Volume 92 — Massachusetts Reports

<p>6. bequest of an annual sum, out of the income from real estate, for fifty years to trustees, to be invested by them and accumulated during that time, and then applied to establish a charity, is a valid bequest; even if the accumulation cannot be allowed for so long a period.</p> <p>What is the legal limit of accumulation for a charity, qttcere.</p> <p>A will contained the following bequest: “ I give to the trustees of the Salem Savings Bank in trust one hundred dollars annually for fifty years, to be paid to them by my executors, to be safely invested by said trustees, the interest to be added to the principal by them semi-annually. At the expiration of fifty years the sum which shall have accumulated shall be appropriated by a society of ladies from all the Protestant religious societies in Salem to provide and sustain a home for respectable, destitute, aged, native-born Ameri can men and women. The above a-mial payment shall he made from the income of mv real estate, which real estate shall be held in trust by my executors, until the last payment shall have been made to the trustees of the Salem Savings Bank; then my real estate shall be divided equally among the grandchildren of my late brother James.” - Eeld, that this was a valid bequest, even if the direction for accumulation was invalid.</p>

<p>A voluntary conveyance, absolute in form, even though aided by an oral agreement of the grantee to hold the premises for the benefit of the grantor, raises no trust in favor of the grantor which can be enforced in this commonwealth.</p>

<p>Tort to recover damages for an injury received by reason of a defective highway. The answer denied the existence of a defect in the highway, and that the plaintiff was using due care at the time of receiving the injury.</p> <p>At the trial in the superior court, before Morton, J., it appeared that the plaintiff’s injury was received on Sunday, while he was carrying fresh meat from North Reading, where he resided, to Lawrence, a distance of twelve miles. The defendants objected that the plaintiff could not recover, because he was travelling illegally, and so was not using due care. The plaintiff contended that this ground of defence was not open under the answer; bn* the judge ruled otherwise. The plaintiff then offered to prove that he was the only servant of one Eames, of Reading; that Eames was under contract to supply certain marketmen in Lawrence, and also others in Stoneham, with fresh meat for their daily customers, as needed; that the stock of one of Eames’s customers in Lawrence had become exhausted on the Saturday before the accident; that Eames had been taken sick a day or two before, and was then confined to his bed; that the plaintiff, as Eames’s servant, was called on to furnish meat to this customer; that Eames was bound to furnish meat at Stoneham early on Monday morning; that the plaintiff could not carry the meat to Lawrence, unless on Sunday night, and so told the marketman from Lawrence, who replied that the meat must be furnished, as there was nothing else with which to supply his Monday customers; that in order to supply these customers with meat for Monday it was necessary, on account of Eames’s sickness, for the plaintiff to carry it to Lawrence on Sunday night; that he accordingly started on Sunday evening after sundown, and was travelling to Lawrence upon this errand when the accident happened; and that, at that season, fresh meat, in order to be fit for food on Monday, should be slaughtered and dressed on Sunday. The judge ruled that these facts, if proved, would not entitle the plaintiff to recover, and a verdict was accordingly returned for the defendants. The plaintiff alleged exceptions.</p>

Writ of entry to recover a piece of land in Andover. The tenants pleaded nul disseisin, and specified in defence a former judgment in their favor in a writ of entry brought against them by the demandant, to recover the same premises.

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

<p>Tort against Horace Whipple and James Rowell. The writ was dated August 8th 1863. The second count in the declaration was as follows: “ And the plaintiffs further say that the said Whipple hired of them a certain horse and carriage to drive in a moderate and proper manner; and the said Whip-pie agreed to return said horse to the plaintiffs in good order and condition. Yet the said Whipple, wholly regardless of his duty and undertaking in the premises, delivered said horse to said Rowell to drive, and the said Rowell improperly and im« moderately drove said horse to Lowell and beyond said Lowell to wit, to Tyngsboro and Hudson ; and the said Whipple aided and assented to said immoderate driving, by reason of which immoderate driving the said horse was killed by the said Whipple and Rowell, and the said Whipple never returned the said horse to the plaintiffs, but on the contrary with said Rowell, by reason of said immoderate driving, killed said horse.” The defendants answered separately.</p> <p>At the trial in the superior court, before Morton, J., it appeared that the defendants had arranged to take a pleasure excursion together on August 6th 1863, and on the morning of that day they started from Lawrence together, each driving a horse and buggy belonging to the plaintiffs, and each accompanied by a woman, and drove a few miles beyond Lowell, where the horse, called the bay colt, driven by Rowell, fell and died in a few minutes. There was evidence tending to show that the bay colt was killed by immoderate driving; and that the contract of hiring for both horses was made with Whipple, and that both horses were delivered upon the credit of Whipple; but this was denied by Whipple. It appeared that a few days before August 6th Whipple called at the plaintiffs’ stable and engaged two teams for that day. The plaintiff Banfield testified that when Whipple engaged them, he in Whipple’s presence entered them both upon his order slate in Whipple’s name. The defendants testified that they saw the order slate at two different times prior to August 6th, and that one horse was entered to Whipple, and the bay colt to Rowell. Whipple also testified that the original entry of the charge for the bay colt was made to Rowell. It also appeared that the plaintiffs were acquainted with both defendants, and had let teams to each, prior to August 6th.</p> <p>On the morning of August 6th Whipple called and took a horse and buggy, and soon after Rowell called and took the bay colt and buggy, delivered to him by Banfield, and soon after-wards the defendants met in Lawrence, and proceeded as above, Rowell having the full management and control of the bay colt</p> <p>The defendant Whipple testified, among other things, in direct examination, that no claim had ever been made upon him for this dead horse. On cross-examination he testified that be had no suspicion that any claim was to be made upon him by the plaintiffs, prior to the suit. The plaintiffs were then allowed to prove that on the 7tn of August he made an assignment of all his property, Rowell signing the same as attesting witness. The same evidence was also admitted, under the same circumstances, in relation to Rowell.</p> <p>The defendants contended that they could not be held jointly, and asked the court to give the following rulings: “ 1. If Whipple hired the horse, and afterwards the plaintiffs knew it was to be used by Rowell, then, although Whipple might be liable for its use, he cannot be held for conversion or immoderate driving; 2. If the original charge on the order slate was made to the defendants separately, then Whipple cannot be held; 3. Under the evidence, there is no relation of master and servant or principal and agent; 4. If Whipple engaged the horse, and the plaintiffs understood it was to be used by another, for the pleasure or benefit of another, and not for the pleasure or benefit of Whipple, and then the plaintiffs delivered the horse to Rowell, understanding that he was the party who was to use it, Whipple cannot be held.”</p> <p>Upon the subjects embraced in these prayers the judge instructed the jury, substantially, that the defendant Whipple was not liable unless they were satisfied that the contract of hiring was made with him as to both horses, and that both horses were delivered upon his credit; but if they were so satisfied, and that WTiipple intrusted the bay colt to Rowell to drive, who killed it by immoderate driving, he was liable under the second count; that the charges upon the order slate were evidence upon this issue, and if made as claimed by the defendants, strong evidence against the plaintiffs, but not necessarily conclusive; that if Rowell killed the horse by immoderate driving, he would be liable under the second count, whether it was hired by Whipple or himself. He also gave instructions as to what would constitute immoderate driving, and other instructions in the case which were not excepted to.</p> <p>. The jury returned a verdict for the plaintiffs, and upon in quiry by the court stated that they found a verdict against both defendants on the second count, and that the contract of hiring was made by Whipple, and the horse immoderately driven by Rowell so that he died. The defendants alleged exceptions.</p>

<p>Bill in equity to redeem land from a mortgage. The case was referred to an auditor, to state the account between the parties, and he reported the following facts:</p> <p>“ That on the 21st of July 1830 the plaintiff gave to Samuel Cook, the defendant’s testator, his promissory note for five hundred dollars, secured by a mortgage of real estate; that prior to the 21st of July 1855, there had been partial payments made by the plaintiff to said Cook, but never in excess of the interests due; that on the 21st of July 1855 the plaintiff and said Cook accounted together, and found that there was then due on said note, principal and interest together, the sum of nine hundred and fifty dollars; that then and thereupon it was agreed by and between them, in consideration of said Cook’s forbearing to foreclose said mortgage or to put said note in suit, that said sum of $950 should thereafter stand as the principal of said note, and that the plaintiff should thenceforth annually pay interest on said sum; that in accordance with said agreement the plaintiff has annually paid the interest on said sum of $950, down to July 21st 1861, that date being a few months prior to the decease of said Cook; that the agreement as to interest since that time being executory, interest from that date can only be reckoned upon the original principal of §500, and that, as the result of the foregoing, there is now due on said note from.said plaintiff to said defendant, or her heirs, the sum of nine hundred and fifty dollars, together with interest on five hundred dollars from July 21st 1861 to the present time.”</p> <p>The account was stated accordingly. The plaintiff moved that the report be recommitted to the auditor; and the case was thereupon reserved for the determination of the whole court.</p>

Contract. The declaration alleged a failure on the part of the defendant to carry to the plaintiff’s wharf a quantity of stone, according to the terms of the following agreement, signed and sealed by the parties: u This identure, made this tenth day of December in the year of our Lord 1852, . . . witnesseth, that the said W. H. Knowlton, in consideration of the said Sewall’s agreeing to carry all the stone quarried on his premises, that is to be carried away in vessels, on…

Replevin of a piano. After the exceptions formerly taken by the plaintiffs had been overruled, (8 Allen, 93,) the defendant moved lor judgment for a return, to which the plaintiffs objected. It appeared that after the commencement of the action, and before the rendition of the verdict, the defendant went into insolvency, and an assignee was appointed, who did not appear and take upon himself the defence.

<p>The Commonwealth undertook to aid a railroad corporation by the issue of scrip upon cartain terms and conditions, for the sum of $2,000,000, payable in thirty years from date, u which may be expressed in the currency of Great Britain and payable to the bearer in London, or issued in federal currency, payable in Boston, as the directors of the corporation might elect when they should apply for each issue of the scrip.” The corporation agreed with contractors that the whole of the state scrip that might be issued should be exclusively appropriated to work done or to be done, in compliance with the terms and conditions of the legislative act authorizing the loan of state credit, and that the same should be promptly handed to the contractors. The corporation accordingly from time to time gave orders for the delivery of the scrip to the contractors, who elected to receive it in the currency of Great Britain, and in ascertaining the amounts each pound sterling was reckoned at $4.44, and the scrip was issued on that basis, upon orders of the governor and council and certificates of the state engineer, which were expressed in dollars. During all this time the equivalent in this market for a pound sterling was about $4.91. The contractors sold the Strip for less than its par value. Held, that the Commonwealth might maintain an action for money had and received against the contractors, to recover back the excess received by them upon the sale of the scrip, over the amount at which it was reckoned when it was issued.</p> <p>If a contract is made to give obligations for a certain sum of money, which at the election of the party who is to receive it may be expressed in the currency of Great Britain, and no standard is agreed upon by the parties at which the pound sterling shall be reckoned, it should be reckoned at $4.84.</p>

Contract brought to recover back the amount paid by the plaintiff for a tax illegally assessed upon him by the defendants It was agreed in the superior court that, on the 6th of May 1857, the plaintiff and others petitioned the city government of Cambridge to grade Charles Street and a part of Fourth Street, and assess the expenses upon the abutters according to law.

<p>If a tax title proves invalid, the purchaser at the collector’s sale cannot maintain an action against the town to recover back the money paid by him as the consideration of the purchase, and the expenses of defending his title.</p>

<p>A provision in the charter of a street railway company that, at any time after the expiration of ten years from the opening of any part of the road for use, a city may purchase of the corporation so much of the corporate property as lies within its own limits, at a specified price, does not give to the city any such interest or right as to enable it to maintain a bill in equity to restrain the corporation from raising passenger fares upon their road, in violation of conditions expressly assented to by the corporation, and imposed upon them by the mayor and aldermen of the city when granting to them the power to locate and build a new line of their railway through additional streets, if they are guilty of no fraudulent intent to destroy or depreciate the value of the corporate property although the value of their franchise and property will be thereby diminished, and the portion of their railway constructed under such authority will perhaps be exposed to for feiture. Nor can the mayor and aldermen of the city maintain such bill.</p>

Contract against an insane person to recover for board furnished and services rendered to him, and expenses incurred for him.

Bill in equity by Lucretia E. Jewett and Sarah Eaton against Joseph Davis, Pamela E. Davis, Joseph B. Prince and George S. Cushing, to set aside an assignment of a mortgage of land, on the ground that one of the plaintiffs was fraudulently induced to assign instead of discharging it.

Complaint to compel children of Rebecca Hutchinson, a pool person, to contribute towards her support. After a hearing in the superior court, Putnam, J. ordered each of the defendants to pay a certain sum, with his share of the taxable costs. The defendants appealed from so much of the order as concerned costs.

<p>If after the breach of the condition of a mortgage of land further advancements are made by the mortgagee to the mortgagor, under an oral agreement that the mortgage shall stand as security for them, a court of equity will not aid the mortgagor, or one who has no higher equity than the mortgagor, to redeem without allowing for such advancements.</p> <p>If the assignees in insolvency of a mortgagor, by his request, and without objection from his creditors, convey to his wife an equity of redemption, without consideration and with notice, she, in seeking to redeem, will be subject to the same equities as he would have been.</p>

<p>Under Gen. Sts. c. 140, § 5, after a conditional judgment has been entered in an action to foreclose a mortgage, the court may submit to a jury a disputed question of fact as to the amount due oh the mortgage.</p> <p>If in such case the mortgage note bears an indorsement of $900, and the question in dispute is, whether that sum ought to be deducted or not, the submission to the jury of the following issues is unobjectionable: “Was the sum of $900 paid and received on said note? Was anything received or accepted on said note in satisfaction of the sum of $900?”</p> <p>If the indorsement was made upon the settlement of an action of slander brought by the defendant against the plaintiff, for charging the defendant with keeping a gambling-house and a house of ill fame, and the settlement was effected while the plaintiff was drunk, by means of threats to arrest him on the writ, the plaintiff, for the purpose of showing his mental condition at the time, may prove that he had been drunk for a great part of the time for several weeks, at the defendant’s house and with his knowledge. So also he may prove that the defendant in fact kept a gambling-house and a house of ill fame.</p> <p>In an action for slander the truth of the words spoken is a justification, although they were spoken maliciously, and without any reason to suppose that they were true.</p> <p>If a person has been induced by duress or fraud to settle a groundless suit against him, by indorsing a sum of money upon a note which he holds against the plaintiff therein, and he has taken a discharge of the suit, it is not necessary for him to give notice or to return the discharge, in order to entitle himself to avoid his contract.</p> <p>A threat to arrest the defendant in an action for slander is a threat to make an unlawful arrest; and a contract procured by means of such a threat, if found by the jury to be sufficient to overcome the mind and will of a person of ordinary firmness, may be avoided.</p>

<p>A mortgage of personal property made to secure an indorser of a note is not discharged by the indorser’s lending to the mortgagor money which is applied to the payment of the note, unless the parties intend that the mortgage shall be thereby discharged.</p> <p>No action lies to recover the price of mortgaged personal property sold in violation of Gen. Sts. c. 161, § 62, and returned by the purchaser to the seller.</p>

<p>An agreement, made for a valuable consideration, to pay a certain sum of money at the promisor’s death, with a gross sum for interest thereon, is valid and binding upon his executor, and is not usurious, although at his death the legal interest would not amount to so much as the sum named for interest.</p> <p>[f a person has promised to pay a certain sum of money at his death, with a gross sum for interest thereon, a legacy by him to his creditor, equal in amount to the principal sum, is not to be applied in payment thereof, unless the will shows that such was the intent of the testator, and is therefore inadmissible in evidence, in an action against his executor upon the promise.</p> <p>In an action to recover a certain sum as the price agreed to be paid for land, if the amount is in controversy, the defendant may prove that the plaintiff had previously conveyed away the right to cut the wood off from the same, and that therefore the value of the land conveyed was less than the sum claimed by the plaintiff as the price agreed to be paid.</p>

<p>If in a particular religious denomination the pastor furnishes the organist, and accordingly agrees with an organist for a certain time at a specified price, and dies before the expiration of the time, and the church is subsequently closed, his estate is only liable to pay for the time of the organist’s actual services, with interest after a demand; although the organist was ready to play afterwards.</p>

Contract, upon the following agreement: “ City of Lowell. B. F. Simpson having signified to the mayor and aldermen his intention to build in Bridge Street, license is hereby granted to him to occupy and use, for the term of four months from date hereof, twenty-five feet outside of the line of the building, on. the following conditions, to wit: that the said Simpson shall keep the same inclosed by a proper fence, and sufficiently lighted at night to secure the safety of…

Two actions of contract to recover compensation for sawing lumber at the plaintiff’s mill. The answers denied the making of any contract therefor with the plaintiff, and averred that the contract for the same was made with one Jenkins, who had the use and occupation of the mill, and to whom the defendants had made payment, by work done for him. Declarations in set-off were also filed, with items for services rendered and materials furnished.

<p>A married woman may, by a will duly executed with her husband’s written assent, dispose of all her real estate, so as to cut off his right as tenant by the curtesy.</p>

<p>Tort for the conversion of four cords of wood, seized by the defendant, who was a constable, on an execution against the plaintiff’s husband, Charles H. Spaulding.</p> <p>At the trial in the superior court, before Ames, J., it appeared that the plaintiff and her husband were married as early as 1850 and have lived together ever since ; and that after the death of her father in 1861 she became the sole owner of the homesteac' on which she and her husband lived. The plaintiff testified that in December 1863, upon her request, Peter Prescott brought to her house seven cords of wood, the agreed price of which was thirty-six dollars, of which she paid eleven dollars in money, which was a part of a larger sum which she bad borrowed of her mother-in-law, and gave her note for the residue, which was yet unpaid; and that when the. defendant came to take the wood she told him it was hers, and forbade him to remove it. No attempt was made to show that the plaintiff had any trade or business separate from her husband, or that she furnished at her own expense or on her own credit any other provisions or supplies for the family.</p> <p>Upon the above evidence, the judge ruled that the plaintiff was not entitled to recover, and directed a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Petition for a writ of certiorari, to quash the proceedings of the defendants in refusing to abate a tax assessed upon the petitioner by the assessors of Medford.</p> <p>It appeared that the excess complained of was a tax assessed upon certain bonds of this commonwealth, to the amount of $9600, and of the city of Albany, to the amount of $17,000. The petitioner carried in to the .assessors and made oath to a list of his property which did not include the above bonds, which were then owned by him. The bonds of this commonwealth expressed that the sums therein mentioned were due from the Commonwealth to the holders thereof; and the bonds of the city of Albany were expressed in the form of a promise to pay the bearer the sums therein mentioned.</p> <p>The grounds relied on by the petitioner were, 1st, that the list of his property was conclusive, and 2dly, that the bonds were not public securities, but debts due to him, within the meaning of Gen. Sts. c. 11, § 4, and that he was therefore entitled to deduct from them the amount which he owed and paid interest for; and the case was reserved by Gray, J., for the determination of the whole court.</p>

<p>A bill of parcels of goods, acknowledging the receipt of payment by note, is not conclusive evidence of the contract; but paroi evidence is competent to show that the sale was conditional, and that the title was to remain in the vendor until a note signed by responsible persons should be furnished to him.</p>

Contract brought against the administratrix of the estate of Benjamin Heywood, for money had and received by him.

<p>The owner of land may lawfully occupy and improve it in such manner as either to prevent surface water which accumulates elsewhere from coming upon it, or altering the course of surface water which has accumulated thereon or come upon it from elsewhere; although the water is thereby made to flow upon t'i adjoining land of another, to his loss.</p>

<p>Contract brought by a mutual insurance company, to recover an assessment upon a deposit note executed to them by the defendants.</p> <p>At the second trial in the superior court, before Putnam, J., without a jury, after the decision reported in 8 Allen, 217, it appeared that the assessment was based upon a computation of losses from month to month, making rests at the end of each month, and computing the entire monthly losses and expenses. The company issued policies for one year, three years and five years, respectively, the premiums for three years being twice the rate charged for one year, and those for five years being three times the rate charged for one year. The basis of assessments was found anew for each month, by taking the whole of the premium for each one year policy, one third of that for each three years policy, and one fifth of that for each five years policy.</p> <p>Certain other facts are sufficiently stated in the opinion. Upon the whole evidence, the judge, being of opinion that the method of laying the assessment was just and equitable, that the plaintiffs had complied with the provisions of law, and that the assessment was legal, ordered judgment to be entered for the plaintiffs. The defendants alleged exceptions.</p>

<p>An omission to disclose, in an application for insurance on a building, a written agreeme.it by the applicant to convey it in consideration of a certain sum of money to be paid within a fixed time, or to disclose the fact that the greater part of the money orally agreed upon as the consideration for the conveyance was paid before the written agreement was entered into, will not avoid or prevent the recovery of the full amount insured by a policy of insurance which provides that it is issued on condition that the application contains a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property.</p> <p>A policy of insurance upon the interest of a “mortgagee in possession,” in a building “occupied by a tenant,” is valid, although another person was in the occupation of the premises under an agreement from the assured to convey the same to him.</p> <p>A mortgagee of a building whose interest therein is insured by a policy which provides that, in case of payment of any loss to him, he shall assign to the company so much of his interest in the mortgage as may not be necessary to extinguish the residue of the debt due thereon, may recover the full amount insured, although before the date of the policy he had entered into a written agreement to convey the premises insured to a person who, by the terms of the same agreement, was to be at the expense and to have the benefit of the insurance, and who, after the date of the policy and before the loss, had recognized the policy by paying the expense thereof.</p>

Tort in the nature of trespass guare clausum fregit. At the trial in the superior court, before Brigham, J., a verdict was returned for the defendants, and the plaintiff alleged exceptions. The case is sufficiently stated in the opinion.

<p>A lease for years was executed in duplicate, of a brick stable and a wooden carriage-house. One copy provided that the lessor should make all necessary repairs on the outside of the ubuilding,” and the other, upon the outside of the “buildings.” The lessee covenanted to deliver up the premises at the end of the terra in good order and condition, reasonable use and wearing thereof, fire and other unavoidable casualties excepted, and not to make or suffer any waste thereof, and to make all necessary repairs on the inside of the building. During the term, the carriage-house fell from the weight of snow upon the roof, and injured the lessee’s carriages kept therein; and the lessor refused to rebuild it. Jffddi that the lessee might maintain an action for the refusal to rebuild, so as to make the carriage-house outwardly complete, but not for the injury to the carriages.</p>

Contract upon the following promissory note : “ Lowell May 1,1861. I promise to pay Marcella Sears the sum of three hundred dollars with interest from date. (Signed) Mar) A. Doyle, Lizzie G. Doyle.” The plaintiff’s maiden name wai Marcella Sears, and the note was given to her; and in January 1859 she married John Courtney. The action was originally brought against both signers of the note, and Mary A. Doyle was defaulted.

<p>An executor or administrator may be removed, under Gen. Sts. c. 101, § 2, if he is evidently unsuitable for the discharge of his trust at the time when the petition for his removal is heard, although the same facts which render him unsuitable existed at the time of his appointment.</p> <p>An executor or administrator will not be removed, as evidently unsuitable for the discharge of his trust, simply on proof that he was unsuitable at the time of his appointment, and without proof that he continues to be so.</p>

<p>If a married woman delivers her own money to another person to deposit in a savings bank in his own name in trust for her, and this is accordingly done, the trust thereby created is terminated by his death, and she thereupon becomes entitled to the money; and if the administrator of his estate obtains it, he is personally liable to her in an action for money had and received.</p>

Tort, brought by the administrator of the estate of his mother Sarah Flint, for the conve~sion of a witnessed promissory note oi $381, signed by the plaintiff, dated April 28,1836, payable to the intestate or order on demand with interest, and indorseo by her in November 1855 to Sarah Flint and Esther Bodge.

<p>No sum can be recovered as a forfeiture for usury, under Gen. Sts. c. 53, §§ 4, 5, unless there has been an actual payment or tender of more than the amount borrowed with lawful interest.</p> <p>If a suit in equity is brought to redeem land from a mortgage which was made upon a usurious contract, and" the defendant in his answer claims rights under it, and declines to release the same without a further payment, the plaintiff is entitled to a deduction of the statute forfeiture for usury, or so much of it as is required to discharge the amount remaining due on the mortgage, and to judgment for redemption and costs.</p>

<p>Petition by a deputy sheriff for an attachment for contempt against the respondents, for resisting the service of a writ of possession issued by this court and committed to the petitioner for service.</p> <p>At the hearing in this court, before Hoar, J., notice having been given to the respondents, it appeared that the suit in which the writ of possession issued was brought against a widow who, at the time of the commencement thereof, was in actual occupation of the premises, her son and daughter living with her and claiming title to the premises under their father. The son, who was one of the respondents in this petition, was then under twenty-one years of age. The other respondent married the daughter after the commencement of the suit, and at the time of the marriage came upon the premises, claiming title in right of his wife. The respondents were not parties to the suit in which the writ of possession issued; and they did not resist the removal of the defendant in that suit from the premises, or oppose the officer’s putting the plaintiff in possession, so far as that could be done without removing them; but they did threaten and were prepared to use force to prevent the officer from removing them from the land, contending that the precept gave him no right or authority so to expel them, and that it could be fully executed without putting them out.</p> <p>Upon these facts, the case was reserved for the determination of the whole court.</p>

<p>If personal properly which has been attached on a writ is surrendered by the officer to the defendant therein, upon his request, and upon the substitution of an equivalent in money therefor, and the officer thereupon simply returns an attachment of the money, the defendant in the writ cannot maintain an action against the officer for the original attachment of the property, although the writ is not returned to court.</p>

<p>Contract brought by the master against the owners of the whaling ship Harrison, to recover damages for a breach of a contract by which they had employed him for a whaling voyage. The contract was contained in a shipping paper, for “ a whaling voyage of five years’ duration from the sailing of the said ship from the port of New Bedford, unless said ship shall sooner return to said port and the voyage be terminated; ” and in a written agreement by which it was provided as follows: “ The said Dennis agreeing on his part to perform a whaling voyage as master of the said ship Harrison, to the best of his ability and knowledge; and the said Maxfield as agent on his part agrees to pay for the services of the said Dennis in the mannei following: One fourteenth lay on net proceeds of whole cargo, and one dollar per barrel on all sperm oil taken. In addition to the above, to have five hundred dollars if the cargo amounts to $70,000; and $1000 to be added when it shall amount to $90,000; and $2000 more to be added to the aforesaid amount when the cargo amounts to $100,000. Also to have one hundred dollars for each and every thousand dollars that the cargo may exceed one hundred thousand dollars.”</p> <p>The declaration averred that the plaintiff sailed from New Bedford, in pursuance of the above contract, on the 17th of May 1858, and well and truly performed his duty until the 20th of November 1860, when the defendants wrongfully deposed and removed him at the Sandwich Islands.</p> <p>At the trial in this court, before Gray, J., the plaintiff claimed damages, and offered evidence tending to show the same, occasioned to him by the removal, for depriving him of his share of the earnings of the ship before his removal, and for preventing him from receiving his share of the future earnings of the ship on the same voyage, according to the terms of the agreement. The judge was inclined to the opinion that the removal could not deprive him of his share of the previous earnings, and by agreement of the parties this item was not submitted to the jury; but, if this opinion was erroneous, the item was to be referred to an assessor, and the amount found by him added to the verdict, in case the plaintiff should prevail. No evidence was introduced of what the Harrison actually earned after the plaintiff left her, but he introduced other testimony in support of this item of his claim. The defendants objected that the future earnings were merely contingent profits, which could not be a subject of damages in this action; but the objection was overruled.</p> <p>The court gave instructions to the jury upon what would justify the removal of the plaintiff, and upon the measure of damages in other respects, which were not excepted to. The jury were also instructed, at the request of the defendants, that if the defendants had been injured oy any negligence of the plaintiff in the conduct of ire voyage, not sufficient, under the othei instructions given, to justify his removal and prevent him from maintaining his action, then damages might be recouped or deducted from the damages, if any, which they should find the plaintiff to have sustained by the removal. But by consent of both parties, and in order to avoid disturbing the verdict on the main question, the jury were requested, in case they should make any such deduction or recoupment, to return the amount thereof with their verdict.</p> <p>The jury returned a verdict for the plaintiff, and assessed damages in the sum of $1120.85; and further returned that in assessing these damages they had recouped or set off from the sum originally found by them the sum of $1036.44 as damages caused to the defendants by “ mismanagement and neglect of duty” on the part of the plaintiff. The defendants objected to this verdict before it was affirmed, upon the ground that it showed that the plaintiff had no right to maintain his action. But the verdict was affirmed and recorded. The question whether the judgment upon this verdict should be for the plaintiff or for the defendants, and if for the plaintiff, then whether for the sum of $1120.85 or for the sum of $2157.29, was reserved at the request of the parties for the determination of the whole court.</p>

<p>A judgment creditor who has levied his execution upon an undivided interest in land oí which the judgment debtor was not actually seised cannot maintain a petition for partition thereof, but, under Gen. Sts. c. 103, §§ 16, 48, must resort to a writ of entry.</p>

Writ of entry to recover a piece of land with a dwelling-house thereon in Marlborough. It was agreed, in the superior court, that on the 1st of Apri 1856, at ten o’clock in the forenoon, the tenant received a deed of the premises, and on the same day moved into the house with his family.

Tort to recover damages for an injury sustained by the female plaintiff in consequence of a defective way. At the trial in this court, before Gray, J., it appeared that the injury was received by falling upon the ice on a sidewalk in Church Street in Lowell, between nine and ten o’clock in the morning, in January; and that it had rained the day before, and frozen in the night.

<p>Contract brought to recover for services rendered by the plaintiff to the defendants. At the trial in the superior court, before Putnam, J., a verdict was returned for the plaintiff, by direction of the court, upon facts which are sufficiently stated in the opinion. The defendants alleged exceptions.</p>

Tort in the nature of trespass quwre clausum fregit. The following facts were agreed in the superior court: The plaintiff owned a house and land in Chelmsford, and had in his keeping a dog which was not licensed or collared according to Gen. Sts. c. 88, § 58. The defendant was a constable of that town, and had been ordered by the selectmen to kill all dogs going at large which were not so licensed and collared.

There were three subscribing witnesses to the will, one of whom was also one of the executors named therein, and had not declined the trust. The questions whether he was a competent subscribing witness, and if so whether he would be admissible to testify in support of the will at the trial, were reserved by Gray, J. for the determination of the whole court.

<p>Appeal from a decree of the judge of probate, disallowing an instrument offered for probate as the will of Catherine S. Cole.</p> <p>It was agreed that Mrs. Cole, at the times of the execution of this instrument and of her death had no father, mother, husband or children living; that she died possessed of considerable property; that Edward Sparhawk, one of the three attesting witnesses, was her brother and an heir at law, and that the instrument contained no devise or bequest to him, but gave nearly all the property to his son. The question whether he was a competent attesting witness was reserved by Gray, J. for the determination of the whole court.</p>

<p>If one of two defendants goes into insolvency, and this fact is suggested, the court may order the trial to proceed as to the other defendant.</p> <p>A promise by a minor to pay money borrowed on joint account with another person may be ratified by the minor after coming of age, like other voidable promises.</p> <p>The entry of a baptism, contemporaneously made by a Roman Catholic priest, in the discharge of his ecclesiastical duty, in his church record of baptisms, is competent evidence after his death, of the date of the baptism, if the book is produced from the proper custody ; although he was not a sworn officer, and the record was not required by law to be kept.</p>

<p>A. testatrix by her will gave all her real and personal estate, after payment of debts and funeral expenses, to a town, for the purpose of establishing, for the use and benefit of all the inhabitants of the town, a free public libraiy, and, if the funds should prove sufficient, a free public reading-room, to be under the control of trustees to be chosen by the inhabitants from time to time, which trustees were directed to sell certain of the real estate and empowered in their own names to convey the same, and were also directed to convert the personal estate into money and pay her debts and funeral expenses, and to appropriate the residue to the purposes above named by erecting a building, buying books and setting apart a fund for the future purchase of hooks and the establishment of a reading-room; and she provided that the town should forever pay all the incidental expenses of managing and insuring the library and building. The town at first voted to accept these provisions, and chose trustees accordingly; but afterwards reconsidered this vote, and voted to decline to accept the same. Meld,</p> <p>(1.) That the will gave the estate to the town in fee.</p> <p>(2.) That it was the duty of an administrator with the will annexed to collect the personal assets and pay the debts and funeral expenses of the testatrix, and that the direction to the trustees to do these things was inoperative and void.</p> <p>(3.) That the trustees were vested with a power, coupled with a trust, which entitled them to seek the instructions of this court as to the proper discharge of their duty.</p> <p>(4.) That under Gen. Sts. c. 100, trustees for charitable trusts need not give bonds.</p> <p>(5.) That the trusts created by this will were charitable trusts, although a burden was annexed to the acceptance thereof by the town.</p> <p>(6.) That the town had power to accept the same; and after doing so cannot renounce the same.</p> <p>7. ) That the town, by accepting these provisions, could not bind itself to expend more money than is allowed by Gen. Sts. c. 33, § 9, for that purpose.</p> <p>8. ) That the charitable trusts will not be defeated nor the estate forfeited by a failure on the part of the town to pay the expenses put upon them by the will.</p>

<p>Indictment under Gen. Sts. c. 162, § 8, against the defendant for having a counterfeit bank bill in his possession with intent to Dass the same, knowing it to be counterfeit.</p> <p>At the trial in the superior court, before Rockwell, J., Nehemiah Flanders, city marshal of Newburyport, testified that in September he saw the clerk at the post-office pass out some letters to the defendant, and that immediately afterwards he arrested him; that he took the letters from the defendant’s possession after bringing him to the station house, and found them to be directed to him ; that upon the defendant’s refusal to open hem he himself opened one of them; that there was a letter within the envelope and several bank bills, one of which was described in the indictment. The defendant objected to the admission of the contents of the envelope in evidence, but the judge allowed them to be read to the jury. Two witnesses testified that the bill described in the indictment was a counter felt almost exactly resembling the genuine bills of the Bank of Commerce; and that the other bills were counterfeit, excepting one, which was a genuine bill on a broken bank.</p> <p>Benjamin Austin, a witness for the Commonwealth, testified, under objection, that in the preceding June he met the defendant; “ he asked me if I did not want to go away with him, to see if we could not make some money. I asked him how. He showed me a large roll of bills which he said were 1 bogus.’ I told him it was rather too risky business for me, and I guessed I would not trouble it. He cautioned me to say nothing about it. In a few days I saw him again. He wanted me to go down the river with him. I told him I had no money, and besides could not leave my work. He said that was no matter, and took out three or four dollars in fractional currency and gave them to me. It was bran new. We found we could not get a boat that afternoon, and I offered it back to him. He told me to keep it, and I did so. I disposed of it, and some days afterwards he asked me if I had disposed of it. I told him yes, and he laughed. I asked him if it was not good, and he said, Yes, it was good, if I had got rid of it. At one of these last two interviews he said he had disposed of some of the money he had showed me; that he had been to Ipswich, and made a good haul.”</p> <p>The defendant, among other things, requested the judge to rule that “ there was no evidence in the case from which the jury can find a guilty knowledge in regard to this bill; ” but the judge ruled, among other things, that “ the evidence tending to show that previous to these transactions the defendant had other counterfeit money in his possession, knowing it to be counterfeit, with intent to pass the same, is competent for the consideration of the jury; but the contents of the letter are not evidence for the consideration of the jury in this case.”</p> <p>The letter, besides having been read by Flanders, as before stated, was also read to the jury by the district attorney in his closing argument. After the ruling excluding it from their consideration had been announced in the charge, the district attorney asked that it might be al'owed to go to the jury with the other papers in the case The defendant objected, but the judge allowed it to go, repeating the instruction that it was not evidence for the consideration of the jury, and was not to be read by them.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>An indictment to recover a penalty imposed by statute need not negative the existence o3 circumstances which, under a proviso contained in the statute, would exonerate the defendant from liability.</p> <p>This court cannot rule as a matter of law that a verdict should be set aside, the finding of which depends not only upon the finding of the jury upon several distinct facts, but also upon inferences to he drawn from them, if upon each of these facts there is sufficient evidence to make it a proper matter to he submitted to the jury.</p>

<p>Under St 1864, c. 250, §§ 2, 3, the decision of a judge of the superior court overruhng a motion, made before the jury are sworn, to quash an indictment, is subject to exception.</p> <p>An indictment, under St 1863, c. 252, against a person for enticing and soliciting another to leave this commonwealth, for the purpose of enlisting in the military service of the United States elsewhere, need not allege that the person enticed did leave, or was a citizen of, or liable to do military duty in, this commonwealth, or set forth the particular means used to entice or solicit such person.</p> <p>The St of 1863, c. 252, is not repealed by U. S. St. of 1865, c. 79.</p>

<p>In order to prove a former marriage in England, in support of an indictment for polygamy, a witness may testify to the general repute there, at a time anterior to his acquaintance with the defendant.</p> <p>One may he found guilty of polygamy, under Gen. Sts. c. 165, §§ 4, 5, who has married here during the lifetime of his former wife, and within one year after leaving her in England, although she has never been out of England; and proof of these facts will support an indictment which alleges such second marriage, his former wife “ not having been continually remaining beyond sea, and not having voluntarily withdrawn from ” him, “ and remained absent for the space of seven years together.”</p>

<p>Indictment alleging that the defendant, on a certain day and at a certain place, “ did unlawfully keep, offer for sale and sell to one Patrick Keenan, 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, six quarts of water had been added; he the said Nichols 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>The defendant filed a demurrer to said indictment, which was overruled.</p> <p>At the trial in the superior court, before Brigham, J., Henry Faxon, inspector of milk, was a witness for the Commonwealth, and, after testifying that in the course of five or six years he had used a lactometer in five or six thousand instances, for the purpose of testing the quality and purity of milk, he was allowed to testify, under objection, that he had applied this lactometer to milk sold by the defendant to Patrick Keenan, and what was indicated by the lactometer as the specific gravity thereof and what was the standard specific gravity of pure milk, according to the lactometer. There was no evidence as to the character of this instrument, the principles of its construction and operation, or its accuracy.</p> <p>There was no evidence that the defendant knew the milk to be adulterated, and the defendant requested the court to rule that for this reason he was entitled to an acquittal; but the judge ruled otherwise.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>Indictment, found in Norfolk county, for being a common seller of intoxicating liquors. The defendant filed a plea in bar, alleging that he had at the time of the indictment a license of the United States for which he had paid the sum of twenty dollars, and which authorized him to do the acts complained of, ana also that he had paid a tariff or revenue duty and tax upon the same liquors to the government of the United States, for the keeping and selling of which he is complained of in the indictment, and that the said tax was paid upon the same liquors, in the same packages, and in the same form and quantity in which he sold the same. The district attorney filed a general demurrer to this plea, and Rockwell, J., before whom the case was heard in the superior court, sustained the demurrer, and the defendant waived his right to answer further, and alleged exceptions.</p>

<p>Contract. The declaration alleged that George C. Ward, the defendant’s intestate, made a promissory note, the substance of which was annexed, and that an exact copy could not be annexed because the note was in the defendant’s possession; and that the defendant owed the plaintiff the amount thereof and interest. The note described was dated November 14th, 1857, for $10,000, payable to the order of the plaintiff on demand with interest.</p> <p>The answer denied the making or delivery of the note; and averred that, if such note was made and delivered, it was without consideration, and for an illegal and immoral consideration, and was paid during the life of George C. Ward.</p> <p>At the trial in this court, before Chapmcm, J., the plaintiff introduced evidence tending to prove that she held such a note as is described in the declaration, and in November 1860 delivered it to the intestate, to be kept for her temporarily, and that it had not been returned to her. The defendant’s counsel contended that the plaintiff’s remedy was in trover, and not by an action of contract; but the judge instructed the jury that if the plaintiff had proved to their satisfaction that such a note had existed and been put by the plaintiff into the hands of the intestate to be kept by him for a temporary purpose, and if he had not returned it to her, according to the terms on which he received it, this action would lie.</p> <p>The plaintiff, in proving her case, offered evidence tending to show what was the actual consideration of the note. The evidence tended to show that she and the intestate had been for many years engaged to be married to each other; that she had made many purchases of clothing for him, and taken care of his clothes; that she had procured, at his expense, the materials for a wedding dress, and that it had been made ; that the wedding had been postponed by the sickness and death of her daughter; that it had been again postponed in consequence of the bad conduct of her son, who had occasioned some trouble to the intestate; that the intestate had declared that he would not marry her as long as the son was about; that on another occasion, when she was dangerously sick, he declared that he should have married her long ago if it had not been for his business. The plaintiff’s sister, Mrs. Dora Whitney, testified that the intestate told her the note was given to the plaintiff as security in case he should die, so she might be provided for, and in consideration of the engagemeht being suspended. But the witness further stated that this was her own language and not the language of the intestate. There was also evidence as to the conduct and circumstances of the parties before and after the date of the note. The defendant’s counsel contended that, upon this evidence, the note was given in the nature of a donatio causa mortis, and that the evidence did not show a sufficient consideration for the note. The jury were instructed that it was for them to find, as a question of fact, what the consideration was; that if it was a donatio causa mortis, it was without consideration and was void; but if it was given in consideration of any services performed by the plaintiff, or in consideration that the intestate had unreasonably delayed to perform his promise of marriage, it would be valid.</p> <p>The plaintiff’s said sister, who was one of the principal witnesses in her behalf, stated, on the direct examination, that she was a widow when she married her second husband; and, upon cross-examination, that she was married to her first husband, ' George Prescott, in 1839, and that he died in 1843 or 1844, and that she was married to her second husband in 1845. The defendant’s counsel proposed to her the following question : “ Did you not make an attempt to get money from the estate of a Mr. Smith, or his heirs, on the ground that you had been married to him 1 ” This question was objected to, and the judge excluded it.</p> <p>The defendant’s counsel, in cross-examination of Mrs. Whitney, proposed to exhibit certain, papers, which they alleged were signed by her, and inquire of her, first, whether or not she signed them at their respective dates, and also to inquire of her, after examining those papers, whether she was not mistaken in her evidence as to the time when she was married to Prescott; but the judge, on the objection only of the plaintiff’s counsel, refused to permit said papers to be exhibited to her and said questions to be put.</p> <p>These papers were all dated in 1842, and purported to be signed by Dorothea Prescott: one of them was a release to John H. Smith from any charge of being the putative father of a child, of which she had recently been delivered; and another was a release to said Smith of all causes of action against him, and described the signer of it as a single woman.</p> <p>The plaintiff introduced Francis A. Prescott as a witness, who testified that he was acquainted with the handwriting of the intestate; that the plaintiff at one time showed him the note declared on, and that he cast the interest upon it for her ; and that both the body of the note and in his opinion the signature were in the handwriting of the intestate. The defendant’s counsel objected that, the note not being produced, this species of evidence was incompetent; but the objection was overruled.</p> <p>The defendant contended that the plaintiff and the intestate, who was his brother, were not engaged to be married, but that the intestate kept her as his mistress. He was a witness, and testified to facts which, as his counsel alleged, tended to establish this defence. On cross-examination, the defendant testified that he and his brother came from New Hampshire; that they had a father, mother and sisters residing there; that his father and mother and some of his sisters had visited Boston ; and his testimony tended to show that they had been introduced to the plaintiff by the intestate; that she had made purchases of some goods for them, with the knowledge of his brother; and that his brother had taken her to New Hampshire to visit them. He also testified that when he resided in Boston in 1851 one of his children was sick and died ; that the plaintiff was very intimate in his family, and assisted his wife in taking care of the child while it was sick and at its death ; and that for a year or more. about that time, she was very intimate in his family. He also stated that his brother brought her to his house at Malden to visit his family about seven or eight years before his death. He also identified several letters, which he testified were in the handwriting of his sister, Mrs. Smith.</p> <p>After the cross-examination, his counsel offered to prove by aim that after the intestate brought the plaintiff to visit his family the last time, he gave the intestate notice not to bring her there again. This was objected to and was excluded.</p> <p>In reply to the defendant’s evidence, the plaintiff offered the letters of Mrs. Smith to the plaintiff, which had been proved by the defendant. They were objected to, but were permitted to be read. The judge ruled that they were admissible, not as independent statements of Mrs. Smith, but to show the character of the intercourse that subsisted between her and the plaintiff ; that they were to be taken in connection with the evidence, which tended to show that the intestate had introduced the plaintiff to his parents and sisters, and knew the intercourse between them ; and that if from all the evidence they believed that the intestate had introduced the plaintiff to any of these relatives as the person to whom he was betrothed, and permitted them to treat her as such, this, would be evidence tending to show that an engagement of marriage actually subsisted.</p> <p>The jury found a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>The owner of goods cannot maintain an action against an officer for taking them in the due service of a writ of replevin against another person who had them in his possession.</p>

<p>Contract upon a policy of insurance, for one year, dated September 21st 1861, issued by the defendants upon the hotel known as the Neptune House on Chelsea Beach, payable to the plaintiff as mortgagee in case of loss. The policy contained a written provision, inserted upon its face, that “ it is understood and agreed that the house is to be occupied the entire year; ” and also the following printed provisions: the loss “ to be paid within ninety days after due notice and proof thereof made by the assured, in conformity to the conditions annexed to this policy.” “ It is further agreed that in case the abovementioned premises at any time after the making of and during the time this policy would otherwise continue in force shall from any cause be vacant or without occupant, unless notice of the same shall first have been given to this company and mentioned in or indorsed upon this policy, this insurance shall be void and of no effect.” “ And that this policy is made and accepted upon and in reference to the application, plan, description or survey filed in this office, and the terms and conditions hereunto annexed, which are to be used and resorted to in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for.” The policy was signed at the foot of the first page. On the second page were printed certain classes of hazards, under which were the following clauses: “ Camphene, spirit gas or burning fluid, when used and kept on the premises for any purpose, subjects the property insured to an additional charge; and permission for such use or keeping must be indorsed in writing on the policy; otherwise the same shall be void and of no effect.” “ And all unlawful business or trade is also prohibited.” Conditions of insurance were also annexed, in which it was provided that “ persons sustaining loss or damage by fire are forthwith to give notice thereof in writing to the company; and as soon after as possible they shall deliver as particular an account of their loss or damage as the nature of the case will admit, signed with their own hands. And they shall accompany the same with their oath or affirmation, declaring the said account to be just and true showing also ..... in what general manner (as to trade, manufactures, merchandise or otherwise) the building insured, or containing the subject insured, and the several parts thereof, were occupied at the time of the loss.”</p> <p>At the trial in the superior court before Russell, J., after the decision reported in 7 Allen, 45, note, the plaintiff put in a notice under oath, by Henry Bates, the owner of the building, to the defendants, dated and delivered to them on the 7th of November 1861, stating among other things that the hotel was destroyed by fire on the 3d of that month ; that he “ occupied and kept the said building as and for a public hotel at the time of the said loss, and had done so from the date of said policy.” On the 27th of the same November said Bates made an additional statement in writing to the defendants, showing among other things that “ the house was always lighted by burning fluid in lamps.”</p> <p>The defendants proved that during the year 1861 neither Bates, nor his partner who was interested with him in keeping the house, when open, nor the plaintiff, was licensed as an inn-holder or common victualler; and they contended that the above statements in the two notices given to them showed of themselves a violation of the policy, and were conclusive. But the judge allowed the plaintiff to claim on evidence already in, and to show in rebuttal, that the house was not open for the business of an inn on the day of the fire or after the date of the policy; that it was a beach house, only open for the summer season; that it was closed about the middle of September, two men only being left in charge to take care of the house, and some animals left there for the winter; that no burning fluid had been used there since the date of the policy; and that the second statement was obtained through the fraud of the defendants’ agent. There was no evidence that the first notice was procured by fraud.</p> <p>The judge instructed the jury that the facts stated in the preliminary proofs, so far as they were not shown to have been made in mistake or induced by fraud, were conclusive against the plaintiff; that the statements therein, if not by mistake or fraud, would prevent the plaintiff from recovering.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

Two actions of contract upon policies of insurance. The first action was upon an open fire policy issued to the plaintiffs, for whom it concerns, by the Alliance Insurance Company, for “ any sum not exceeding fifteen thousand dollars in any one place in any one time on merchandise in the buildings and on the wharf occupied by H. R. Bishop, located in Cabarien, Cuba, indorsements to be reported to this company at the close of each month.

Contract upon a policy of insurance for one year, dated February 21st 1863, issued by the defendants upon the plaintiff’s wooden building in West Sandwich, occupied by him for a trip-hammer shop, and ni a water-wheel and the machinerj therein.

<p>Contract brought by a mutual fire insurance company, duly incorporated under the laws of Rhode Island, to recover an assessment laid upon one of its members, a citizen of Massachusetts.</p> <p>It was agreed in the superior court that the plaintiffs issued the policy to the defendant in Boston, upon an application sent by him to them in Providence; that the assessment was duly laid and notified to the defendant; that after laying the assessment the company for the first time appointed a general agent in Massachusetts, under Gen. Sts. c. 58, § 68; and that if the plaintiffs are entitled to recover, judgment should be entered for $31.98, with interest and costs.</p> <p>Judgment was ordered in the superior court for the defendant, and the plaintiffs appealed to this court.</p>

<p>A railroad corporation is not responsible to a person employed by it to repair its cars, for a personal injury arising from the negligence of a switchman, in failing properly to adjust a switch upon the track over which he is carried by the corporation, free of charge, between his home and the place of his work, provided the corporation has used due care in the selection of the switchman; but if the switchman was an habitual drunkard, and this fact was known or ought to have been known to the corporation, and the injury resulted from his intoxication, the corporation is responsible.</p>

<p>Bill in equity to enforce specific performance of a written contract by the defendant, dated March 19th 1864, but not delivered or signed till March 22d, to sell an estate in Boston to the plaintiff, “ by good and sufficient deed, with covenant of special warranty against all persons claiming through or under ” the defendant, “ papers to pass within ten days.” The defendant in his answer set forth that he offered to perform the contract within the time specified, but the plaintiff was unwilling to perform on his part, according to the terms of the contract, until the 31st of said March. Evidence was taken, and so much thereof as is material is stated in the opinion; and the case was reserved by Chapman, J. for the determination of the whole court.</p>

<p>The rule of Jaw that the measure of damages in an action for breach of warranty on the sale of a chattel is the difference between the actual value of the article sold and its value if it had been as warranted, is not affected by proof that the purchaser subsequently resold it for an increased price, especially if it does not appear that such sale by him was without warranty.</p> <p>A bill of sale of “ one horse, sound and kind,” is a warranty of soundness, upon which the vendor is liable if the horse proves to be permanently lame, although the purchaser knew that he was lame a week before the sale, and his lameness was talked of before the sale, and the vendor then refused to give a warranty.</p>

Contract. The first count of the declaration alleged that on the 11th of March 1863 the defendant sold to the plaintiff four hundred shares of the Vale Copper Company, for which the plaintiff gave to the defendant five hundred dollars, and took from the defendant the following agreement, signed by the defendant : “ Sold to J. Q,.

Contract to recover for goods sold and delivered. At the trial in the superior court, before Ames, J., the plaintiff obtained leave to amend his writ by joining another person as a plaintiff with him, on terms which were not complied with by the plaintiff. Nevertheless the case was given to the jury with the amendment, without objection on the defendant’s part, and a verdict was returned for the plaintiff.

In this case, which was an action of tort, the plaintiffs’ exceptions were disallowed by Lord, J., in the superior court, because the same were not taken or saved before verdict, although they were reduced to writing and tendered after verdict, and were found conformable to the truth. To this refusal to allow the exceptions, the plaintiffs excepted.

Libel for divorce. At the trial in this court, the jury returned a verdict for the libellee, and the libellant alleged exceptions, which were argued before the full court, and the following re-script was entered: “ The court being equally divided in opinion, the exceptions are not sustained.” Thereupon the libellant presented her petition to the justices of this court, praying that judgment might be arrested, and a re-argument allowed upon the exceptions; but, on motion of…

Contract upon a promissory note signed by the defendant and dated March 5th 1864.

<p>A fae-simile of the seal of a corporation printed upon blank forms of obligations prepared to be executed by the corporation at the same time when the blank is printed and by the same agency is not a seal, at common law, nor will such forms, when executed by the corporation, be contracts under seal, although the language of them calls for a seal.</p> <p>The Si. of 1855, c 223, providing that the mere impression of the seal of a corporation upon any legal instrument executed by such corporation shall thenceforth be valid, is not retro spective in its operation.</p>

<p>An attachment of property is not dissolved by proceedings in insolvency against the debtor which are suspended before an assignment is executed.</p> <p>If a judgment is erroneous by reason of a defective service of the writ upon the defendant, and also because the defendant was an infant who had no guardian, and no guardian ad litem was appointed, he upon coming of full age may execute a written release of errors, which will have the effect to confirm the judgment.</p> <p>In an action against an officer to recover for his failure to apply on an execution the property which was attached on the writ, he cannot set up that the judgment was erroneous, if the judgment debtor has released the errors therein.</p>

<p>If an estate which is occupied by a tenant at will is sold by the owner, and the tenant remains in possession thereof after notice of the sale, he is liable in an action of contract for rent to the purchaser, under Gen. Sts. c. 90, §§ 25, 26.</p>

<p>The right of the Boston and Roxbury Mill Corporation, under St. 1814, c. 89, § 2, to maintain the canal an'd dike therein authorized was not taken away by St. 1833, c. 120, annulling their right to build a dam from Boston to South Boston, or by their release to the Commonwealth in 1854 of lands and flats in the “ empty basin.”</p>

<p>. Bill in equity by the trustees under the will, and also under a deed of trust, of John Ware, deceased, seeking for instructions as to the proper execution of the trusts.</p> <p>The bill set forth the following facts: On the 27th of February 1860 John Ware conveyed to trustees (two of the present plaintiffs being two of the said trustees, and the third plaintiff being successor of the third trustee, who has since died) one undivided quarter part of certain real estate in Boston, in trust, to pay the whole income (after paying certain expenses) to his six children, who were named, during their respective lives, and after the death of any of them to pay the share of such deceased to his or her lawful issue, and upon the death of any of them leaving no lawful issue living, to pay the share of such deceased to the same person or persons and in the same proportions as the remainder of the income of the trust; and upon the death if all the above named children of the said John Ware to con-x ey the above granted premises to their lawful issue in the same proportions in which they would have taken the income if the trust above declared and limited had continued; or, if they shall have no such issue living at the death of the last survivor, to the heirs at law of the said John Ware ; and notwithstanding anything hereinbefore contained to dispose of the granted premises in such manner, or hold the same upon such trusts, as the said John Ware shall by his deed or by his last will and testament duly executed appoint.</p> <p>In February 1862 John Ware married Mary G. Chandler, who survived him ; in April 1863 one of his sons died unmarried and without issue ; and on the 29th of April 1864 John Ware died, seised of a large estate, real and personal, and leaving a will and codicil.</p> <p>The will was dated December 1st 1853, and by it the testator gave certain real estate to his wife Helen, who died before him, and devised all the remainder of his estates, both real and personal, in trust for his wife and children, the latter sharing equally therein. The codicil was dated April 28th 1864, and the following is the material portion thereof:</p> <p>“ I, John Ware, of the city of Boston, physician, make this codicil to my last will. I give, bequeath and devise unto my wife Mary G. Ware, in fee simple, one sixth part of the whole estate and property, real, personal or mixed, whereof I die possessed. It being my intention to give to her what would be her legal share if she were one of my children. She, my said wife, to accept and receive the same in stead and in satisfaction of her rights and claims to dower.</p> <p>“ And I hereby ratify and confirm my last will above mentioned, in all respects wherein it is not inconsistent with or affected or qualified by this codicil; the said last will bearing date the first day of December in the year eighteen hundred and fifty three.”</p> <p>The case was reserved by the chief justice for the determination of the whole court.</p>

<p>Habeas corpus issued in behalf of Henry Dumain and Helen M. Dumain, his wife, to recover possession of their two children, Henry F. Dumain, aged nine years, and Eva M. Dumain, aged six years. The case was reserved by Chapman, J., for the determination of the whole court, on facts which are fully stated in the opinion.</p>

Petition for leave to marry again, under St. 1864, c. 216. The petitioner alleged that at October term of this court in 1860, her husband, William A. Cochrane, obtained a divorce from her for the cause of adultery; that the same was obtained without collusion; that she has never been convicted of adultery, and that more than three years have elapsed since the date of said decree.

<p>Bill in equity brought by the executor of the will of Abel Tarbell, late of Groton, deceased, to restrain his widow from making any claim for dower or her distributive share of his estate, upon the ground that they, on the 28th of August 1858, being in contemplation of marriage, made an agreement, reciting the contemplated marriage, and that said Abel, in consideration thereof, and in order to preclude her from “ claiming any allowance or interest as his wife in his personal estate after his decease,” had made over to her certain shares in a corporation, of the value of one thousand dollars, to have and to hold as her separate property forever, which she had accepted in full satisfaction of any claim to dower and to an allowance or interest in his personal estate after his decease; and providing that all her property should be her sole and separate property during such marriage; that she should have full right to convey the same during her life or dispose thereof by will without his assent in writing, that he would treat her as a faithful and affectionate husband; that she would well and faithfully live with him during his life, and would within a reasonable time after his death surrender up and deliver to his executors, administrators, heirs, egatees and devisees all his real and personal estate of every name and description, and not claim dower in any of his real estate or any allowance from his personal estate, in any manner or form whatever.</p> <p>The bill alleged that the agreement was duly executed; that the recitals therein were true; that the parties were shortly after married to each other; that said Abel faithfully performed his part of the agreement; that the agreement was in all respecta fair; that said Abel was eighty-four years old; that she was of middle age; that he died on the 19th of October 1860; that she has applied to have her dower set off to her, and also to have an allowance made to her for her distributive share of his estate and the prayer was that she might be restrained from prosecuting her said petitions.</p> <p>The answer, which was under oath, set forth that said Abel, several days before the marriage, delivered to her the shares referred to as a present, without in any way intimating that any conditions were annexed to her acceptance of them; that on the day of the marriage, and just before the solemnization thereof, he presented to her a paper for her signature, saying that as hi, had given to her the shares it was well to have some writing to show for it; that she did not read the paper, nor was it read to her; that she did not suppose that it had any other effect than to acknowledge the receipt of the shares as a gift; that she was under great excitement of mind, and had no time for examination of the paper or consultation with her friends, and relied' wholly upon the truth of his statement; that said paper has not the effect to deprive her of her claim to dower and a distributive share of his estate; that at the time of the marriage his collateral relatives took no care of him; that by her marriage to him she assumed to devote herself wholly to him, and to give her time and strength to a constant and faithful attendance upon him; to deprive herself of all personal pleasure and happiness, and to expose herself to odium and ridicule.</p> <p>Evidence was taken as to the circumstances under which the contract was executed, and of other facts which it is not necessary to state here; and the case was reserved for the determination of the whole court.</p>

Bill in equity to redeem land from a mortgage. The following case was presented upon the bill, demurrer, and facts agreed: On the 3d of June 1863 Caleb E. Foster was seised of a certain piece of land in Brighton with buildings thereon, subject to a mortgage to Samuel Bigelow which provided that the mortgagor should keep the buildings insured in a sum not less than twenty-five hundred dollars, for the benefit of the mortgagee.

<p>Contract upon a policy of insurance for $2000, issued by the defendants on the 14th day of April 1860, upon the plaintiff’s dwelling-house in Brighton, for one year, “ payable in case of loss to J. F. Taylor, mortgagee.”</p> <p>It was agreed in the superior court that in January 1855 Thomas Hunt mortgaged the premises to Jacob F. Taylor, to secure the sum of $3000, payable in three years, by a mortgage which contained a power of sale authorizing the mortgagee to sell the premises for breach of condition, “ and out of the money arising torn such sale to retain all sums then secured by this deed, whether then or thereafter payable, together with interest and all cost and expenses; paying the surplus, if any, to the grantor or his assigns.” Taylor held also, as collateral security for his debt, a note of one Harrington for eight hundred dollars, which was paid to him, leaving $2200 due upon the mortgage debt. The plaintiff purchased the equity of redemption on the 7th of June 1856. In January 1857, Taylor sold the premises, under the power of sale contained in his mortgage, to Leandet A Haynes for $3200; and Haynes gave to Taylor a note for $2200, payable in six months with interest, and secured by a new mortgage upon the premises, and did not pay the balance of $1000. Haynes afterwards conveyed his equity of redernptiún, and in July 1857 the owner thereof advertised the property 'for sale at public auction, but was restrained by an injunction from this court, issued upon a bill in equity by the present plaintiff. No further proceedings were had upon the bill in equity, nor was any further attempt made to sell the property, until that owner of the equity of redemption became insolvent, and his title was conveyed by the assignees of his estate by a deed of release to the plaintiff on the 26th of January 1860. The plaintiff then, on the 14th of April 1860, took out this policy, stating to the defendants’ agent that there had been disputes and litigation as to the title to the premises, which were now settled. On the 9th of the following August, Taylor sold the premises, under the power of sale contained in his mortgage from Haynes, to Sedgwick L. Plummer, and on the same day executed a deed thereof to him, dated July 9th 1860, and the policy was also assigned to him on the 8th of August. Plummer thereupon, on the 9th of August 1860, went to the office of the defendants in Boston, and without the plaintiff’s consent or knowledge, cancelled the policy, and received back a portion of the premium money, and took out a new policy in his own name. On the day following, the premises were destroyed by. fire.</p> <p>The present action was brought with the consent of Taylor;, who makes no claim under the policy.</p> <p>On these facts, judgment was rendered for the defendants, and the plaintiff appealed to this court.</p>

<p>If a travelled way, either public or private, over lots adjoining a public street in a city and .leading into that street, for sc long time before and after the existence of an excavation in the street, has been so much used by persons having occasion to pass as to become known as a common way for travel and to make it reasonabty necessary for the city, in the exercise of due and proper care, to provide a barrier for the purpose of preventing travellers, who pass over such way from the adjacent lots into the street and use due care, from falling into the excavation, and the city have unreasonabljr omitted to erect such barrier, they are guilty of negligence and are liable for an injury happening to a traveller in the street by reason thereof.</p>

<p>Contract upon an award, rendered under the following submission to arbitration:</p> <p>“ Boston, June 30th, 1863. It is hereby understood and agreed that we are to refer our contract for timber, made at Marietta, Pennsylvania, in the summer of 1862, to Mr. F. M. Bingham, of Camden; N. J., with the following understanding and explanations: The terms of the contract were, that Mr. Ranstead was to furnish and deliver in Baltimore a raft of pine timber, equal in quality to a sample raft of Patchen Timber, for which Mr. Page was to pay thirteen cents per foot. At the time of making this contract Mr. Ranstead made an agreement, to which Mr. Page was a witness, with another party, to get out the timber for the next season. This third party failed to con: ■ ply with his agreement. The only matter of question is, con cerning the interpretation of this contract. Mr. Ranstead claims that, by general custom in that section, the failure of the party with whom he agreed to get out the timber to comply with his trade absolves him from the original contract with Mr. Page. Mr. Page argues that he does not, nor at the time did, so understand it, and considers that he has a fair claim for damages on Mr. Ranstead. The question for Mr. Bingham to decide is, Has Mr. Page a claim on Mr. Ranstead ? If so, to what amount1 Chauncey Page, Charles Ranstead.”</p> <p>The award, dated at Camden, New Jersey, October 24th 1863, was that the plaintiff should recover $360 of the defendant.</p> <p>At the trial in the superior court, before Allen, C. J., there was no evidence of any hearing of the plaintiff’s case by the arbitrator ; and it appeared that the only hearing of the defendant’s case consisted in the following correspondence : —</p> <p>“ Camden, Sept. 28th, 1863. Chas. Ranstead, Esq., Fallen Timber, Cambria Co. Pa. Dear Sir: Mr. Chauncey Page has sent to me an article of an agreement, which is left to me for adjustment, made in 1863, for a raft of bill timber. Is it the wish of you and him to meet me in person and state your own cases; or shall I decide from the facts in statement forwarded to me, and signed by both parties ? Mr. Page will be here the last of this week. Please answer by return mail. Yours, respectfully, F. M. Bingham.”</p> <p>“ Fallen Timber, Pa., Oct. 7th, 1863. F. M. Bingham, Esq.: Dear Sir: I received yours of the 38th ultimo, contents noted Of course, I expect to have a hearing in relation to my agree ment with Mr. Page, and, as it is not convenient for me to meet him at your place at this time, I will try and state my side as I understand it. In the spring of 1863 Mr. Page bought of Mr. Patchen a raft of bill timber. I asked him if he would like one like it the next spring; and we made a bargain, founded on practicability. I at the same time made a bargain with a man to make the timber, and he never came to make it, and I could not get any one else to make it, consequently I could not deliver it. Mr. Page talks about damage; he knew that I had not taken out the timber, and if he had been anxious about it he could have bought several rafts of bill timber of Mr. Churchman, at twelve cents per foot, which was a cent less than he was to pay me. I have known several bargains for timber to be delivered, and when it was not practicable to deliver it — say, no snow to haul on, or no flood to run it on — I never knew damage to • be claimed or paid. If I had taken out the timber and run it and sold it .to another party for more, then he might said something about damages; but as I done all I could to get the timber, and did not succeed, I think he has no claim. You are to decide. Yours in haste, Charles Ranstead.”</p> <p>Upon these facts, the chief justice ruled that the letter of the defendant did not authorize the arbitrator to decide the case without a further hearing, or giving an opportunity to the defendant to be heard further, and directed a verdict for the defendant. The plaintiff afleged exceptions.</p>

<p>An averment in a declaration that the defendant has disabled himself from performing a contract does not show with sufficient legal certainty that he has not performed it.</p> <p>A. contract by which B. agrees to deliver to A., upon the formation of a certain corporation, a certain amount in the stock of the same, “ at pro rata of $250,000 valuation,” and A., in consideration of the delivery of said stock, agrees to sell and collect a certain amount of tile stock, upon the above valuation, does not imply that the capital stock shall be limited to the amount named, nor does the organization- of a corporation with a larger capital stock disable A. from performing his part of the contract.</p>

Contract upon a bond executed by the defendant to the plaintiff on the 17th of June 1856, the condition of which was as follows: “ The condition of this obligation is such that, whereas said George W. Gerrish did on the first day of July A. D. 1852 make a certain promissory note for the sum of fourteen hundred dollars, payable to the order of the said Abigail W. Smyth in three years after date with interest semi-annually, which note was secured by a power of sale mortgage…

<p>A policy of insurance on a vessel from Hew York to ports in South America and thence to ports of discharge in the United States, with an indorsement thereon of “ liberty to deviate by going to port or ports in Europe, by paying an equitable premium therefor,’1 covers one round voyage, but does not include a distinct and independent voyage, having no connection with the general objects and purposes of the voyage insured; and in an action upon such a policy evidence is inadmissible to show a usage among commercial men and underwriters which permitted the making of intermediate voyages between the ports of Europe, under the protection of such deviation clause; or a usage, upon which policies have been issued and paid, and which gave to the language of such deviation clause a peculiar and technical sense, namely, the signification of the liberty to make such intermediate voyages; ara usage of trade and commerce by which American vessels at Constantinople, seeking return cargo from Smyrna or other Mediterranean port, in the interval between the discharge of the outward cargo and the season for obtaining cargo therefrom, make intermediate voyages; or to control the legal meaning of such deviation clause by proof of conversation, at the time it was written, between the underwriters and the assured.</p>

Contract brought to recover damages for the breach of the following agreement: “We will give you $16,500 for the whole property, from cellar to top, including lease, press, boiler and engine, type, fixtures, furniture, &c., and you are to protect us in the possession of the same from all parties.

Contract upon a written agreement dated October 9th 1863, by which the defendants agreed to sell to the plaintiffs two hundred thousand of Brewer bricks, more or less, at eight dollars and twenty-five cents a thousand, cash on delivery, to be delivered any time before December 30th.

<p>Contract upon a written agreement by the defendants, reciting that the plaintiff retired from the firm of Worthington, Flanders & Guild, of which be and the defendants had been members, conveying to them all his interest in all the property of the partnership, and providing that they should assume and pay all the debts and liabilities-, and save the plaintiff harmless therefrom.</p> <p>At the trial in the superior court, before Morton, J., it appeared that two judgments upon two notes amounting together to about §9000, were subsequently recovered by the Telegraph Newspaper Company against the plaintiff and the defendants upon debts of the firm, and afterwards the plaintiff paid to the judgment creditors the sum of §1000, partly in cash and partly in a note of a third person, taking from them an agreement reciting that, in consideration of the said payment to them by the plaintiff, they covenanted and agreed never to “ molest or arrest the said Thomas M. Brewer, or his legal representatives, or attach or seize or levy upon his or their property upon or on account of either of the judgments,” 11 hereby reserving all our lights against all the other judgment debtors.” Due demand was made by the plaintiff upon the defendants.</p> <p>Upon these facts the judge directed a verdict for the plaintiff, for the §1000 and interest, which was rendered accordingly; and the defendants alleged exceptions.</p>

Replevin of books. At the trial in the superior court, before Morton, J., without a jury, the plaintiff put in evidence a formal bill of sale from the defendant to him, absolute in its terms, and under seal, conveying the books with covenants of warranty.

<p>Bill in equity brought by the assignee of Lewis Currier, an insolvent debtor, alleging that a warrant in insolvency was duly issued against the estate of said Lewis on the 16th of February 1863, and the plaintiff was duly chosen assignee of his estate; that on the 13th of May 1861 said Lewis, being seised of two certain parcels of land in Boston, conveyed the same to Richard F. Fuller, who on the same day conveyed the same to Mary Jane Currier, wife of said Lewis ; that both of these conveyances were voluntary and without any valuable consideration, and that the conveyance to Fuller was merely in order that he might convey the lands to Mrs. Currier; that said Lewis was then largely indebted, and made said conveyance for the purpose of defrauding his existing and subsequent creditors; that on the 12th of September 1862 said Mary Jane Currier and Lewis Currier mortgaged the said parcels of land to Samuel Q,. Currier, a brother of said Lewis, to secure the sum of four thousand dollars, and that said mortgage was also without consideration and iraudulent, as against the creditors of Lewis Currier; that in and during the year 1862 said Lewis entered into contracts with sundry persons on credit by means of which ne built upon one of said parcels a brick dwelling-house, with the intention of not paying the debts so contracted; that on the 3d of January 1863 Samuel Q,. Currier assigned said mortgage to Andrew G. Greely, without consideration, and that said assignment was made and received in fraud of the creditors of said Lewis. The prayer was that the deed, mortgage and assignment might be declared void, and the premises released to the plaintiff.</p> <p>The .defendants filed a general demurrer, and the case was reserved by Chapman, J. for the determination of the whole court, and argued in March 1864.</p>

Contract. The declaration contained several different counts, which were averred to be for the same cause of action. One count alleged a failure to fulfil the following agreement: “ Boston, April 22,1862. On demand I agree to deliver unto Charles M. Barrett forty shares of the Petherick Mining Company stock upon the payment of sixty dollars. Sami.

Writ of entry, dated December 21st 1863, by the assignees of George H. Sawin, an insolvent debtor, against his wife, to recover a house and land on Temple Street in Boston. The declaration was in the ordinary form, and did not allege that the tenant held the land to her sole and separate use; and the writ described her as the wife of George H. Sawin.

<p>After a judgment debtor, who has been arrested on an execution, has applied to a propel magistrate to have a time and place fixed for his examination as a poor debtor, and a time and place have been fixed accordingly and notice thereof given to the creditor, under Gen. Sts. c. 124, § 12, another magistrate has no jurisdiction, unless the former application is withdrawn, to take a recognizance under § 10, that he will deliver himself up for examination within thirty days; and a recognizance so taken is void.</p>

<p>If, on a petition for review of a judgment, a bond is given providing that the petitioner “ shall forthwith prosecute a review of said action to final judgment, and satisfy such execution as may be issued against him on the review,” and no writ of review is granted, but the petition is dismissed, there is a breach of the condition of the bond.</p>

<p>If a building which stands upon mortgaged laud is partly destroyed by fire, the mortgagoi has no right, without the mortgagee’s consent, to sell such parts of the building as are saved; and if the same have been sold by a third person to whom he has delivered the same for that purpose, he cannot maintain an action against such third person to recover the sum received as the price thereof, if meanwhile the mortgagee has entered upon the premises for breach of condition, and has forbidden the payment to the mortgagor, and the value of the land is less than the amount of the debt secured by the mortgage</p>

<p>A power of sale in a mortgage of land, which authorizes the mortgagee to advertise and sett at auction the mortgaged premises, including all equity of redemption in the mortgagor does not authorize a sale of the equity of redemption separately,* and if the notice of sale states only that the mortgagor’s equity of redemption will be sold, it is insufficient, and a sale of the premises under such a notice is invalid and passes no title to a purchaser which will bar the right of redemption.</p>

<p>Bill in equity, alleging that the Lawrence Machine Shop was a corporation with a capital stock of $750,000; that the plaintiffs recovered judgment against said corporation for $37,747.62 damages, and costs of suit; that further proceedings were had (which were set out in detail), such as are required by statute for charging stockholders for the corporate debts; and that certain persons therein named were owners of shares to the number set against their respective names, and amounting in all to $284,700. The prayer was that said stockholders who were named might be ordered to pay to the plaintiffs and such other creditors as might become parties to the bill such sums as might be found due to them, and for further relief.</p> <p>Certain of the defendants demurred to the bill, assigning for cause that it appeared by the bill that all of the persons called stockholders were necessary parties defendant, yet the plaintiffs had not made them all parties. The case was reserved for the determination of the whole court.</p>

Bill in equity against the administrators with the will annexed of the estate of William H. Prentice, brought under the provisions of St. 1861, c. 174, § 2, to obtain payment of a claim against the estate which had not been prosecuted within the time limited by law. The case was reserved by Hoar, J. for the determination of the whole court, upon facts which sufficiently appear in the opinion.

<p>A testator gave to his wife the income of certain real and personal property, and directed that upon her death the same should be sold and the money arising therefrom should be paid over to a charitable society on condition that they should keep his tomb in repair. His wife lived several years, and during her life kept the tomb in repair. Two years after her death, and as soon as the society knew of the bequest, they voted to accept it, and assumed the care of the tomb. Meld, that they were entitled to the benefit of the bequest</p>

The only objections raised were as to the mode of execution; and it was agreed that after the testator’s death the will was found in the probate office, signed by the testator, and following his signature were these words: “ Witness to signature, Lewis Lerow, Phins. Capen, Wm. H. Calrow.” Capen died before the will was offered for probate, and the genuineness of his signature was admitted.

Tort against a constable for the conversion of certain furniture, attached by him on a writ against Charles M. Horton and wife.

<p>The plaintiffs, who were sbipouilders, wrote to the defendants, who were iron merchants, saying, “ We are ready for iron and spikes for a vessel of three hundred tons burthen'; please give me your lowest price for bolt and refined iron. I suppose X shall buy for three vessels within three months, and please consider this.” The defendants replied, naming prices which were unsatisfactory to the plaintiffs. The defendants wrote again, naming" a lower price, and saying, “We make this offer with the understanding the quantity-will not be over about twenty-five tons." The plaintiffs replied, accepting the defendants’ proposal, inclosing an order for a small amount of iron, and requesting the defendants to fill it. The plaintiffs afterwards wrote to the defendants, “ I am sorry if yon made the price too low, but you must stand this vessel hard or soft, for we contracted to build it in view of the ” aforesaid prices. Held, that the contract of the defendants was limited to the single vessel referred to, and that they were not bound to furnish, iron to the amount of twenty-five tons, to be used in other vessels.</p>

<p>Contract brought to recover the sum of $2000, money had and received. The writ was dated July 19th 1864; and the answer denied the plaintiff’s claim, and set up the statute of limitations.</p> <p>At the trial in the superior court, before Ames, J., the evidence tended to show that on the 9th of October 1857 the plaintiff held the defendant’s note for $1000, and then let the defendant have $1000 more, taking a deed of certain real estate, and giving the following written agreement in return: “ Boston, Oct. 9, 1857. Received of Calvin Dimick this day one deed of land, on the corner of Hampshire and Cambridge Streets, containing 10,000 square feet, more or less, for the sum of two thousand dollars; and it rs agreed and understood between the parties that, if Calvin Dimick shall pay back the two thousand dollars and six per cent, interest within two years from this date, then the said Waite shall deed back the same land to the said Dimick, if so requested by said Dimick, and not without.”</p> <p>The note of $1000 was thereupon taken up and cancelled. The defendant has never repaid the $2000 or claimed a reconveyance of the real estate of the plaintiff. The plaintiff offered to prove by oral evidence that the real transaction between the parties was a loan of money, for which the land was to stand as security, and that the defendant had repeatedly recognized the transaction as of this character, and promised to repay the money; but the judge rejected the evidence, and ruled that the plaintiff was not entitled to recover. A verdict was according^ rendered for the defendant, and the plaintiff, alleged exceptions.</p>

<p>If the owner of two adjoining estates, through one of which a drain exists for the benefit of the other, conveys them both on the same day to different purchasers, the right to use the drain will not pass as an easement or appurtenance to the purchaser of the upper estate, provided a new drain can be built upon his own land by easonable labor and expense.</p>

<p>If a railroad company have made a private crossing over their track, at grade, in a city, and allowed the public to use it as a highway, and stationed a flagman there to prevent persons from undertaking to cross when there is danger, they may be held liable in damage' to one who, using due care, is induced to undertake to cross by a signal from the flagman that it is safe, and is injured by a collision which occurs through the flagman’s carelessness.</p>

<p>Tort to recover damages for a personal injury sustained by the plaintiff by reason of falling through a trap-door while entering the defendants’ building on Summer Street in Boston, on the 7th of October 1863.</p> <p>At the trial in this court, before Chapman, J., a photographic view and a plan of the premises were put into the case, by which it appeared that there were two entrances to the building, one of which was No. 47, and led directly into a room occupied by the defendants for the sale of carpets, and the other, which was called No. 49, though no number was over the door, led into a passage about nine feet wide and ten feet long, which then, after ascending a few steps, extended about six feet further, to the foot of the stairs which led to the upper stories of the building. At the foot of the main flight of stairs, there was a door opening into the sale room of the defendants; and in the passage between the entrance and the first few steps there was a trap-door, occupying nearly one half of the width of the passage.</p> <p>George L. Ide, a witness for the plaintiff, testified substantially as follows: “ I am a manufacturer of cloaks and mantillas, and occupy the loft over the sale room of the defendants for a workshop. I hired it of the defendants by a verbal lease, and took possession on the 1st of September 1863, and have continued in possession since. The entrance to the shop is at No. 47; I direct people there. I had about one hundred and twenty-five women at work there. My sale room is elsewhere. Miss Warren was my foreman. I do not know whether she had engaged the plaintiff to work for me. No. 47 is through the sale room of Pray & Co. I was to have a right to hoist up and let down goods when Pray & Co. were not using their hoisting tackle, through the lower entrance, called No. 49. The defendants had a right to keep it closed, except as stated. Nothing was said to me about a right to pass through that lower entry, No. 49. I do not know where the general entrance to my room was for girls ; I went as often one way as the other. When No. 49 was filled with carpets I went by No. 47. The lower door is sometimes fastened up. They closed the store Saturday afternoons. I hired the porter to keep it open if I wanted it. The lower door was generally open. Two folds of it were generally open, making an opening of from five to seven feet; and one fold closed. I know of no notice being given not to pass that way.</p> <p>“ Cross-examination. There are batten pieces there; a tackle and fall were necessarily there. After passing it you go up four or five steps ; then there is a door, which shuts off the passage from them. Nothing was said about this place, except as to my using the hoisting apparatus. I supposed their entrance was at No. 47; I directed people that way; though I recollect Mr. Pray, senior, was opposed to my having the room on account of bringing so many girls through then sale room. They used the hoist-way most of the time. I made ro request that they should pan up a barrier before the trap-door to protect the passage. They have a right to stop the passage when they choose.”</p> <p>The plaintiff testified that on the morning of October 7th 1863 she was going into what she supposed to be Ide’s shop; that she had been there once before, and some one in Fray’s shop pointed it out as the way. The person appeared to belong there, and went and pointed out the place, and told her to go up stairs, and go as far as she could go. The outside door, No. 49, was then open. She went to call on Miss Holmes, and had made a contract with Miss Warren, through Miss Holmes, to work there. She went down Summer Street, with the sun shining in her eyes, and stepped up from the sidewalk into the passage; then it seemed to be but one step forward ; then she fell. She saw no one in the entry, nor below, in the place where she fell. There was nothing to warn her of the trap-door. She was going to her work; and did not recollect any obstructions in the entry. She also testified to her injuries, and on cross-examination said that when she went down the street she had a parasol, but put it down before she got to the regular entrance of the store; she mistook the place. They were not then hoisting goods. She did not notice rope or hoistway.or strips of board or battens. She looked for obstructions, and should have seen obstructions, but did not look for a hole in the floor.</p> <p>Four of the girls employed by Ide testified that the general and ordinary passage was through No. 49, and that when this was obstructed they went through the store, but almost always could get in at No. 49. One of them said that when she first went there she did not know the way, and inquired and was directed by a young man at Fray’s desk to No. 49. There was also other evidence as to the amount of the plaintiff’s injury, and it was admitted that the condition of the hoistway at the time of the accident was caused by the defendants’ servants.</p> <p>Upon this evidence, with some other which it is unnecessary to recite here, the judge reserved the case, by consent of parties, for the consideration of the whole court, with an agreement tho they might draw any inferences, from such of the evidence as was competent, that a jury might; and that if, upon this evidence and these inferences, a legal cause of action was estab« lished, it should be sent to a jury to assess the damages; or if otherwise, that a verdict should be entered for the defendants.</p>

Tort to recover damages for a personal injury sustained by the plaintiff by reason of falling through a trap-door in the defendants’ factory. The original plaintiff, Karl Brandt, having died since the action was commenced, it was prosecuted by the present plaintiff as administrator of his estate.

Tort to recover damages for a personal injury sustained by the plaintiff by reason of stepping into an open culvert or cattle-guard, maintained by the defendants near a passenger station upon their railroad in Canada. The following facts were agreed in the superior court: The plaintiff was a passenger upon a train of the defendants from Portland to Quebec.

<p>No statute of limitations in this commonwealth applies to complaints for the maintenance of bastard children.</p> <p>The Gen. Sts. c. 72, § 2, and St. 1859, c. 239, § 3, authorizing certain officers to make a complaint for the maintenance of bastard children, if the woman entitled to make such complaint refuses or neglects to do so, do not apply to cases where bastard children were bom before those statutes went into effect.</p> <p>If a woman has made a complaint for the maintenance of her bastard child, and afterwards refuses or neglects to prosecute it, those statutes do not authorize the officers therein named to make a new complaint, but to prosecute the existing one.</p>

Indictment containing two counts. The first count charged the defendant with having been a common seller of intoxicating liquors from the 1st of February 1864 to the time of finding the indictment, in January 1865. The second count charged her with a single sale made on the 1st of June 1864. The defendant pleaded guilty to the second count and not guilty to the first count.

<p>Indictment for being a common seller of intoxicating liquors.</p> <p>At the trial in the superior court, before Brigham, J., the Commonwealth proved several sales made by the defendant within the time named in the indictment, and offered no other evidence. It was proved on the part of the defendant that she was a daughter of Eliza Mead, and at the time of said sales was under twelve years of age, living with her parents, and that the sales were made by her in the dwelling-house of her parents, and under and by direction of her mother, to whom the liquors belonged. The defendant also put in evidence a license granted to her mother to sell liquors, under the internal revenue acts of the United States.</p> <p>The defendant requested the court to instruct the jury that if she, at the time of making the sales, was under twelve years of age, and if the sales were made under the general direction of the mother, in the dwelling-house of the parents of the de fendant, then she could not be convicted under this indictment The judge declined so to rule, and instructed the jury that the license was no defence, if the sales were made in violation of the statutes of Massachusetts; and that if the defendant did, in the dwelling-house of her parents, and while she lived with them, and by direction of her mother, and while under twelve years of age, make three or more separate sales of her mother’s intoxicating liquors within the time alleged in the indictment, they should find her guilty.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>A plea of guilty before a magistrate cannot be withdrawn after the case has been carried to the superior court on appeal, without leave of that court; and if leave tó withdraw the plea of' guilty has been refused in that court, and a jury empanelled in the case, they may properly be directed to return a verdict of guilty, without the introduction of any evidence on the part of the Commonwealth.</p> <p>A complaint which charges the commission of a continuing offence from a day named “ unto the day of the date hereof,” and which is dated “ this fourteenth day of January A. D. 1864,” alleges the time with sufficient certainty, and is not bad by reason of the use of the figures. The date of the jurat may also be expressed in figures.</p> <p>If a complaint against John Smith for a criminal offence contains several counts, and the first count contains his name in full, the subsequent counts may describe him as u the said John,” although the complainant’s first name is also John.</p>

<p>A warrant to arrest “ John Doe or Richard Roe, whose other or true name is unknown,*' without any further description or means of identification of the person to be arrested, is void; and any person sought to be arrested upon such a warrant may lawfully resist, and third persons may lawfully aid him in such resistance, using no more force than is necessaiy to prevent the arrest.</p>

<p>Tort, praying for relief in equity, for cutting off a water-pipe. The case was reserved for the decision of the whole court upon the report of a master in chancery, by which it appeared to be as follows:</p> <p>Asa Sprague, being the owner of a tract of land in Great Barrington, bounded on the east by a highway, cpnveyed out of this tract three lots next to the highway, with houses which he had built thereon, to Benjamin F. Gilmore, “ together with the privilege of having the lead pipe, which now conducts water from my other land above on to these premises, be and remain as it now is, and also the privilege of going on thereto for the purpose of replacing or repairing the same.” Gilmore conveyed, first, to Wood (from whom by mesne conveyances it afterwards came to Alger) the southern lot, “ together with a right to lay a pipe to the spring of water near these premises and using one third of said water by paying one third of the expenses of maintaining and fixing said spring; ” secondly, to Van Hoesen (who afterwards conveyed to Wilson) the northern lot, and “ also the right and privilege to lay a pipe under ground across my other premises next south of these herein described and above the buildings thereon, sufficient to draw one third of the water from the present aqueduct to these premises, on condition that said Van Hoesen shall hereafter maintain one third of the expenses of said aqueduct; ” and, lastly, to Loomis (who afterwards conveyed to Margaret Noonan, the female defendant) the middle lot, u also hereby conveying ail my right to water from the spring on the premises of said Sprague, together with my right to enter the premises of said Sprague for the purpose of laying or repairing the pipe from said spring.”</p> <p>The spring from which the water comes is an ancient natural spring upon the land retained by Sprague, and would afford plenty of water for the use of the four families claiming rights thereto, except in times of remarkable drought. The main pipe was laid by Sprague before his conveyance to Gilmore from the spring to the lot now owned by Noonan, where the water was discharged into a tub, and thence overflowed into the road The pipes which carry the water to Alger’s and Wilson’s houses were laid by Alger and Van Hoesen respectively, connecting with the main pipe on Noonan’s lot about six feet east oí Sprague’s boundary line.</p> <p>Wilson afterwards conveyed to Mary D„ Curtis, the femáis plaintiff, the northern half of his lot,66 together with a right to lay a pipe across my land lying south of the conveyed premises, and the right to take and cony in said pipe to the conveyed premises one half of the water to which I am entitled under the deed of said Van Hoesen to use, subject to the conditions in said deed expressed; reference to said deed or the record thereof, and to the deed of Benjamin F. Gilmore to said Van Hoesen or the record thereof, being had, for description of my right to water, one half of which is hereby conveyed.” The plaintiffs built a dwelling-home upon the land so conveyed by Wilson; buV the water would not flow to it if the connection was made with the main pipe at the same point as the others; and the plain* tiffs obtained a license from Mrs. Sarah A. Sprague, the presens occupant of Sprague’s land, to dig up the soil for the purpose of laying a pipe connecting with the main pipe on that land at a higher level and thence across the corner of Wilson’s lot to their house, and paid damages for this injury to the soil; and before making this connection had an interview with the female defendant, who told them that they might attach their pipe where they chose. The orifice through which the water used by the plaintiffs was taken was exceedingly small, and they drew less water than was granted by Wilson’s deed. It was not denied that the condition in that deed as to keeping the aqueduct in repair had been fulfilled. The defendants afterwards cut off the plaintiff’s pipe near its intersection with the main pipe, and so prevented the plaintiffs from using the water, and threatened to repeat such acts.</p> <p>The situation of the pipes is shown by the following plan, which was made part of the case.</p> <p> </p>

<p>V a debtor who resides in another state is fraudulently induced by procurement of his creditor to bring into this commonwealth property which by the laws of the place of his residence is exempt from attachment, in order that it may be attached here, and the same is accordingly so attached, the attachment is void; and both the creditor and the officer who makes the attachment are liable in damages as trespassers, although the officer did not know of the fraud and simply obeyed the terms of his precept.</p>

<p>Tort against the sheriff of Berkshire for the default of his deputy. At the trial in the superior court, before Vose, J., a verdict was returned for the defendant by direction of the judge, upon facts which are sufficiently stated in the opinion, and the rase was reported for the determination of this court.</p>

<p>Writ of entry. At the trial in the superior court, before Rockwell, J., a verdict was rendered for the tenant. The demandant moved that this verdict be set aside. It appeared that “ by consent of the judge the volume of the General Statutes was handed to the officer in charge of the jury, to be taken to their room,, he having brought to the court a request from the jury to have it; ” and the motion was overruled. The demandant appealed to this court. It was conceded, at the argument, that the sending of the volume to the jury was unknown to the demandant or his counsel.</p>

<p>If a case is submitted in the superior court to a jury under instructions to which no exception is taken, and afterwards in overruling a motion for a new trial the court considera and holds the law applicable to the case to be as ruled at the trial, no ground of exception lies open.</p>

<p>Complaint for flowing land, commenced originally in the superior court, and removed to this court on affidavit of the defendants’ agent that the defendants have a substantial defence on the merits and intend to bring the cause to trial, and that the amount in controversy exceeds one thousand dollars. The complainant moved that it be sent back to the superior court, for want of jurisdiction in this court to try it; and this question was reserved by Chapmcm, J. for the determination of the whole court.</p>

<p>Tort for the conversion of a sleigh.</p> <p>" At the trial in the superior court, before Rockwell, J., “ the defendant testified that the plaintiff told him he had purchased the sleigh and other property of H. H. Holley. The plaintiff showed him a paper bill of sale or schedule, enumerating the articles purchased. The defendant did not know as there was any signature to the paper or schedule. Objection was then made to any further evidence as to the sale, and that what had been stated in evidence to it should be stricken out. The objection was overruled, and the plaintiff excepted; ” the verdict being for the defendant.</p> <p>The above is all that the bill of exceptions showed concerning the matter decided in this case, or how the question arose or became material.</p>

Writ of entry to recover possession of land upon which the demandant had levied an execution against the tenant.

Contract. The declaration contained a count upon a written contract for erecting a church, one upon a quantum, meruit for labor performed and materials furnished in erecting the same church, and a third upon the following written contract: “ $408. Hinsdale Depot, Jan. 5th 1860.

<p>X; one partner advances money for the benefit of another, to relieve him from his liability for the debts of the firm, and takes his note therefor, this is to be regarded as a private transaction, and the note may be enforced without reference to the state of the, partnership accounts.</p>

<p>A mortgage of land to an individual, “ his successors and assigns forever,” conveys only a life estate, although it contains a power of sale, which has never been executed, authorizing the mortgagee, in case of default in the performance of the condition, to sell the land and execute a conveyance thereof in fee simple.</p>

<p>Contract upon a promissory note, signed by the defendant, dated September 9, 1854. The writ was dated May 20,1862. The defence was the statute of limitations.</p> <p>At the second trial in the superior court, before Vbse, J., after the decision reported in 6 Allen, 423, the plaintiff introduced evidence to show that in March 1855 the defendant, who then lived in Monterey, told the plaintiff that he was going to California- in about a month from that time, never to return, and would within that month pay the note; and that he left foi California the next day, and remained there until the autumn of 1858, when he returned to Monterey. The plaintiff also offered evidence to show that he was induced by the defendant’s statements to believe that the defendant never would return to Massachusetts, and therefore did not bring any suit in this commonwealth in his absence, believing that the defendant intended to reside in California, and that, if he should happen to return here, the time of his absence would be deducted; but this evidence was excluded. The evidence was conflicting as to the defendant’s purpose in going to California, and his intention to return.</p> <p>The judge instructed the jury that, in order that the time of the defendant’s absence from Massachusetts should not be taken as a part of the time limited for the commencement of this action, he must have been absent from and residing out of the Commonwealth under such circumstances that he ceased to have any domicil here; that, it being conceded that the defendant had such a domicil in Monterey when he left for California, if he left this commonwealth intending not to return, and went to California and took up his actual residence there, with the intention of remaining there permanently, then his domicil here ceased, and the time of his absence is to be deducted; but if he left for California intending to return, and not to abandon his home or permanent residence here, or if he left, intending not to return, but did not take up an actual residence in California, with the intention of making a permanent residence or home there, then his domicil remained in Massachusetts, and the time of his absence should not be deducted.</p> <p>The plaintiff asked the court to rule that if the defendant stated to the plaintiff that he was going to California and was never coming back, and the plaintiff believed such statement and acted upon it to his injury, in forbearing to bring a suit or obtain a judgment against the defendant in his absence, then the defendant would be estopped to deny that he did not intern, to return to Massachusetts; or if the defendant, in regard to leaving Massachusetts and going to California, so stated to the plaintiff or so conducted toward him willingly and wittingly as to lead him into the belief that the defendant would become and remain a resident in California, whereby the plaintiff was misled or might be misled to his injury, then the defendant would be estopped from making denial in regard to his said statements or conduct; or if the defendant’s statements and conduct in regard to going to California were intended ,to deceive the plaintiff, then he would also be so estopped. The judge declined to give any of the above instructions, but submitted the following questions to the jury : 1. Did Doud, before he left for California, represent to the plaintiff that he did not intend to return to Monterey to reside ? 2. If he made such representation, did he do so for the purpose of deceiving the plaintiff and inducing him to believe that he intended to take up a permanent residence in California, when in fact he had no such purpose ? To the first question the jury answered, “ He did ; ” and to the second, “ No.”</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

Contract upon a promissory note. The defence was the statute of limitations.

<p>Scire facias to obtain a new execution against John C. Wolcott and Norman Cotton, upon a judgment recovered against them in March 1858 by the plaintiff and Ira Richardson, since deceased; the first execution having been levied by setting off by metes and bounds certain land as the estate of Wolcott, of which he owned an undivided share as tenant in common.</p> <p>This writ was originally brought in the superior court in the names of the plaintiff and Esther L. Richardson jointly, as the executors of the estate of Ira Richardson; the plaintiff also claiming as surviving partner of the late firm of Ira Richardson & Son. At February term 1864 the writ was amended, under leave of court, by striking out the name of Esther as a plaintiff, and making such other changes as were necessary to make it a writ by the plaintiff alone, as surviving partner. This amendment was allowed upon payment of a double term fee.</p> <p>On a petition for partition to which Cotton was not a party, the levy of the execution was adjudged to be invalid. The defendants, at the trial in the superior court, before Ames, J., without a jury, objected to the admission of the evidence, but their objection was overruled. They also offered to show that the judgment was improperly obtained against them, but the evidence was excluded.</p> <p>The judge found for the plaintiff, and the defendants alleged exceptions. A question of costs subsequently arose, which is stated in the opinion.</p>

<p>Tort to recover damages for interrupting the flow of water to the plaintiff’s mill in Stockbridge.</p> <p>It was agreed, in the superior court, that the plaintiff was owner of an ancient mill in Stockbridge, used by him and those under whom he claims for unwards of sixty years as a saw-mill. About one hundred rods above the milldam a reservoir dam was situated, which has been maintained and used of right for upwards of forty-five years by the plaintiff and those under whom he claims, for supplying and operating the mill. About the year 1824 an oil-mill was built above the plaintiff’s mill, with an overshot wheel, but the use of the water did not materially im pede the flow of the stream to the plaintiff’s mill. In 1851 the defendant became the owner of the oil-mill, and in 1854 built a new stone dam for it, higher than the former dam ; he also became the owner of land upon the stream between the reservoir dam and the plaintiff’s mill.</p> <p>The plaintiff ordinarily used his reservoir by opening the gate in the morning, and it would require about two days’ time to draw out the water therefrom, no water running in. If unobstructed by the intervening dam, the water would flow to the plaintiff’s mill in about twenty minutes, but, owing to the defendant’s dam and operations, the water was often kept back two hours and a half, in consequence of filling or refilling said dam. When the gate of the reservoir dam was closed, no water flowed in the stream below except such as leaked through or ran over the dam. In consequence of the defendant’s operations, large quantities of water were discharged and wasted, because not wanted by the plaintiff. The defendant, when his pond was drawn down, by shutting his gates stopped the water from flowing to the plaintiff’s mill until the defendant’s pond was again filled; but the defendant used no more water than was advantageous for the working of his mill.</p> <p>The plaintiff introduced evidence showing that hindrances in working his mill always occurred when the defendant worked his mill; the hindrance being some days half of the time.</p> <p>It was agreed that if, upon the above facts, the plaintiff should be found entitled to recover, his damages should be assessed by a jury, or an assessor to be agreed upon. Judgment was rendered for the plaintiff, and the defendant appealed to this court.</p>

<p>Bill in equity seeking to impeach the validity of a mortgage, executed on the 30th of July 1855 by the Troy and Greenfield Railroad Company to the defendants as trustees, covering by its terms the franchise, railroad and all other property of the corporation, then owned or thereafter to be acquired, to secure bonds to the amount of $900,000, to be issued to the contractor as part compensation for constructing the railroad, payable in thirty years from date. This mortgage recited the provisions of a contract for the construction of the railroad, dated December 30,1854, to the effect that such bond should be given ; and it was made subject to a prior mortgage to the Commonwealth, to secure state bonds to the amount of $2,000,000, which the Commonwealth were to issue under the provisions of St. 1854, c. 226.</p> <p>The following facts were agreed: Since the execution of the mortgage to the defendants, the Commonwealth have received two other mortgages upon the railroad and franchise of the Troy and Greenfield Railroad Company, one of which was dated on the 6th of July 1860, and the other on the 5th of March 1862 ; and also a surrender from the corporation of all their property, subject to redemption under St. 1862, c. 156. On the 4th of September 1862 the Commonwealth took possession of the mortgaged premises in various towns, for breach of condition, in the manner shown by various certificates thereof, which are now immaterial. The Commonwealth under their- various mortgages have at various times, from October 1858 to July 1861, advanced to the Troy and Greenfield Railroad Company large sums of money, amounting in all to several hundred thousand dollars. The corporation, under their mortgage to the defendants, have at various times, from August 1855 to July 1861, issued bonds to the amount in all of $600,000, payable in thirty years from date. All of these bonds were issued in good faith, and are held by bona fide holders, and the corporation have issued no other bonds than the above. Before advancing any money to the corporation, the Commonwealth had actual notice of the execution of the mortgage to the defendants, and of the fact that a number of bonds had been issued under the same. The amount of capital stock of the corporation which, in Decembei 1856, had been paid in was $143,905.77.</p> <p>Upon these facts, and others which are now immaterial, the case -was reserved by the chief justice for the determination of the whole court.</p>

<p>In an action of tort in the nature of waste, all the owners of the place wasted must join as plaintiffs.</p> <p>A right to commence such action passes by an assignment in insolvency.</p> <p>If the misjoinder of a plaintiff is not alleged in the answer, under the recent statutes of this commonwealth, and evidence is introduced without objection at the trial to prove such misjoinder, it is too late to object to its admissibility at the argument in this court.</p>

<p>A claim against a spendthrift under guardianship may be enforced by a trustee process, and the creditor is not confined to a suit upon the guardian’s bond.</p> <p>If real estate of a spendthrift is orally leased by his guardian, with nothing in the terms of the contract to show specially that it was the personal contract of the guardian, the rent due may be attached for the ward’s debts by a trustee process.</p>

Bill in equity to redeem land from a mortgage. The case Was referred to a special master, by whose report the following facts appeared: On the 30th of November 1852 the plaintiff mortgaged two lots of land to Daniel Wells, to secure one note of $300, payable in team work, and four negotiable notes of $100 each, payable in one, two, three and four years, respectively.

Tort for the conversion of a quantity of broom brush. At the trial in the superior court, before Wilkinson, J., it appeared that the broom brush originally belonged to William Brown, who in 1860 executed a bill of sale thereof to the plaintiff, to secure him for certain liabilities assumed for Brown, and delivered to him the possession thereof in Vermont.

Tort against the selectmen of Charlemont, to recover the penalty of $100, alleged to have been forfeited by reason of their failure to make a legal appointment of an agent for the sale of spirituous and intoxicating liquors, under Gen. Sts. c. 86, § 17. At the trial in the superior court, before Morton, J., a verdict was returned for the defendants, under directions so to do, upon facts which are sufficiently stated in the opinion. The plaintiff alleged exceptions.

<p>Bill in equity, filed April 16th 1861, alleging that in 1849 the plaintiff was a skilful miner employed at Crown Point, and was induced by persons who owned lands in Northampton, Southampton, Easthampton and Westhampton, to leave his employment for the purpose of conducting mining operations upon said lands; that those persons, after executing to the plaintiff a mortgage on the mineral rights in said lands to secure the sum of $1500, for his services and moneys agreed to be paid by him, conveyed the premises to Samuel Coit, who, in consideration of the plaintiff’s skill and labor in conducting mining operations thereon, and of moneys advanced by him, executed to the plaintiff another mortgage on said mineral rights to secure the sum of $5000; that afterwards, in 1852, Edward Anthony purchased the premises in behalf of himself and Sandford Coley, Albert W. Wright and Edwin C. Hamilton, (who were all made defendants,) and received a deed thereof, and that, on the 27th of October 1853, said Anthony and his associates, as parties of the first part, entered into an agreement with the plaintiff, as the party of the second part, the material parts of which are set forth in the margin.*</p> <p>The bill further alleged that the plaintiff entered the service of the defendants, and continued therein so long as his services were required, and until the filing of this bill, although since 1854 the defendants have abandoned mining operations on said lands; and that he is entitled to maintain a charge and lien upon said lands for the sum of $6500, and interest from the date of the agreement, and to have the lands sold, and the proceeds applied in payment of his claim.</p> <p>The plaintiff afterwards filed a supplemental bill, alleging that on the 26th of February 1863 the said Anthony, with a view to the formation of a joint stock company, conveyed the premises to Stephen Hill, Jr., who shortly thereafter conveyed the same to the “ Manhan Silver Lead Mining Company,” which the plaintiff believes to be a joint stock company; that since the conveyance to Hill, the plaintiff, at Hill’s request, has devoted his attention to the development of said mines, and Hill has frequently assured the plaintiff that there should be a speedy and satisfactory settlement of his claim, but that such settlement has never been made. The plaintiff therefore prayed that said Hill and Manhan Silver Lead Mining Company might be made defendants, and that he might have such relief as he might be entitled to in equity. Certain other allegations in the supplemental bill are set forth in the opinion.</p> <p>After the demurrer filed in this case had been overruled, (see 8 Allen, 536,) the defendants filed answers, and the case was referred to a master, who made a report thereon, and the case was reserved for the determination of the whole court. As the decision of the case upon the merits involved no question of law, but rested upon the "plaintiff’s failure to establish by proof a right to equitable relief, as stated in the opinion, the facts are not here reported.</p>

<p>Contract brought to recover the price of certain shingles sold and delivered. One defence was a claim by way of set-off, for money paid by the defendant to the plaintiff upon a draft for the price of another lot of shingles which the defendant never received,</p> <p>At the trial in the superior court, before Putnam, J., the defendant introduced evidence to show that in May 1861 he lived in Southampton, Massachusetts, and ordered a lot of shingles from the plaintiff by a letter addressed to him at Olean, New York, where the plaintiff lived. He afterwards received from the plaintiff a letter dated at Olean, May 13th 1861, inclosing a bill and a bill of lading of the shingles, which, the letter said, were “ shipped you this day, as per your order.” The former contained a charge for freight paid on the same to Greenbush, and for paying boatman to tow across the river at Greenbush ; showing the balance due to be $789.82. The bill of lading was as follows: “ Olean, May 13th, 1861. Shipped for account of M. W. Finn on board canal boat W. White of Niagara, N. Y> whereof James Smith is master for the present trip, as follows:</p> <p>Pieces. Feet. Tons. Lumber.</p> <p>100 Bunches 50 M. of 18 in. Sorted Shaved Shingle, marked J. S. 0. extra.</p> <p>150 « 75 “ “ No. 1 “ “ J. S. 0.</p> <p>360 “ 90 “ “ Extra Sawed “ “ J. S. C. extra.</p> <p>In good order to be delivered in like good order without delay to the Great Western Rail Road Company or their assignee at Greenbush, N. Y. Assignee to pay freight on the delivery at the rate of seventy-five cents per M. for shaved shingles and 62^ cts. per M. for the sawed shingles and $2 50-100 for towing, less amount advanced master one hundred and fifty-two and 50-100 dollars. M. W. Finn, Consignor. James Smith, Master.”</p> <p>On the 21st of May, after the defendant had received the above letter and bills, he received and accepted a draft for the balance of the bill, after deducting certain credits, and paid the same at maturity.</p> <p>The shingles referred to came into the possession of the. Western Railroad Company at Greenbush, marked as stated in the bill of lading, but with no other mark or direction upon them , and remained there until the 5th of July 1861, when they were destroyed by fire at the time of the burning of the freight depot of that company at Greenbush.</p> <p>The defendant offered evidence of similar purchases of shingles by him of the plaintiff at various times since 1858, in all of which instances they had come properly directed. It also appeared that the defendant made constant inquiry for these shingles at the railroad depot in Westfield, (adjoining Southampton,) where he received his letters, in May and June 1861, and wrote three times to the agent of the Western Railroad Company at Greenbush, inquiring if they had arrived there, but received no information respecting them, except by a letter dated June 25th which did not reach the defendant until after the fire. On the 20th of June the defendant wrote to the plaintiff as follows : “ I received yours of the 6th inst. in due time — have been waiting since for the shingles to get here before I wrote, but have heard nothing from them yet. There is but little doing here in the lumber line. If we don’t do more in the fall, the shingles on the road will last me until winter. I shall make nothing on them, as they are buying in Albany and selling as cheap as I can.” There was no evidence of any complaint by the defendant to the plaintiff that the shingles were not properly directed, and no claim was made to recover back the amount paid upon the draft until the defendant was called on to pay the amount of the bill now in suit, which was dated in May 1862.</p> <p>Upon this evidence the judge ruled that the defendant was not entitled to recover back the amount paid by him upon the draft, and a verdict was accordingly returned for the plaintiff for the full amount claimed by him; and the defendant alleged exceptions.</p>

<p>A judgment of a court of general jurisdiction of another state may be proved by duly certified copies of all the papers in the case, with a like certified copy of a record entitled “judgment roll on failure to answer,” which simply contains the names of the court, county and parties, with an affidavit of the plaintiff’s counsel that no answer or demurrer has been served upon him, and, after reciting the service of the summons and copy of the complaint on one of the defendants, the failure to serve a demurrer or answer, and the assessment of damages by the clerk, sets forth that it was adjudged that the plaintiffs recover the said sum of the defendants with costs, and that execution issue against the sole property of the defendant upon whom service was made, and the joint property of both defendants; but such judgment, being rendered on default and without a service upon all the defendants, will not support an action in this commonwealth even against the defendant who was served with process, without proof that by the laws of that state such judgment might properly be rendered there.</p>

Tort, by the assignees of Benjamin Little, an insolvent debtor, to recover the value of a stock of furniture sold by him to the defendants on the 22d of September 1862. At the trial in the superior court, before Brigham, J., it appeared that Little filed his petition in insolvency on the 31st of December 1862.

<p>Tort in the nature of trespass quare clausum.</p> <p>The following facts were agreed in the superior court: The plaintiff and the defendant each claimed title under a levy of an execution in his favor against Charles Hannum, and the only question was, which levy had precedence.</p> <p>The attachment of the defendant upon his original writ was made on Friday, March 28th 1862, at one o’clock, p. m., and was recorded in the clerk’s office on Tuesday April 1st, at a little after three p. m. The defendant in due course obtained judgment and execution, and the execution was levied upon four lots of Charles Hannum, including the locus, and the appraisers’ certificate was as follows : “ We have appraised all of said lots at the sum of eight hundred and fifty-five dollars and thirty-nine cents, from which sum we deduct the sum of seVen hundred and forty-two dollars, being the value of a mortgage on said land from said Charles, and now in the hands of John Paige, leaving a balance of one hundred and thirteen dollars and thirty-nine cents to apply on this execution; ” “ and we have set off the same by metes and bounds to the said Linus Tourtellott.” It was agreed, in case paroi evidence was competent to prove the same, that the mortgage covered only three of the lots.</p> <p>The attachment of the plaintiff was made on Monday, the 31st of March 1862, at five minutes past twelve o’clock in the morning, and recorded on the same day; and it was agreed, in case paroi evidence was competent to prove the same, that the plaintiff’s writ was filled up and the officer’s attendance to serve the same procured on Sunday for the purpose of making the attachment immediately after midnight.</p> <p>Judgment was rendered for the defendant, and the plaintiff appealed to this court.</p>

<p>A testator left a large estate to trustees, making provision for the selection by them of certain boys to be bound out as apprentices on certain terms and conditions, until their arrival at the age of twenty-one years, each of whom, at any time within six years thereafter, if he should have conducted himself well and faithfully meanwhile, should at the discretion of the trustees receive a loan of money from the income of the trust fund, not exceeding five hundred dollars, for a term not over five years, on his furnishing good security for the repayment of the same at the expiration of said term, with interest; and providing further, that if at the end of said term the interest should have been punctually paid, and the conduct of the borrower should have been such as to satisfy the trustees that he would in future make a good use of the money, the obligation should be cancelled and given up, without the payment of the principal. Held, that the trustees have no authority to cancel and surrender, without the payment of the principal, any such obligation to the legal representatives of a borrower who has died before the expiration of five years from the time of the loan to him.</p> <p>A. testator, in devising an estate to trustees for charitable purposes, provided that the trustees should be elected annually as follows: that eight towns, which were named, should annually choose in town-meeting one elector each, who should meet and elect by a majority vote three trustees. Until after the testator’s death, a majority had always been necessary for the election of public officers in Massachusetts. It seems, under these circumstances, that a majority is required for the election of a trustee, although other officers are now elected by a plurality.</p>

<p>A bill in equity may be maintained to redeem shares in the capital stock of a corporatioc which have been transferred by an instrument absolute in its terms, upon paroi proof that in reality the transfer was made only as collateral security for a debt.</p>

<p>Writ of entry to foreclose a mortgage of land in Springfield.</p> <p>At the trial in the superior court, before fose, J., without a jury, it appeared that the defendant, on the 8th of April 1846, being then the wife of Azariah S. Waterman, executed jointly with him, and for the purpose of securing his note, a mortgage of the premises, which were then owned by her, to George Stebbins. Azariah died in 1850, without having paid the note. On the 10th of June 1852 Stebbins assigned the note and mortgage to Isaiah Call, by whom the amount due upon the note was paid to him ; and on the 20th of said June, Call and the defendant were married. On the 10th of July following, Call was appointed administrator of the estate of said Azariah, and never represented the estate as insolvent; but all the assets of the estate were applied in payment of the expenses of his last sickness and funeral and charges of administration. On the 10th of June 1854, Call made an open and peaceable entry upon toe premises for the purpose of foreclosure ; and in November 1860 he died, leaving a will in which he devised all his real and personal estate in trust for the defendant during her life, and after her death to his heirs at law. The plaintiff is the administrator de bonis non of Call’s estate.</p> <p>The defendant introduced certain evidence tending to show fhat before her marriage to Call he promised to pay the mortgage debt if she would marry him, and afterwards both before and after the marriage stated that he had done so.</p> <p>George Stebbins, called as a witness by the plaintiff, testified that Call came to him and inquired the amount due upon the note, and said he had money coming from Texas and would pay it; that he afterwards paid it, and wished to have the mortgage assigned, and said nothing of a discharge. The defendant objected to his testifying to acts and conversation of Call in her absence; but the judge admitted the evidence de bene.</p> <p>James H. Call, son of Isaiah Call, was produced as a witness for the plaintiff, and his testimony was not objected to, it being understood by the defendant’s counsel that his testimony would be received under the same objection made to the testimony of Stebbins; and he testified that he examined the mortgage note and assignment, which were brought by his father to him before the marriage ; and that his father had no other real estate at the time of his death than the mortgaged premises.</p> <p>The judge was not satisfied, upon all the evidence, that Isaiah Call, before his marriage to the ^defendant, agreed to pay the debt to Stebbins and extinguish the mortgage upon her land. The defendant asked the court to rule as follows :</p> <p>“ 1. That the intermarriage of the testator, Isaiah Call, with the defendant, operated to discharge the mortgage and estop said Call or his representatives from enforcing it against her.</p> <p>“ 2. That the appointment of Isaiah Call as administrator of Azaiiah S. Waterman operated to estop him and his representatives from enforcing said mortgage against her, especially when coupled with the fact that he never represented the estate of said Waterman to be insolvent.</p> <p>“ 3. That the fact that Isaiah proposed to pay said mortgage, if she would marry him, and afterwards, both before and after the marriage, stated to the witnesses that he had agreed to pay the mortgage, with the further fact of the marriage, constitute a bar to this action.</p> <p>“ 4. That no act of the defendant during the existence of the coverture can legally prejudice her in this action.</p> <p>“ 5. That the fact that Isaiah undertook to foreclose the mortgage, and that he made and executed a will treating this as his property, cannot legally prejudice the defendant in this action.”</p> <p>The judge declined to make any of the rulings asked for, and directed conditional judgment to be rendered for the plaintiff. The defendant alleged exceptions.</p>

<p>Tort for the conversion of a rifle.</p> <p>At the trial in the superior court, before Wilkinson, J., it appeared that the plaintiff claimed title under a mortgage from Shubael Davis to him of a skeleton stock rifle; and the defendant, who was a deputy sheriff, claimed under an attachment upon a writ against Davis. The rifle described in the mortgage “ was in the form of a pistol stock, with a metallic skeleton stock, and an under action lock,” and, the lock being broken and in need of repairs, the mortgagor took it to a gunsmith and caused a wooden stock to be substituted for the other, and an over action lock to be put on the upper side instead of the under action lock. This was done with the plaintiff’s .knowledge. There was evidence tending to show that most of the parts of the rifle, except the barrel, were changed, and that the cost sf the repairs was more than double the cost of a barrel of such external appearance.</p> <p>The defendant asked the court to instruct the jury that if the article was so changed by new and material acquisitions of property not held by the mortgagor at the time of making the mortgage, and with knowledge of the mortgagee, as to render it incapable of identification by the written recital, the mortgage was void against an attaching creditor, and, if the changes which were made comprised a majority of its component parts and of its value, it should not be held under the mortgage. The judge declined so to rule, and instructed the jury that if the rifle was broken by accident and needed repairs, and the changes were in the nature of repairs, and were made in good faith, the plaintiff would be entitled to hold it under his mortgage, although it could no longer be called a skeleton stock rifle, provided' the changes thus made did not so far destroy its identity as to make it substantially incapable of identification by paroi evidence.</p> <p>The jury returned a verdict for the plaintiff, and the defendant .alleged exceptions.</p>

<p>Action under Gen. Sts. c. 137, to recover possession of the lower story of a house on Florence Street in Springfield.</p> <p>At the trial in the superior court, before Wilkinson, J., on appeal from the decision of the magistrate, it appeared that on the 29th day of March 1864 the premises were occupied by the defendant as tenant at will to Henry Dyer, the owner, who on that day executed a lease thereof to the plaintiff, “ to hold for the term of one year from the 31st of March instant, yielding and paying therefor the rent of one hundred and fifty-six dollars. And the lessee does promise to pay the said rent in equal semiannual instalments of seventy-eight dollars each, on the last day of March current for the first six months, and on the last day of September next for the succeeding six months ; but no rent shall be claimed by the lessor until the lessee is in actual possession.” A written notice of this lease was given to the defendant on the 31st of March, between twelve and one o’clock at noon, notifying him to give up the premises to the plaintiff on the 1st of April then next; and this action was commenced on the 2d of April. The defendant’s wife, was in feeble health, and his child at the time of the notice was sick with a fever, and continued under a physician’s care for ten or twelve days thereafter; but these facts were not known to the plaintiff till after the commencement of this action.</p> <p>Upon these facts, the judge ruled that the time allowed for the removal was sufficient, and that the action could be maintained ; and the jury returned a verdict for the plaintiff accordingly. The defendant alleged exceptions.</p>

<p>A notice of the dishonor of a note sent through the post-office and duly received by the indorser is sufficient to fix his liability; but such notice, if made out by a notary public and signed by mistake with the name of the maker of the note instead of with his own name, without the authority of the maker, is insufficient.</p>

<p>Contract against the indorsers of a promissory note, signed by R. C. Searle as maker and indorsed by the defendants and A. Bullens.</p> <p>At the trial in the superior court, before Wil/cinson, J., it appeared that the plaintiff, besides the note in suit, held several other overdue notes signed by Searle and indorsed by Bullens ; and the defendants introduced evidence tending to show that after the note in suit became due Searle and Bullens promised to pay the plaintiff fifty dollars then and fifty dollars a month upon the notes of Searle which were indorsed by Bullens alone, provided he would let the note now in suit lie as long as these payments should continue ; that the plaintiff agreed to this, and the first payment of fifty dollars was made and applied upon a note of Searle which was indorsed by Bullens alone, and the plaintiff did forbear for nearly a month to press for payment of the note in suit.</p> <p>The judge ruled that this was not a valuable consideration for the agreement of the plaintiff, and directed a verdict in his favor, which was accordingly rendered; and the defendants alleged exceptions.</p>

Contract, brought against the inhabitants of Conway to recover the amount of the following promissory note : “ Conway, February 6, 1864. $2075. On demand, for value received, I, G. Edgerton, town treasurer, for myself or my successor in said office, promise to pay Peter Benoit or order two thousand and seventy-five dollars, with interest. G. Edgerton, Town Treasurer.” There was also a count for $2075, money had and received.

<p>Tort to recover damages-for a personal injury received by the plaintiff by being run over by the defendants’ locomotive engine. At the trial in the superior court, before Russell, J., a verdict was returned for the plaintiff, with $1500 damages, upon facts which are sufficiently stated in the opinion ; the judge having declined, on motion of the defendants, to rule as matter of law that the plaintiff had shown such carelessness as to deprive him of his right to recover. The defendants alleged exceptions.</p>

Tort to recover damages for an injury to the plaintiff’s person and property, sustained by coming in collision with a wagon left by the defendant in a highway in Westfield. At the trial in the superior court, before Wilkinson, J., it appeared that on the 2d of November 1860, at the place of the accident, which was opposite to the defendant’s barn, the highway was twenty-six feet wide, with a steep bank on the east side and a fence on the west.

<p>Tort for trespass to real estate. At the trial in the superior court, before Wilkinson, J., the only question in dispute was as to the title to the premises. The jury returned a sealed verdict for the plaintiff, without assessing any damages, which verdict was affirmed and recorded, and the jury dismissed. The plaintiff thereafter moved that the verdict be amended, by the insertion therein of a finding of nominal damages, and that judgment be rendered for nominal damages; but the motion was overruled. The defendant moved in arrest of judgment, on the ground that the verdict was defective; but this motion was also overruled. Judgment was thereupon ordered upon the verdict, with costs to the plaintiff as the prevailing party, and the case reported for the determination of this court.</p>

<p>An abandonment of a married woman by her husband gives her the authority to put out her minor children to proper service and to assign their wages, for the purpose of aiding in the support of the family.</p> <p>If an interpreter is employed as an agent to communicate an offer, which is accepted, the offer as communicated by him is admissible in evidence against his principal, for the purpose of proving the contract, without proof that he truly interpreted the offer wliich he was authorized by his principal to communicate.</p> <p>If, in an oral agreement made through the medium of an interpreter, the language used is in dispute and is confused, it is proper to leave it to the jury to determine upon all the evidence what the contract was.</p>

<p>Evidence to prove that a person was a skilful carpenter and joiner ten years ago m Massachusetts, or to show the relative value of the labor of a good architect and an ordinary joiner, is incompetent for the purpose of proving the value of that person’s recent labor in erecting a building in Illinois.</p>

This was a motion to dismiss, in the superior court,, an appeal from the judgment of the police court of Chicopee;, in a civil action, on the ground that the record did not show that the appellant had recognized to prosecute his appeal and to pay all costs that might thereafter arise. The record did not show that the appellant had been required by the adverse party to recognize ; and the motion was overruled. The appellee alleged exceptions.

Tort for the conversion of twenty-nine sheep. At the trial in the superior court, before Russell, J., it appeared that the defendant found the plaintiff’s sheep in his orchard, destroying his apples and crops, and his hired men, by his direction, drove them into his barnyard, and one of them went for a field-driver, who lived at a distance of half a mile, and came immediately ; and the sheep were then driven into the highway, where the field-driver received them and took…

<p>Bill in equity by a part of the residuary legatees under the will of Hannah E. Mix, against Henry Fowler, executor of her will, and Noah L. Strong and Edwin E. Kingsley, to set aside a conveyance of certain real estate made by Fowler to the other defendants on the ground of fraud.</p> <p>An issue was framed to the jury to determine the question of fraud, which was tried before Chapman, J. The will appointed Fowler sole executor, and authorized him to sell the whole of the testator’s real estate at private sale ; and it was duly proved in June 1863. It appeared that Strong was the son-in-law and Kingsley the grandson of Fowler, and the conveyance in controversy -was made to them on the same day when the letters testamentary were issued to Fowler, for the sum of $3500. The plaintiffs offered evidence that at the time of the sale the land was worth from $4000 to $4500; that several persons were desirous to purchase it, and two persons offered to start it at auction, one at $3250, and one at $3500; that it was situated in the central part of Westfield; that Fowler had agreed to sell it to the other defendants for $3000, but after these offers the price was raised to $3500; and that Fowler had promised several persons that be would not sell it without giving them an opportunity to purchase, but did in fact make the sale and conveyance immediately after he received the letters testamentary, and without giving any public notice that the property was to be sold. The defendants offered evidence in contradiction and explanation of this, and especially to show that the value of the land was not over $3000.</p> <p>The defendants, amongst other things, asked the court to instruct the jury that in order to maintain the issue on the part of the plaintiffs it must be shown that Fowler in making the sale was guilty of gross neglect and mismanagement. The judge declined so to rule, and instructed the jury that the burden was on the plaintiffs to prove to their reasonable satisfaction that the sale was fraudulent, that is, that it was contrary to equity and good conscience, and that this involved the proof of two facts.</p> <p>1. It must appear that the legatees were injured by the sale Fowler had a right to sell it to his son-in-law and grandson, and had a right to sell it at private sale, and if he had obtained from them as good a price as he could have fairly obtained from other persons by making reasonable efforts the plaintiffs had not been injured by the sale and had no cause of complaint; that the evidence as to the estimated value of the land was important, because the probability is that land can generally be sold at about its estimated value. But this is not always the case, and if an executor authorized to sell land cannot by reasonable efforts obtain that price for it, he may sell it for a less price. On the other hand, if he can by reasonable efforts obtain a greate price for it he is bound to use such efforts and to obtain the best price he fairly can by such efforts, even though he and many other persons may regara it as a speculative price.</p> <p>2. If the jury were satisfied that the plaintiffs were injured by the sale of the land at too low a price, they were next to inquire into the motives of Fowler. He would not be liable for neglecting to use skill and ability beyond what he possessed. But he was bound to consult the interest of the legatees exclusively in making the sale, and not to consult the interest of the purchasers. The plaintiffs must prove that his purpose in selling the land for less than others would have paid for it was to favor his relatives who were the purchasers, to the injury of the legatees. If this was his purpose the sale was fraudulent, and ought to be set aside as void. The fact that they were his relatives is a suspicious circumstance, and tends to sustain the allegation of fraud. He had a right to sell at private sale, but if he had reason to believe that other persons were anxious to purchase, and made a secret bargain for the sale to the other defendants without giving any notice to others or using any efforts to ascertain what others would give, it was a circumstance tending to prove fraud. So if he sold it with unreasonable haste the jury might consider that as a circumstance tending to prove fraud. He had a right to make a verbal bargain with Kingsley for the sale before he obtained his letters testamentary, and if he made such a bargain it was proper that he should fulfil it, provided it was fairly made; but it was for the jury to judge from' the circumstances whether it was fairly made.</p> <p>The jury found a verdict for the plaintiffs, and the case was reported for the determination of the whole court.</p>

<p>Contract brought to recover the price of a quantity of rubber rags, sold and delivered by the plaintiff to the defendants.</p> <p>The answer, among other things, averred that the rags were a different article from that for which the defendants bargained, and of an inferior quality ; that they were unfit for use; that the same were never accepted by the defendants ; that the plaintiff falsely represented them to be of a kind suitable for the defendants’ business; and that the sale was by sample, and the rags delivered were not equal to the sample in quality, and were not of the same kind, and were not of the kind and quality known as rubber rags.</p> <p>At the trial in the superior court, before Rockwell, J., there was evidence tending to show that the sale was by the plaintiff to an agent of the defendants, named Fuller; and that the plaintiff told Fuller that the rags were from a belting factory and not from suspender or rubber factories, like rags previously sold by the plaintiff to the defendants. Fuller testified that the plaintiff did not tell him the rags were from a belting factory but that they were better than rags from suspender or rubber factories; and that he said to the plaintiff, “ You know what I want, (the defendants being manufacturers of paper, as the plaintiff knew,) and if it is better, as you say, I will give you eleven cents a pound for it.” All this was denied by the plaintiff. Samples were produced and exhibited at this interview. Fuller afterwards asked if the plaintiff had concluded to sell the rags at eleven cents, and the plaintiff said, No, but if he bad the stock he would send it the next day. This was accordingly done, but the defendants, upon examining it, notified the plaintiff that they would not accept it, on the ground that it was different from the samples and representations of the plaintiff. The goods in fact were rags from a rubber belting factory, and inferior in value to rags from suspender and webbing factories.</p> <p>The plaintiff’s counsel argued to the jury that, if the defendants would avoid the sale on the ground of deceit, they must prove that the plaintiff’s representations were untrue, and that he knew them to be so at the time he made them. The defend- ' ants’ counsel complained that the plaintiff’s counsel in his argument had misstated' the grounds of defence. The plaintiff’s counsel then asked, in the presence of the jury, if the defendants abandoned the defence of deceit; to which the defendants’ counsel replied that they did not. The plaintiff’s counsel then asked the court to instruct the jury that, if the defendants relied upon false representations by the plaintiff, they must prove not only that the representations relied on were made, and were untrue, but also that the plaintiff knew them to be untrue when i.e made them. He also made various other requests for instructions.</p> <p>The judge declined to give instructions in the form requested, but instructed them, upon the points above stated, only as follows :</p> <p>“Although the defendants agreed to purchase the goods, yet if the goods delivered were a substantially different article, or if the goods were falsely represented by the plaintiff to be a kind of goods different from the goods described, and the kind of goods delivered to the defendants were of no value as stock to make paper of, then the defendants had a right to refuse the goods, and refuse to pay for them. The evidence tends to show that samples were used. The defendants contend that the bargain was made for rubber rags; that the only article known to the paper trade as rubber rags were the rags from suspender or webbing manufactories; that both parties knew this; and that the plaintiff knew that the defendants supposed they were buying that kind of goods, but delivered rags which came from a belting manufactory, an article worthless in the manufacture of paper, and not known to the trade as rubber rags. If you are satisfied these were the facts, the defendants had a right to reject the goods, and the plaintiff cannot recover. The plaintiff contends that the evidence shows that the goods delivered were rubber rags; that they were substantially according to the samples; that he told the defendants’ agent that they were rubber rags, not coming from suspender or webbing manufactories, but from a belting factory; and that, after looking at the samples, the defendants’ agent said they knew how to remove the rubber from the rags, and so he was willing to buy them, although they were not generally considered stock fit to use in making paper; and if he satisfies you of all this, he has a right to recover.”</p> <p>The jury returned a verdict for the defendants, and the plaintiff alleged exceptions.</p>

Bill in equity to redeem land from a mortgage. It appeared that in December 1851 Eleazer Ripley mortgaged a lot of land in Springfield to M. B. Dean, William Patton, G. C. Wood and H. B. Judkins, as officers of the Mechanics’ Union Association of Springfield, which was a voluntary association, to secure a note payable to them as officers of said association.

Petition for partition. The following facts were agreed in the superior court: The petitioner claimed title under the foreclosure, by himself, of a mortgage of one undivided half of the premises, originally given by Wells Lathrop to George Frost, in 1842, and assigned by the administratrix of the estate of Frost to John Mills, who assigned the same to the petitioner, the assignment reciting that it was made “ for the purpose of protecting any one to whom said Phelps has made…

<p>Contract. The declaration was as follows: “ And the plaintiff says the defendant made a promissory note, a copy of which, with an indorsement thereon, is hereto annexed, payable to the plaintiff, and the defendant owes said plaintiff the balance due on said note and interest thereon.” (Copy of note) “ Union, Dec. 31,1860. $347.75. For value received, I promise to pay</p> <p>Thomas Moore three hundred and forty-seven dollars and seventy-five cents, on demand with interest. J. F. Royce. (Indorsed) April 6,1861. Received forty dollars.” The defendant demurred to this declaration, assigning for pause that the allegation that the defendant owed the balance due on the note was uncertain, informal and insufficient. The demurrer was overruled in the superior court, and judgment rendered for the plaintiff; and the defendant appealed to this court.</p>

Tort to recover damages for the obstruction of water in an aqueduct laid in 1813 from a spring on land of the defendant to a tub on land of the plaintiff.

<p>Petition by ten taxpayers, and more, of Sutton, setting forth that at the annual meeting of that town held on the 20th of March 1865, the town, under an article in the warrant, voted for the support of schools, $2000; roads and bridges, $2500; and for contingent expenses $9500, making no other or further appropriation thereof; that the objects of raising said sum do not otherwise appear from the proceedings of the town, and are still unknown to the petitioners; that in a warrant for another town meeting held on the 12th of June 1865, the second article was, “ to see if the town will raise by taxation or otherwise such sums of money as may be necessary to pay and refund any money which has already been at any time contributed by individuals, in aid of and for the purpose of filling the quotas of this town, or furnishing men for the present war, under any requisition, order or call of the president or of the war department of the United States during the year 1864, under the provisions of chapter one hundred and fifty-two of the laws of 1865, or act or do anything relative to the same; ” that on that article the town voted “ that we raise the sum of $7000 to pay and refund the money which has been paid or contributed as specified in article No. 2. of the warrant; ” that thereupon the assessors of the town assessed upon the polls and estates the aggregate of both of said grants, amounting to $25,516.28, with overlayings on the same to the amount of $900.28, making the rate of taxation on estates two dollars and thirty cents on one hundred dollars; that a warrant for the collection of said tax was delivered to George Hastings, the treasurer and collector of the town; that the grant of nine thousand five hundred dollars is illegal and void; that St. 1865, c. 152, authorizing towns and cities to reimburse money paid for recruiting purposes,* is unconstitutional; that the grant of $7000 was larger than the aggregate of the sums that had been so paid and applied; and that if said grant was legal it should have been made the basis of a special and separate assessment, so that the polls of the town could be charged with the payment of their due proportion of the same. The prayer was, that the treasurer and other officers of the town might be restrained from collecting or enforcing said tax and grants, and for other relief.</p> <p>The answer of the treasurer of the town set forth that the grants and appropriations of money made by the town of Sutton for the year 1865 were made in the same manner that the town has been accustomed to make such grants and appropriations for the last thirty years, as appears by the records of said town ; that the appropriation of $2500 for roads and bridges, at the March meeting, was not. an appropriation of money, but constitutes the basis of" a separate tax, and is payable in labor; that the grant of $9500, under the head of “ contingent expenses,” was based 'upon a statement made by the chairman of the selectmen in open town meeting, and in the presence and hearing of the plaintiffs, or some of them, that the said sum was made up of the estimated town expenses for the current fiscal year, exclusive of the two thousand dollars granted for schools, and including $4375 for the repayment of money borrowed by the town to pay the town bounty of one hundred and twenty-five dollars to each one of forty-nine soldiers furnished by the said town to fill its quotas under the calls of the military authorities of the United States, during the year 1864; that the several sums of money making up the aggregate of $9500 were for purposes for which the town could legally raise and appropriate money ; that the said chairman also publicly stated in said town meeting that the aforesaid sum of $4375 would be required the present year and was absolutely necessary to repay the said bounty money, and that the sum of $3479.34 would be required to pay state aid to the families of soldiers, and that the other expenses of the town would be about the same as last year, which appeared by the report of the selectmen of said year to have been about $4700, making in all a sum much larger than $9500; that, after applying the sum then in the treasury, the balance to be provided for was more than $9500, including the discount on taxes; that at the town meeting held in June, a committee of the town chosen for that purpose reported that the sum of $6711 had been contributed by individuals and applied for the purpose of filling the quotas of the town under the calls of the military authorities of the United States for the year 1864; that this committee had but a very brief period within which to prepare and make their report, and it was stated in open town meeting that there were probably some items of expenses for recruiting purposes not included in the report of the committee, and it was suggested that the sum sufficient to cover such omission should be raised, and the sum of $7000 was voted for the purpose named in article 2d of the warrant; that the sum of $5717.60 was actually contributed by individuals for filling said quotas and paid out for that purpose, as shown by a statement of expenditures annexed, to which sum is to be added the further sum of $1000 for two substitutes, making in the whole the sum of $6717.60 ; that it was stated in the town meeting of the 12th of June that a discount on said sum of $7000 would be made for the prompt payment of the tax assessed therefor, and that the sum that would be realized from said appropriation would be insufficient to reimburse moneys paid out by individuals for recruiting purposes, as aforesaid; and that the town'voted a discount of ten per cent, on all taxes paid on or before the first of September, which discount, being deducted from said sum of $7000, leaves the sum of $6300, which is less, including the $1000 aforesaid, than the amount so contributed by individuals.</p> <p>The parties agreed that at the March meeting the chairman of the selectmen stated that about $2500 would be wanted for contingent expenses, naming some of the principal items, but not all of them; that certain expenses were said to be the same as those of last year; that at the meeting in June a person who was not the moderator made the alleged declarations as to additional items of expense for recruiting, and the ten per cent, discount on taxes, but the same yere not heard by the petitioners, or some of them; that contributions for recruits were made by those who were and those who were not liable to, the drafts ; that the two substitutes were procured by individuals to save them from liability to the drafts; and that the grant of March would require a poll tax of two dollars.</p> <p>The case was reserved by the chief justice upon the bill, answer and the foregoing facts for the determination of the whole court.</p>

<p>If the rightful flow of the water of a stream is obstructed by the joint action of several parties, although not acting in combination or by concert, it is no defence to the maintenance of an action against one of them that all are not joined as defendants; but this objection goes only to the damages.</p> <p>A. city is not liable in an action at law for an injury to a private person by the obstruction of the flow of the water of a stream, caused by an increase of the surface wash from the streets into the same, if such increase is only the natural result of the growth of the city, or by the emptyings of the sewers into the same, if these are no greater than would otherwise have been carried in by surface washings, and are not sufficient to exert any appreciable effect on such person; or by a bridge constructed by .a railroad corporation, under the authority of its charter; or by a bridge constructed by the city, if the bridge when built was sufficient to allow the free flow of the water as the stream then was, or with such changes as were likely to be produced by natural causes alone, although it has proved insufficient for this purpose, with such changes as have been produced by the exercise by a railroad corporation of its chartered rights, or by the wrongful acts of individuals.</p>