Volume 93 — Massachusetts Reports

<p>B in a libel for divorce against a married woman on the ground of adultery, a servant lias testified to seeing her on one occasion sitting in the lap of the man with whom the adultery is charged to have been committed, and he in reply testifies to facts showing that this was for an innocent purpose, and by the request of his wife, who had temporarily left the room, and she testifies to the. same facts, they may be allowed to state, for the purpose of showing that they are referring to the same occasion, that on her return to the room, within two or three minutes, he remarked to her that the servant had been in.</p>

Contract to recover eighty dollars, money had and received. At the trial in the superior court, before Brigham, J., it appeared that on the 13th of January 1862 an agreement was made between the parties for the settlement of two actions against the present plaintiff, one of which was in favor of the present defendant, and the other was for his benefit, though brought in the name of another person ; and James paid to Bligh eighty dollars, taking from him the following…

<p>Contract. The declaration alleged that the defendant conveyed to the plaintiff a parcel of land in Worcester, with covenants of warranty that the same was free from incumbrances; but that the same was not free from incumbrances, and the owner of land on the opposite side of the street and his heirs and assigns were entitled to have the plaintiff’s land kept open as ornamental ground and play ground. The defendant denied that the granted premises were incumbered.</p> <p>It was agreed in this court that in 1848 the Trustees of the Worcester Academy owned a large tract of land, through which there was a street called Benefit Street, and conveyed to James H. Wall a certain portion of the land on one side of this street by a deed in which the granted premises were described simply by courses and distances, the lines running to “ corners,” without reference to any visible monuments, except on one side where the premises were bounded on “ a new open street three rods in width called Benefit Street.” The deed further described the premises as “ being the lots marked No. 1, No. 2, No. 5 and No. 6, on the plan on the back of this instrument,” and conveyed the right of passing over and using Benefit Street. The plan showed that all the land on that side of the street was divided into lots, while that on the opposite side was not marked by division -lines at all, but one portion was marked “ Ornamental Grounds ” and another “ Play Ground.” The land thus marked “Ornamental Grounds” and “Play Ground” after-wards came by mesne conveyances to the defendant, who conveyed the same to the plaintiff, as alleged in the declaration. The trustees assured Wall verbally that the land was to remain open as an ornamental ground and play ground; and he and some other persons owning land near by have aided in decorating the same with shade trees.</p> <p>On these facts, judgment was rendered for the defendant, and the plaintiff appealed to the whole court.</p>

<p>*£ the owner of a homestead purchases adjoining land which fronts upon another street, and never occupies it himself as a part of his homestead, or uses it in any manner in connection therewith, or takes down the fence which separates it therefrom, but for many years and until his death lets it to tenants, it will not pass under a devise of his house lot; although he bought it for the purpose of having a passage from the other street to the back part of his house lot, and repeatedly said that he bought it for his personal use and for the benefit of his house lot and in order to annex it thereto.</p>

<p>A resulting trust in land in favor of a third person may be established by paroi evidence, although the deed recites that the consideration was paid by the grantee, and it was in fact paid by him, provided that it was distinctly agreed before the purchase that the snm paid should be considered as a loan from the grantee to such third person; but the proof upon this point must be full and clear.</p>

<p>Indictment setting forth that George L. Mowry, on a day and at a place named, “ in and upon one John G. Lewis an assault did make, and the said John G. Lewis in bodily fear and danger of his life then and there did put, and sundry bank bills, amounting to twenty-five hundred dollars and of the value of twenty-five hundred dollars, of the moneys and property of the said John G. Lewis, from the person and against the will of the said John G. Lewis then and there and by force and violence did rob, steal, take and carry away; and that the said George L. Mowry was then and there armed with a certain dangerous weapon, to wit, metallic knuckles, and being then and there so armed as aforesaid the said John G. Lewis, in and upon the face and head of the said John G. Lewis, then and there did strike and wound.”</p> <p>This indictment was found under Gen Sts. c. 160, § 22, which is copied in the margin* At the trial in the superior court, before Allen, C. J., the defendant contended that the indictment contained no sufficient allegation of a robbery, the robber being armed, &c., and asked the court to rule that it would not be competent for the jury to convict him of that part of the indictment; but the chief justice ruled otherwise, and the defendant was convicted, and alleged exceptions.</p>

Indictment for adultery with Emeline B. Carlton. At the second trial in the superior court, before Allen, C. J., after the decision reported in 6 Allen, 591, it appeared that in November 1861 the defendant was married to said Emeline, and lived with her as his wife thereafter.

<p>A decree of partition, in the probate court, setting off a portion of the real estate of a deceased person to his daughter, is conclusive upon her husband, when finally confirmed and established according to Gen. Sts. c. 136, if he assents thereto, and in the petition represents that she is entitled to a share of the estate in her right as an heir at law; and such partition will vest in her a valid title as against him and his heirs, although before the partition was made her title had become vested in him by mesne conveyances.</p>

Contract against a surety in a recognizance, the condition of which provided that the judgment debtor, who had been arrested on an execution in favor of the plaintiff, should within thirty days deliver himself up for examination, giving notice of the time and place thereof, and duly appear, making no default, and abide the final order of. the magistrate thereon.

<p>The truth of a magistrate’s record of a criminal case within his jurisdiction and determined by him cannot be impeached, even in an action against him for fraudulently and corruptly altering the complaint and warrant after the warrant had been served.</p>

Tort to recover damages for a personal injury received by the plaintiff’s intestate, Francis H. Holman, by being run over by the defendants’ locomotive engine.

Bill in equity to obtain the instructions of the court as to the distribution of the estate of Susan W. Prescott, of Lancaster in this county, under the following clause of her will: “ I give, bequeath and devise all the remainder of my estate, of whatsoever it may consist, to the surviving children, not knowing all their names, of my late sister Nancy Mason, they living in the state of Maine, to be divided equally between them all.” Nancy Mason had eight children, four of…

Tort in the nature of trespass quare clausum fregit. It was agreed in the superior court that the plaintiff purchased the premises, upon which an old house and barn were then standing, in April 1855; that he has ever since cultivated some portion thereof, and leased none; that in February 1861 he made and caused to be recorded a declaration of his intention to hold them as a homestead; that in May 1861, having tom down the old house, he commenced building a new one upon the…

Bill in equity to redeem a mortgage of land. It was agreed that the plaintiff’s husband executed the mortgage, in August 1847, she joining therein to release her right of dower; that the mortgage was assigned in October 1847 to Henry Goulding, who in February 1850, in an action against the plaintiff’s husband alone, obtained conditional judgment for possession of the premises, for breach of condition of the mortgage, and was duly put in possession thereof in April 1850, and…

<p>If laud which is subject to a mortgage is afterwards sold with full covenants of warranty in two different lots to different purchasers at different times, and the mortgagee afterwards enters upon both of these lots for the purpose of foreclosure, and the foreclosure becomes absolute as to the lot last sold, the owner of the lot sold first, upon a bill seasonably brought, may redeem upon paying the balance due upon the mortgage debt after deducting the full value of the other lot, with the buildings thereon; and it is immaterial that the buildings were erected after he had acquired his title.</p> <p>In such case the balance due at the time when the foreclosure of the lot last sold became absolute should be ascertained, and interest computed on the same thereafter.</p>

Contract for money had and received by the defendant from rarious insurance companies to the plaintiff’s use.

Writ of entry to recover certain real estate in Worcester. ■ It was agreed in the superior court that George M. Prentiss died seised of the demanded premises in November 1864.

, one of the issues to the jury was as to the execution of the will. Joseph A. Sprague, one of the attesting witnesses, testified as follows: “ Mr. Daniels came into my office and told me how to draw his will. I made a rough sketch of a will and read it to him, and he said it was all right, and went out. I copied it, and he came back and sat down by my side. I read the will down to the seal, and said, ‘ Does that suit yen ? ’ He said it did.

Replevin of horse cars and other property attached by the defendant, a deputy sheriff, as the property of the Worcester Horse Railroad Company, upon a writ in favor of the Central National Bank of Worcester.

Tort against the trustees named in a mortgage executed by the Norfolk County Railroad Company upon their railroad and franchise, seeking to recover for a personal injury sustained by the plaintiff by being run against by a car of the defendants.

Tort against a railroad corporation to recover for damages done to a caloric engine sent by the plaintiff to the depot of the defendants in South Boston for transportation to South Aldington, while being loaded upon the cars.

Contract brought by an inhabitant of Rochester to recover bounty money voted by that town to enlisted soldiers.

Contract brought by an inhabitant of Plymouth to recover bounty money voted by that town to enlisted soldiers. It was agreed in the superior court that at a town meeting held on the 11th of May 1861, the town passed the following votes : “ Voted, that the sum not exceeding fifteen hundred dollars is hereby appropriated for clothing and equipping such volunteers for three years or more service as are citizens of this town.

<p>Under an article in a warrant for a town meeting “to see if the town will vote to appropriate a sum of money to aid the furnishing and equipment of volunteer military companies to be enlisted in this town and vicinity, and to take any necessary measures foi the support of the families of those who are ordered to service, and act on anything relating to the above objects,” the town may vote to pay a certain sum monthly to each citizen of the town who shall enlist in the military service,</p> <p>if prior to St. 1861, c. 222, a town had voted that a certain sum monthly should be paid to each citizen of the town who should enlist in the militaiy service of the state with the intention of serving in the army of the United States, if called upon, a citizen who so enlisted under that vote may, under that statute, maintain an action against the town to recover such pay for a time not exceeding ninety days from his enlistment.</p> <p>The St of 1863, c. 38, ratifying contracts of towns to pay bounties to soldiers, does not operate to revive a contract which had become extinct under St 1861, c. 222.</p> <p>Receiving state aid will not prevent a soldier from recovering any sum to which he may be entitled under the votes of the town in which he enlisted.</p>

Contract brought by an inhabitant of Pembroke to recover bounty money voted by.that town to enlisted soldiers. Judgment was rendered for the defendants in the superior court, upon agreed facts which are sufficiently stated in the opinion • and the plaintiff appealed to this court.

<p>Kf prior to St. 1861, c. 222, a town had voted to pay to each volunteer soldier raised and being an inhabitant therein and mustered into the service of the United States for the defence of the government a certain sum per month, and also “ that each volunteer soldier belonging to this town be allowed one dollar p.er day for each and every day he is drilled under proper authority,” and an inhabitant in pursuance thereof signs a paper enrolling himself with others into a company of volunteer militia for five years, “with the full understanding that we are liable at any moment to he ordered into active service under the government of the United States,” and is drilled for several days under proper authority, and shortly afterwards enlists in the military service of the United States, he may under that statute maintain an action against the town to recover such pay for a time not exceeding ninety days from his enlistment, and also for the time spent in drilling.</p> <p>An enlisted soldier can maintain no action against a town to recover money for a uniform, under a vote of the town appointing a committee “ to expend for each enlisted soldier a sum of money not exceeding ten dollars for a uniform.”</p>

<p>Contract brought by the assignees of Caleb Poole, Jr., an insolvent debtor, to recover back payments made by him to the defendant, upon a promissory note, in violation of the provisions of the insolvent law. The answer admitted the existence and set forth a copy of a note of $500, given by Poole to the defendant, dated May 7th 1861, with indorsements thereon, amounting to $400, to wit, $200 indorsed on February 27th 1863; $100 on March 1st 1863; and $100 on March 7th 1S63; and averred that a portion of the amount of $200 was really paid in July 1862, and denied that these payments were made or received in violation of the insolvent laws.</p> <p>At the trial in the superior court, before Rockwell, J., the plaintiffs called on the defendant for the note referred to, having previously given him notice to produce it; but the defendant declined to produce it, assigning no reason therefor. The plaintiffs were therefore obliged to call Poole, who testified that he gave the note, and made payments thereon as follows : in November 1862, $50; in December 1862, $50; about March 1st 1863, $100; and afterwards, in March 1863, two payments he thought of $50 each. He also testified to facts showing that he was then, and long before, deeply insolvent, but insisted that he did not then know that he was insolvent, and did not make either of the payments in contemplation of insolvency. Poole’s petition in insolvency was filed on the 7th of April 1863; and it appeared that some of his bills for goods bought in Boston in the course of his business as a trader were overdue during six months prior to that date, and that he was occasionally called on for payment thereof. The plaintiffs also proved that in July 1862 the defendant said to Poole, with considerable earnestness, “ that note had better be paidand that thereupon Poole promised to pay it as soon as he could. Poole testified that he paid $100 soon afterwards.</p> <p>The defendant, in opening his case, was about to read the note to the jury. The plaintiffs objected, but the objection was overruled. The note bore indorsements as set forth in the answer. The defendant was allowed to testify, under objection, that a portion of the sum of $200, indorsed February 27th 1863, was paid more than six months prior to the filing of the petition in insolvency.</p> <p>The plaintiffs asked the court to instruct the jury that Poole’s failure to pay the note at or about the time when the defendant called upon him to do so, or at least that his continued failure to pay it, as hereinbefore stated, constituted insolvency, and was sufficient “reasonable cause,” within the meaning of the statute, to lead the defendant to believe him insolvent. The judge, instead of so ruling, instructed the jury that the plaintiffs must also satisfy them that the defendant had reasonable cause to believe that Poole intended to prefer him; and that the fact alone of Poole’s failure to pay, under the circumstances stated, would not prove that Poole intended to prefer him.</p> <p>The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions.</p>

<p>A. survivor of two joint debtors, who pays a joint debt after the expiration of the time when the creditor could have enforced it against the administrator of the estate of the deceased, does not thereby entitle himself to maintain a claim for contribution from such administrator, or to avail himself thereof in set-off, in an action brought against him by such administrator.</p> <p>if a defendant pleads in set-off, the burden of proof is upon him to show that his claim filed in set-off is due from the plaintiff in the same right with the cause of action declared on in the writ; and. if the plaintiff describes himself in the writ as administrator of the estate of a deceased person, and declares upon a promissory note signed by only one person, and running to him as administrator of that estate, this will not be sufficient to afford a presumption that his claim is in his representative capacity.</p>

<p>Petition for partition. The respondent filed an answer, denying the petitioners’ title, and claiming title in himself. The case was submitted to a jury at October term 1862, who returned a verdict in favor of the petitioners. Commissioners were thereupon appointed to make partition, and estimate the value of improvements claimed to have been made by the respondent, in November 1864; and their report, made at February term 1865, was accepted at June term 1865. The clerk taxed full costs for the petitioners, from the commencement to the end of the case, including the fees of the commissioners and the warrant for partition; and, on appeal to the superior court, this taxation was revised by striking out the two items referred to, and in other respects affirmed. Both parties appealed to this court.</p>

Contract brought to recover for necessaries furnished to the defendant’s wife, consisting chiefly of board, clothing, and money paid for medical attendance, from July 1st 1863 to May 12th 1864.

<p>Bill in equity by ten tax-payers, and more, of Marion, setting forth that the towns of Marion, Rochester and Mattapoisett are, under the statutes incorporating said town, jointly interested in the profits of the herring fishery in Mattapoisett River, and that the share belonging to Marion has always heretofore been paid by the herring inspectors into the treasury of the town, and used for the general purposes of the town ; but at a town meeting held in April 1865 the inhabitants have voted “that the herring money be distributed on the polls,” which is an illegal disposition thereof. The prayer was for an injunction. The defendants filed a general demurrer, and the case was reserved for the determination of the whole court.</p>

Indictment for embezzlement of four hundred and seventy-five dollars, in bank bills and United States treasury notes, the property of Clement Randall, and delivered by Charles H. Randall to the defendant to be carried to Clement Randall.

<p>One who is employed by a dealer in lumber to deliver lumber upon an unfinished bridge to sub-contractors who have undertaken to huild the wooden portion thereof may recover damages against the contractors who have undertaken to build the entire superstructure, for an injury sustained by him while so delivering lumber, through a defect in the ironwork of that portion of the bridge which has been completed,</p> <p>ff one who has received a personal injury through the negligence of another signs a paper acknowledging the receipt of a small sum cf money in full for his damages, a subsequent action cannot be maintained to recover damages for the same injury, unless his signature to the receipt was procured through místale or fraud; and if instructions to this effect are requested, and the jury are simply instiucted that if they are satisfied that the par ties “fairly settled the claim it is sufficient, aid the amount received in the settlement is not material to its validity as a settlement,” a verdict for the plaintiff will be set aside.</p>

<p>One who has been ready and offered to perform services according to the terms of a special contract may, if prevented by the adverse party from performing them, recover the amount due to him, under a declaration upon an account annexed.</p> <p>The secretary of a religious society wrote to a minister informing him that the society had voted on the 1st of January to offer to employ him for one year from that date, for a sum in gross. He accepted the offer, stipulating however that the year should begin on the 1st of February, and the payments be made quarterly from that date. In December following the society passed a vote, which was duly entered on their records and attested by their secretary, reciting that on the 1st of October they “ were not indebted to him in the least, and would not become so indebted to him by the terms of the agreement until November following.” Held3 that there was a sufficient memorandum, within the statute of frauds, of a contract extending to the 1st of February.</p> <p>Evidence of declarations of a committee of a religious society appointed to offer terms to a minister are incompetent evidence to prove the contract of the society, unless they were authorized by the society to make those declarations.</p> <p>Evidence that a religious society voted “that for the six intervening Sabbaths from December 14th to February 1st the society will supply the pulpit, making their own selections and paying therefor whatever sum is just and proper, and the residue to ” their minister at a certain rate per annum, and “ that the committee be instructed to require an immediate answer to the foregoing proposition as a compromise,” is incompetent for the purpose of proving that the contract for his services was to extend till February 1st.</p> <p>A minister cannot be allowed to prove his contract with a religious society by reading extracts from a sermon preached by him in their church, to the terms of which no open contradiction was made.</p>

Tort for the conversion of thirty-six pairs of boots. At the trial in the superior court, before Rockwell, J., it appeared that the defendant, who was a deputy sheriff, had a warrant against the plaintiff for larceny of the fronts of the boots from Darius Littlefield, and arrested him thereon and took from him the boots in question ; and upon the trial of the complaint before a magistrate the plaintiff was discharged, and demanded the return of the boots.

<p>An action of tort which 23 submitted by the plaintiff to the jury solely upon the ground that the defendant forcibly prevented him from exercising certain rights is not supported by proof of a mere verbal prohibition on the part of the defendant.</p>

Contract on a bond dated May 1st 1862, executed by the defendant to the plaintiff, “ in the full and just sum of one hundred dollars, mutually agreed upon as liquidated damages,” the condition of which recited that Henry A. Fuller had conveyed to the defendant a parcel of land in Needham, subject to a mortgage to the plaintiff for one thousand dollars, which the defendant was to pay as his own debt, and providing that within two years the defendant should pay to the…

<p>If a valid attachment has been made of the property of a defendant who has never lived in Massachusetts, and he, being out of the Commonwealth, acknowledges service of the writ and waives the benefit of the statutes respecting absent defendants, judgment may be rendered and execution issued against him upon his default, in the same manner as if the writ had been duly served upon him by an officer within the Commonwealth.</p> <p>Proof that an attaching creditor had heard a report that his debtor had conveyed all his property to another, who in consideration thereof was to pay his debts, and that such person, upon being called on by the creditor, did not deny his responsibility, but promised to pay the sum due to the creditor, is not sufficient to require a finding that the creditor had actual notice of an unrecorded deed from his debtor to such person.</p>

Bill in equity in the nature of a bill of interpleader, by the executors of the will of Francis W. Fuller, setting forth a copy of the testator’s will, which contained the following devise: “ I give, bequeath and aevise to my father, Warren Fuller, and to my mother, Eliza B. Fuller their heirs and assigns, all the right, title and interest which I own in the homestead now occupied by my said father, Warren Fuller, excepting that my aunts, Eliza Fuller and Hannah Fuller, are…

<p>Three actions of tort in the nature of trespass quare clausum.</p> <p>At the trial in the superior court, before Rockwell, J., the following facts appeared: In November 1863 Manley Drake put up and sold at auction the standing wood op the close described, in several parcels, and the defendants each became the purchaser of one or more of said parcels; and at the auction the auctioneer stated publicly, and as one of the terms of sale, that the purchasers might have until the middle of the following June to cut and remove the wood from the land.</p> <p>At the same auction, and after the sale of the wood had been completed, the land was put up by the same auctioneer tor sale, in two lots ; and the plaintiff, through an agent who was present at the sale of both wood and land and heard the terms of sale stated by the auctioneer, bid off and became the purchaser of one of the lots, and Azel Drake purchased the other. Sub ■ sequently in the same month deeds of the lots were executed by Manley Drake to Emma R. Drake and Azel Drake; and on the 12th day of February 1864 Azel Drake sold and conveyed by deed the lot purchased by him to the plaintiff. All the deeds above mentioned were entered for record on the 14th of June 1864; but it was not contended, at the argument in this court, that the defendants were ignorant of the sale of the land by Manley Drake, and the execution of the deeds thereof, at the time when the trees were cut.</p> <p>The deeds from Manley Drake to the plaintiff and Azel Drake, and the deed from said Azel to the plaintiff, were warranty deeds, containing no reservation of standing wood, or of any right to enter upon the land to cut or remove the same ; and all the acts of trespass complained of consisted in cutting and carrying away the wood sold, and were committed by the several defendants prior to the 15th of June 1864.</p> <p>Upon these facts, the judge instructed the jury that the plaintiff was not entitled to recover in either of said actions, and verdicts were accordingly rendered for the defendants. The plaintiff alleged exceptions.</p>

<p>tt is not a fraud upon creditors nor an act in violation of the insolvent laws for an insolvent debtor to give new notes in exchange for notes dated before the passage of St. 1855, c. 238, for the purpose of extinguishing his old debts and thus entitling himself to hold his homestead; but in such case if the debtor does not disclose his purpose and assigns a different reason for the exchange, and the creditors accept the new notes without understanding that their rights will thereby be impaired, the new notes will not, while in the hands of original parties, be held to extinguish the old ones, but will be considered merely as renewals of them, and therefore the debtor will have no right to a homestead as against them.</p>

Contract brought upon three bonds of the collector of taxes and his sureties.

Tort for forcibly entering the plaintiff’s close in Needham, and carrying away a dog, the property of the plaintiff. The defendant justified his acts; and, at the trial in the superior court, before Russell, J. without a jury, it appeared that in July 1864 a dog entered upon the defendant’s premises and killed several of his chickens, and he pursued the dog, which ran upon the plaintiff’s premises and into the plaintiff’s house.

Petition filed November 10th 1863 to enforce a mechanic’s lien on a house and land in West Roxbury. The statement of account annexed to the petition contained various items, extending from the 3d of July to the 13th of August 1863.

<p>If labor and materials have been furnished and used in the erection of a building, and s payment has been made on general account, without discrimination as to whether the same should be applied towards the price of the labor or the price of the materials, so that it is impossible to determine how much remains due for the labor or for the materials Beparately, and there is no mechanic’s lien for the whole, there can be none for any part.</p>

<p>if a vessel has been built for the United States for the purpose of being used as a floating light, under an agreement to construct and equip her according to certain specifications annexed, and to the satisfaction and approval of an agent of the United States, and to deliver her in this commonwealth, for a gross sum to he paid by the United States to the builder after her completion, and the builder has completed the same, and received the contract price, and the title to her has vested in the United States, subject to the lien, and possession has been taken of her by the United States, and the spars and rigging been put up, and the lanterns put on board and prepared for use, a lien upon her cannot be enforced in the courts of this commonwealth upon proceedings afterwards commenced, for labor and materials used in her construction.</p>

<p>Contract brought by commissioners appointed by the judge of probate to make partition of the real estate of Otis Little, deceased, to recover the amount of their fees for services in making the partition, and of money paid for the assistance of surveyors.</p> <p>At the trial in the superior court, before Brigham, J., the following facts appeared: Otis Little died in 1839, leaving real and personal estate, and a will which contained the following provisions, of which a construction was given by this court in Haza/rd v. Little, 9 Allen, 260:</p> <p>“ I give to my wife Lucy Little the use and improvement of all my real and personal estate during the time or term she remains my widow, upon condition that she support and educate my minor children in such manner as I have heretofore supported and educated them, and, when my youngest child arrives at the age of twenty-one years, then two thirds of my real and personal estate to be equally divided among all my children, and in case of their decease to their children, meaning for them to have their deceased parents’ share in my estate; the other third to be and remain for the support of my said widow.”</p> <p>“ I give my said widow the privilege of cutting fifty cords of wood yearly, during the time she remains my widow, in addition to firewood, to purchase necessaries, pay taxes and other necessaries for the family.”</p> <p>Little left a widow and eleven children, of whom the female defendant is one; and the defendants afterwards filed a petition for partition of the real estate, upon which a warrant was issued to the plaintiffs in May 1862 appointing them commissioners to make such partition, namely, one third to the widow and two thirty-third parts to each of the children. The report of the plaintiffs showed that, after setting off one third part of the real estate to the widow, they designated and set out a certain piece of woodland “ to furnish her with the means of cutting and supplying herself with fifty cords of wood yearly, in addition to firewood, as provided in the will of Otis Little,” and assigned and set off to her “all the title, interest and estate in said premises that are necessary for carrying into effect said privilege and the enjoyment thereof.” The residue of the real estate was divided among the children. In May 1863 the judge of probate decreed that this report be not accepted and that partition be not made, “ it being made to appear that the shares or proportions of some of the parties are uncertain, depending upon the construction or effect of a devise and upon other questions which seem proper for the consideration of a court of law.”</p> <p>Evidence was introduced on both sides as to the fairness and impartiality of the plaintiffs; and the plaintiffs were allowed under objection, to testify that in making the division they acted under the advice and direction of the counsel of the defendants in procuring the warrant for partition, the defendants being pres ent on some of the occasions when such advice and direction were given.</p> <p>The defendants requested the court to instruct the jury that the plaintiffs were not entitled to recover unless they had complied with the orders and directions of the warrant, and unless the charges and expenses had been previously ascertained and allowed by the probate court; that, if liable at all, the defendants were only liable for two thirty-third parts of the charges and expenses; that if by reason of the non-compliance of the commissioners with the orders and directions of the warrant their services had turned out to be abortive and of no value to the defendants, then they were not entitled to recover; and that it was not competent for the judge of probate at that stage of the proceedings to pass the order made by him, but only to set aside the report, and commit it anew to the same or other commissioners. But the judge refused so to instruct the jury, and instructed them as follows: “ The plaintiffs may, if they have faithfully and impartially performed their functions under the warrant directed to them by the probate court, (and upon this question their report is not conclusive, although it shows that their acts exceeded the acts directed by the warrant, as is claimed by the defendants,) recover for their services one dollar per day and four cents a mile for their travel out and home; and also may recover any expenses incurred by them for a survey of the premises which were to be the subject of their partition, if such a survey was necessary for an intelligent and impartial partition ; and the plaintiffs may thus recover notwithstanding there was no judgment in the probate court upon their proceedings under said warrant that the partition made by them should be firm and effectual forever, and notwithstanding their charges and expenses were not before the bringing of this action ascertained and allowed by the probate court.”</p> <p>The jury returned a verdict for the plaintiffs accordingly, and the defendants alleged exceptions.</p>

Writ of entry. After the former decision in this case, reported in 9 Allen, 242, the parties agreed in the superior court upon the following facts : The tenant admits the right of the demandant to recover, subject to the tenant’s claim of homestead ; and the only question is, whether the tenant has an estate of homestead.

<p>Libel for divorce, setting forth that the parties were married in Rhode Island in 1838 ; that after about two years they lived together in Somerset in this commonwealth; that she haa always been faithful to her marriage obligations, but that he on the 1st of June 1860 and since has committed adultery with Sarah A. Bottsford; that in March 1860 he went to the state of Illinois, as she is now informed, with the fraudulent intention of there procuring without her knowledge, a divorce from her fos causes for which no divorce could be granted here; and that she is informed that he did there procure such divorce and married said Sarah A. Bottsford, though she never had notice of the pendency of any such proceedings there, and no cause existed for which a divorce could be obtained by him under the statutes of Illinois or Massachusetts.</p> <p>The answer set forth A bat after the marriage of the parties they removed, in 1855, to Illinois, where they lived and cohabited together until February 1859, when she deserted him and has ever since continued such desertion; that he became a citizen of Illinois; that at May term 1861 of the circuit court for Kane County, Illinois, he obtained a decree of divorce from her; and denied that he had committed adultery as alleged, or that he went to Illinois in March 1860 with the particular intention of there procuring, without her knowledge, a divorce from her as alleged in the libel.</p> <p>At the hearing, before Metcalf ¡ J., the following facts appeared : The parties were married and lived together at Somerset as alleged, and about the year 1855 removed to Illinois and there lived together until February 1859, when the libellant, under circumstances as to which there was no evidence, came back to Somerset and there lived with a brother-in-law of the respondent until about April 1860. During this time the respondent was also there and lived at his brother-in-law’s for three weeks or more in February and March 1860, and while there executed the following agreement: “ Somerset, March 3d 1860. I hereby agree and pledge myself to pay to Anna M.' Hood the sum of three dollars per week so long as she shall remain single, we having separated, and this sum being allowed for her separate maintenance, she to have the sole privilege of enjoying her own property as she shall see proper, I agreeing to pay punctually the above three dollars per week at the end of every four weeks. J. M. Hood.” The libellant then moved to Fall River, and prior to April 1861 received some money from the respondent, with which she paid her board. The respondent obtained a decree of divorce in Illinois in May 1861 for the cause of desertion, and thereafter married Sarah A. Bottsford and has since cohabited with her ; and in June 1861 he sent to the libellant a letter informing her that he had obtained the divorce. The libellant has resided in Massachusetts since February 1859.</p> <p>Upon these facts, the case was reserved for the determination of the whole court.</p>

Contract brought to recover for work done by the plaintiff for the defendants.

Contract brought to recover back money paid by the plaintiff for a tax for the year 1864 illegally assessed upon him by the defendants. At the trial in the superior court, before Brigham, J., the only question was upon the plaintiff’s domicil on the 1st of May 1864.

<p>Contract brought by the collector of Freetown to recover taxes assessed in that town upon Job Terry, the defendant’s testator, for the year 1861.</p> <p>At the second trial in the superior court, before Brigham, J., after the decision reported in 9 Allen, 214, the only question in issue was whether Job Terry had his domicil in Freetown on the 1st of May 1861. The plaintiff introduced evidence tending to prove that Job Terry had his domicil in Little Compton, Rhode Island, from 1855 to March 1860; that he spent the summer of 1860 in travelling, and in the autumn came to Freetown, where he resided upon an estate occupied by his son, the defendant, till February 1861. Amongst other evidence, the plaintiff offered a written statement of Henry M. Tompkins, town clerk of Little Compton, which it was agreed should be taken as if given in the form of a deposition, that before leaving Little Compton Job Terry informed the town officers that he should no longer make that his residence; and that he had . o recollection of seeing Job Terry more than twice in Little Compton after the 20th of March 1860, and at each time of his coming he stayed in the town (as "Tompkins thought) less than a week. The defendant objected to this statement, except so far as it contained statements of Job Terry; but the judge admitted it.</p> <p>The defendant offered evidence tending to prove that the residence of Job Terry continued in Little Compton, and that h often claimed that to be his residence during the time he was in Freetown; and asked the court to rule that the intention to abandon a domicil, and actual residence at another place, if not accompanied with the intention of remaining there permanently or at least for an indefinite time, would not produce a change of domicil. '</p> <p>The judge declined so to rule, and .nstructed the jury as follows:</p> <p>“ One may be said to have a domicil in that place which constitutes the principal seat of his residence, of his business pursuits, connections, attachments, and of his political and municipal relations. Domicil in any place is acquired by residence there of a person with the intent to regard and make that place his home. Domicil in any place is abandoned by removal by a person from a place of residence with an intention not to return there or make there his home. Both in acquiring and abandoning a domicil the act and intent must concur. A person always has a domicil in some place ; and therefore a domicil once fixed continues and attaches to a person until another domicil is acquired and substituted for it, although as to such domicil there has been a concurrence of the act and intent of abandonment. The acts and intents of persons, in the matter of their domicil, may be inferred from their declarations and conduct.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Contract, to recover wages. The defence was payment to the plaintiff’s agent; whose agency was denied by the plaintiff. At the trial in the superior court, before Wilkinson, J., it appeared that the plaintiff ordered one Reach to collect the debt of the defendant, and, after paying to one Howe a sum due to him from the plaintiff, to remit the balance to the plaintiff.

<p>An action of contract cannot be maintained for the price of a horse sold on the Lord’s day, although the purchaser keeps him afterwards; but the remedy is by an action of tori in the nature of trover.</p>

<p>kn assignee of an insolvent debtor may keep accounts and memoranda of his doings as assignee in blank leaves of books of account belonging to the estate; and after settling his final account and distributing all the estate that has come to his hands, in pursuance of the order of court, may retain his receipts, vouchers and memoranda for his account, and may cut out such blank leaves, before delivering the books of account to his successor.</p>

Contract brought by the executrix of the will of Asaph Tracy upon two promissory notes in the usual form, signed by the defendant, and payable to the plaintiff’s testator or order The answer admitted the making of the notes, but averred that the defendant was then a married woman living with her husband, and that the notes were given without consideration to her, and not for the benefit of her separate estate or for her own benefit or in respect to any separate trade,…

<p>A bill of sale of an undivided share of a vessel, absolute in form, to one who is named therein simply as trustee, without expressing the nature of the trust, but with an oral understanding that it is given as security for debts due and to become due from the vendor to a third party, with authority in the trustee, in case of default in the payment of any ol said debts, to sell the share and apply the proceeds towards the payment thereof, rendering the surplus, if any, to the vendor, leaves no equity of redemption in the vendor. And if, on the return of the vessel from a whaling voyage on which she was engaged at the time of the execution of the bill of sale, a proportionate share of her catchings is set apart and afterwards sold for the trustee and cestui que trust, and the proceeds accounted for and afterwards applied so far as necessary by mutual agreement to pay for a proportionate share of the outfits for a new voyage, this is sufficient to show an agreement that a share of the catchings of the new voyage shall be held on the same trust with the share of the vessel, and the same may accordingly be sold by the trustee in the execution of his trust.</p>

<p>If a policy of insurance on the life of a married man is made payable to his wife, ai d sue dies before him, leaving children, the administrator of her estate, upon receiving the amount of the policy after the death of the husband, will hold it, under the statutes of Massachusetts, if no other trustee is appointed, for the benefit of the children; and the administrator of the husband’s estate has no interest therein.</p>

Contract against the administratrix of the estate of David B. Brightman, to recover for money paid by the plaintiff for the defendant, as his agent and for his benefit.

Tort in the nature of trespass quare clausum fregit. At the trial in the superior court, before Wilkinson, J., the jury returned a verdict for the defendant, under directions so to do; and the plaintiff alleged exceptions. The case is stated in the opinion.

<p>Tort to recover for the conversion of certain articles of household furniture.</p> <p>At the trial in the superior court, before Putnam, J., it appeared that, on the 9th of December 1863 Samuel B. Cook executed and delivered a mortgage of the articles in controversy to the plaintiff, and to avoid the necessity of recording the mortgage it was proposed by Cook to put the furniture in one room of the house in which he lived, and lock the door, and deliver the key to William D. Whiting, who owned the house, that he might keep possession of the mortgaged property till Cook should pay to the plaintiff the debt secured by the mortgage. This being assented to was accordingly done; and Cook shortly after-wards moved from the house, and the key of the house was also delivered to Whiting. After this had been done, and before the mortgage had been recorded, the furniture was attached by the defendant Read, who was a deputy sheriff, on a writ against Cook, and was subsequently sold by him on the execution which was obtained in the suit. The other defendant, Foque, acted as the agent of the attaching creditor, in directing and assisting in the attachment. The plaintiff made a due demand on Read for the amount due to him and secured by his mortgage.</p> <p>Whiting was called as a witness, and testified that Cook wished to put the furniture into his hands in order that the mortgage need not be recorded; that he was to keep it for the plaintiff till Cook paid the debt, and in case Cook paid the debt then the furniture was to be redelivered to him. Read testified that Foque went with him and pointed out the property to him and directed him to attach it, which he did.</p> <p>The defendant requested the court to instruct the jury that upon the facts and testimony the plaintiff was not entitled to recover, and that there was no such delivery of the goods to the plaintiff and retention of them by him as would entitle him to recover; and that there was no sufficient evidence that Foque took the property and converted it to his own use.</p> <p>The judge declined so to rule, and instructed the jury that if Whiting took and retained the possession at Cook’s request as the plaintiff’s agent for the plaintiff’s sole benefit, it was sufficient; but if he acted as bailee simply, or as agent of both parties, and was not to deliver the goods to the plaintiff except upon some contingency, then he was not the plaintiff’s sole agent, and there was no sufficient delivery and retaining of possession 1 and that if Foque went with Read, as agent of the attaching creditor, and pointed out the property and directed Read to attach it, and Read attached it at Foque’s request and in his presence, Foque would be jointly liable with Read.</p> <p>The jury returned a verdict for the plaintiff, against both defendants ; and they alleged exceptions.</p>

Indictment for obtaining money by false pretences. The material parts of the indictment were as follows : “ The jurors for the said commonwealth on their oath present, that Jacob N. Lincoln of, &c., on, &c., at, &c., unlawfully, knowingly and fraudulently designing and intending, by the false pretences hereinafter named and set forth, to injure and defraud one Matilda K. Shepard, feloniously, unlawfully, knowingly and designedly did falsely pretend to said Matilda K. Shepard…

<p>Complaint made to the justice of the municipal court of Taunton, charging that the defendant “ on the first of June in the year of our Lord one thousand eight hundred and sixty-five, and from that day to the day of the date of this complaint, did keep and maintain a certain tenement or shop then and there used for the illegal keeping and sale of intoxicating liquors.” At the foot of the complaint, after the signature, were these words and figures: “ Dated August 30, 1865. Bristol, ss. Received and sworn to the thirtieth day of August in the year one thousand eight hundred and sixty-five. Before the court, James P. Ellis, Clerk.”</p> <p>At the trial in the superior court, before Wilkinson, J., after a conviction in and appeal from the municipal court, the defendant, before the jury were empanelled, moved that the complaint be quashed, because it was insufficient in charging that the defendant kept a “tenement or shop;” but the judge overruled the motion, because it should have been made in the municipal court, and was no1- made there. The judge also ruled that a continuing offence from the day named to the date of the complaint was properly charged, and admitted evidence covering the whole of that period.</p> <p>The defendant contended that St. 1864, c. 250, § 3, is unconstitutional ; but the judge ruled otherwise.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Complaint charging that the defendant “ on the first day of June in the year of our Lord one thousand eight hundred and sixty-five, and from that day to the day of the date of this complaint, did keep and maintain a certain tenement then and there used for the illegal keeping and sale of intoxicating liquors.” The date and jurat were in the same form as in the preceding case.

<p>Indictment for subornation of perjury. The indictment alleged, at great length, that on the 5th of December 1861 a cause was pending in the superior court of the city of New York in the state of New York in favor of Daniel H. Craig against the defendant, in which Craig sought to recover damages of the defendant for a libel in charging that Craig had cut the telegraph wires on the arrival of a foreign steamer to'give a certain despatch the advantage of time over other despatches, and that he had a woman for an accomplice, and the defendant in his answer admitted the publication of the charge and alleged the truth in justification ; “ and a certain issue was then and there duly joined in the said suit and proceeding in a court of justice between the said Craig and the said Smith ; ” “ that on the said fifth day of December in the said cause then and there so pending as aforesaid, a commission was duly issued out of the said superior court,” directed to Edward Bangs of Boston, Massachusetts, appointing him commissioner to take the deposition of Charles C. Northrup as a witness in said cause, upon certain additional cross-interrogatories propounded to Northrup by Craig, and in pursuance thereof Northrup afterwards appeared and was sworn by said Bangs, who had authority to administer the oath, and took the oath by laying his hand upon and kissing the gospels ; and certain questions became material in the said cause, and to the said issue between the said parties, and to be deposed to by the said witness, in answer to the said additional cross-interrogatories, one of which was whether or not the wife of said Northrup had been living with Smith as his mistress before Northrup married her; and in the eighteenth cross-interrogatory the witness was interrogated, [amongst other things specified in the indictment, and hereinafter set forth,] “ What was the name of your wife before you married her ? Had she not been living with the defendant (meaning said Smith) before you married her ? (meaning living with said Smith as his mistress :) ” to which Northrup answered, “ Lucy Peabody De Maine. She had not. (meaning that the said wife of said Northrup had not been living with the said defendant Smith as his mistress before said Northrup married her.) I answer the three last questions emphatically, No.” That in truth and in fact, as Northrup well knew, his wife, before her marriage to him, had been living with the defendant as his mistress; that Northrup accordingly committed perjury ; and that the defendant procured him to do so, at said Boston.</p> <p>At the trial in the superior court, before Putnam, J., evidence was introduced tending to show the pendency of an action in the superior court of the city of New York, as alleged in the indictment. A commission was then offered in evidence issued by said court to Edward Bangs to take the deposition of Charles C. Northrup in answer to additional cross-interrogatories propounded by Craig, and annexed to the commission. The instructions annexed to this commission directed that the oath to the witness should be administered by the witness laying his hand upon and kissing the gospels. The eighteenth additional cross-interrogatory was as follows: “ What was the full name of your wife before you married her? Had she been previously married ? Had she one or two children when you married her 1 Had she not been living with the defendant before you married her ? Did the defendant not give you a sum of money or some telegraph stock or some other consideration, to induce you to marry your wife or to take one of her children ? Does he not now assist to support these children"? ” To this interrogatory Northrup answered as follows: “ Lucy Peabody De Maine, She had been previously married; at least, she was reported to be a widow, and I presume was. She had then two children. She had not. He did not. He does not. I answer the three last questions emphatically, No.” The defendant objected to the admission of this commission, and of the interrogatories and answers, because the commission did not authorize Bangs to administer a binding oath ; but the objection was overruled.</p> <p>For the purpose of showing perjury by Northrup in his answers to the above interrogatory, he and his wife, being called by the Commonwealth, were allowed to testify, against the defendant’s objection, that for a series of years before their marriage she had been the mistress' of the defendant and that he had supported her. Charles C. Northrup also testified that when the question was put to him he understood it to be an inquiry whether she was living with Smith as his mistress, and answered the question, so understanding it. The judge on this point instructed the jury that if Northrup so understood the question, and the phrase might from its connection be fairly so understood by him, and he so understanding it answered it as he did, perjury might be committed by him in such answer.</p> <p>Northrup also testified that in the spring of 1863 he was in the army at Camp Butler in Chicago, Illinois, and one Rowe visited him there, as agent of Craig, to induce him to come to Boston to testify before the grand jury against Smith ; that he came to Boston accordingly in June 1863 ; that Rowe and Craig both promised that Craig would help him in securing a good position ' in the army, and they both paid him money. The defendant, contending that this evidence showed a conspiracy between Craig, Rowe and Northrup in this prosecution against him, offered in evidence two letters written by Craig to Rowe just before Northrup came to Boston in June 1863, respecting the procurement of Northrup as a witness, and his testimony. There was no evidence that Northrup had seen these letters or knew their contents ; and the judge excluded them.</p> <p>Northrup also testified that in testifying falsely to the matters above set forth he was influenced by two letters written to his wife by the defendant, and by conversations with his wife in reference to the subject matter of . the letters. These letters were dated on December 31st 1861 and January 5th 1862 respectively. The first was sent to her in Portland, from Maine or New York. The second was dated in Portland, Maine, and the evidence was conflicting as to whether or not it was sent to her from Massachusetts. There was evidence tending to show that before Northrop gave his deposition she showed these letters to him, in pursuance of a request made to her by the defendant before they were written. She testified that this request was made to her in Boston, and that the defendant then told her that he wished her to get her husband to testify in a certain way, and promised to write her a letter stating how he was to answer the interrogatories, which letter and interrogatories she was to show to her husband. The defendant contended that he could not be found guilty upon this evidence; but the judge ruled that if the defendant employed her to solicit her husband to commit the perjury, and if he agreed to send to her a statement of what he wished her husband to testify to, which she was to read over to him, and the statement and copy of the interrogatories were accordingly sent to her, the contents of which she communicated to her husband in Boston, by which he was induced to testify falsely, then the defendant might be convicted under this indictment, although the letters and papers were written in Portland or New York, and forwarded to her by mail or otherwise.</p> <p>The defendant then requested the judge to instruct the jury as follows:</p> <p>“ 1. The commission to Bangs did not authorize him to administer to Northrop a binding oath in this state, and false statements by Northrop made upon an oath administered by Bangs in his capacity of commissioner, deriving his authority to administer such oath from that commission alone, would not be perjury.</p> <p>“ 2. If the jury find that the defendant’s letters of December 31st 1861 and of January 5th 1862 were written without the jurisdiction of this state, and were not brought to this state by the defendant himself, but were communicated to Northrop by the agency of some other party, and the defendant did no othei act to induce Northrup to commit the perjury alleged, he cannot be convicted upon this indictment, even though the contents of such letters were made known to Northrup and he was influenced by them to testify falsely.</p> <p>“ 3. If letters written by the defendant and representations and promises made by him for the purpose of inducing Northrup to testify falsely were not communicated by the defendant himself to Northrup, but were communicated to him by his wife when the defendant was not present personally, and Northrup was influenced by such letters, representations and promises alone, thus made known to him, to testify falsely, the defendant cannot be convicted upon this indictment.</p> <p>“4. To authorize a conviction of the defendant upon this indictment, the jury must find that the defendant was present, counselling and procuring the perjury by Northrup.”</p> <p>The judge declined to modify his former instructions, so as to make them conform to these requests, and the jury returned a verdict of guilty. The defendant alleged exceptions.</p>

Complaint dated April 3d 1865, charging that the defendant “oh the third day of April in the year of our Lord eighteen hundred and sixty-five, at Newton in the county of Middlesex, within six months last past,” was a common seller of intoxicating liquors in violation of law.

<p>A license granted under St. of U. S. of 1862, c. 119, does not authorize the sale of intoxicating liquors in this commonwealth, in violation of the statutes of this commonwealth.</p> <p>If the defendant on the trial of an indictment against him for selling intoxicating liquors in violation of the statutes of this commonwealth, puts in evidence a license, under St. of U. S. of 1862, c. 119, authorizing him to sell such liquors at retail, and granted before the act charged against him in the indictment, and in force at that time, that fact may be taken into consideration by the jury, in determining whether or not he is guilty.</p>

Indictment for keeping and maintaining a tenement in School Street in Boston, used for the illegal sale and illegal keeping for sale of intoxicating liquors. At the trial in the superior court, before Vose, J., instructions were given to the jury which were not excepted to. The judge did not reduce to writing the instructions so given to the jury before they retired to deliberate on their verdict, and did not file them in the case.

<p>The legislature have power to make it a criminal offence to sell pure milk mixed with pure water.</p> <p>A certificate of the result of an analysis of milk, by a sworn inspector appointed under St, 1864, c. 122, is admissible in evidence in a criminal prosecution under that statute, pro* vided he also testifies at the trial to the same facts which are stated therein; and in such case the admission of the certificate in evidence before he testifies furnishes no ground fa? a new trial, after a verdict of guilty.</p>

Indictment for obtaining money under false pretences. The first count charged that the defendant falsely pretended to Charles Connell that a few days before he, the defendant, was in Connell’s place of business and had two drinks, and gave to Connell five dollars, from which Connell was to take twenty cents, but that Connell did not return any change ; and Connell, believing said false representations, and being deceived and induced thereby, paid to Norton four dollars and…

<p>The first of these was an action of contract brought by the treasurer of the Commonwealth against a corporation created by St. 1858, c. 124. The declaration alleged that by St. 1863, c. 236, the corporation became obliged.to reserve from each and every dividend one fifteenth part of that portion due and payable'to holders of stock residing out of the Commonwealth, and to pay the same to the treasurer of the Commonwealth within ten days after such dividend should be declared payable; that on the 12th of June 1863 the corporation declared a dividend of ten dollars on each share of its capital stock, and on the 18th of said June made a return as required by law, a copy of which was annexed, [showing the names of non-resident owners of shares, to the number of 2408,] and that the corporation thereupon became bound to reserve the sum of $1605.33, and pay the same to the treasurer of the Commonwealth on the 22d of said June; yet, though requested, the corporation had not paid the same.</p> <p>There was another similar count, founded upon a subsequent dividend.</p> <p>The parties agreed that the facts set forth in the declaration were true ; and judgment was rendered in the superior court for the plaintiff, and the defendants appealed to this court.</p> <p>The second, third and fourth were actions of contract against other corporations of this commonwealth, and the allegations of the declarations were similar to those in the first case. In each of these cases the defendants filed a general demurrer, which was sustained in the superior court, and judgment ordered for the defendants; and the plaintiff appealed to this court.</p>

<p>Ef an action to recover a tax upon a corporation, assessed under St. 1864, c. 208, is brought by the treasurer of the Commonwealth in his own name, instead of in the name of the Commonwealth, as required by § 14 of that statute, and the declaration contains no averment that the treasurer was by law authorized to commence the action in his own name, the defendants may take advantage of the objection, and defeat the action, although no demurrer to the declaration is filed, and the answer contains neither a special nor a general denial of the averments of the declaration.</p>

<p>Bill in equity by a street railway company, setting forth that by St. 1853, c. 383, the Cambridge Railroad Company were incorporated for the purpose of constructing and using a street railway in the streets of Cambridge and Boston where their tracks might be located; that by St. 1855, c. 338, the plaintiffs were incorporated for the purpose of hiring said Cambridge Railroad ; that the plaintiffs accordingly hired the same; that at the date of the lease the Cambridge Railroad Company had procured locations and constructed tracks running from Bowdoin Square in Boston to Harvard Square in Cambridge, and to Mount Auburn and North Cambridge; that the plaintiffs commenced and have since continued to run trips with their cars regularly, and have been in the habit of removing snow in the winter season from their track by means of snow-ploughs, and levelling down the snow or removing the surplus snow from the streets when required, so that the portion of the public using the streets with sleighs might be accommodated upon the sides of the tracks, while that portion of the public using the cars were also accommodated ; that from this course no serious inconvenience has resulted; that by St. 1864, c. 229, concerning street railway corporations, the board of aldermen of any city in which a street railway is operated are authorized to establish by an order such rules and regulations as to the rare of speed, mode of use of the tracks, and removal of snow and ice from the same, as in their judgment the interest and convenience of the public require; that the plaintiffs requested the board of aldermen of Cambridge to establish such rules and regulations, and thereupon the board of aldermen passed the following order:</p> <p>“ In Board of Aldermen, December 21, 1864. Ordered, That the Union Railway Company be and is hereby prohibited from removing snow or ice from their tracks in any of the streets or upon any of the bridges of the city, unless said company shall have first obtained the consent of the superintendent of streets and drains therefor, which consent said superintendent is hereby authorized to give, when in his judgment the same shall be proper; and, whenever such consent shall have been given, the snow and ice shall be removed in the manner and to the degree directed by said superintendent, and not otherwise. And the superintendent of streets and drains is hereby authorized, under the direction of the committee of roads and bridges of this board to contract with the railway company for the removal of ice and snow, and for the purpose to employ the men and teams belonging to the street department. Ordered, That all orders in relation to the removal of snow and ice inconsistent with the foregoing order be and the same are hereby rescinded.”</p> <p>The bill further set forth that on the day after the passage oí the above order the superintendent of streets and drains of Cambridge refused to give his consent to the removal of the snow and ice from the plaintiffs’ tracks, and forbade and prohibited the plaintiffs and forcibly restrained them and their agents from so removing the snow and ice, whereby the plaintiffs were prevented from using that portion of their track, to the great inconvenience and damage of themselves and of the public.</p> <p>The plaintiffs afterwards filed a supplemental bill, setting forth that on the 22d of March 1865 the board of aldermen passed the following order : “ Ordered, That the removal of snow and ice from the tracks of the Cambridge Railroad Company between Harvard Square and the dividing line between Cambridge and Boston be and the same is hereby forbidden ; ” and that the defendants threaten to prevent the plaintiffs from removing the snow and ice from their tracks.</p> <p>The prayer was for an injunction, and for further relief. The defendants filed a general demurrer, and the case was reserved for the determination of the whole court.</p>

<p>If an arrangement is made between several connecting railroad companies, by which goods to be carried over the whole route shall be delivered by each to the next succeeding company, and each company so receiving them shall pay to its predecessor the amount already due for the carriage, and the last one collect the whole from the consignee, a reception of such goods by the last company, and a payment by it of the charges of its predecessors, will not render it liable for an injury done to the goods before it received them.</p>

Tort against a street railway corporation to recover the value of a box of merchandise.

Tort against a street railway corporation to recover damages for the act of one of their conductors in expelling the plaintiff from a car in which he was a passenger. At the trial in the superior court, before Morton, J., it appeared that the plaintiff was a passenger in one of the defendants’ cars, and was expelled by the conductor.

<p>Tort to recover for the conversion of ten barrels of zinc paint.</p> <p>At the trial in the superior court, before Morion, J., it appeared that the plaintiff, being a common carrier by water, received the zinc paint on board his schooner at New York, to be transported to Boston, and safely and with all reasonable despatch conveyed it to Boston, where, upon his arrival, not being able to find the consignee, and after making every effort in his power to find him, he placed the goods in store with the defendant, who was and is a responsible person in that business in Boston, as storehouse keeper, for safe keeping, and received from the defendant payment of all his charges upon the goods, including freight, cartage, &c., for which he gave the following receipt: “ Boston, April 18, 1860. Mr.-to Despatch Line Dr.</p> <p>[[Image here]]</p> <p>Neither the consignee nor consignor has ever appeared to claim the goods; and the defendant retained them in his storehouse until the spring of 1864, when, after applying to the plaintiff for information as to the consignee and learning nothing further, without notice to or authority from the plaintiff, he sold them at public auction. The plaintiff had demanded the goods of the defendant and offered to pay him the amount of his charges, and the defendant refused to surrender them.</p> <p>Upon this evidence the defendant requested the court to rule that by the acts of the parties the defendant became the bailee of the owner of the goods, and that the plaintiff by his acts had discharged himself from further liability, and could not sustain this action; but the judge ruled that the plaintiff had such an interest in and right to the goods as entitled him to maintain his action. A verdict was accordingly returned for the plaintiff, and the defendant alleged exceptions.</p>

Tort against a ferry company to recover damages for a personal injury sustained in passingfrom their boat, at East Boston.

<p>Tort to recover damages for a personal injury received by the female plaintiff in consequence of a defective highway.</p> <p>At the trial in this court, before Chapman, J., it appeared that in March 1864 Benjamin Merriam, the city marshal of Boxbury, had occasion to search a cave for stolen goods, which cave was situated about six feet above the sidewalk and a few feet easterly of the east line of Shawmut Avenue, a highway in Koxbury. In doing this it was necessary to remove some very heavy stones, which could not be lifted without the aid of a derrick. On the opposite side of the avenue, and about forty feet therefrom, there was a derrick, belonging to the city, with a guy which crossed the avenue. Merriam employed seven or eight hands and worked from about eight o’clock in the evening till about half past ten, when the plaintiffs came from Boston, driving in a carryall with one horse. The party were then at work engaged in removing a stone, by means of a rope attached to the derrick, at one end, and at the other end to a chain which was fastened to the stone. At first the rope lay loosely upon the ground ; and, as the crank of the derrick was turned, it was tightened and lifted up from the ground. The plaintiff’s carryall, when it came to the rope, was struck by it, and the top torn off; and the rope also came in contact with the forehead of the female plaintiff, and injured her severely.</p> <p>It was not contended by the plaintiffs that the road-bed was out of repair; and the defendants insisted that'the facts did not show a defect in the highway. But the judge instructed the jury that the road might be defective, within the meaning of the statute concerning ways, even if the road-bed was in perfec repair, and that a rope stretched across the travelled path, as this was, constituted a defect, so .ong as it was in such a position as to come into collision with a carriage or a passenger, and make it unsafe or inconvenient for the traveller to pass, even though each of its ends was fastened at a point outside the. limits of the highway, and though the rope was not left permanently in one position, but was moved by the turning of the crank; and, as the facts above stated were admitted to be proved, they should regard the way as being defective at the time of the collision.</p> <p>The defendants offered evidence tending to show that they gave the plaintiffs notice of the obstruction in season to enable VIr. Barber to stop his horse; and contended that if they took reasonable pains to inform him of it the city was not liable, though he did not hear the notice or see the obstruction. But the judge instructed the jury that, as the parties had no right to obstruct the travelled path, no notice to the plaintiffs would be a defence, unless it was such that they could not disregard it without being guilty of negligence; that the burden was on the plaintiffs to prove that Mr. Barber used reasonable care, adapted to the circumstatices in which he was placed ; and that if he in driving his horse carelessly disregarded any warning that was given him, or was careless in any other respect, the plaintiffs could not recover.</p> <p>The jury returned a verdict for the plaintiffs, with $4775 damages ; and the defendants alleged exceptions.</p>

<p>in an action to recover damages for a personal injury, a physician who attended the plaintiff after he had been in the care of another physician for two weeks may be asked and testify what, so far as he can judge had been the first physician’s treatment, and in what respects it differed from his own; what effect, as far as he could judge, it had upon the plaintiff; and whether or not he saw any evidence that the plaintiff had been injured by his medical treatment.</p> <p>The statements of a patient to his physician as to the character and seat of his sensations, made for the purpose of receiving medical advice, are competent evidence in his favor, in an action to recover damages for a personal injury, even though such statements were not made till after the action was brought.</p>

<p>If a company is incorporated with power to establish and maintain a ferry and to own ana possess vessels, steamboats and other personal property not exceeding in value a certain amount, the court cannot say that a contract by the company to let one of its steamboats at a certain rate per day, to be used for no specified length of time and in no specified place, is in excess of its corporate powers, if there is no proof that the steamboat was not necessary or proper to be used in the prosecution of the business of the ferry, or that by reason of owning it the company exceeded the limits of property which it was authorized to hold.</p> <p>If the treasurer of a ferry company agrees in its behalf to let one of its steamboats at a certain rate, with an agreement that if rechartered any surplus that may be received ovei the specified rate shall be divided between the company and the charterer, and the steamboat is accordingly rechartered at a higher rate, and the corporation allows it to go into the possession of the second charterer and remain in his use for several weeks, and after its return collects of such second charterer the sum which he promised to pay therefor and enters the same upon its books, this is sufficient evidence to authorize a jury to fieri a ratification by the corporation of the contract of the treasurer.</p>

<p>Contract upon a policy of insurance issued by the defendants upon the plaintiff’s theatre in Boston. The written part of the policy contained the following clause, in the connection shown more fully in the opinion : “ This policy not to cover any loss or damage by fire which may originate 'in the theatre proper.”</p> <p>At the trial in the superior court, before Ames, J., a question arose upon the burden of proof, which is fully stated in the opinion.</p> <p>It appeared by the evidence that a flue had, at the time the theatre was built, been constructed in one of the side biick walls, for a cold air ventilating flue, but that for some three or four years before the fire it had been used as a smoke flue from the furnace of a steam-boiler, situated in a coppersmith’s shop adjoining the theatre, and used to furnish steam for a small steam engine in said shop. Evidence was introduced on both aides upon the question whether this flue was safe, and properly constructed for the use to which it had been so appropriated. It was contended that the fire in the furnace of the steam-boiler might have so heated the bricks in the wall of the theatre, between the flue and the inner surface of the wall in the theatre proper, although the wall might be perfectly tight and free from any crack or imperfection, as to ignite the woodwork in the theatre proper. The defendants contended that if the fire did so originate from the use of the flue for the steam-boiler in the coppersmith’s shop, heating the bricks of the wall so as to ignite the woodwork in “ the theatre proper,” then it was a fire originating “in the theatre proper,” and asked the court so to instruct the jury; but the judge refused to do so, and instructed the jury that a fire so originating would not be “ a fire originating in the theatre proper.”</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions,</p>

Contract brought to recover the sum of two hundred dollars paid as “ forfeit money ” by the plaintiff to an auctioneer employed by the defendant to sell an estate which was bid off at auction by the plaintiff.

<p>Contract brought to recover the sum of one hundred dollars paid by the plaintiff to an auctioneer employed by the defendant to sell an estate which was bid off at auction by the plaintiff; the said sum having been paid in part payment of the price, and the sale not having been completed. At the trial in the superior court, before Rockwell, J., a verdict was returned for the plaintiff, upon facts and rulings which are sufficiently stated in the opinion ; and the defendant alleged exceptions.</p>

<p>An indorsement of a promissory note by a husband to his wife will not vest In her a valid title to it; and if he has afterwards gone into insolvency, and then died, and the assignee in insolvency has had no knowledge of the existence of the note, and has never authorized an action to be brought thereon, she cannot maintain an action to recover the same as administratrix of his estate. And proof that the debtor duly filed schedules of his assets and creditors, which have since been lost, and took the debtors’ oath required by law, is not sufficient to show that the assignee had such knowledge.</p>

<p>In order to create an estoppel in pais, the declarations or acts relied upon must have been accompanied by a design to induce the party who sets up the estoppel to act upon them.</p>

<p>Since the enactment of Gen. Sts. c. 156, § 5, if the plaintiff in an action of trespass to real estate, commenced originally in the superior court, recovers less than twenty dollars as damages, he will be entitled to no costs, unless the judge shall certify, under St. 1862, c. 36 that the title to real estate was in fact concerned.</p>

<p>If a debtor who has been arrested puts property into the hands of his bail to secure him for his liability on the bail bond, and the bail is then summoned as trustee in a trustee process brought against the debtor by another creditor, the plaintiff in such trustee process is entitled to have the liability of the trustee determined in that process, although it appears that the trustee has been sued on the bail bond.</p>

<p>Trustee process. The declaration was in tort, alleging a trespass to the plaintiff’s real estate situated in Roxbury in the county of Norfolk, with personal injuries to himself. Several persons were summoned as trustees, all of whom had a usual place of business in Boston, in the county of Suffolk; and the writ was returnable to this court in Suffolk county. The defendants moved to dismiss the action on the ground that it should have been made returnable in Norfolk county, and that an action for the cause alleged could not be commenced by trustee process; and these questions were reserved by Hoar, J., for the determination of the whole court.</p>

<p>Contract brought to recover one third part of the profits made on the sale of certain real estate.</p> <p>At the trial in the superior court, before Morton, J., the plaintiff offered paroi evidence to show that in July or August 1860 he ascertained that one Tappan had for sale a piece of real estate in Roxbury, and that he negotiated for the purchase thereof, and caused the same to be conveyed by said Tappan, by a deed in the common form, to Louis S. Robbins, of New York; that Robbins furnished a part of the purchase money, and gave a mortgage for the balance of the consideration; that the defendant and Robbins were to furnish the means, manage and improve said property, and to sell the same to the best of their judgment, and of the net proceeds, over and above the costs of the said real estate, and the costs of said improvements, after deducting the rents and income received by them, one third was to be paid to each ; the plaintiff was not to, and did not, furnish any money; and thereafter, to wit, October 9th 1861, with the consent of the plaintiff, Robbins, by a deed in the common form, transferred said real estate to the defendant; that the defendant, at the delivery of the deed to him, repaid to Robbins all the money advanced by Robbins towards the said real estate and improvements; that the defendant then agreed, by paroi, that Robbins’s deed to him sbould not affect the plaintiff’s right to one third of the net proceeds as aforesaid, and that the defendant should take and manage said real estate, and sell the same to the best of his judgment; and of the net proceeds of such sale over and above the cost of said estate, and of the improvements, after allowing for the rents and income received therefrom, pay one third to the plaintiff. The plaintiff also offered evidence to show that in March 1863 the defendant conveyed the said real estate to one Mayall; that the same, together with other property, was conveyed to said Mayall in settlement of a disputed claim which he held against the defendant; and that in such settlement the parties estimated and treated this real estate as of the value of seven thousand dollars over and above the cost thereof, and of improvements thereon, and the plaintiff claimed one third .of such excess, and duly demanded the same.</p> <p>The agreement between said parties was not in writing. The plaintiff claimed to have executed his part of said agreement, in having negotiated for and furnished the property, and that he was to have the said one third of said excess in consideration thereof. But the judge ruled that the plaintiff’s action could not be maintained, and refused to admit the evidence. The plaintiff alleged exceptions.</p>

Contract brought upon an oral promise by the defendant to pay to the plaintiff a bill for the hire of horses and carriages, and for injury to a wagon.

Contract. The declaration contained one count upon an account annexed, in which the items upon the debit side were all for money ; and one count for money had and received.

<p>Contract brought to recover damages for the breach of a covenant of warranty contained in a deed of land given by the defendant to James W. Baldwin, who in his turn conveyed the land to the plaintiff with a like covenant.</p> <p>At the trial in the superior court, before Ames, J., without a jury, the following facts appeared : On the 4th of April 1846, Nathaniel C. Woodman conveyed the premises to Mary W. Comer, wife of George N. Comer, to have and to hold the same to her sole and separate use, free from the interference or control of her husband. On the 18th of November 1846, she conveyed the same by her sole deed to the defendant, who on the 7th of May 1847 conveyed the same to James W. Baldwin by a deed containing covenants that he was lawfully seized in fee simple thereof; that they were free from all incumbrances excepting certain mortgages therein specified; that he had good right to sell and convey the same to said Baldwin, his heirs and assigns forever, subject to said mortgages; and that he and his heirs, executors and administrators would warrant and defend the same to the said Baldwin, his heirs and assigns, forever against the lawful claims and demands of all persons. On the 21st day of June 1855 Baldwin conveyed the premises to the plaintiff, with like covenants. In November 1848 Mrs. Comer had, for the first time, a living child born; and died in June 1851,</p> <p>On the 21st of September 1859 George N. Comer commenced a writ of entry against the plaintiff, demanding the premises as tenant by the curtesy. Baldwin, as warrantor of the present plaintiff, assumed the defence of that suit and employed counsel therein, though he did not appear of record; and Baldwin on the 9th of December 1859 caused .a formal notice to be served upon the present defendant, informing him that the suit had been commenced, and that the present plaintiff had notified him thereof and claimed to hold him responsible as his grantor, and requesting'the present defendant to assume the defence and expense of the suit, and giving notice that he should look'to bitn for all expense and damage to which he might be put by reason of any failure of his title to the premises. The suit of Comer v. Chamberlain was submitted to the court on an agreed statement of facts, signed by both parties, and the question arising upon those facts was brought by appeal to the supreme judicial court, where it was decided in favor of Comer, and judgment was finally entered for him in February 1864. This case is reported in 6 Allen, 166. To avoid being ejected, the present plaintiff then paid to Comer $1300, in consideration of which Comer released the premises to him.</p> <p>Comer was an alien by birth. On the 10th of February 1845 he filed his primary declaration, for the purpose of being naturalized ; and became naturalized on the 5th of July 1847. In the agreed statement of facts upon which the case of Comer v. Chamberlain was decided, it was represented that Comer was naturalized on the 10th of February 1845. This error did not arise from collusion or bad faith, but was a mere mistake. It did not appear that the present defendant had any knowledge of the agreed statement of facts, or that the question when Comer was naturalized was brought to his attention at all, or that he participated at all in the defence of Comer’s suit.</p> <p>Upon these facts the judge found for the defendant, on the ground that under these circumstances he was not bound by the judgment, but had a right to show and had succeeded in showing that in fact Comer had no title to the premises. The plaintiff alleged exceptions. •</p>

<p>Contract brought in this court upon an award. The declaration alleged that the plaintiff was executrix of the will of Nathaniel Haven, deceased; that said Nathaniel, through Charles Dupee his guardian, by his agreement in writing with the defendants, a copy whereof was annexed, referred the matters therein mentioned to arbitrators; and, in case of a disagreement, the said arbitrators were to choose a third person, the award of whom, or a greater part of whom, was to be final in the matter; that thereupon, after due notice, the parties appeared before the first named arbitrators, and after due hearing they, in a writing by them signed, a copy whereof was annexed, stated that they were unable to agree, and thereupon appointed Newell A. Thompson as umpire and arbitrator in the matter; of all which all parties had due notice; and thereupon said Thompson, as arbitrator and umpire as aforesaid, and said arbitrators, after due notice, heard all the parties; and said Thompson, as said umpire and arbitrator as aforesaid, then and there gave his decision, determination and award, in a writing by him signed, a copy of which was annexed; of all which all parties had due notice; and the majority of said arbitrators, including said Thompson as one of said arbitrators, after said due notice and said due hearing of all parties, by all of said arbitrators, gave their award and determination in writing, by them signed, a copy of which was annexed; all which was made known by said arbitrators to all parties; and thereafter said Nathaniel Haven died; and the plaintiff was thereafter duly appointed executrix as aforesaid, and gave due notice thereof, and made demand upon the defendants for the amount of said award and the interest thereon; but the defendants refused to pay the same.</p> <p>The material portions of the submission were as follows:</p> <p>“ Know all men by these presents that the Winnisimmet Company, a corporation, .... and Charles Dupee, .... guardian of Nathaniel Haven, .... have agreed to submit the claim of said Haven against said company for personal injuries suffered on board the ferry-boat of said company on the eighteenth day of September last, and all other demands between said ward and said company, to the determination of Henry Harwell .... and Joseph Breck, .... they in case-of disagreement to choose a third person, the award of whom or a majority of whom, in case a third person shall be chosen, shall be final ;■ and if either of the parties neglects to appear before the arbitrators after due notice given them of the time and place appointed for hearing the parties, the arbitrators may proceed in his absence.”</p> <p>The written statement of the above arbitrators of their inability to agree was as follows:</p> <p>“ The undersigned referees, appointed in the case of Charles Dupee, guardian of Nathaniel Haven, against the Winnisimmet Company, pursuant to the agreement hereto annexed, being ourselves unafile to agree upon the facts and amount of damages to be awarded, do hereby appoint Newell A. Thompson, of Boston, as umpire in said case, to act with us in the hearing and final decision thereof, in the manner contemplated in the said agreement.”</p> <p>The written decision of Thompson, referred to in the declaration, was very voluminous, but the following statement of it will show all that is now material:</p> <p>It commenced by reciting the proceedings in the case to the time of his appointment, and then proceeded as follows: “ The undersigned, being the third person or umpire chosen as above, was unwilling to act in a case of so much importance with out personally hearing the several parties and their witnesses. Accordingly a new hearing was ordered, and on Monday, September 22,1862, the parties met for that purpose at the office of the Boston Water Power Company in Boston, both referees and the umpire being present.” The grounds relied upon by the plaintiff and the defendants, respectively, together with their wifi nesses, were then mentioned, after which the statement continued “ Now the undersigned, the umpire appointed as aforesaid, hay ing fully and carefully considered the grounds upon which the plaintiff’s claim for damages is founded, the defendants’ points of defence, and all the testimony offered by both parties, begs leave to submit the following as his decision and award in the case, and the reasons upon which his decision is based.” The points which seemed to be involved were then given; and in reference to all of them, as well as to the testimony in the case, which was recited at great length, his opinion was expressed, it being frequently spoken of as “the opinion of the undersigned;” and throughout the statement his own opinion was referred to, without any mention of any consultation with the other arbitrators, or of any opinion which either of them had arrived at, upon the second hearing of the case. The statement then proceeded to say : “ Under these circumstances, therefore, the undersigned feels compelled, to declare that, in his opinion, the defect or imperfect working of the bell-apparatus ; the failure of those whose duty it was to look after and guard against such defects or imperfections, and to make the proper examinations for that purpose ; the placing of an incompetent steersman at the wheel and' leaving him alone there to do the duty which none but pilots of experience should be permitted to undertake; and the unnecessary absence of Capt. Reed from the wheel-house at the time of the accident, he having assumed the position he did as the acting and responsible pilot in the absence of the regular pilot; clearly show such a degree of inexcusable carelessness and negligence on the part of the defendant company, its agents or servants, as to render the said company liable for all damages arising from accident caused by such carelessness or negligence.” Then, after speaking of the rule of damages, and the plaintiff’s condition, the statement continued thus : “ The undersigned, however, does not consider that, by the terms of the agreement by which the parties submitted this case to him as umpire, he has himself any authority to fix the amount of damages to be awarded, but that his duty is only, after a full hearing and due consideration of the case, to determine which of the two referees have fixed upon the sum nearest, in his judgment, to justice and equity. The referee selected by the defendants fixes the amount of damages at the sum of six hundred dollars, thereby recognizing and admitting two principal features in the case, that the plaintiff’s ward did sustain injuries by reason of the accident, and that the defendants are liable for such injuries to a certain extent. If they are liable for any part of the injury they caused the plaintiff’s ward to suffer, by reason of then own carelessness or negligence, or that of their servants or agents, they must be liable for the whole. Is, then, six hundred dollars, under all the circumstances shown in this case, a sufficient compensation for injuries, past and prospective, sustained by Mr. Haven ? Is it a sufficient sum to compensate him for actual expenses, loss of time, loss of capacity to earn money, or as a reasonable solace or satisfaction for loss of bodily and mental powers, and pain of body and mind, which were the immediate and necessary consequences of the injuries sustained ? Is it reasonably commensurate with the injuries, so far as can be discovered or known ? Clearly not. The undersigned is therefore compelled to unite with the referee selected by the plaintiff, who has fixed the amount of damages to be awarded at the sum of three thousand dollars; and in doing this he feels bound to say that if the sum had been fixed still higher by the plaintiff’s referee, even to the full amount claimed by the plaintiff, the umpire could not have' hesitated in that case to decide in favor of the plaintiff, fully believing as he does that such increased amount could not and would not be considered, by any disinterested persons who should carefully examine into the case, as either vindictive or speculative damages, or a greater compensation, all things considered, than is reasonably commensurate with the injuries sustained by Mr. Haven, by reason of the inexcusable carelessness or negligence of the agents and servants of the defendants. For these reasons, and with these expressions of his opinion in the case, the undersigned, as umpire, agrees to the subjoined award.”</p> <p>The material portions of the award referred to, which was signed only by Breck as referee, and Thompson as umpire, were as follows:</p> <p>“ We, Joseph Breck, one of the referees chosen by the parties above named, under and by virtue of their written agreement hereunto annexed, and Newell A. Thompson, the umpire selected by the two referees in the case, pursuant to the provisions of said agreement, we two constituting a majority of those to whom the said case has been submitted for final adjustment, having heard all the evidence in the case, and fully considered the facts and circumstances connected therewith, as well as the rights of the respective parties, do hereby agree upon the following as our award in the premises, viz.: We do award that the said Winnisimmet Company shall pay to the said Charles Du-pee, guardian, for the use of the said Nathaniel Haven, the sum of three thousand dollars, with interest thereon from and after the date of the commencement of this suit.”</p> <p>The award also provided that the defendants should pay all the costs.</p> <p>The answer, amongst other things, alleged that the award was void, because Thompson did not exercise his own judgment in determining the amount of it, but only determined which of the sums fixed upon by each of the other arbitrators was nearer in his judgment to justice and equity.</p> <p>The case was reserved by the chief justice upon these pleadings and papers for the determination of the whole court.</p>

Contract upon a policy of insurance issued by the defendants to Ranney & Morse, by whom it was assigned, with the consent of the defendants, to Mrs. Laura M. Pelton, on the 1st of April 1858, who thereupon gave to the defendants her premium note for the same.

<p>I'f a deed of a lot of land situated between R. and S. Streets in a city describes the granted premises by metes and bounds, and refers to a recorded plan for a full view and description thereof, and adds, u Said lot is approached from S- Street by a passage, laid down on said plan, together with all the buildings standing on the premises, and all rights of way, passage and drainage belonging to the above estate in said passage,” and the passage from S. Street is laid down on the plan and is sufficient to afford access to the lot, the deed will not include, as appurtenant to the granted premises, a right to use another passage which is not laid dowr on the plan, leading to R. Street, and which is owned b> the grantor; nor can such right be established by proof that the grantor has laid a drain from the granted premises through such passage, or that he purchased the passage with the purpose of using it as a way to the granted premises, and for a time permitted the tenants of the granted premises so to use it.</p>

<p>A notice in the following form, though without date, served by bail upon the plaintiff’* attorney on the day of surrendering their principal, was held sufficient: “ You will please take notice that we the undersigned, sureties for B. in the case of A. v. B. now pending in the superior court within and for the county of Suffolk, have this day surrendered him to the keeper of the jail at said jail in said county of Suffolk, at 11¿ o’clock, A. m.”</p>

Contract against the surety in a recognizance, the condition of which provided that the judgment debtor, who had. been arrested on an execution in favor of the plaintiff, should within thirty days deliver himself up for examination, giving notice of the time and place thereof, and duly appear, making no default, and abide the final order of the magistrate thereon.

<p>Bill in equity originally brought by John Belcher and others, selectmen of the town of Winthrop, acting as a board of health, there being no board of health chosen by the inhabitants of said town, praying that the defendant might be restrained from operating his'works for the manufacture of kerosene oil therein.</p> <p>At a former hearing, it appeared that the defendant was engaged in the manufacture of kerosene oil in Winthrop, and on the 29th of May 1862 the selectmen, acting as a board of health passed a general order, determining that the making of kerosene oil was a nuisance, and forbidding the exercise of such trade or employment within the limits of the town ; that said order was recorded in the records of the town on the same day ; and that no prior notice was given to the defendant, but a notice of the passing of the order was served upon him on the 7th of June 1862; and it was determined that the selectmen had authority to pass said order, so as to be binding on the defendant, without first giving him notice, and the case was ordered to stand for a hearing. See 8 Allen, 325.</p> <p>The answer of the defendant, amongst other things, admitted, the carrying on of the business of making kerosene oil by him within the town; denied that the same was a nuisance; professed his ignorance of the alleged order; denied that legal notice thereof had been given to him; denied that any notice was given to him before passing the same; averred that on the llth of June 1862, and before the expiration of the three days allowed by Gen. Sts. c. 26, § 56, for an appeal from the order, (one of the intervening days being Sunday,) another notice was served upon him, of which a copy was annexed, informing him of the presentation of a petition to the selectmen, praying for the passage of a similar order upon him, and appointing a time and place for a hearing thereon; that the defendant appeared, and the plaintiffs also, and a long hearing was had, occupying many days, with witnesses and counsel; that no allusion was made by the plaintiffs to their prior order; that the whole hearing proceeded and was conducted as if no such order had been passed, that nobody then claimed that it was operative or in force, but on the contrary the defendant continued his business of making and refining the oil, with the full knowledge of the plaintiffs, that the defendant always believed and still believes that said order and alleged notice to him were superseded and waived, and were so understood by all parties; that after said hearing :he plaintiffs declined to make any order on the petition, and then referred to the order which they had made on the 29th of May as having been made under Gen. Sts. c. 26, § 52, and said that the defendant was violating the same ; that the defendant’s counsel then told the plaintiffs that if they would make an order on the petition and serve it on him he would appeal therefrom, but they declined to do so ; all of which conduct on their part was, as the defendant believes, devised and acted by them with a view to put him in such a position as to prevent his availing himself of his right of appeal, and to take an unfair advantage of him, and to cause his rights and property to be injuriously affected or destroyed without any redress whatsoever; that he intended to appeal and would have appealed from said order of the 29th of May, but for the service upon him of the last order of notice', that the conduct of the plaintiffs in issuing said order of notice, and in the hearings upon the petition, and afterwards, was a waiver and supersedure of the order of the 29th of May, and was intended to be such by them; and that the suspension of business by him would be of immense damage, the particuars of which were stated in the answer.</p> <p>The case came on for a hearing before Hoar, J., in January 1865, and, it being admitted that Belcher and others were no longer selectmen of Winthrop, the defendant contended that the bill must be dismissed, or prosecuted by the new board of selectmen, acting as a board of health. The judge ruled that the bill was in effect brought in behalf of the town of Winthrop, and might be amended so as to make the town in form the plaintiffs ; and such amendment was allowed accordingly.</p> <p>The defendant offered to prove that the person by whom the notice of the order of May 29th 1862 was served was not a constable, as by his description of himself he appeared to be; and hat, if he was a constable, he made the alleged service in Boston, which was out of his precinct; but the judge ruled that the notice, having been ordered by the board of health and duly received by the defendant, was sufficiently served.</p> <p>The defendant then, upon the allegations contained in his answer, which he offered to prove, contended that said order of May 29th, and said notice thereof, were waived and superseded by the second order, notice of which was served June 11th, and by the conduct and proceedings of the plaintiffs in respect thereto and in respect to manufacturing by the defendant; but the judge ruled that said allegations, if proved as stated in the answer, did not constitute or show a waiver or supersedure of said order of May 29th, nor of said notice thereof,' it appearing that the defendant did not cease from the offensive trade upon the notice; and he reserved this question for the whole court.</p> <p>The defendant also, upon said allegations, contended that the plaintiffs misled him by their second order and notice, and thereby caused him to omit to appeal from their first order, and that, at least, the defendant was led to make a mistake in regard to his appeal in consequence of the conduct of the plaintiffs; and that this court, as a court of equity, should not interpose in behalf of the plaintiffs, to aid them to take an unfair and unjust advantage of the mistake and omission; but the judge ruled that the said order of May 29th, unappealed from, was conclusive upon the defendant, and that the defence was not open to the defendant in this suit, it being admitted that the defendant did not, during the three days allowed by the statute for claiming his appeal, stop his manufacturing, but wholly refused to ■obey the order; and he reserved this question for the whole court.</p> <p>The defendant also contended that this court, as a court of equity, ought not to intervene in aid of the plaintiffs in this case, because the plaintiffs had full power to enforce their order without the intervention of this court; and this question was reserved for the whole court. The arguments were had in March 1865.</p>

<p>The police court of Boston has jurisdiction of a personal action in which the damages demanded are less than one hundred dollars, if the plaintiff and defendant each has hig usual place of business in Boston, and the writ is served in Boston, and each party lives in a town in which no police court has been established.</p>

Writ of dower, by the widow of Alexander King. At the trial in the superior court, before Ames, J., without a jury, it appeared that the premises were conveyed in January 1847 by one Wood to William MeCollough, who on the same day mortgaged the same to Wood to secure the payment of a part of the purchase money, and in October 1847 executed a second mortgage thereof to Benjamin James, to secure a note of $400.

<p>Contract upon a charter, dated October 14th 1863, by which the defendants, in consideration of $3000, let the bark Lucy A Nickels, then on a voyage from Callao to Marseilles, to tht plaintiff, 11 for a voyage from a port in the island of Sicily t< Boston or New York, with the privilege of using a second por in Sicily within the lay days, if required;” “the master to sigr bills of lading for any part of the cargo at any given rates of freight, if requested to do so, without prejudice to this chartei party;” with a provision for thirty running lay days in Sicily, including time used in changing ports, and also forty silver dol lors' per day demurrage. There were also other stipulations noi now material.</p> <p>The declaration averred that the vessel in pursuance of the charter proceeded to Licata, a port in Sicily, where she arrived on the 9th of March 1864 and took in three thousand and ten cantors of sulphur, which composed' a small part of her cargo, and then, on the 13th of the same month, contrary to the agreement of the charter and without waiting for orders, and contrary to the directions before given to the master, sailed directly to Boston with only said part of a cargo on board, and deprived the plaintiff of the privilege of bringing a valuable cargo from a second port in Sicily, Palermo, where he had one engaged.</p> <p>The answer admitted the making of the charter, and averred that the vessel went to Licata in pursuance of instructions of the plaintiff or his agents, and took on board there all the cargo that was offered, or that he was requested to take on board by the plaintiff or his agents ; that the master was then required by the plaintiff or his agents to sign bills of lading of said cargo as taken on board for Boston, without any mention of any intermediate port, and did sign such bills of lading, and thereby became bound to proceed with said cargo to Boston ; and that he was instructed by persons acting for the plaintiff at Licata t« proceed directly to Boston. The answer also denied that an} instructions were given to him to proceed to any other port in Sicily, and averred that there is no port at Licata where a vesse, can lie in safety, and that the cargo is taken on board in lighters while the vessel lies in the open sea, and that she departs as soon as the cargo is on board.</p> <p>At the trial in the superior court, before Allen, C. J., the charter was put into the case, and the following facts appeared in evidence:</p> <p>In November 1861 the plaintiff had chartered the same bark for a voyage similar to that described in the present charter, and with similar stipulations; and then four thousand cantors of sulphur had been taken as cargo at Licata, for which the master signed a bill of lading, reciting that the bark was 61 bound for Palermo for a port of discharge.” The plaintiff testified that in December 1863 he directed Gardner, Rose & Co., his correspondents in Sicily, and his agents there to conduct the voyage, to obtain a cargo in Palermo for the bark after she had taken in sulphur at Licata; and on her arrival in Boston he examined her hold and found that she was not more than one third laden ; and that on her former voyage she took in a similar lot of. sulphur at Licata, and then went to Palermo and filled up.</p> <p>On the 1st of December 1862 the plaintiff wrote to the master of the bark, at Marseilles, that he had again chartered the bark,, to proceed to Sicily to load for Boston or New York, and requesting him on his arrival to telegraph to Gardner, Rose & Co. and write them by mail,16 stating when you will be ready to leave, and asking them to inform you which port to go to first, as you are to use two ports, as before, within the lay days, so that you may know just what to do when you are ready to leave Marseilles”</p> <p>On the 22d of December, Gardner, Rose & Co. wrote to the master, at Marseilles, as follows : “ We have in our possession the charter party of your vessel. The object of the present is to inform you that after you have discharged your outward cargo you will proceed to Licata, where our agent, Mr. William Franck, has necessary instructions as to the quantity of brimstone to be shipped on board your vessel.” The master thereupon wrote to the defendants in Boston: “ I have received orders to go to Licata to take brimstone, and shall probably go to Palermo to fill up, unless they give me a full cargo of brimstone, which they have a right to do under the charter party.”</p> <p>On the 16th of February, 1864, Gardner, Rose & Co. wrote to William Franck, at Licata, informing him that the bark would soon arrive there, and directing him to advise them of her arrival by wire so that they might send down the needful letters of order for the sulphur she would take in at Licata; and adding, “ Bill of lading to be thus filled up : ‘Bound to Boston, consigned to Mr. F. C. Butman, freight $6 p ton and 5 p c primage per ton of 13 ens.’ ”</p> <p>The bark arrived at Licata on the 9th of March, but Mr. Franck was absent at that time, and also at the time when the above letter to him was sent, having left a power of attorney with Gregorio Salto, his chief clerk. Salto could not speak or understand English, and a son of Franck, a young man eighteen years old, acted as interpreter when there was any business with Englishmen or Americans. This son told the master of the bark that Salto had orders to put the brimstone on board, and to fill up the bills of lading for Boston, according to the instructions of Gardner, Rose & Co. in their letter of February 16th, which was shown to the master. The brimstone was accordingly put on board, and a bill of lading was prepared, which was signed by the master, stating that the bark was “ now lying at Licata and bound for Boston.” No special instructions had been given by Gardner, Rose & Co. other than the above, and no special instructions were given to the master by Salto or young Franck. The "master thereupon, on the 13th of March, sailed directly for Boston without having any communication with Gardner, Rose & Co. A coach ran between Licata and Palermo three times a week, the passage requiring from thirty-four to forty-eight hours, and there was also a telegraphic line. Gardner, Rose & Co. had prepared a cargo for the bark at Palermo, and they testified to the current rates of freight from there to Boston. The master was one of the owners of the bark.</p> <p>The plaintiff contended that this evidence, if believed, would warrant a jury in coming to the conclusion that the master had not performed his duties under the charter; that he was bound in the exercise of a proper discretion to ascertain from Gardner, Rose & Co., at Palermo, by the means of communication at his command, before signing said bill of lading or before leaving Licata, whether it was intended that the bill should be made out as it was, and whether it was intended that he should proceed direct to Boston with only one third of a cargo in the vessel; that he had no right to leave Sicily without leave within the lay days; that the evidence showed a want of good faith and such fraud or culpable negligence on the part of the master towards the charterer as rendered him and his co-owners liable in this action ; and that the instructions he received from the charterer and the other facts within his knowledge were sufficient to cause him to suspect that the instructions contained in Gardner, Rose & Co.’s letter to William Franck were not to be literally complied with, and to put him to reasonable inquiry in regard thereto. But the judge, for the purpose of raising the question of law, refused so to rule; and ruled that the master upon the facts disclosed by the evidence was authorized to proceed as and when he did to the port of Boston, and therefore the action could not be maintained; and he directed a verdict for the defendants.</p> <p>The plaintiff alleged exceptions.</p>

<p>Upon the report of a case for the determination of the full court whether the jury were warranted in finding the verdict which was rendered therein, the weight of the evidence will not be considered, but the only question is whether there was any evidence upon which jury could legally have found their verdict.</p> <p>if in an action to recover damages for a personal injury received in consequence of the neglect of the defendants’ servant, there is any evidence tending to show that the person whose negligence is complained of was not under the control of the defendant, but was Employed by one who had entered into an entire contract with the defendant to do certain work for a stipulated sum, so that the legal relation of master and servant did not exist between them, this court will not, upon a report of the case, set aside a verdict for the defendant, „ although the weight of the evidence may appear to have been in favor of the plaintiff.</p>

<p>Bill in equity brought by the widow and two daughters of Nathaniel Smith, deceased, to obtain a construction of the will of said Nathaniel, the material portions of which are as follows:</p> <p>“ First: I hereby constitute and appoint my brother Benjamin Smith of Boston .... to be sole executor of this my last will, directing my said executor to pay all my just debts and funeral expenses and the legacies hereinafter given, out of my estate.</p> <p>“ Second: After the payment of my said debts and funeral expenses, I give to my son Henry A. Smith two thousand dollars, to be paid within one year after my decease if so soon required by him.</p> <p>“ Third : I also give, devise and bequeath to my son Nathaniel Smith the sum of two thousand dollars, when he (the said Nathaniel) shall arrive to the age of twenty-one years.</p> <p>“ Fourth : And for the further payment of the legacies aforesaid, I give, devise and bequeath to my beloved wife Susan Smith, for her benefit and for the proper maintenance and education of my two daughters, Eliza Smith and Susan Smith, all my personal property and all my real estate which may remain after the debts and expenses aforesaid, and the legacies of the said Henry A. and Nathaniel shall have been paid, and the use, improvement and income thereof; to have and to hold the same so long as she shall remain my widow, or until her second marriage; but in case of her second marriage, when she shall have ceased to remain my widow, all the personal and real estate I hereby give, demise and bequeath to my wife aforesaid, the said Susan Smith, and to my two daughters, the said Eliza Smith and Susan Smith, to be divided by them equally.”</p> <p>The will was proved in 1844. One of the sons of the testator has since died, leaving one son, and he and the surviving son of the testator are the defendants in this suit; and the plaintiffs and defendants are all the persons interested in the testator’s estate. The debts and legacies to the sons were duly paid. The testator’s widow entered into possession of the estate, after his decease, and has since held the same, remaining unmarried. The whole estate was appraised at $17,401; and the debts were less than $100.</p> <p>The defendants contended that in case she should die unmarried the remainder of the estate would descend as intestate property.</p> <p>The case was reserved by Hoar, J., for the determination of the whole court.</p>

<p>A merchandise broker can have no implied authority, from the usage of trade, to warrant goods sold by him to be of merchantable quality; and evidence to prove such usage is inadmissible; and a memorandum made by such broker of a contract for the sale of good! is invalid and inadmissible in evidence, if he has inserted therein, without express authority, a warranty by the seller that they are of merchantable quality.</p>

<p>B., C. and D. owned adjoining parcels of land extending to the low water line, at the north end of Boston, which is a headland. A straight line divided the land of A. from that of B., and another straight line, parallel to the former, divided the land of B. from that of C. The line between C. and D. was not parallel to the other lines, but diverged so that the land of C. grew wider as it approached the water. The legislature granted leave to A. to extend a wharf upon his land straight into the harbor, to a line fixed by the harbor commissioners; and on the same day granted leave to B. and C., respectively, to extend the wharves upon their lands to said commissioners’ line; and the next year made a like grant to D. C. and D., by an indenture between themselves, agreed that the line between them should continue to the commissioners’ line in the same direction with their line on the shore. Immediately after the legislative grants to B. and C., they respectively built a structure and drove piles on the assumption that the true line of division between them was a continuation, in a straight line, of the division line between them on the shore; thus leaving B.’s two lines parallel to each other throughout their entire length. Upon a controversy arising between B. and C. twenty-five years afterwards, there being no evidence to show the form of the headland at that particular place, Held, that the projection of the line between them should continue in the same direction with that on the shore, and that B. was not entitled to have his premises expand as they approached the commissioners’ line.</p>

<p>Habeas corpus. At the hearing in this court, before the chief justice, it appeared that one of the assignees in insolvency of the estate of George H. Sawin made a complaint on oath to the judge of insolvency, charging the wife of said Sawin and her brother and sister with having fraudulently received, concealed, embezzled and conveyed away property belonging to said estate1, whereupon they were cited into that court and ordered to submit to an examination on oath upon the matter of the complaint, and refused to submit to such examination They were thereupon severally taken in custody by the respondent, who was a constable, under a mittimus signed by the judge of insolvency.</p>

<p>If land is devised to a person, to have and to hold the same to the sole, separate ana exclusive use of a married woman, her heirs and assigns forever, with a provision that she may reside thereon if she chooses during her life, and in case she should leave it then that the trustee may “lease or sell or make such other disposition of the premises, or any part thereof, as she may in writing authorize; ” and the land is afterwards conveyed by such trustee to the woman and her husband ,• a conveyance thereof by her and her husband will vest a valid title in the grantee.</p>

Petition to enforce a lien under the mechanics’ lien law. It was agreed in the superior court that the petitioners are the proprietors of a planing-mill, and the respondents were owners of an estate on Paris Street in East Boston ; that the work described in the petition was done by the petitioners by machinery in their planing-mill, at “the request of William Wentworth, who under an agreement with the respondents was erecting buildings on their said estate; that the work…

Bill in equity, brought by certain of the next of kin and heirs at law of Charles Sanders, late of Cambridge, deceased, against the executors of his will, and certain others of the next of kin and heirs at law, who refused to join as plaintiffs, seeking to have the residuary clause of his will declared void, and the residue of the estate administered as in case of intestacy.

<p>Petition for a writ of certiorari, to quash the proceedings of the superior court in removing the petitioner from practice as an attorney at law. The petitioner set forth that no complaint or process in any form was filed against him, by reason of which omission the proceedings were illegal, and he accordingly at all times objected against them in the manner in which they appeared and were conducted before the court; and, for want of a legal record, he was deprived of his right to establish in this court his exceptions which were disallowed in that court. Notice of the pendency of the petition was served on the district attorney for the county of Suffolk, who appeared and answered orally, and the case was reserved by Chapman, J. for the determination of the whole court. This case was argued in March 1865.</p>

<p>Petition for a writ of mandamus. The petitioner set forth in his petition that in 1860 he was duly admitted to practise as an attorney, and by virtue thereof as a counsellor at law, in all the courts of the Commonwealth; that his name is still upon the records; that he has never resigned his said office, and knows of no legal cause why he should not be permitted fully to enjoy all the rights and privileges of the same; and that denial of his right to practise as an attorney is now made by the justices of the superior court. The prayer "was for a writ of mandamus commanding the justices of that court to admit the petitioner to the practice of his office of attorney therein, or to show cause why he should be excluded therefrom.</p> <p>An alternative writ was accordingly issued and served; and the chief justir-e of the superior court accordingly, in answer thereto, transmitted to this court a copy of the record of the proceedings of that court, at the October term thereof for crimina* business in Boston in 1864, so far as the same disclosed any proceedings having any relation to the petitioner. This record set forth that “ in the matter of Samuel H. Randall, an attorney at law, against whom charges of professional misconduct and mah practice have been made before this court, after a full hearing the following facts have been found.” A detailed statement of facts then followed, respecting the petitioner’s dealings with Michael Leighton, a client who had been committed to jail for failing to recognize to answer to a charge of larceny; for whom the petitioner then became a surety; and who thereupon enlisted as a substitute in the naval service of the United States, under a contract with the petitioner as to the disposition to be made of the money to be paid for the enlistment. The record then stated that an indictment against Leighton was presented in the superior court on September 12th 1864, “ and on the 16th of September he was called to plead to said indictment; and the attention of the court was directed to the foregoing facts by the grand jury, and said Randall notified that upon the following Wednesday, September 21, the matter of his professional conduct and standing at the bar would be considered.” A hearing accordingly took place on September 21st, at which the petitioner appeared, offered evidence and was heard. The record concluded thus: “ Upon the foregoing facts, the court find that said Samuel H. Randall, in the making of said contract, in his acts in pursuance of it, and in his relations to said Leighton as his client, and affecting his interests, violated his oath of office as an attorney at law, and was guilty of malpractice and gross misconduct in his said office; and the judgment and order of the court is, that for these causes he be removed from the office of an attorney at law within this commonwealth. Lincoln F. Brigham, Justice of Superior Court.”</p> <p>The petitioner demurred to the above return, as an answer to the alternative writ, and assigned the following reasons :</p> <p>“ 1. That it nowhere appears in said return there was any charge, specific or general, of any act of malpractice and gross misconduct by the petitioner, contained or referred to in any petition, complaint or other proceeding, filed of record in said superior court against the petitioner, as an attorney at law, as is required by law and the practice and usage of said superior court in proceedings for the removal of attorneys.</p> <p>“ 2. That said return does not disclose the fact that said superior court had any lawful jurisdiction over the person of the petitioner as an attorney at law by the service and return of record of any summons, order of notice, or other process of said court, notifying the petitioner to appear before said court, at a day certain, to answer charges that had been preferred against him.</p> <p>“ 3. That no legal cause, on the merits, is disclosed by said return, warranting the petitioner’s removal from his office of attorney.</p> <p>“4. That said return contains no legal record of the petitioner’s removal from his office of attorney at law.</p> <p>“ 5. That said return is so general, uncertain and indefinite, as to be invalid in law, as a sufficient return to the writ of mandamus.”</p> <p>The case was thereupon reserved by the chief justice for the determination of the whole court.</p>

Writ of entry brought by the assignees of George W. Lee, an insolvent debtor, to recover four parcels of land in Haverhill which were mortgaged by Lee to the tenant. At the trial in this court, before Gray, J., the jury returned a verdict for the demandants, under rulings and instructions which are sufficiently stated in the opinion ; and the case was reported for the determination of the whole court.

<p>Contract upon a recognizance. This was one of the two actions the decision in which is reported in 9 Allen, 581.</p> <p>After that decision, a motion was made in the superior court, before Lord, J., at May term 1865, for leave to file an amended memorandum of the recognizance, and this motion was allowed, and the following memorandum of the recognizance was accordingly filed:</p> <p>“ Commonwealth of Massachusetts. Superior court, Essex, ss. In vacation after January term, a. d. 1862. On this twenty-seventh day of February, a. d. 1862, personally appeared Amos B-. Nickerson as principal and Benjamin F. Field of Boston and Isaac H. Hazeltine of West Newton as sureties, before me duly authorized hereto, said Nickerson being now in the jail in Salem in said county, committed there under a mittimus from said court for failing to recognize in the sum of §8000, as ordered by said court, on an indictment against him pending therein, numbered 784, and acknowledged themselves to be severally indebted to the Commonwealth of Massachusetts in the sums following, to wit: the said Nickerson as principal in the sum of eight thousand dollars, and the said Field and Hazeltine severally as sureties in the sum of eight thousand dollars, to be levied on their goods or chattels, lands or tenements, and in want thereof upon their bodies, to the use of the said Commonwealth, if default be made in the performance of the condition hereunder written.</p> <p>“ The condition of this recognizance is such, that if said Nickerson shall appear at the next criminal term of this court for said county to be holden at Newburyport, in and for said county, on the second Monday of May next, and from day to day during said term of this court, to answer to an indictment pending therein against him for assault, abduction and kidnapping of one Rice as set forth at large in said indictment, and shall also appear from term to term of this court, for the transaction of criminal business, if the same shall be continued, until final judgment shall be rendered thereon, and not depart without license, but shall abide the final order, judgment and sentence of the court therein, then this recognizance shall be void; otherwise shall remain in full force and effect. Asahel Huntington, commissioner specially authorized to take bail in the premises.”</p> <p>The case thereupon proceeded to trial, before the same judge, without a jury, and the following facts were found to be proved by the evidence:</p> <p>At January term 1861 an indictment was found against Nickerson and Edwin P. Smith and Caleb B. Watts, for assault, abduction and kidnapping, upon which the two former were tiled and a verdict of guilty was rendered at January term 1862, to wit; in February 1862. (See 5 Allen, 518.) Exceptions were taken, and Nickerson ordered to recognize in the sum of fiSQOO, with sufficient sureties in a like sum, to appear and answer to said indictment at said January term, and at any subsequent term to which the indictment might be continued, and so from time to time and from term to term until the final decree, sentence or order of the court thereon, and to abide such final decree, sentence or order; and Asahel Huntington was authorized to take the recognizance in vacation. Upon failure to recognize as ordered, Nickerson was committed to jail by virtue of a mittimus which ordered the ’oiler to hold him until he should recognize to appear and answer to an indictment wherein he was charged with the crime of kidnapping; and the court adjourned without day on the 24th of February, and on the 27th of February 1862, at the jail in Salem, before Mr. Huntington, Nickerson as principal and the defendant Field and Isaac H. Hazeltine as his sureties recognized to the Commonwealth severally in the sum of eight thousand dollars, in the manner and upon the conditions set forth in the new memorandum of recognizance filed by Mr. Huntington, and copied above. Nickerson was discharged from custody on the same day, and Mr. Huntington (being clerk of the court) on the same day made the following entry upon the docket of the superior court: “ Defts. A. E. N. and E. P. S. as prs. each in $8000; Benj. F. Field of Boston and Isaac H. Hazeltine of West Newton, sureties for each of prs. in $8000 rec. severally in jail, Feb. 27, 1862, and discharged on their several recognizances. A. H. Commissioner.” At May term 1862 Mr. Huntington filed a paper purporting to be a memorandum of said recognizance, and the filing of the same was minuted upon the docket. The exceptions taken as aforesaid were overruled in March 1863, as to the first count of the indictment; (See 5 Allen, 518;) the indictment was continued until May term 1863, when a nolle prosequi was entered as to all but the first count, and Nickerson was called and defaulted on his recognizance; and the indictment was further continued until October term 1863, when the sureties were called and defaulted on the recognizance. The memorandum of the recognizance filed in May 1862 was the only one filed in the case until May term 1865, when Mr. Huntington was allowed to file an amended memorandum, as before stated.</p> <p>The defendant excepted to the allowance of the motion for leave to file the amended memorandum ; and also objected to the sufficiency of the evidence to maintain the action, upon the following grounds:</p> <p>1. The recognizance was not one which the superior court had authority to order or require, because the prisoners should have been required to recognize to prosecute their exceptions in the supreme court, and not to appear from term to term in the superior court.</p> <p>2. The amended recognizance, filed, after the commeneemen of this action, is not admissible in evidence, and sets forth and describes an entirely different contract from that set forth and described in the original memorandum, which was the only one on file for three years and more after the recognizance was taken, and the court had no right to allow such amendment, to affect the rights of the defendant.</p> <p>3. The commissioner taking the recognizance had no authority to take the recognizance set forth in the amended memorandum, in this, that the principal Nickerson was committed to jail, as appears by the mittimus, for failing to recognize with sureties to answer to an indictment against him for the crime of kidnapping, and the recognizance taken, as appears by the said memorandum, is conditioned that the principal shall answer to an indictment against him for assault, abduction and kidnapping of one Rice, and more especially as it appears from the records put in by the Commonwealth that before any default of the defendant the chargé of kidnapping against said Nickerson was discontinued and abandoned.</p> <p>But the judge ruled that the Commonwealth could maintain the action, and ordered judgment to be entered against the defendant for $8750. The defendant alleged exceptions.</p>

<p>It is no defence to an action by a passenger against a carrier to recover damages for an injury sustained through their negligence, that the negligence or trespass of a third party contributed to the injury, although such third party acted entirely independently of the carrier.</p> <p>The above rule is not affected by St. 1851, c. 128, authorizing certain railroad companies, of which the defendants were one, to use a common track, and regulating the manner of such use and their liability for accidents upon the same.</p>

<p>Tort in the nature of trespass quare clausum fregit, to recover damages for the destruction of the plaintiff’s dwelling-house and furniture.</p> <p>At the trial in the superior court, before Wilkinson, J., it appeared that on the morning of the 18th of February 1864, a great fire broke out in Gloucester, commencing on Front Street, and extending destroyed a great many buildings and a large amount of property; that the dwelling-house of the plaintiff was situated on said Front Street, and that in the progress of the fire the defendants applied to and exploded in said house a quantity of gunpowder, to demolish or remove the same. The defendant Pettingell was a fireward of the town of Gloucester and chief engineer of its fire department. The other defendant merely acted under the directions of said Pettingell.</p> <p>Evidence was introduced on the part of the plaintiff tending to show that he heard the alarm of fire at about four o’clock in the morning; that he immediately commenced making preparations to remove his household goods, and was engaged in taking the same from his house, when, at about six o’clock, as he thought, he was notified that his house was to be blown up ; that he thereupon left it, and soon afterwards the gunpowder was applied and exploded in his house; that the defendants thereby interrupted the plaintiff in removing his goods from his house, and destroyed the house and goods.</p> <p>The defendants admitted that they exploded powder in the plaintiff’s house, and that the fire commenced at the time and place stated; and they put in evidence tending to prove that the fire spread, with a high wind, rapidly towards his house, burning up the buildings on both sides of the street on which it stood, and around and beyond it, and the plaintiff’s among the rest; that in the progress of the fire and in order to stay the same in that direction, somewhere between seven and eight o’clock, and when the plaintiff’s house was already thoroughly on fire, they removed or attempted to remove it by an explosion of gunpowder therein; that at the time this was done the said house was thoroughly on fire to such an extent that its destruction, together with its contents, from that cause had, in effect, already taken place; and that the fire did not stop there, but burned up buildings on all sides of it and all beyond it for a long distance.</p> <p>The defendants also introduced evidence tending to show that there were seven firewards engaged at different points of the burning district; that the fire covered an area of nearly twenty-five acres in extent; that with the exception of one other fireward there was no other fireward or other civil officer in the immediate neighborhood of the plaintiff’s house at the time when the defendant Pettingell ordered the powder to be applied; and that there was no time or opportunity for Pettingell to consult any other fireward or other officer.</p> <p>The plaintiff introduced evidence, by way of rebuttal, tending to show that his house was not on fire at the time powder was applied by the defendants.</p> <p>The defendants asked the judge to instruct the jury as follows :</p> <p>“ 1. That if the plaintiff’s house was not on fire, and Pettingell had no opportunity to meet and consult two other firewards or any of the other officers mentioned in the statute, he had the right, acting officially, if he deemed it advisable or necessary, to destroy it, and his honest judgment and decision in such case would be final.</p> <p>“2. That if the destruction of the plaintiff’s house by fire whether said house was at the time on fire or not, was inevi table, the defendant Pettingell, acting officially, had the right if he deemed it necessary, to demolish the house, and his decision in such case would be final.</p> <p>“ 3. That if the plaintiff’s house was materially on fire, and Pettingell, acting officially, thought it necessary or advisable and decided to demolish it, his decision in such case would be final.</p> <p>“ 4. That if the plaintiff’s house was materially on fire, and Pettingell, acting officially, decided to destroy it, he had a right so to do, and in such case he would be entitled to be guided by his own judgment. Even if he erred in judgment and did not effectually destroy the building, or even made matters worse, still, if honestly done in the discharge of his official duty, he would not be responsible for damages, even if in so doing he interrupted the plaintiff in saving his more bulky and heavy-movable property.</p> <p>“ 5. That the defendants are liable for the destruction of such personal property of the plaintiff, if any, as might have been saved if they had not interfered, and for no more.”</p> <p>But the judge refused so to rule, and instructed the jury that, “ inasmuch as the act of the defendants in blowing up the plaintiff’s house was without his consent, and not directed by any three firewards or by any of the other persons named in Gen. Sts. c. 24, § 5, it was wrongful, and the plaintiff is entitled to such damages as he has sustained therefrom. If the fire had not reached the plaintiff’s house at the time when it was destroyed by the defendants, so that it was not and had not been on fire, then the plaintiff is entitled to recover the value of the house and furniture in it, after deducting the amount of insurance received by the plaintiff on account of their loss. The fact that they were in imminent peril of destruction by fire would not diminish the damages to which the plaintiff was entitled. If the plaintiff’s house at the time it was blown up was so far on fire as to render its destruction inevitable, or in other words if the fire upon the house had made such progress in its destruction as to render its extinguishment impossible, then to all practical purposes it had become of no value. It may be said to have been then destroyed, and the defendants’ act was not injurious to the plaintiff, and he can recover no damages therefor. If the fire had caused some injury to the house of the plaintiff at the time the defendants blew it up, but had not proceeded to the extent supposed in the previous instruction, then such injury is to be deducted from the value, and the defendants are only liable for the difference. If the furniture remaining in the house at the time it was blown up was uninjured by fire, as was admitted by the defendants, then the plaintiff is entitled to recover its full value, without regard to any peril to which it was exposed.</p> <p>The jury returned a verdict for the plaintiff, assessing damages for injury to both house and furniture; and the defendants alleged exceptions.</p>

<p>The sale of an article in itself harmless, and which becomes dangerous only by being used in combination with some other article, without any knowledge by the vendor that it ia to be used in such combination, does not render him liable to an action by one who purchases the article from the original vendee, and who is injured while using it in dangerous combination with another article; although by mistake the article actually sold is different from that which is intended to be sold.</p>

<p>False and fraudulent representations that a particular kind of security, which is worthless, is selling in the market at a given price, accompanied by the exhibition of a newspaper containing false quotations thereof, will entitle a purchaser to rescind his contract.</p> <p>An owner of goods who has been induced by fraud to sell them and accept a note on time with worthless securities therefor may replevy the same without returning the note and securities, if the purchaser cannot be found; and the action will not. be defeated by hia afterwards demanding payment of the note, at its maturity.</p>

Contract upon a promissory note for $2600, dated April 1st 1845, signed by the defendant, payable to the order of D. F. Davidson, and by him indorsed to the plaintiff. The writ was dated October 31st 1863. The answer simply set up the statute of limitations.

Contract, originally brought against Samuel Austin, who died after the commencement of the action, and the present defendant.

<p>If on a plea of tender in a police court the money is not actually put into the custody of the court, but is brought in by the defendant and offered to and until the rendition of judgment always kept ready for the plaintiff, who refuses to take it, putting his refusal on the sole ground that he claims more, and after judgment for the plaintiff the defendant appeals and pleads the same tender in the superior court, and pays the money to the clerk, it is too late for the plaintiff to object to the defendant’s irregularity, in omitting to put the money into the custody of the police court.</p>

<p>The selectmen of a town have authority to lay out a town way wholly upon land of citizens, against their consent, entering their land from a highway and returning to it at about the same place where it enters, and leading to no other way or landing-place, and capable of being used for no purposes of business or duty, or of access to the land of any other person; and which is laid out'With the design to provide access not for the towr merely, but for the public, to points or places in the lands of those citizens, esteemed as pleasing natural scenery.</p> <p>The selectmen of a town may estimate the damages caused to the owner of land by the lay ing out of a town way at the same meeting at. which the way is located.</p>

Bill in equity by a second mortgagee to redeem land from the first mortgagee thereof.

Writ of entry. Plea, nul disseisin. At the trial in the superior court, before Ames, J., the question appeared to be as to the course of the boundary line between adjacent lots owned by the demandant and tenant respectively.

<p>Bill in equity brought by two of the heirs at law of Sarah F. Gardner, late of Salem, widow, deceased, setting forth that she died in 1863; that in 1846 John A. Nichols, being seised of a parcel of land in Salem, (which was described in a manner deemed insufficient by the defendants, though this became immaterial by the decision,) entered into the following agreement with Mrs. Gardner: “ Salem, Feb. 2, 1846. Received of Mrs. Sarah F. Gardner forty-nine A°o dollars, amount of bill of lumber bought by her husband at auction ; also four hundred and fifty dollars in full for lot of land on Endicott Street in Salem, the deed of which I promise to furnish to her order on demand. John H. Nichols.” The bill further set forth that no such deed from Nichols to her could be found among her papers or on record, and that Nichols has refused to execute such a deed to the plaintiffs as her heirs at law, but in May 1864 conveyed all his interest in the premises to Elizabeth B. Putnam, a daughter of Mrs. Gardner by her second husband, Samuel Gardner. The prayer was that said Nichols and Elizabeth B. Putnam, who were made the defendants, might answer certain interrogatories annexed to the bill; that the conveyance by him to her might be reformed or cancelled; that Nichols might be decreed specifically to perform his agreement above copied; and for other relief.</p> <p>The defendants filed several answers. Nichols answered, amongst other things, that the premises were sold by him in 1846 as broker or auctioneer, and the money for the same was handed to him by Mrs. Gardner, and he gave her the receipt copied above, and took a conveyance to himself, and that, knowing that the estate was treated by Mrs. Gardner and her husband as belonging to the latter during their respective lifetimes, and believing it to be the property of the husband, and that it belonged to his estate after his death, he executed the deed to Elizabeth B. Putnam as sole heir of her father. He further stated, in reply to a specific inquiry by the plaintiffs, that he was inclined to think that Samuel Gardner was not insolvent in 1846, but that he had assumed certain liabilities by indorsement or otherwise, and was consequently somewhat careful about taking conveyances in his own name.</p> <p>Elizabeth B. Putnam answered, amongst other things, that she was informed and believed and was ready to prove that when her mother received the paper in question from Nichols she was acting as agent of said Samuel Gardner; that the lot of land was purchased for him, and with money furnished to her by him ; that it belonged to him and was always treated by him and his wife as his, she at no time during her life making any claim to the same; and that he was in possession of the same until his death in 1859, and built a dwelling-house and made other improvements thereon.</p> <p>The case was set down for a hearing on the bill and answers, and was reserved by Hoar, J. for the determination of the whole court.</p>

Replevin of household furniture. The defendant, as a deputy sheriff, had attached the furniture on a writ against the plaintiff’s husband. At the trial in the superior court, before Morton, J., it appeared that the furniture was used in a boarding-house kept by the plaintiff; that her husband boarded with her, paying for his board; and that no certificate under St. 1862, c. 198,* had been filed at the time of the attachment.

<p>A stranger in a shop who first sees a pocket-book which has been accidentally left by an« other upon a table there is not authorized to take and hold possession of it, as against ths shop-keeper.</p>

<p>Contract brought to recover damages for breach of an agreement made by the defendant with the plaintiff that he would put certain premises in Lawrence, belonging to the defendant and occupied by the plaintiff, “ in good condition and repair, and so keep and maintain them while the plaintiff" used and occupied them.”</p> <p>At the trial in the superior court, before Putnam, J., the plaintiff offered evidence tending to show that he was a tenant of the defendant, and that the contract declared on was made by the defendants at the beginning of the tenancy; that in March 1864 there was a storm of unusual severity, and the water flowed into the tenement, through the wall, and compelled the plaintiff to remove at midnight, and injured his furniture and provisions. The water had come into the tenement in January and February before, but repairs had been made which were supposed by the defendant’s agent to be sufficient, but which the plaintiff at the trial contended were insufficient.</p> <p>The defendant contended and offered evidence to show that, at the time the water came into the apartment before, some person had turned about a piece of tin, which the plaintiff had inserted into the end of the conductor, in such a manner as to carry the water away from the place provided for its passage, and that the water had gullied a hole into the ground, and ha contended that the hole through which the water ran into the plaintiff’s apartment, at the time complained of, entered at the place where this hole had been so previously made, and that the injury in March was,thus owing in part to the negligence of the plaintiff, and that therefore the plaintiff could not recover. The defendant’s agent testified that, after the leakage in January, he replaced the spout so that the water would flow off properly, and that he never saw it again, except that after the injury complained of in March there were marks on the side of the building which looked as though some one had turned it back again, but there was no evidence to show that the plaintiff had put it on again, and the plaintiff denied that he had done so, or that he knew who turned it about as claimed.</p> <p>The defendant’s counsel asked the court to give the following instructions to the jury:</p> <p>“ 1. The plaintiff must show that, while a tenant in said premises, he did not by his own fault or negligence contribute to bring about the injury, as by putting tin on to the house, and carrying the water off the stone, and made the defect in the premises, and that he himself exercised ordinary care and diligence to avoid any injury which might result from the defendant’s negligence, and that if the plaintiff negligently caused the injury be cannot recover.</p> <p>“ 2. If there was an express contract on the part of the defendant to make reasonable repairs, and if the defendant did not make such repairs, and for want of such repairs the premises were in an untenantable and dangerous condition to live in, and the plaintiff knew them to be in such condition and continued to live in them when in such condition, and did not use and employ reasonable means and did not exercise due care, diligence and prudence to prevent the injurious effects which might result to him on account of the untenantable and dangerous condition, he did not exercise due care, diligence and prudence, and cannot recover for any injury which happened to him in consequence thereof.</p> <p>“ 3. If there was an express contract to make the repairs on said premises by the defendant, and if the defendant just before the storm and flood exercised ordinary and due care, prudence and caution in putting said premises in such reasonable condition and repair as was reasonably sufficient to resist and protect the premises against such storms, freshets and floods as ordinarily and usually occur at all seasons of the year, and not such as sometimes occur, and for an unimportant period of time, the defendant is not liable in this action.</p> <p>“ 4. If there was an express contract to repair, the defendant is only obliged to make such reasonable repairs as a careful, prudent and discreet man would make to save and protect his own premises, and to make such reasonable repairs as would be reasonably necessary to make the premises wind and water tight against such storms, freshets and floods as ordinarily and usually occur at the different seasons of the year, and if the defendant did exercise such care, prudence and discretion, and did make such repairs, and it was an unusual and extraordinary storm, freshet and flood that gullied out and washed away the dirt and gravel about said premises and damaged the plaintiff, then the plaintiff cannot recover.</p> <p>“ 5. If the defendant did expressly agree to make all repairs on said premises, and at or before the said storm, freshet or flood did make all the repairs the plaintiff demanded, and all the premises needed, and the plaintiff expressed himself perfectly satisfied with said repairs, and wished no more repairs, he waived all right to have more or better repairs made, and cannot recover for the injuries occasioned by their insufficiency.</p> <p>“ 6. If the injury done to said premises and the plaintiff was caused by the unusual and extraordinary action of the elements or an act of God, a cause against which human prudence, foresight and care would not provide, and against which, common sense, prudence and ability would not make reasonable provision, the plaintiff cannot recover.</p> <p>“ 7. If the plaintiff did fit a piece of tin on to the house so as to carry the water off from the stone provided to carry it off, and the water so carried off did make the hole on the premises' which caused the premises to leak the second time, and the hole so made weakened the premises and contributed to the injury, then the plaintiff did not exercise due care, prudence and can tian and cannot recover.”</p> <p>The judge declined to give the instructions as prayed for, but did instruct the jury, “ that the plaintiff must satisfy them that there was the express provision made which the plaintiff had declared on ; that if it was so made, the defendant was bound to do all that ordinary sagacity, prudence and foresight could do to keep the premises in good repair and condition; that if the injury from the storm was owing to this want of repair, and could have been prevented by such ordinary sagacity, prudence and foresight, then the defendant would be liable for breach of his contract; that if the damage to the wall was wholly owing to the fault or negligence of the plaintiff, then the plaintiff could not recover; but if the improper use of the conductor by the plaintiff was not the cause of this injury, but the injury complained of was owing to a want of proper strength to resist the effect of the storm, which the defendant could have provided against, the plaintiff could recover for damages occasioned thereby ; that if the agreement was made, and the damage was occasioned by want of proper repairs, the plaintiff could recover, i hough the defendant had no notice of the defect; and that if the plaintiff knew of this defect, and did not use proper and reasonable means to avoid the effect of it, and did not use proper and due care at the time of the flood to lessen the effect of the injury, this matter ought to be taken into consideration by the jury on the question of damages.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Upon the issue whether a debtor who asked an. extension, from his creditors at a particular time was then insolvent and had reasonable cause to believe himself so, evidence is incompetent to show that persons engaged in the same line of business at that time generally-obtained an extension; that it was the general understanding among the trade that asking for an extension at that time was no sign of inability to pay debts; and that all persons in that line of business either temporarily suspended payment or asked for an extension at that time.</p> <p>The rule of law by which the question is determined whether a debtor was solvent or insolvent at a particular time is not affected or modified by any general embarrassment of the operations of trade, arising from the existence of a civil war, or by the fact that all persons in the same line of business were unable to pay their debts at maturity.</p> <p>[f various issues have been submitted to a jmy, on an appeal from the decision of a judge of insolvency refusing to grant a certificate of discharge to an insolvent debtor, and, upon one of them which was submitted under instructions to which no exceptions were taken, they have found a fact which will deprive the debtor of his discharge, a new trial will not be granted even if the instructions were erroneous concerning other issues, upon which they also found adversely to the debtor,</p> <p>íf various issues have been submitted to a jury, who after agreeing upon some of them and failing to agree upon others have improperly separated without leave oí the court, thei* findings upon those issues in regard to which they agreed will not be set aside, if it appears to the court that their failure to reach a verdict on the others did not resu t from inabil ty to agree on any element common to all the issues.</p>

Bill in equity setting forth that the plaintiff duly proved against the estate of Bradley & Ordway, insolvent debtors, a note made by them, payable to George W. Lee, and indorsed to the plaintiff; and that at a subsequent meeting, upon the petition of the assignees in insolvency of the estate of said Lee, the judge of probate and insolvency ordered the proof in favor of he plaintiff to be expunged, and that said assignees had asked . eave to prove said note in their own…

<p>If a discharge in insolvency is pleaded in defence to an action upon a promissory note, the plaintiff may reply that the defendant’s estate paid less than fifty cents on the dollar upon the debts proved, and that a majority in number of his creditors who had proved Ihetz claims did not assent to the granting of the certificate of discharge. '</p>

<p>Tort against eleven persons to recover damages for an assault and battery. The defendants appeared by the same counsel and answered jointly.</p> <p>At the trial in this court, -before Gray, J., the defendants claimed the right to challenge peremptorily two persons each, but were allowed to challenge only two in all.</p> <p>The plaintiff introduced evidence that he was taken from a private house in Swampscott, on which he was at work, between nine and ten o’clock in the morning of April 15th 1865 by a crowd of men whom the defendants took part with or encouraged, and was forcibly led along the streets, tarred and feathered and otherwise ill-treated. The defendants offered to prove that after the crowd, then including three of the defendants, had assembled and were proceeding to the house where they found the plaintiff, and before they came into his presence, they used expressions indicating .their intention to inquire of the plaintiff as to remarks which he had made about the death of President Lincoln, the news of which arrived early that morning, without anything to show an intention to use personal violence towards the plaintiff. But the evidence was excluded.</p> <p>The defendants also offered to prove that on the same morning, two hours before the crowd went to this house, one of the defendants had a conversation with the plaintiff about the president’s death, which conversation he reported to the rest of the crowd, after hearing which they went to the house. But this evidence was also excluded.</p> <p>The jury returned a verdict for the plaintiff, with $800 damages, and the case was reported for the determination of the whole court.</p>

<p>If a witness, on looking at a memorandum made by him at the time, is able from it to testify to the delivery of goods, the testimony is admissible, though he has no present memory of the transaction, and the memorandum itself has been held incompetent.</p>

<p>After a decree of this court, under Sts. 1862, c. 181, and 1863, c. 249, ratifying an assess ment by a mutual insurance company upon its members who at the time of the making thereof were liable to assessment, one whose policy had terminated within two years prior to the making of the assessment cannot object, in an action brought by the company to recover the amount assessed upon him, that the absolute funds of the company had not been exhausted; that he was not concluded by the order of the court relative to the assessment; or that, if liable at all, it was for less than the amount assessed upon him</p> <p>The legislature have power to, pass a statute authorizing this court, after a hearing in equity to ratify and confirm an assessment by a mutual insurance company upon its member* who at the time of the making thereof were liable to assessment, and providing that tbs decree of the court ratifying the same shall be conclusive upon all such members as to the necessity of the assessment, the authority of the company to make or collect the same, the amount thereof, and all formalities connected therewith; without providing for other notice to such members than a general one, and without making any special provision for a trial by jury.</p>

<p>Depositions taken m 1678 before a judge of a court and certified by him and immediately afterwards recorded in the registry of deeds under a colonial statute authorizing the same to be done, although ex parley are competent evidence to prove a prior grant of land by vote of a town, it being shown that the town records of that time have all been destroyed.</p> <p>A grant by the town of Lynn of the use of the water of a stream flowing from a “ great pond,” and of the right to make sluices, and build a dam at the head of the stream in order to create a head of water, prior to the colony ordinance of 1641-47, and before any of the land bordering on the stream had been granted, vested a valid title in the grantee.</p>

Two actions for the conversion of certain articles of furniture and other household articles and wearing apparel. The cases were tried together, before Ames, J., in the superior court. It appeared that on the 22d of December 1863 the plaintiff Rothfuchs executed to the plaintiff Mannan, who was his sister-in-law, a bill of sale of certain of the articles of furniture.

<p>The presumption of payment of a mortgage debt in favor of a mortgagor, who has been in uninterrupted possession of the mortgaged premises for twenty years, is not conclusive; but paroi evidence, if relied upon to control it, should clearly show some positive act of unequivocal recognition of the debt within that time.</p>

<p>No action lies to recover for services rendered by a woman to a man while in his family and living with him as his wife, after the performance of a marriage ceremony between them, although in fact she had a former husband living, and he knew it; but she may recover for moneys paid by her for debts due from him to third persons, for articles furnished to the family, provided she can prove an express promise by him to repay the same, and that her payments and his promise were made without any reference to their continued cohabitation.</p>

Replevin of certain barrels and packages of mackerel. After the former hearing in the case, reported in 9 Allen, 502, the case was recommitted to the auditor, who made another report, and the facts found by him, which are material- to be stated, in additian to those stated in 9 Allen, 502, are as follows: By the original agreement of the plaintiffs, made in September 1862, to take all of the mackerel which Wonson & Brothers should pack that year, the prices were “ to be…