>

<p>Due service of the notice to a creditor of the time and place fixed for the examination of a debtor upon his application to take the poor debtors’ oath may be waived; and such waiver may be shown by paroi evidence, although the officer’s return, showing a defective service, does not allude to it, and although the creditor did not appear at the time and place fixed for the examination.</p> <p>The poor debtors’ oath may be administered before the expiration of the hour, if the creditor or his agent has previously assented thereto.</p>

<p>Contract on a recognizance taken under Gen. Sts. c. 124, $ 10, dated on the 15th of October 1862.</p> <p>It was agreed, in the superior court, that the plaintiff has always resided in New York, and his attorney, who was a resident of Boston, was temporarily absent from the state and could not be found at the time when the notice of the time and place appointed for the examination of the debtor was to be served; and the notice was accordingly served on the officer who made the arrest. The officer appeared “ as deputy sheriff,” with the execution, before the magistrate, but neither the plaintiff nor his attorney appeared; and the magistrate discharged the debtor upon his taking the oath.</p> <p>On these facts, judgment was rendered for the defendants, and the plaintiff appealed to this court.</p>

Contract against the surety on a recognizance taken under Gen. Sts. c. 124, § 17, with condition that Benjamin F. Edmunds, who had been arrested on a writ in favor of the plaintiff, would appear at the time and place fixed for his examination, on his application to take the oath for the relief of poor debtors, and not depart without leave, making no default, and abide the final order of the magistrate thereon.

Contract upon a witnessed promissory note signed by the defendant, dated March 30, 1854, and payable to the plaintiff or order.

<p>If a deed which is complete in form with the exception of the omission of the name of the grantee is in that condition signed and sealed, the subsequent insertion of the name of the grantee and the change of a qualified covenant into an absolute one, in the absence of the grantor, though by his paroi authority, will make the deed invalid as to him, and no action will lie agaiast him upon any of the covenants therein contained. And it is immaterial that such alterations are made by a co-grantor, and that a description of the occupation of the contemplated grantee had been inserted at the time of such signing and sealing.</p> <p>If under an oral agreement for an exchange of lands one party has executed and delivered his deed, and the other has refused or failed to fulfil his agreement, or delivered an invalid deed, no action for money had and received can be maintained against the latter, although the land conveyed to him was estimated at a fixed sum, and has since been sold by him and converted into money. The declaration should be for the price or value of the land.</p>

Contract brought to recover the sum of $360, being the amount demanded and received by the defendants of the plaintiffs for licenses for twelve wagons, at ten dollars each, in each of the years 1858,1859 and 1860, with interest.

Contract brought by the administratrix of Theodore A. Bridge, to recover the balance due upon the sale of a schooner by said Theodore to the defendant. At the trial in the superior court, before Morton, J., the plaintiff offered to prove the following facts : The plaintiff’s intestate sold to the defendant, on the 9th of April 1861, one eighth part •sf a schooner for $792.00, all but $300.00 of which was paid in money and accounts.

<p>In an action against the owner of a railroad, brought by his servant to recover damages foi a personal injury sustained by reason of a locomotive engine’s running upon the plaintiff from a turn-table, while turning upon it, in consequence of the want of a sufficient brake, evidence is competent on the part of the defendant to show that the person who had charge for him of all the engines on the road had given instructions to the engineers before the accident to have the wheels of their engines blocked while turning on the turntable, and that the accident occurred from the failure of some servant of the defendant to obey such instructions; although such instruction was not known to the plaintiff.</p>

Tort, to recover for injuries to the plaintiff by running over lira.

<p>Contract, to recover for the rents of certain real estate, received by the defendant to the plaintiff’s use.</p> <p>At the trial in the superior court, before Morton, J., the plaintiff put in evidence a deed to himself of the real estate referred to, in which Jane E, Hunt, wife of Benjamin Hunt, was named as sole grantor, and which, in conclusion, contained these words: * In witness wnereof, I, the said Jane E. Hunt, and Benjamin Hunt, my husband, in token of our release of all right and title of or to both dower and homestead in the granted premises, have hereunto set our hands and seals this twenty-fifth day of September in the year of our Lord eighteen hundred and sixty-two.” This deed was signed and sealed by Jane E. Hunt and Benjamin Hunt, and was the only evidence- introduced by the plaintiff to prove his title. He also introduced evidence tending to prove that the defendant, between September 1862 and March 1863, collected certain rents of the tenants occupying the premises.</p> <p>The defendant thereupon introduced evidence tending to show that in October 1860 William Bdynton, mortgagee of the premises, under two mortgages, had a right to receive the rents thereof, and employed him to collect them, and that he continued to do so till March 1863; that in October 1862 Boynton made a paroi agreement to assign one of his mortgages to the defendant, but executed no assignment thereof; and that in fact Boynton had previously assigned both of his mortgages. There was also evidence tending to show that nobody but the plaintiff made any claim upon the defendant for the money collected of the tenants, and that the defendant still retained it. The defendant testified that he had no notice of the existence of the deed to the plaintiff till March 1863.</p> <p>The defendant asked the court to instruct the jury that the ' plaintiff had not proved a good title in himself; and that, if the defendant had no notice of the plaintiff’s ownership of the premises, there was no promise, express or implied, on his part to pay over to the plaintiff the rents. The judge declined so to rule, and instructed the jury that the deed was sufficient, in the absence of any evidence to control it, to authorize the jury to find a title in the plaintiff.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Contract on a promissory note signed by the defendant Hayden, payable to the order of Moses G. Cobb, and by him indorsed in blank. At the trial in the superior court, before Lord, J., without a jury, it appeared that William B. May owned the note at its maturity; that upon its dishonor he went with the note to John M. Way, who gave him a nominal sum for it; that May thought that such a transaction in some manner changed his relation to the note, but did not understand that nis ownership of it was affected; that he desired Way to bring this suit in some third party’s name, but expected that the money collected would come to him. May also testified that he did not know the plaintiff.</p> <p>The defence was that the suit could not be maintained in the name of the plaintiff, and the defendant’s counsel asked the judge to rule that if May was the real owner of the note in suit, and directed Way to bring the suit in the name of some third party, and suit was accordingly brought in the name of the plaintiff, who never had any interest in the note, nor any other possession than that, of his attorney on record in the suit, then he could not maintain this action ; and that the production ot the note by the plaintiff’s attorney, with proof of the signature of the maker and indorser, would not be sufficient evidence of titla 4 in the plaintiff to enable him to recover in a suit thereon. But the judge ruled that it was not necessary in order to maintain this action that the plaintiff should be the owner of or have any interest in the note; that it was sufficient if the action was brought in his name with his consent; that the indorsement,being in blank would in strictness be insufficient, but that it was the right of the plaintiff to write over the indorsement in blank an order to pay to himself, and, upon that being done, the evidence would be sufficient.</p> <p>The judge found for the plaintiff, and when the bill of exceptions was tendered it was objected that the indorsement in blank had not been filled. The judge had acted and made his finding upon the supposition that it had been filled, and, his attention not having been called to it after the time when he made the ruling, he did not feel called upon either to interfere or to make any ruling upon the point. The defendant’s counsel understood the judge to rule that it was not necessary to fill the indorsement till after the finding, although in fact the judge only ruled that it might be done at any time in the progress of the trial.</p> <p>To the above rulings and refusals to rule the defendant alleged exceptions.</p>

Tort for the conversion of certain articles of furniture. At the trial in the superior court, before Morton, J., the plaintiff introduced evidence tending to show that she hired of Gris-wold F. Adams, one of the defendants, a furnished house in Boston, for one year from April 11th 1861, upon these terms: That he should reserve three rooms for himself and family, and she should furnish them with board, and he should pay her, in addition to the use of the house and furniture,…

<p>It an oral contract is made for the purchase and sale of goods, according to the terms and conditions expressed in a printed memorandum furnished by the seller, and appearing to contain the terms and conditions on which he undertakes to supply such goods, with a printed form of an order subjoined, and the paper is referred to in the terms and conditions as “ this contract,” and the purchaser fills up, dates and signs the order, and thereby requests the seller, on the above terms and conditions, to deliver at his place of business, o be shipped to the purchaser’s place of business, a specified quantity of the goods, at a specified price and specified terms of payment, and agrees to send his own vessels, and reserves the right, after the first cargo has been shipped, to refuse the rest if not satisfactory, this is a sufficient memorandum of the contract, within the statute of frauds, to bind the purchaser. And if at the same time another similar paper is filled up in precisely the same way, signed by the seller, and delivered by him to the purchaser, though no'; containing the purchaser’s name, the two papers may be taken together to exhibit the contract of the parties, and the seller may be bound thereby. Nor is the seller relieved from his liability by the fact that the purchaser afterwards signed on the back of the paper already signed by him an order for the goods to be shipped immediately, if tht vessels were not sent.</p>

<p>tf a contract is signed “ B., by C.”, paroi evidence is admissible to show that B. was only an agent of A., and thus to charge A. as principal, although there is no intimation in the contract that B. was such agent.</p>

<p>Information filed by the attorney general at the relation of the Convention of the Protestant Episcopal Church in the diocese of Massachusetts, and of two poor persons oí Christ Church, against the rector, churchwardens, vestrymen and cor* poration of Trinity Church, and certain persons “claiming to be the minister and wardens of King’s Chapel,” and certain other persons “ claiming to be vestrymen of- King’s Chapel,” and the religious society “ claiming to be the proprietors of pews ia King’s Chapel,” and the rector and wardens of Christ Church.</p> <p>The information alleged, amongst other things, that William Price of Boston was until his death in 1771 a firm believer in the truths of Christianity as held and declared by the United Church of England and Ireland; that he contributed to the expense of building Christ Church in 1722, Trinity Chinch in 1732, and of rebuilding King’s Chapel in 1753; that he was a warden or vestryman of the first two churches for many years, and owned pews in all three, and was a constant attendant at King’s Chapel from its rebuilding till his death ; that these churches were all of the Church of England, and were the only churches of that denomination in Boston during his life; that he was desirous of providing for all the poor of that denomination in Boston, and for the vindication and promulgation of its doctrines and discipline; that he was possessed of a certain estate on Cornhill in Boston which then would not probably, in the hands of trustees, yield a greater annual income than would leave a surplus of about twenty pounds sterling, after keeping the estate well in repair and otherwise in good condition, and providing a fund for permanent repairs and rebuilding, when necessary ; that he made his will on the 30th of November 1770 which, after making provision that the estate should be occupied by his wife and nieces during their lives, proceeded as follows :</p> <p>“ Item, After the decease of my said wife Sarah Price and my nieces Sarah and Margaret Creese I give and bequeath to the rector and churchwardens of King’s Chapel so called in Boston aforesaid and to their successors in said office in trust forever my said bricE house with the lands buildings appurtenances and privileges thereunto belonging as the same is now inclosed and occupied by me, for the uses intents and purposes following viz? That there shall be paid yearly out of the rents and profits of my said house and land and premises after the death of my said wife and nieces the sum of forty shillings sterling to the last mentioned church forever by the wardens of said church for the time being which said annual payments of forty shillings sterling shall be kept entire as a fund for said church and be placed out at interest upon good security, and the interest only appropriated to the use of said church forevei as the wardens and vestry of said church for the time being shall from time to time vote and direct and in no other way ot manner. And the churchwardens of the same church for the time being out of the rents of said house and appurces shall pay sixteen pounds sterling annually for the support of a course of sermons to be preached annually in said King’s Chapel in Lent in manner as is hereinafter directed and upon the subjects hereinafter named and that the churchwardens of the same church for the time being pay forty shillings sterling annually out of the rents and profits of my said house & appurces for the use of the poor in manner also as is hereinafter mentioned. That the rector and churchwardens of said church for the time being shall place the remainder of the money annually arising from the rents and profits of my said house and appurces at interest upon good security to be called in as there may be occasion for repairing enlarging or rebuilding my said house or any part of the premises, and also for keeping my tomb which is under Trinity Church aforesaid in good and decent repair.”</p> <p>The will then specified in detail by whom the sermons should be preached and the other services conducted, and that the sermons should be upon the following subjects :</p> <p>“ Is.6 sermon on Ash Wednesday upon the duty, usefulness and propriety of fasting and abstinence, or upon repentance, or faith, or hope, or charity, or Christian morality.</p> <p>“ The 2nd sermon on the second Wednesday in Lent to be against atheism or infidelity, or in defence of the divinity or miracles of our blessed Savior.</p> <p>V The S'4 sermon on the third Wednesday in Lent, the subject, the Catholick Church, or the excellency of the Christian religion.</p> <p>“ The 4*!1 sermon on the fourth Wednesday in Lent to be a vindication of the Church of England as to government doctrine ir discipline, or a discourse against heresy or schism, enthusiasm, 37 hypocrisy, or the duty of obedience to kings and lawful authority from all persons professing Christianity.</p> <p>“ The 5*? sermon on the fifth Wednesday in Lent against error and superstition, particularly those of the Church of Rome, ,e The 611 sermon on the sixth Wednesday in Lent, ot detraction or restitution, or on contentment and resignation, oi on preparation for death.</p> <p>“ The 7*!1 sermon on the seventh Wednesday in Lent, on baptism, or confession, or absolution, or on the duty of publick worship,</p> <p>“ The 8*? sermon on Good Friday on the passion and death of Christ, or of the nature, necessity and advantages of the holy communion.”</p> <p>Then, after providing for the payment of the preachers, in detail, the will proceeds as follows: “ It is my desire that on every of the eight days upon which a sermon shall be so preached as aforesaid, there shall be a contribution after sermon for the poor of each of the three churches herein before-mentioned, collected at the church doors or otherwise. And I hereby order and direct the churchwardens for the time being of King’s Chapel aforesaid at every such contribution to pay five shillings sterling out of the rents or incomes of my said house towards the said contribution, in all forty shillings sterling annually, and on every Good Friday after sermon in the afternoon the rector or minister with the wardens of said King’s Chapel for the time being shall divide the said forty shillings, and what else shall be collected for the poor aforesaid upon the several days before mentioned, one third part to themselves for the use of the poor of said chapel, one third part to the minister and wardens for the time being of Christ’s Church for the use of the poor of the same church, and the remaining third to the minister and wardens for the time being of Trinity Church for the use of the poor of said church, and I direct that said wardens of each church then attend to receive the same.”</p> <p>The will also contained the following provisions :</p> <p>“ I recommend to the rector of said King’s Chapel and wardens for the time being that they make the best improvement of my said house and appurl they can when it shall come into their bands, by letting the same by written lease always being careful that the lessee is bound by covenant to pay the rent half yearly, to pay all taxes of said house and to keep and leave the said house and appurces in good repair. And if at any time there shall be a greater sum arising from the rents and profits of my said house and appurees than shall be sufficient to discharge the said twenty pounds annually hereinbefore given, and to keep said house and appurees in repair, and if need be to rebuild the same, and also to keep my tomb in repair as aforesaid, then and in that case I order such surplusage to be put out at interest by the minister and wardens for the time being of said King’s Chapel.</p> <p>‘ I will and hereby direct that all the business which relates to my estate herein given in trust to the use of said King’s Chapel shall be done by a vote of the vestry of said church, and no vote shall be of any force, unless there be present the minister if in health and in town, the wardens and at least one half of the gentlemen of the vestry, such meetings to be called by the wardens for the time being of said chapel, giving due notice thereof in writing or by printed summons.”</p> <p>“ In case the minister, wardens, vestrymen, and proprietors of pews for the time being of said King3s Chapel will not accept of this my donation which I intend for the benefit of said church then I hereby give and bequeath all herein before given to and for the benefit of said King’s Chapel to the minister and churchwardens of Trinity Church aforesaid, in trust in the same manner and under the same provisos limitations and conditions that it is herein before given to the minister and churchwardens of said King’s Chapel. But if the minister and churchwardens of said King’s Chapel will accept of this my donation they shall under their hands certify to the minister and wardens of Trinity Church aforesaid for the time being such their acceptance in the manner following viz? ‘ We do accept the donations of William Price agreeable to his last will and testament, and will as far as possible strictly fulfil the said will in every part thereof.’ .... And I hereby appoint all the gentlemen of the vestry of said vhurch, for the time being, my trustees forever, to inspect and if need be to call the minister and wardens for the time being of said King’s Chapel to account for all or any of the income of my said estate, and to see the same is punctually employed for the uses and purposes herein before mentioned and in no other manner.”</p> <p>The information farther set forth that William Price died in 1771, and his said will was duly proved ; that he thereby did give and appropriate said devised premises, and did establish a public, pious and charitable use and trust, to promote the glory of God, the public preaching of the gospel, the vindication and promulgation of the doctrines, government and discipline of the Church of England, and the relief of the poor of the churches of the Church of England in Boston ; that the Church of England is and ever has been an Episcopal Church, and claims to have a ministry descended in direct and uninterrupted succession from the apostles of Jesus Christ, with exclusive authority to transmit their power and mission to others; that the provincial churches were under the supervision of the bishop of London; that the testator was within its communion, a firm believer in and warmly attached to its doctrines and discipline, and especially in the Trinity, the true and perfect divinity of the person of Jesus Christ, his miraculous incarnation and expiatory sacrifice and atonement, and the divine institution and perpetual maintenance of one catholic and apostolic church, which doctrines are and ever have been held by the Church of England to be essential truths ot Christianity ; that the Protestant Episcopal Church of the United States is a branch of and successor to the Church of England; that about the year 1787 certain proprietors of pews in King’s Chapel separated from and ceased to be connected with the Church of England, or Protestant Episcopal Church of the United States, and without the consent of any bishop, elected and pretended to institute another rector of King’s Chapel, one James Freeman, who had been refused ordination by the bishop then having episcopal jurisdiction of the Episcopal Churches of Massachusetts ; that King’s Chape] has ever since continued to be used as and for a congregational or independent meeting-house; that the persons occupying the same before 1787 departed from the faith and doctrines of the Church of England and became what is commonly called a Unitarian society, and have ever since continued to use said chapel as a Unitarian meeting-house, denying the various Episcopal doctrines aforesaid; that the religious society now occupying and claiming to be proprietors of King’s Chapel are not and do not claim to be a Protestant Episcopal Church, and are not entitled to any part of the income or funds arising out of the public charity and trust established by the testator; that the minister, wardens, &e. of King’s Chapel never accepted the donation of William Price, or certified their acceptance thereof to the minister and wardens of Trinity Church ; that the last survivor of those to whom a life interest in the devised estate was given died in 1809; that in 1813 James Freeman claiming to be the rector, and certain persons claiming to be the wardens of King’s Chapel, entered into possession of said devised estate, by virtue of a writ of possession ; that having thus obtained possession, they did not support the sermons, and applied only a small portiop of the rents to the poor of the Episcopal churches, but appropriated most of the same to the support of said Freeman, and the promotion and maintenance of Unitarian doctrines and worship; that in 1824 the rector and churchwardens of Trinity Church took steps to obtain possession of the premises, and recovered verdict and judgment therefor in 1828, and entered into possession thereof, and have ever since continued to hold and occupy the same, as the lawful devisees and trustees under said will; that the premises have greatly increased in value, so that the rents and income thereof are many times greater than at the date of the will; that the present trustees have perverted the trust reposed in them, and appropriated die greater share of the income to pay the expenses of Trinity Church, and to the maintenance and support of the Unitarian society calling themselves the Proprietors of King’s Chapel, and have not kept the buildings in repair, or invested the surplus mcome, or rendered any account of the expenditure for sermons, and for the poor, and have refused to comply with the request of the Convention of the Episcopal Church for a conference with their committee, or to give them any information concerning said income; and that Christ Church have refused to become relators to this information.</p> <p>The prayer was that the public charity and trust declarea and created by the will might be established and carried int* execution ; an account of the income taken ; the trustees ordered to keep the buildings in repair, and pay no part of the income to the society or persons now occupying King’s Chapel, but invest the surplus as a permanent fund, to be appropriated as follows 1. For supplying any deficiency in the annual income, below <£20; 2. To keep the estate in repair; 3. To be expended on the objects of the charitable purpose of William Price, declared by his will, either in the proportions expressed in the will, or in such proportions and on such a scheme as the court should adopt to carry out his pious and charitable intentions, or at the discretion of the trustees, for the objects of the testator; 4. If on the scheme adopted by the court a larger sum should be appropriated to the support of the poor than would be sufficient for the poor of Christ Church and Trinity Church, then that it might be divided among all the Episcopal churches in Boston; or that the sermons should be printed ; and for other and further relief.</p> <p>The rector and wardens of Christ Church made no appearance, and as to them the information was taken pro confessa. The other defendants appeared and filed answers, setting forth various facts, the material ones of which were incorporated into an agreed statement of facts, by which the parties agreed, amongst other things, as follows:</p> <p>King’s Chapel was the only church of the Church of England' in Boston until 1722, when Christ Church was erected. Price contributed to the expense of its erection, and from 1726 to 1743 was a warden or vestryman of it. During his life, there were no other churches of that denomination in Boston except King’s Chapel, Trinity Church and Christ Church, in all of which he owned pews. When Price made his will, King’s Chapel was owned by a body politic, existing by prescription, and known as the Proprietors of King’s Chapel, the pews therein being owned by individuals, each of whom was a member of the corporation ; and this organization was in communion with the Church of England, as then , by law established. Upon the evacuation of Boston in 1776 by the British troops, Dr. Caner, the rector, went with them, taking the church registers, the vestments and plate, and part of the records of the vestry, The congregation was dispersed, and in 1777 the use of the chapel was granted, by those proprietors of the pews who remained, to the congregation of the Old South Church, who occupied it for about five years. In September 1782, the wardens of King’s Chapel who' had been elected that year invited Rev. James Freeman to officiate as reader, and in April 1783 he was chosen pastor by said proprietors, who consented to such alterations of the service merely as the political state of the country required. In 1785 alterations in the liturgy were made, which consisted chiefly in the omission of the doctrine of the Trinity; and the chapel has never been occupied since by any society in communion with the Church of England or the Protestant Episcopal Church of the United States.</p> <p>The action referred to in the information was brought by the rector and churchwardens of Trinity Church against Jonathan Stodder and another, who held the devised premises as tenants of the rector and wardens of King’s Chapel; and the latter persons were admitted to come in and aid in the defence of the action. In relation to this action, it appeared by the deposition of William H. Gardiner that it was brought by him as junio? counsel for the demandants, and that his associates were Charles Jackson, Daniel Webster, Benjamin Gorham and Samuel Hubbard, as retained counsel, and William D. Sohier and Samuel D. Parker, who, as pewholders, offered their services gratuitously. The counsel for the tenants were William Prescott, Daniel Davis, William Sullivan, Charles P. Curtis and William Minot. The suit was commenced in 1824; carried through the common pleas on a judgment on demurrer; entered in the supreme court; tried before the jury in January 1825; a formal verdict rendered for the tenants, subject to the opinion of the whole court; delayed till March 1827, when it was argued before the full court; and disposed of by them, in 1828, by referring to the determination of a new jury the question whether or not there had been an acceptance by Dr. Caner,the rector who left Boston in 1776. Evidence was offered to show that in 1789 and in 1809 a formal acceptance by the rector and wardens of King’s Chapel had been made of the donation under the will, but a majority of the court were “ not of opinion that they were in a condition to make an acceptance,” and Mr. Gardiner testified that it was perfectly well known at the bar at the time that the court were equally divided upon the point whether the society, as it existed in 1789 and 1809, were competent to make such acceptance. Thereupon, and, according to the recollection of Mr. Gardiner, under a suggestion from the court, a compromise was entered into, in 1828, by the advice of all of the counsel on both sides, by which it was agreed that a general verdict should be taken for the demandants, who should hold the estate and execute the trust, without any participation or interference on the part of the minister, wardens, vestrymen or proprietors of King’s Chapel; the income of the estate to be applied to defray the expenses of the trust, and to pay necessary repairs, and one half of the residue to be paid over to the proper persons authorized to receive it by the vestry and proprietors of pews of King’s Chapel. This compromise was carried into effect, and the action disposed of accordingly in November 1828.</p> <p>The rents and income of the devised estate, received by King’s Chapel from 1814 to 1828, amounted to $14,662.16; the expenses, $4537.53; and the residue was applied to their general expenses. From 1829 to the present time the annual rents received by Trinity Church have amounted to $3420, and the annual expenses to $306 ; and one half of the balance has been paid to King’s Chapel, and the other half applied to the general expenses of Trinity Church. From 1814 to the present time, $96.80 has been annually applied in payment of the ¿£20 mentioned in the will; and no further sum has been paid or appropriated for the preaching of sermons or for the poor, specially from this fund. The valuation book for 1771, which it was agreed might be referred to, if competent, showed that the “ annual worth of the real estate, without any deduction for more than ordinary annual repairs,” was ¿£40.</p>

<p>If there are two societies of the same name which is used by a testator to describe a legatee, extrinsic evidence is to be resorted to for the purpose of ascertaining which he had in mind.</p>

<p>Contract. The declaration alleged that the plaintiffs sold and delivered to the defendant sixty-three and one half tons of iron, and that he subsequently requested them to sell the same for him and credit him with the proceeds, and promised to pay to them the loss, if any, together with the expenses of the sale and that the plaintiffs accordingly sold the iron at the same price, but incurred certain expenses and loss of interest.</p> <p>At the trial in the superior court, before Morton, J., the plaintiffs introduced evidence tending to prove the sale and delivery by them to the defendant on a Saturday; that on the following Sunday one of the plaintiffs found at his boarding-place a letter from the defendant saying that the latter had that morning received a letter informing him that his father, who lived in Bangor, Maine, was dangerously ill, and that he must go home immediately, and start early on Monday morning, and that he wished the plaintiffs to take the iron he had bought and do the best they could with it, and that in any event they should not lose anything. The plaintiffs thereupon, on Monday or Tuesday, took possession of the iron, stored it, and finally sold it in two months for the same price, losing two month’s interest, and incurring certain expenses.</p> <p>It being admitted that the plaintiffs’ claim must depend on the validity of the promise contained in the letter, and it appearing that the letter was written and received on Sunday, the judge directed a verdict for the defendant, which was returned accordingly. The plaintiffs alleged exceptions.</p>

<p>In order to create an estoppel in pais, the declarations or acts relied upon must have been accompanied with a design to mislead.</p> <p>One who is simply the agent of a firm cannot, by his representations, estop a particular individual from denying that he is a member of the firm.</p>

<p>A complaint cannot be maintained in this commonwealth for the support of a bastard child begotten and bora in another state, if both of the parents were then residents of that state, and the complainant has never become- a resident of this commonwealth.</p>

<p>Contract brought to recover $450, for two quarters’ rent of certain premises hired by the defendants of the plaintiffs.</p> <p>The following facts were agreed in the superior court: The defendants took a lease of the premises of the plaintiffs, running from the 1st of July 1860 to the 1st of July 1862, at a rent of $900 a year, “ by equal quarterly payments of two hundred and twenty-five dollars at the expiration of each and every quarter hereafter during said term, and at that rate for such further time as the said lessees, or any other person or persons claiming under them, shall hold the said premises or any part thereof; ” and therein covenanted “ that they will, during the said term and for such further time as the said lessees or any other person or persons claiming under them shall hold the said premises or any part thereof, pay unto the lessors, their heirs and assigns, the- said quarterly rent, upon the day hereinbefore appointed for that purpose,......and also all water taxes ......and also will keep all and singular the said premises in such repair as the same are in at the commencement of said term;......and, at the expiration of said term, peaceably yield up unto the said lessors or those having their estate therein all and singular the premises.”</p> <p>The defendants occupied the premises during the two years named in the lease, paying rent as therein stipulated; and remained in the occupation thereof until the 15th of September 1862, under the following circumstances: On the 15th of July the defendants informed the plaintiffs that they had hired other Dremises, and should move into them as soon as the same could be got ready, and vacate the plaintiffs’ premises. The plaintiffs said that the defendants should have given the notice before the lease was out. The defendants replied that they did not determine to remove until the day before. The plaintiffs answered that they regarded the defendants as tenants-at will, and should require the regular notice. The defendants said they thought they had the right to remove at any time. A few days after-wards the parties had another interview, at which the plaintiffs repeated that they regarded the defendants as tenants at will, and should require the regular notice, and the defendants said they regarded themselves as tenants at sufferance. The defendants continued to occupy the premises as before, nothing more being said or done by either party, until the 15th of September, when the defendants moved out and tendered the keys to the plaintiffs, which the plaintiffs declined to receive. On the 1st of October the plaintiffs demanded of the defendants $225 for one quarter’s rent, and the defendants tendered to them $187.50, which the plaintiffs declined to receive. On the 1st of January 1863 the plaintiffs demanded payment of another quarter’s rent.</p> <p>Upon these facts, judgment was rendered for the plaintiffs, and the defendants appealed to this court.</p>

<p>ae plaintiff purchased of the Boston Water Power Company a number of lots of land in Boston, upon a contemplated street then called Avenue Number One, and afterwards named Berkeley Street, which was to cross the Boston and Providence Railroad between the plaintiff’s land and Boylston Street, taking an agreement as to the manner of constructing the street. Controversies arose respecting this agreement, which were compromised by the execution of a new contract by the company, agreeing to complete the avenue “ from Tremont to Boylston Street, according to its agreement with the Commonwealth of Massachusetts,” within a certain time. By agreement with the Commonwealth, the company were to fill up and lay out its lands “ conformably to such directions an& plans as to materials and height of filling, location and arrangement of streets, and location and construction of sluices, culverts and bridges, as might be prescribed ” by the commissioners on the Back Bay. The commissioners shortly afterwards gave instructions that “every street crossing a railroad should be carried over such railroad by a bridge, with a space between abutments of not less than thirty feet, and a height not less than nineteen feet; which distances and dimensions may be increased hereafter, if it be found by the commissioners desirable; and that all the land and flats must be filled with clean gravel or hard earth,” They also furnished a plan, by which it appeared that the street was to cross the railroad by a bridge only about thirty feet long. Subsequent to the execution of the new contract by the company and the plaintiff, the commissioners voted that “ they would not object to the construction of a bridge over the Boston and Providence Railroad at Berkeley Street, not exceeding three hundred and twenty-seven feet in length.” The construction of a bridge of that length was accordingly commenced Held, that the plaintiff could not maintain a bill in equity to compel the construction of a bridge of a less length, and the filling up of the rest of the street with clean gravel ot hard earth.</p>

<p>Tort against the defendant as an officer of the National Steam Guage Company, a corporation organized in 1857 under the general statutes then applicable thereto. The writ was dated September 22d 1863.</p> <p>At the trial in the superior court, before Morton, J., it appeared that at October term 1861 of the superior court the plaintiff recovered judgment against said company, and in this action sought to hold the defendant on the ground that he was one of the officers of said corporation at the time that the debt, on which the plaintiff’s judgment was recovered, was contracted; that- said debt was contracted after the month of October 1859, and that no annual certificate of the condition of said corporation, as required by Sts. 1851, c. 133, and the subsequent laws relating thereto, was filed after the 11th day of October 1858, a certificate having been filed on that day referring to the condition of the company on the 1st day of September 1858, and that said debt was contracted at a time when the officers of said corporation had neglected to file the next annual certificate, and during the continuance of their default in that behalf. The judge ruled that by St. 1862, c. 218, the plaintiff was precluded from maintaining an action at law, and that his remedy, if any, was in equity. The jury accordingly returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>A judgment against an attorney in an action of contract for the breach of his written agreement, for a sufficient consideration, to discharge a judgment and execution is a bar to a subsequent action of tort against him to recover further damages for an arrest by his directions upon the same execution.</p>

<p>Contract brought originally by the plaintiffs, who were partners under the firm of Sanborn, Richardson & Co., against John H. Flagler and-Haldane, as partnérs under the firm of Holdane & Co. The writ was served only upon Flagler, and he alone appeared to defend the action. The plaintiffs alleged that the defendants had refused to deliver to them fifty tons of best refined 'iron, in accordance with the terms of a written agreement entered into between them.</p> <p>The defendant in his answer set up, among other defences, the statute of frauds.</p> <p>At the trial in the superior court, before Morton, J., Josiah B. Richardson, one of the plaintiffs, was called to the stand, and produced, to be offered in evidence, a paper, of which the following is a copy as near as can be made :</p> <p>“ Will deliver S. R. & Co. Best Refined Iron 50 tons within 90 days — at 5 ct p lb 4 of cash. Plates to be 10 to 16 inches wide and 9 ft to 11 long. This offer good till 2 o’clock Sept. 11, 1862. J. H. F. J. B. R.”</p> <p>The witness was proceeding to testify in relation to the execution and delivery of the same, when the defendant objected that the paper was not on its face or in fact any sufficient note or memorandum in writing of the alleged bargain signed by the party to be charged, and that paroi evidence was not admissible to add to, modify or explain the paper, so as to make it such a memorandum as could be admitted. But the judge ruled that the paper was a sufficient note or memorandum under the statute, and would bind the defendant "if he was a member of the firm of Holdane & Co. The witness then testified that the agreement was written by him, and that he and the defendant signed their initials, the defendant writing the initials “ J. H. F.” and he the initials “ J. B. R.,” and that before two o’clock on the day named, and before the defendant left the plaintiffs’ office, he accepted the proposition, and so stated to the defendant verbally. The witness also testified that he signed his initials on behalf of the plaintiffs, and that he understood the defendant to sign for the firm of Holdane & Co. This evidence was not controverted by the defendant.</p> <p>The judge ruled that said paper, with the explanations given, if Richardson was believed, was a sufficient note or memorandum, and was binding on the defendant, if the jury found him to be a partner as alleged.</p> <p>The jury found a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

Tort for the abduction of the plaintiff’s minor son, a child of nine years old. At the trial in the superior court, before Lord, J., the plaintiff introduced in evidence a copy of a decree of this court, made three days before the abduction, upon a writ of habeas corpus brought by the mother for the purpose of obtaining access to the boy, ordering that the boy be remanded to his father’s custody.

Writ of entry by the assignee of an insolvent d'ebtoi to recover possession of a dwelling-house and land in South Boston. At the trial in the superior court, before Morton, J., the jury returned a verdict for the tenant, under the direction of the court, upon facts which are sufficiently stated in the opinion; and the demandant alleged exceptions.

Contract brought by a mutual insurance company to recover tne amount of an assessment laid upon two policies held by the defendant.

<p>Indictment found at October term of the superior court, for being a common seller of intoxicating liquors from the 1st cf January 1863 to the day of finding the indictment.</p> <p>At the trial, before Ames, 3., it was agreed that at the last June term of the same court the defendant was indicted for keeping a tenement used for the unlawful sale of intoxicating liquors, and also for being a common seller of intoxicating liquors, and that, by an arrangement with the district attorney, the defendant pleaded guilty to the first indictment, and received his sentence thereon, and a nol. pros, was entered in the second, upon the defendant’s agreeing to discontinue the sale. At the trial of the .present indictment, the district attorney offered the same evidence upon which the indictments were found at the June term, saying that the defendant had made sales since that time. The defendant objected that the conviction at that term was a defence to this indictment, unless subsequent sales should be proved to have been made; and that the district attorney was bound by his agreement not to prosecute this indictment, unless it appeared that the defendant had made sales since the June term. The judge overruled these objections, and the jury re. turned a verdict of guilty. The defendant alleged exceptions.</p>

After.a verdict of guilty in the superior court, on appeal from the coñviction of a magistrate, upon a complaint made in behalf of the Commonwealth in a criminal case, the defendant moved in arrest of judgment on the ground that the magistrate’s certificate attesting his record had no stamp affixed to it; but the motion was overruled by Ames, J., and the defendant alleged exceptions.

<p>Complaint made in the police court of Cambridge for keeping a liquor nuisance. After a verdict of guilty in the superior court, on appeal, the defendant moved in arrest of judgment on the ground that the complaint and warrant were informal and insufficient. The informality relied upon was, that the complaint was sworn to before “ James B. Stacy, clerk pro tem.,n and the warrant, which was issued under the seal of the police court, was signed by the same person; and there was nothing in the record of the case showing the absence, death or removal of the clerk. The motion was overruled, and the defendant appealed to this court.</p>

<p>Indictment found in Suffolk county, charging that the defendant “ did unlawfully keep, offer for sale and sell to one Bridget Donegan, for the sum of forty cents, a large quantity, that is to say, eight quarts, of adulterated milk, to which a large quantity, that is to say, four quarts, of water had been added; he the said Farren well knowing said milk so sold to be adulterated, and well knowing that said large quantity of water had been added to said milk.”</p> <p>At the trial in the superior court, before Vose, J., and before the jury were sworn, the defendant moved to quash the indict* ment, for reasons set forth in the opinion ; but the motion waa overruled.</p> <p>There was evidence tending to prove the sale and delivery as alleged ; and on cross-examination of the witnesses for the Commonwealth it appeared that Bridget Donegan was a married woman, and acted in making the purchase as agent of her husband. There was, however, no evidence that the defendant knew the facts last stated.</p> <p>The defendant was convicted,, and alleged exceptions.</p>

<p>Ac attaching creditor cannot avoid a sale and delivery of personal property simply on the ground that they were made with intent to prefer another creditor, in violation of the provisions of the insolvent law.</p> <p>If a certain number of barrels of No. 1 mackerel are sold, and by mistake some barrels of No. 3 mackerel and some barrels of salt are delivered, no title to the articles thus de'ivered passes to the purchaser.</p> <p>If a writ commanding the officer to replevy a certain number of barrels of mackerel is served, with the assent of the defendant, by taking, in part, two half barrels as equivalent to one barrel, the defendant cannot afterwards claim a return thereof on the ground that the officer seized property not described in his writ.</p> <p>If under a sale of a number of barrels of mackerel a delivery is made which includes some mackerel packed in half barrels, the title to them will pass to the purchaser, if they art of the same quality described in the agreement.</p>

<p>ít'e bill of sale of barrels of mackerel, describing them as marked No 1, No. 2, and No. 3, respectively, includes aV. that the vendor has on hand of any particular number, the title thereto will pass to the purchaser, although the same are not separated from other barrels of mackerel. But if the bill of sale does not include all that the vendor has on hand of any particular number, and no separation or special designation is made of those which are intended to be sold, the title will not pass, although the vendor gives to the vendee a storage receipt for them.</p> <p>If a case is submitted upon the report of an auditor, who states all the facts and his conclusions from those facts, the court will not be bound by his conclusions, although he states them as facts found by him.</p> <p>An officer who holds as messenger in insolvency goods which are claimed by persons to whom the insolvent debtor has undertaken to sell them, after a demand by those persons for the delivery of the goods, may set up their title in defence to an action of replevin brought against him by other persons to whom the insolvent debtor has also assumed ti sell the goods.</p> <p>If property is sold and a constructive delivery thereof made to a common agent of two purchasers, without any separation of their respective portions, another purchaser of the same property from the original owner cannot avail himself of such want of separation and division of their portions between themselves, to defeat their title.</p>

<p>Bader a devise in these words, “I give and bequeath to A.” certain real estate, “to have and to hold the same to him and his heirs and assigns forever; and in case of his decease I give and bequeath the same to B., his heirs and assigns forever; and in case of his decease I give and bequeath the same to the heirs at law of 0. who may be living at the probate of this will, and their heirs and assigns, share and share alike,” A. takes an estate in fee, if he survives the testator.</p>

<p>A testamentary guardian can only be appointed, under Gen. Sts. c. 109, § 6, by a will executed in the manner provided for the execution of other wills.</p>

<p>Tort for breaking and entering the plaintiff’s close in Amesbury.</p> <p>At the second trial in the superior court, before Putnam, J., after the decision reported in 3 Allen, 328, the plaintiff offered evidence simply that in the Summer of 1857 she was in possession of the premises, and inclosed them with a temporary fence, and that in 1858 the defendant entered upon the same and removed her fence; she relying upon her possession to make out a prima facie case.</p> <p>The defendant thereupon put in the following documentary evidence of title: 1. A mortgage of Molly Barnard to David Currier, dated May 16th 1817; 2. Levy of an execution in favor of E. Mosely against David Currier, dated April 22d 1822; 3. Deed of E. Mosely to Jacob R. Currier, dated April 4th 1823; 4. Will of Jacob R. Currier, devising all his real estate to his wife Susan, dated January 21st 1845, admitted to probate December 2d 1845 ; 5. Deed of Sukey Currier, widow of Jacob R. Currier, to Mary C. Gale, wife of the defendant, dated August 6th 1858. The defendant also offered evidence tending to prove that David Currier had foreclosed the mortgage to him before the levy of Mosely’s execution; but the jury found specially that this was not true.</p> <p>The defendant also relied upon a title by adverse possession, and offered evidence tending to prove that David Currier was in possession of the premises in 1825; that from shortly after that time till after Currier’s death, in 1842, one Webster occupied them, declaring, on two occasions, while upon the land, that he occupied as tenant of David Currier; that Webster’s occupation continued after Currier’s death ; that" in 1846 one Bartlett had a shop on the premises, and for several years prior to 1857 one McKay had ship timber lying there.</p> <p>In reply to the defendant’s evidence of foreclosure of the mort gage to David Currier, the plaintiff introduced evidence tending to prove that about six months after the date of the mortgage Molly Barnard offered to pay to him the amount of the principal on the mortgage debt, and told him that a man had promised to get the interest for her, and when she got it she would pay him ; and that he said in reply that he would have nothing to do with it, as he had got a warranty deed.</p> <p>The judge ruled that a valid tender and refusal to accept it would operate to discharge the land from the mortgage; that such tender might be made either before or after the breach of condition, if before an entry to foreclose; and that if, at the time of the alleged offer by Molly Barnard to pay the mortgage debt, David Currier fraudulently deceived her by his acts, and by his representations that he had a warranty deed instead of a mortgage, and fraudulently induced he- to believe that she had no right of redemption, so that she was thereby led to take a course which she would not otherwise have taken, and was thereby prejudiced, he and those claiming under him would be estopped to deny the tender.</p> <p>The plaintiff contended that there was no evidence that Webster’s occupation, after the death of David Currier, was under Currier’s heirs ; and upon this point the defendant asked the court to rule that if Webster occupied under David Currier in his lifetime, the law would presume, in the absence of any evidence to the contrary, that he continued to occupy under Currier’s heirs.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Tort for assault and battery and forcibly ejecting the plaintiff from his dwelling-house. The answer denied the commission of the assault and battery, and averred that the ejectment, if shown, was lawful, because the plaintiff was in the wrongful occupation of a portion of a dwelling-house of the defendant, and that the defendant expelled the plaintiff therefrom, as he lawfully might do.

Bilí, in equity brought in September 1863, setting forth that on the 17th of November 1857 the plaintiff borrowed of the defendant the sum of $2792.86, and gave his note therefor payable in six months with interest; that as security for the payment of said note he transferred to the defendant nine shares of the Bartlett Steam Mills, taking from the defendant the following agreement, signed and sealed by the defendant: “ Newburyport, Nov. 17, 1857.

<p>No exception lies to a refusal to strike from the docket an entry of an order for the dismissal of an action.</p>

<p>A judge of the superior court has no authority to report for the determination of this court a case tried upon a plea in abatement.</p>

<p>Two actions of contract on policies of insurance issued by the defendants respectively upon a dwelling-house of the plaintiff in Bradford, dated January 17th 1862, and payable in case of loss to Jacob Kimball, mortgagee.</p> <p>The policy of the .¿Etna Company contained the following provisions: “ It being covenanted as a condition of this contract that the company are not to be liable .... for loss or damage, if the assured in the written or verbal application for insurance makes any erroneous representation materially increasing the risk.” “ Any change within the control of the assured, material to the risk, shall avoid this policy.”</p> <p>The policy of the Springfield Company contained the following provisions: “ If the situation or circumstances affecting the risk thereupon shall be so altered or changed by or with the advice, agency or consent of the assured, as to increase the risk thereupon .... the risk thereupon shall cease and determine, and the policy be null and void.” “ If the premises insured shall be vacated and so remain for thirty days, without notice to this company, this policy shall cease and determine.”</p> <p>The "two actions were tried together in this court, before Metcalf, J., and the defendants offered to prove that they had issued previous policies on the same premises, which were to expire on the 17th of January 1862; that the house was then unoccupied; that on the 6th of January 1862 an incendiary attempt was made to burn it, of which the plaintiff informed the agent of the' defendants; that on the 17th of January the plaintiff applied for a renewal of the policies to the agent, who informed him that unless the house was occupied he could not renew them without consulting the companies and stating ai. the facts, and in that case he did not think the companies would authorize him to insure the property at all, but if occupied it could be insured at the same rate as in previous years. The plaintiff said in reply that the agent might renew the policies as before, as the house would be occupied; that he had a man in view who was going to occupy it. The agent thereupon wrote and delivered the policies. The house remained unoccupied till June 26th 1862, when it was burned by an incendiary. It was admitted, for the purposes of this trial, that the occupancy of the house was a material fact, under the circumstances.</p> <p>The judge ruled that the representations, if proved, would not constitute a legal defence, and instructed the jury to return verdicts for the plaintiff, which was accordingly done. The defendants alleged exceptions.</p>

Tort against a gas light company, to recover damages for au injury to the female plaintiff from an explosion of gas.

<p>[n an action against a Railroad company to recover damages for a personal injury, the plaintiff may set forth his case in different ways in different counts, charging the defendants with running upon him while he was in the highway, with committing an assault and battery upon him, and with compelling him to leap from the car while it was in motion, whereby he was thrown down and injured.</p> <p>If a boy of ten years old wrongfully gets upon a street railway car while it is in motion, without the intention or means of paying fare, and is not at once removed, but is wrong» fully allowed by the servants of the railway company to remain there for a time, and the driver afterwards, while driving at such a rate of speed as to make it dangerous for the boy to leave the car, orders him to jump off, and the boy does so, using reasonable care, and is injured, he may maintain an action against the railway company to recover damages.</p> <p>This court cannot decide, on a bill of exceptions, that permitting a boy of ten years old to be in the street with other boys after dark is such negligence as to prevent him from recovering damages for a personal injury "sustained by him from being wrongfully compelled to leave a street railway car while the same was in motion, although he had wrongfully got upon the same.</p>

Bill in equity, setting forth that by St. 1863, c. 97, the plaintiffs were authorized to extend their railroad oyer Essex Bridge, and the county commissioners of Essex were authorized, upon a proper application, to fix and determine the manner of construction of such railroad over the bridge; that by St. 1859, c. 122, § 2, it was provided that the tolls on said bridge for each coach which crosses the same as often as five times daily, and is used for the purpose of carrying…

Trustee process. The county of Essex were summoned as trustees of the principal defendant, and the county treasurer, in his answer, disclosed that at the time of the service of the process he had received from the cleric of the superior court a certified copy of an order for the payment of the compensation due to certain jurors, amongst whom was the defendant; and the only question was, whether the county were liable to be charged in this process by reason thereof.

Audita querela, brought to reverse a judgment erroneously rendered in favor of the defendant in an action brought by him against the plaintiff, who lived out of the state and had no sufficient notice of the action; and to supersede an execution issued on such judgment.

Petition setting forth that Alfred S. Merritt was an insolvent debtor; that the petitioner duly presented to the defendant, who was judge of insolvency, his complaint setting forth that he was a creditor of said Merritt, and had proved his claim, and that he suspected and had reason to believe that Margaret A. Merritt, wife of said debtor, had fraudulently received, concealed. embezzled and conveyed away certain personal property which be* longed to the debtor previous to…

<p>A mechanic’s lien may he enforced by a petition inserted in a writ of original summons, sued out within ninety days after the person desiring to avail himself thereof has ceased to perform labor or furnish materials, although the writ is not served until after the expiration of the ninety days.</p>

Bill in equity to restrain the defendants from taking the waters of Spring Pond, owned by the plaintiffs. The plea averred that the defendants were incorporated by St. 1796, c. 76, and that under that statute and the statutes in addition thereto, namely, Sis. 1839, c. 114, and 1850, c. 273,* they had done the acts complained of, and that the plaintiffs’ remedy, if any, is at law.

Contract upon an agreement in writing executed by the plaintiff and the defendant, reciting that there were matters in dispute between them in regard to the carrying on of the cultivated land of the defendant by the plaintiff, and agreeing “to refer the whole matter in dispute between them, and also all accounts now outstanding between said parties,” to three arbitrators who were named.

<p>Two actions of contract upon the following recognizance :</p> <p>“ Commonwealth of Massachusetts. Superior court in vacation after January. Essex, ss. Term. A. D. 1862. On this twenty-seventh day of February, A. D. 1862, personally appeared Amos R. Nickerson and Edwin P. Smith as principals, and Benjamin F. Field of Boston and Isaac H. Hazelton of West Newton as sureties', before me, duly authorized hereto, (said Smith and Nickerson being now in the jail in Salem in said county, committed there under a mittimus from said court, for failing to recognize each in the sum of $8000, as ordered by said court on an indictment against them pending therein, numbered 784,) and acknowledged themselves to be severally indebted to the Commonwealth of Massachusetts in the sums following, to wit: the said Nickerson and Smith each as principal, in the sum of eight thousand dollars, and the said as sureties for each, in the sum of eight thousand dollars, to be levied on their goods or chattels, lands or tenements, and in want thereof upon their bodies, to the use of the said commonwealth, if default be made in the performance of the condition hereinunderwritten.</p> <p>“ The condition of this recognizance is such, that if said Nickerson and Smith shall appear at the next criminal term of this court, to be held at Newburyport within and for said county on the second Monday of May next, and from day to day during said term of this court, to answer to an indictment pending therein against them for abduction or kidnapping of one Rice, as set forth at large in said indictment, and shall also appear from term to term of this court for the transaction of criminal business, if the same shall be continued, until final judgment shall be rendered thereon and not depart -without license, but shall abide the final order, judgment and sentence of the court therein, then this recognizance shall be void: otherwise shall remain in full force and effect. Asahel Huntington, commissioner specially authorized in the premises.”</p> <p>The declaration in the first action sought to charge the defendant as surety of Nickerson, and in the second as surety of Smith. The two actions Were tried together, in the superior court, without a jury, before Brigham, J., who found the following facts:</p> <p>At January term 1861 an indictment was found against Nickerson, Smith and Caleb B. Watts, upon which the two former were tiled and a verdict of guilty was rendered at January term 1862, to wit, in February 1862. Exceptions were taken, and Nickerson and Smith were ordered each to recognize in the sum of $8000 to appear and answer to said indictment at said January term, and at any subsequent term to which the indictment might be continued ; and Asahel Huntington was authorized to take the recognizance. Upon failure to recognize as ordered, Nickerson and Smith were committed to jail, and the court adjourned without day on the 24th of February, and on the 27th the above recognizance was taken, and was filed and entered of record in the following May. The exceptions taken as aforesaid were overruled in March 1863, as to the first count of the indictment; the indictment was continued until May term 1863. when a nolle prosequi was entered as to all but the first count, and Nickerson and Smith were called and defaulted on the recognizance ; and the indictment was further continued until October rcrm 1863, when the sureties were called and defaulted on the recognizance.</p> <p>Upon the foregoing facts, and others not now material, the judge found for the Commonwealth, and the defendant alleged exceptions.</p> <p>After an argument in this court upon other points, the court directed an argument upon the sufficiency of the recognizance '1 form.</p>