Volume 94 — Massachusetts Reports

<p>The probate court, after admitting a will to probate, and after the time for appealing from the decree has passed, may admit to probate a codicil to the same will, written upon the back of the same leaf upon which the will was written, if such codicil escaped attention and was not passed upon at the time of the probate of the original will.</p>

Contract brought to recover license fees or royalties of ten dollars apiece on one hundred and ninety-two sewing machines sold by the defendants.

<p>In a libel for a sentence of nullity of marriage, the parties are competent witnesses. If a man marries a woman whom he knows to be with child, and whom he himself ha» debauched, being induced to marry her by her assurances that the child is his, and not taking any further steps to ascertain its paternity nor suspecting her of unchastity with any other man than himself, this court will not declare the marriage void, although it appears that the child must have been in fact begotten by another man.</p>

<p>An estate of homestead acquired under St. 1855, c. 238, is not defeated by the death of the wife of the householder and the removal of his children from the premises, if he continues to occupy them as his home.</p> <p>The homestead estate to which an insolvent debtor is entitled cannot be set off to him by the court of insolvency, under Gen. Sts. c. 104, § 10, after his assignee in insolvency has conveyed away all his interest in the premises.</p> <p>If land of greater value than eight hundred dollars is occupied by one who is entitled to an estate of homestead therein, which has not been duly set out to him, and the surplus has been alienated and the deed delivered upon the premises, the owner of the homestead and the owner of the residue of the estate are tenants in common; and if the former wholly excludes the latter from the premises, he is liable therefor in an action in the nature of trespass quare clausum fregit, although the latter has never had any actual possession; but he is not liable in an action of replevin for taking all the crops.</p> <p>Before entry or suit brought to recover possession, a mortgagee of land cannot, by his consent that another may occupy the mortgaged premises, give to such person the right to exclude the owner of the equity of redemption therefrom.</p>

Replevin. The writ commanded the officer to replevy the goods and chattels following, to wit: “ One hundred and thirty-five barrels of No. 1 mackerel, forty-six barrels of No. 3 mackerel, and forty-eight barrels filled with salt, together with the salt contained therein.” The officer’s return showed that he took upon the writ thirty-two barrels and fifteen half barrels of No. 1 mackerel, forty-nine barrels and two half barrels of No. 3 mackerel, and forty-eight barrels of…

Tort to recover damages sustained by reason of the negligence of the defendant’s servant, in driving against the plaintiff in Cambridge. At the trial in the superior court, before Vose, J., it appeared that the defendant was a baker and employed William S. Brown to drive his wagon and deliver bread to his customers. There was a city ordinance prohibiting riding or driving upon any sidewalk in Cambridge.

<p>If the owner of a building puts into it an elevator for the pmpiose of raising and letting down merchandise, under a contract with his tenant to furnish and operate one for that purpose, and nothing is said in respect to using it for the purpose of raising and letting down men with the merchandise, and a servant of the tenant is injured while upon the elevator with goods, through the negligence of the servant of the owner of the building in his management of the engine by which the elevator is operated, it cannot be held as a matter of law that such owner is not liable for the injury, but it should be left to the jury to determine whether it was properly incident to the business of raising and letting down merchandise that a man should go up and down with the same on the elevator.</p> <p>In an action by a servant of the tenant against the owner of such building to recover for such injury, it is immaterial whether or not he knew in what way the business of raising and letting down merchandise was to be managed, or whether the elevator was constructed with a view to be used to raise or let down men, or what was the custom in that respect in using a similar elevator operated by the same engine in another store; and evidence is inadmissible to show that it was the custom in that store for a man to go up and down upon the elevator with the goods, and that the engineer employed by the defendant had done so; and no privity of contract between the plaintiff and the defendant need be shown; nor is the principle that a servant cannot recover against his master for damages sustained by reason of the negligence of a fellow-servant applicable to such a case.</p> <p>The question whether a person who has received an injury from falling in such elevator was careless in omitting to observe, before stepping upon the platform, whether the engine was in operation so that the elevator could not fall, is a proper one to be submitted to the determination of the jury.</p> <p>The refusal to allow a witness, who has testified to the making of a contract, to state whether or not he would have made a different one if it had been proposed to him, furnishes no ground of exception.</p>

Tort to recover damages for a personal injury sustained by the plaintiff by reason of a defective street or way built and owned by the defendants. An additional count in contract was subsequently filed, for the same cause of action.

<p>Tort against a deputy sheriff for assault and false imprisonment, in arresting the plaintiff on an execution against him for the possession of certain land, and costs. Judgment was enered for the defendant in the superior court, upon agreed facts, which are sufficiently stated in the opinion; and the plaintiff appealed to this court.</p>

<p>The legislature have power, by a general law, to require corporations organized here to pay to the treasurer of the Commonwealth a tax upon the excess of the market value of all the capital stock thereof over the value of their real estate and machinery taxable in the city or town where they are situated.</p> <p>A gas light company, incorporated under a charter which does not authorize it to take private properly, not already appropriated to public use, or impose upon it any public duty is not a public corporation in such sense as to exempt its property from taxation in the city or town where it is situated.</p> <p>Gas pipes owned by a gas tight company and used for the purpose of distributing gas through the streets, and the meters used for measuring out the gas to the consumers, are to be regarded as “ machinery ” of the corporation, and their value is accordingly to be deducted from the market value of the capital stock of the corporation, in ascertaining the state tax to be assessed upon the corporation under St 1864, c. 208.</p>

Contract, commenced originally by Benjamin R. Tinslar, the purchaser at a tax sale of mortgaged real estate, and prosecuted by the plaintiff as executrix of his estate, against the defendant, a mortgagee of the premises who has since taken possession under his mortgage, to recover the amount paid by the said Benjamin, with interest.

Writ of entry to foreclose a mortgage of land, from the defendant to the plaintiff, to secure a promissory note of $400. Judgment was rendered for the plaintiff in the superior court, upon facts agreed, which are sufficiently stated in the opinion; and the defendant appealed to this court.

Contract brought to recover the price of lumber sold and delivered by the plaintiff to the defendant. At the trial in the superior court, Ames, J. ruled that the plaintiff was entitled to recover, upon facts which are sufficiently stated in the opinion ; and a verdict was returned accordingly. The defendant alleged exceptions.

Tort to recover damages for a personal injury received by the plaintiff while riding on horseback along the right band side of Central Street in Lowell, from a collision with a carriage driven by the defendants’ servant, and then passing into Market Street, at right angles with Central Street. At the trial in the superior court, before Ames, J., the plaintiff requested the court to instruct the jury as follows : 1.

Tort to recover damages sustained by reason of a defective highway. At the trial in this court, before Chapman, J., a verdict was returned for the defendants; and the plaintiff alleged exceptions. The case is stated in the opinion.

<p>Writ of entry to recover a parcel of land in Marlborough.</p> <p>At the second trial in the superior court, before Rockwell, J without a jury, after the decision reported in 8 Allen, 212, the demandant claimed title under a deed to him from the tenant, in which the description of the demanded premises was as follows t Beginning “ on the north side of the county road, at land of William Stratton ; thence by said Stratton’s land to a brook at land of William Felton; thence by said brook to the fence at land of Edward Rice; thence easterly by said Rice’s to a walnut tree at land of Sarah Bond; thence southerly by said Bond’s land to land of Moses Howe, Jr.; thence westerly by said Howe’s land and land improved by Rodney and Gridley Putney to the corner of the wall; thence southerly by land improved by Gridley Putney to said road; thence westerly by said road to the bounds first mentioned.”</p> <p>It appeared that no land was improved by Rodney and Gridley Putney jointly, but that the land lying east of the demanded premises was occupied by Rodney alone, and the demanded premises were owned by the tenant and improved by Gridley Putney. The position of the land may be seen by reference to the plan, in 8 Allen, 213. At the former hearing in this court, it was determined that by the true construction of the deed to the demandant the demanded premises were not included therein ; and at the second trial in the superior court the demandant offered to prove that, a few years before the giving of the deed, the tenant bound himself by a bond to the demandant to convey, upon the payment of a certain sum, a lot of land with boundaries which included the demanded premises, and that the deed above referred to was made in pursuance of the bond, and with the intention and understanding on the part of both parties of including the demanded premises therein. He also offered paroi evidence of the situation, conduct, acts and admissions of the parties, to show that it was intended to include the demanded premises in the conveyance. But the judge rejected the evidence, and found for the tenant. The demandant al leged exceptions.</p>

Tort to recover damages for injuring the plaintiff’s mill by the erection of a dam for a new mill upon the stream below. At the trial in the superior court, before Brigham, J., a verdict was taken for the plaintiff, under a ruling of the judge that this was the proper form of remedy; the parties agreeing that if this ruling was right the damages should be fixed by an assessor; and the defendant alleged exceptions.

<p>A mortgage of land is not rendered invalid by the fraudulent addition, by the grantee, of the name of the grantor’s wife, as a party signing the same for the purpose of releasing dower.</p>

Petition originally filed in March 1863 by Edward Everett, and now prosecuted by the administrators of his estate, for the assessment of damages caused to his estate in Winchester by the taking and appropriation of a portion thereof by the defendants in the construction of their water works, under authority of St. 1861, c. 105; Mystic Pond, upon which said estate is situated, being used by the defendants as a permanent reservoir.

<p>Contract upon a judgment rendered in the superior court in June 1859 upon the award of an arbitrator to whom the parties had submitted certain matters in controversy between them, under the statute.</p> <p>At the trial in the superior court, before Brigham, J., without a jury, it appeared that both parties were heard before the arbitrator ; but the defendant pleaded and offered to prove that the judgment on the award was obtained by default and without his knowledge; that the demands on which the judgment was obtained had already been paid and satisfied; and that the award was obtained by fraud. But the judge ruled that these facts if proved would be no defence, and found for the plaintiff.</p> <p>The defendant alleged exceptions.</p>

Contract upon a judgment rendered in favor of the plaintiff against the defendant before a justice of the peace in Wisconsin. At the trial in the superior court, before Vose, J., without a jury, the plaintiff offered in evidence a volume of the statutes of Wisconsin, and read therefrom c. 120, §§ 155-170. So much as is material of these statutes is copied in the opinion.

<p>If, after the execution of a mortgage of real estate, fixtures are added by a tenant at will of the mortgagor, his right to remove them, after an entry by the mortgagee for the purpose of foreclosure, must be determined by the rule which prevails as between mortgagor and mortgagee, and not that which prevails as between landlord and tenant.</p>

<p>If a married woman who has joined in several deeds of her own estate, by her husband’s request, and allowed him to keep the money received therefor, afterwards joins in another similar deed, in consideration of his executing to their daughter a note and mortgage for a larger sum than the amount received for the last conveyance, the mortgage will be valid, in the absence of any fraudulent intent in either of the parties to it.</p>

Tort for the conversion of .a promissory note of $290, made by Waters Gillett, and payable to the plaintiff or bearer. The defence was that the plaintiff had given the note to his wife, now deceased, and that it belonged to her estate. The following facts were agreed in the superior court; The plaintiff has always been a citizen of Vermont, and since 1852 has never been in Massachusetts.

<p>Replevin of a carpet, mirror, table, sofa, chairs, and other articles of household furniture. The defendant denied the plaintiff’s title, and claimed title in himself.</p> <p>At the trial in the superior court, at March term 1865, before Ames, J., the plaintiff introduced evidence tending to show that her daughter Sarah was married to the defendant about sixteen years before, and kept house and lived with him till about four years before, when they separated and lived apart from each other; that during their cohabitation the defendant furnished all the supplies for the family; that in 1859 she and her daughter together earned about one hundred dollars in binding shoes, and with it purchased the furniture in question, which was brought into the defendant’s house and used in his family, the plaintiff being a member of the family; that afterwards the plaintiff furnished one hundred dollars more to her daughter, which was delivered by the latter to the defendant to aid in purchasing the ions i in which they lived, aud it was then agreed between the plaintiff and her daughter that the plaintiff was to have the furniture, unless the defendant repaid the one hundred dollars; and that the defendant had repaid only ten dollars of it. The defendant contradicted- portions of this evidence.</p> <p>“ The plaintiff then, after the defendant’s case had been put , in, proposed to call her daughter, the said Sarah, for the purpose of showing by her that before her marriage to the defendant she had been lawfully married to one J. C. Hall, in 1844; that she had lived with said Hall as his wife for a few months, and that, at the time of her marriage to said Drew, ,she had not heard of the death of said Hall; and the plaintiff claimed that she was entitled to use the said Sarah as a general witness in this case. The judge refused to receive her as a witness; and instructed the jury that the plaintiff in order to prevail must prove her title to the property; that her title as stated by herself was that the goods were once the joint property of herself and her daughter, and that the daughter for good consideration had given up the whole to her; that upon the question whether the plaintiff was a joint purchaser with her daughter the jury were to consider all the circumstances ; that the fact that the plaintiff furnished a part of the money with which the purchase was made would not be decisive, because under the circumstances she may have been willing to lend or give so much to her daughter’s benefit; that upon the question whether the daughter' had any title therein separate from her husband the jury would understand that, although a wife might if she chose keep her earnings to herself, she might waive that right if she saw fit; that if she bought articles for family use from time to time, paying for them partly with her own earnings and partly with money furnished by him, and not discriminating or separating part of the property as her own from the rest, and there being nothing in the articles themselves to indicate that they were for her personal and exclusive use, it would be prima facie evidence that she did not claim or have any separate title or exclusive right in any portion of them; but if the jury found that said Sarah did purchase with her own funds and on her own account, and had any right in the property to the exclusion of the husband, she would have a right to transfer such interest to the plaintiff; that the loan by the plaintiff to the husband would be a sufficient consideration in law to sustain such a transfer, and that no written, bill of sale or formal delivery would be necessary, if it were distinctly understood and agreed that there should be such a transfer of ownership to the plaintiff.”</p> <p>The jury found a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract against the inhabitants of Sherborn to recover back $9.35 paid by the plaintiff, after being arrested for non-payment thereof, to the collector of taxes of that town, for a tax assessed in that town upon his poll and personal estate for the year 1862.</p> <p>At the trial in the superior court, before Vose, J., it was conceded by the plaintiff that he had his domicil in Ashland, where he owned and lived upon a farm, until January 1st 1861. On that day he moved with his family and furniture into a house in Sherborn, for the purpose of overseeing some men employed by him and seeing to some wood which he had purchased in the vicinity, and lived there, taking no written lease, until July 1862, when he moved back to his home in Ashland. The plaintiff introduced evidence tending to show that, when he moved from Ashland in January 1861, he left his cattle upon his farm there, and employed a man to take care of them there till April ^861, when he removed most of them to Sherborn. “ In May »P61 he made an agreement with one Gardner to move into his hou.ee In Ashland, and take care of his fences and cattle there, and carry on the planting land at the halves, and the plaintiff carried on the work of the Ashland farm, and sold the hay and grain from it; ” and it was a part of the agreement that, if the plain tiff should at any time be obliged to leave Sherborn, he should move back to his house in Ashland, and Gardner should leave it. In April 1862 Gardner wished to remain on the Ashland farm another year, but the plaintiff told him he should wish to return there before the end of the year, but that Gardner could remain till the plaintiff went back ; and Gardner left there May 15th 1862, and the house thereafter remained vacant till the plaintiff’s return in July 1862. There was also evidence as to the plaintiff’s intention, on the 1st of May 1862, to return to Ashland.</p> <p>The defendants requested the court to instruct the jury that, if the plaintiff removed all his household furniture from Ashland to Sherborn more than a year previous to May 1st 1862, letting his house in Ashland, hiring and occupying a house in Sherborn with himself and his whole family, and doing the other acts and things testified to by himself in relation to change of domicil; the intention originally entertained by him to retain his residence in Ashland must, in order to be effectual, be continued during all the time he so resided in Sherborn, and that if such intention was abandoned by him, or he became doubtful of his return to Ashland, then his actual residence in Sherborn would determine his domicil to be there ; and also that, upon the foregoing testimony, his domicil, for the purpose of taxation, was in Sherborn, independently of the question of his intention.</p> <p>The judge declined so to rule, but instructed the jury that “ a removal by a person having a domicil, of his residence from the place of his domicil, with the intention of not returning, to a new place of residence, accompanied by the intent of making his home a permanent habitation in the new place, constitutes a change of domicil; that to effect such a change there must be a removal from the old home, accompanied by a purpose not to return there, and a taking up a residence in another town, accompanied with the intent of making a new home there; that, it being conceded that the plaintiff’s domicil was in Ashland down to January 1st 1861, when he removed his family and furniture to Sherborn, the jury must be satisfied that on May 1st 1862 he was residing in Sherborn with the purpose of making his permanent home and residence there, and of not returning to Ashland, to warrant their finding him personally liable to taxation in Sherborn on May 1st 1862; that the removal of his family and furniture from Ashland to Sherborn, and his continued residence there till May 1st 1862, were circumstances to be considered in determining the place of his domicil, and would authorize the jury in finding that his domicil was in Sherborn in May 1862, unless they should be satisfied from all the evidence in the case that such residence in Sherborn was intended by him to be only temporary, and that he proposed to return to Ashland after he had accomplished the object for which he removed to Sherborn.”</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>Tort to recover damages for the conversion of various articles of household furniture. The answer denied the plaintiff’s title to the articles, and denied the conversion, and averred that if the defendant took any of the articles it was in his capacity as the executor of the estate of D. D. Baxter, to whom they belonged.</p> <p>At the trial in the superior court, before Rockwell, J., it apoeared that the plaintiff was married to said Baxter on the 24tk of July 1861, and that he died on the 8th of July 1863. The plaintiff contended that prior to the marriage she and Mr. Baxter selected at Adams & North’s, in Lowell, a portion of the articles in controversy, as hers, to be paid for by her money and to remain her property ; and that after the marriage she gave to him the money to pay for the same, ana it was paid for accordingly; and she offered herself as a witness to testify to these and other facts, but was excluded. There was also evidence tending to show that her husband presented to her, after marriage, a tea-set.</p> <p>On the whole evidence, the judge directed the jury to return a verdict for the defendant, which they accordingly did; and the plaintiff alleged exceptions.</p>

Bill in equity brought on the 17th of September 1860 by a second mortgagee to redeem land from the first mortgage. The case was referred to a master, to whose report the defendanf filed exceptions.

<p>in an action to recover money promised to be paid in consideration of a release of the plaintiff’s interest in a parcel of land, there was evidence tending to show that the defendant promised to pay one hundred dollars down, and an additional sum as soon as “ he could get rid of Howe,” who held a mortgage on the land from the plaintiff, and had agreed, as the plaintiff contended, to surrender it. The plaintiff in his release to the defendant covenanted to warrant and defend the land from all incumbrances made by him. Howe had entered to foreclose for breach of condition, and three years from such entry had not elapsed at the date of the release to the defendant. The defendant went into possession under his release, and has ever since occupied the land, though the three years have now elapsed. Howe absconded, and there was no further evidence as to his title. Held, that the question should be submitted to the jury whether the defendant agreed to pay one hundred dollars down for the release, and if so the plaintiff was entitled to recover that sum, and no more; and that the defendant was not entitled to avail himself, in defence, of the plaintiff’s covenant in the release.</p>

<p>The school committee of a town may lawfully pass an order that the schools thereof shall be opened each morning with reading from the Bible and prayer, and that during the prayer each scholar shall bow the head, unless his parents request that he shall be excused from doing so; and may lawfully exclude from the school a scholar who refuses to comply with such order, and whose parents refuse to request that he shall be excused from doing so.</p>

Contract brought to recover damages for the failure to deliver a quantity of coal, sold by the defendants to the plaintiff. One ground of defence was that the contract was not binding, because not executed in conformity to the statute of frauds.

Writ of dower. At the trial in the superior court, at September term 1865, before Rockwell, J., it appeared that the demandant’s husband went to California in 1850. The demandant was objected to as a witness, but admitted; and she testified that she had received no letters from him since his arrival there, and no information from any source that he was living, since the first year after his arrival there.

<p>Replevin of a horse, commenced before a justice of the peace on the 26th of July 1864. The defendant was defaulted before the justice, and appealed to September term 1864 of the superior court. On the seventh day of the term he moved to dismiss, on the ground that another suit between the parties for the same cause of action was pending in that court; and three days after filed an answer, entitled simply, a Answer; ” beginning thus: And now the defendant comes and for answer says that he denies each and every allegation in the plaintiff’s writ and declaration; ” denying the defendant’s possession at the date of the replevin, and the. plaintiff’s property and right of possession; and concluding by alleging “ that there is now pending another suit between the said parties concerning the same subject matter in the said court, and that during the pendency of said suit the above named suit cannot be maintained and the plaintiff has no cause of action thereon.” Vose, J., on inspection of the record, being of opinion that another suit was so pending, ordered the present suit to be dismissed; and the plaintiff alleged exceptions.</p>

<p>If a person named as surety in the body of a bond signs his name on the left hand side oi the page, in the place appropriate for the attestation of witnesses, and a person not named in the body of the bond signs his name on the right hand side of the page, by one of the seals, it may be shown by paroi evidence that the former intended to sign ás a surety and the latter as a witness; and the former may accordingly be held liable on the bond.</p> <p>If a guardian improvidently invests his ward’s money in the note of a single person, the sureties on his bond thereupon become and remain liable for any loss which may occur, although he dies and the borrower becomes administrator of his estate and, in settling the account of his intestate as guardian, returns the note as assets of the ward’s estate.</p>

<p>Writ of entry to recover a parcel of land in Brighton.</p> <p>At the trial in the superior court, before Vose, J., it appeared that on the 12th day of May 1834 the demandant’s father conveyed the demanded premises to the tenants by a deed of warranty, which stated that the conveyance was made upon the express condition that the corporation should forever maintain and keep in good repair a pass-way over the same, and also certain fences; the premises being land over which the railroad of the tenants passes. The demandant’s father then, in June 1842, conveyed to the demandant a large tract of lancf, the description of which included the demanded premises, by a deed of warranty; and died intestate, before any breach of condition. The demandant offered evidence of a breach of condition after his father’s death. No entry for breach of condition was made before bringing this action. The judge excluded the offered evidence, and instructed the jury that the demandant was not entitled to recover; and a verdict was accordingly returned for the tenants. The demandant alleged exceptions.</p>

<p>Writ of error to reverse a judgment rendered against the plaintiff in error in the superior court upon an indictment against him for obtaining goods under false pretences. The following was the assignment of errors :</p> <p>“ 1. That the first count of the indictment aforesaid, and the matter therein contained, are not sufficient in law to warrant the judgment against him, or to convict him of the crime of obtaining goods by false pretences, as therein alleged.</p> <p>“2. That in the first count of said indictment there is no averment that the acts therein alleged were done and committed at any place within the jurisdiction of said superior court, or at any place within the Commonwealth.</p> <p>“ 3. There is no sufficient averment, in the first count of said indictment, of the place where the acts therein alleged were done and committed.</p> <p>“4. That in the first count of said indictment there is no sufficient description of the property, or of the value thereof, therein alleged to have been obtained by the plaintiff in error, by the false pretences therein alleged.</p> <p>“ 5. That the material parts and allegations, contained in the first count of said indictment, are repugnant one to the other, and therefore void.</p> <p>“ 6. That the record is insufficient in this: that it does not appear therein that the jurors were good and lawful men, or were such as are authorized by law to sit as jurors for the trial of an issue, or were jurors of the said county of Suffolk.</p> <p>“ 7. That there is a total omission in said record of the allocutus, or demand of the defendant what he has to say why judgment should not proceed against him.</p> <p>“ 8. That it does not appear in said record that the saio Teffiies, then defendant, was present in court when sentence was >assed-against him.</p> <p>“ 9. That it nowhere appears in the record of the superior court, begun and held at the city of Boston, within and for the county of Suffolk, for the transaction of criminal business, on the first Monday of January, a. d. 1864, that the grand jurors who found, presented and returned said indictment at said term were grand jurors of the said county of Suffolk, nor that they were good and lawful men, or such as were qualified by law to serve as grand jurors in said county of Suffolk.</p> <p>“ 10. That the said record and process is erroneous, informal and void, in other respects.”</p> <p>The caption of the indictment was as follows: “ Commonwealth of Massachusetts. Suffolk to wit. At the superior court begun and holden at the city of Boston within and for the county of Suffolk for the transaction of criminal business on the first Monday of January in the year of our Lord one thousand eight hundred and sixty-four.”</p> <p>The indictment then proceeded to set forth, in the first count, that “ The jurors for the Commonwealth of Massachusetts on their oath present, that Edward P. Jeffries of Boston in the county of Suffolk and Commonwealth aforesaid, merchandise broker, on the nineteenth day of August in the year of our Lord one thousand eight hundred and sixty-three, at Boston aforesaid, in' said county of Suffolk,” with intent to cheat and defraud George M. Barnard, Horatio Hollis Hiinnewell and Hollis Hunnewell, all of said Boston, of and out of certain linseed, did then and there falsely pretend and represent to them that he was a merchandise broker and had received an order from certain persons in New York to purchase in their behalf a large quantity of linseed and then and there offered to purchase of said Barnard arid Hunnewells two thousand bags of linseed at a certain price per bushel, and by sundry false pretences induced them to deliver said linseed to him. The latter parts of this count are copied in full in 7 Allen, 549-552.</p> <p>The record of the case, after reciting the indictment, stated hat “ the indictment was found at the last January term, when said Jeffries was set to the bar and having said indictment read to him he said thereof he was not guilty and for trial put himself upon the country, and the Commonwealth did the like by its attorney, George P. Sanger, Esquire. Here in court a jury was thereupon empanelled and sworn to try the issue, to wit: [the names of the jurors were here given,] who after hearing and understanding all matters and things concerning the same returned their verdict and on oath said that Jeffries was guilty on the first and second counts of said indictment, and not guilty on the third count thereof.</p> <p>“ This indictment was then continued to the last February term, when, after verdict but before judgment, the defendant moved the court to set aside said verdict, because the same was not supported by any evidence which warranted the jury in finding that the false pretences charged in the indictment were proved, and because the verdict was against the evidence in the case and not sustained by the evidence and was against the law= The court having considered this motion overruled the same.</p> <p>“ And after verdict but before judgment the defendant comes and moves the court that no judgment be rendered on said verdict, but that all judgment thereon may be arrested, because the indictment does not set forth or charge that the defendant committed any offence known to or against the laws of this commonwealth. The court having considered this motion overruled the same.</p> <p>“ Whereupon the said defendant by his attorneys, Benjamin F. Thomas, Esquire, and Edward D. Sohier, Esquire, filed a bill of exceptions to the rulings of the presiding justice at the trial, and prayed that they might be allowed, and the same were allowed. Which said bill of exceptions is on file in the clerk’s office of said court.</p> <p>“ This case was then continued from term to term to the present April term, and now the following rescript is received from the supreme, judicial court: ‘Exceptions as to second count in the indictment sustained. Exceptions and motion in arrest of judgment as to the first count in the indictment overruled. Case to stand for judgment on the first count if a nol. pros, shah be entered on the second count.’ The district attorney, George P. Sanger, Esquire, says he will prosecute the second count of this indictment no farther. And now the said Jeffries is set to the bar to receive sentence, and it is thereupon considered by the court that the said Jeffries, for his offence as set forth in said first count of this indictment, be punished by imprisonment in the state prison in Charlestown, in the county of Middlesex, for the term of two years, the first day of said term to be in solitary imprisonment, and the residue thereof at hard labor, and that he stand committed until he be removed in pursuance of said sentence.”</p> <p>The records of the January term of the superior court contained the following: “ Commonwealth of Massachusetts. Suffolk, to wit. At the superior court begun and holden at the city of Boston within and for the county of Suffolk for the transaction of criminal business on the first Monday of January in the year of our Lord one thousand eight hundred and sixty-four, the Honorable Thomas Russell presiding. The following named persons, having been legally drawn and summoned to serve as grand jurors, came into court and answered to their names, to wit.” [Here followed the names of twenty persons.] 64 The court ordered a new venire to issue for three additional grand jurors.” “ The grand jurors were sworn agreeably to the statute, and having received the instructions from the court retired to commence their investigations.” [The record showed that three other grand jurors appeared and were sworn.] 44 The grand jurors came in, presented forty-seven bills of indictment.” 44 The following named persons, having been legally drawn and summoned to serve as traverse jurors, came into court and answered to their names.” [Here followed the names, including all of those who served at the trial of the plaintiff in error, except one, who was summoned on a new venire.]</p> <p>The attorney general pleaded that there was no error in the record or proceedings aforesaid, nor in the giving judgment aforesaid. And thereupon the case was reserved for the consid eration of the full court.</p>

<p>if the record in a capital case recites that the prisoner was sentenced to death, this sufficiently shows an adjudication by the court that he was convicted of a capital crime. Under Gen. Sts. c. 112, §§ 6, 8, and c. 160, §§ 1-3, it is competent for this court, when held by a single justice, to arraign a person indicted for a capital crime, and, if he pleads guilty, to proceed and award sentence against him, according to law.</p> <p>Under the statutes of this commonwealth, an indictment for murder, in the usual form, is sufficient to charge the crime of murder in the first degree; and under such an indict- ° ment, a plea of guilty of murder in the first degree will authorize a sentence of death, although the plea does not set out the particular facts which show that the crime was murder in the first degree.</p>

<p>Buffering a single private act of illicit intercourse or lascivious behavior or exposure of person in one’s house is not keeping a house of ill-fame, or a building “ resorted to ” for prostitution or lewdness, within the meaning of Gen. Sts. c. 87, §§ 6, 7.</p> <p>‘ Lewdness,” in the above statute, includes private illicit intercourse, as well as public indecency.</p>

Complaint for permitting cattle under the care of the defendant to go upon the sidewalks of a public highway, in Cambridge, in violation of a city ordinance.

<p>An inlictment for larceny in a shop is sustained by proof that the defendant, with a felonious intent, obtained the property of another in the shop, by falsely personating the owner. v</p>

<p>Indictment for stealing one wallet, of the value of one dollar, and certain bank bills, from the person of William S. Roads.</p> <p>At the trial in the.superior court, before Russell, J., the taking of the property, the asportation and the ownership, were proved directly. The wallet and bank bills were produced, identified and put into the case; but nothing was said as to the value of either of them. The defendant requested the court to direct an acquittal; but the judge refused to do this, and ruled that the wallet was evidence to go to the jury, without inore, and if they on inspection found it to be of no value they must acquit; that it was not necessary to prove that the bills were current bank bills; and if they were of any value as paper, and were stolen by the defendant as alleged, this would warrant a cor viction, and this fact was to be submitted to the jury to find on inspection.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Indictment for breaking and entering a shop and stealing therein certain property of Frederick Weis and Edward Zoebisch. At the trial in the superior court, before Russell, J., Charles H. Cottar testified that he received part of the stolen property knowing the same to have been stolen; and he testified fully to the defendant’s guilt.

Complaint for doing business in violation of the statutes for the observance of the Lord’s day. The business sought to be proved consisted in the sale of cigars and liquors in a saloon kept by the defendant.

<p>A complaint charging that the defendant at a place and on a day named, “ that day being the Lord’s day, and between the midnight preceding and the midnight succeeding the said day, did keep open his shop there situate,” (describing the place) “for the purpose of doing business therein, the same not being then and there works of necessity or charity," is good, under Gen. Sts. c. 84, § 1.</p>

Complaint, originally made to the police court of Cambridge, charging that the defendant “ on the first day of August in the year of our Lord one thousand eight hundred and sixty-five,” at Somerville, “ and on divers other days and times between that day and the day of making this complaint,” kept and maintained a tenement, used for the illegal keeping and illegal sale of intoxicating liquors.

Indictment charging that the defendant, during a specified time, at Boston, “ knowingly, wilfully and without having any legal appointment or authority therefor, did keep and maintain a certain common nuisance, to wit, a tenement in said city of Boston, .... by him used for the illegal sale and illegal keeping for sale of intoxicating liquors, to the great injury and common nuisance of all the peaceable citizens of said commonwealth there residing, inhabiting and passing,…

<p>This court will not discharge on habeas corpus a prisoner convicted of crime in the superior court, and confined under sentence of imprisonment passed by that court, although a writ of error addressed to that court has been issued by a single justice of the supreme court of the United States, if no questions of law in the case were ever brought by exceptions or otherwise to this court for determination; but it will be assumed that the writ was iirprovidently issued, and will be dismissed.</p> <p>The fact that the superior court ruled that the questions of law raised by the defendant av the trial were not subjects of exception to this court, because they had already been passed upon by this court in another case, cannot, if material, be made to appear by a* agreement of counsel at the argument upon the habeas corpus.</p>

<p>Petition presented to the chief justice on the 13th of March 1866, and by him adjourned into the full court, for a writ of habeas corpus to the sheriff of Plymouth, in behalf of one imprisoned in the house of correction in that county under a warrant of commitment from the superior court, whose record, a copy of which was annexed to the petition, showed the following proceedings:</p> <p>At February term 1866 of the superior court in Plymouth, Bryan was indicted for being a common seller, and for making single unlawful sales of intoxicating liquors; and pleaded in bar of the indictment, that he was a retail dealer in intoxicating liquors, and had a license granted by the United States under an act of congress to do all the acts complained of, for which he had paid into the treasury of the United States the sum of twenty-five dollars; and that he had also paid to the United States in money a revenue duty or tax upon the same liquors and in the same package, form and quantity, which he was now indicted for selling; and that he had not otherwise sold intoxicating liquors. The district attorney of the Commonwealth filed a replication denying ail the allegations of the plea; and Bryan demurred to the replication. Brigham, J. overruled the demurrer, and ordered Bryan to plead over, which he refused to do. and the court ordered a plea of not guilty to be entered, and upon this issue submitted the case to a jury, who returned a verdict of guilty.</p> <p>The presiding judge, before sentence, allowed a bill of exceptions, which stated that the Commonwealth introduced evidence tending to show that the defendant made several sales of intoxicating liquors by retail during the time named in the indictment ; that the defendant put in evidence a license from the United States in common form, authorizing him to exercise the business of a retail dealer in intoxicating liquors during that time, and asked the court to rule and instruct the jury that such license authorized the defendant to make the sales charged in the indictment; but the court declined so to do, and did rule and instruct the jury that such license afforded him no protection ; and the defendant alleged exceptions to this ruling, instruction and refusal, and appealed from the decision overruling his demurrer.</p> <p>The judge refused a certificate to stay judgment and sentence under the Si. of 1864, c. 250, § 5, (which is copied in the margin,* ) and on the 20th of February 1866, “ having considered the offence whereof the said John W. Bryan is convict,” ordered that he pay a fine of fifty dollars and costs of prosecution, and stand committed until such fine and costs are paid, and be imprisoned at hard labor for six months in the house of correction, and recognize in the sum of one thousand dollars not within one year from the time of his conviction to violate any provision of the Gen. Sts. c. 86, or any law of this commonwealth relating to the sale of spirituous and intoxicating liquors, and stand committed until he should enter into such recognizance.</p> <p>Within ten days after this judgment and sentence, Bryan obtained the allowance by a justice of the supreme court of the United States of a writ of error under the Judiciary Act of 1789 to take the case to that court, and gave bond “ to prosecute his said writ to effect, and answer all damages and costs if he fail to make his plea good,” and lodged a copy of the writ in the clerk’s office of the superior court.</p> <p>The attorney general admitted that the writ of error was duly served upon him, and that the prisoner within said ten days gave notice thereof to the sheriff and demanded his discharge from imprisonment pending the writ of error.</p>

<p>An indictment under the Gen. Sts. c. 87, for maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, hy one holding a license to sell such liquors under the internal revenue law of the United States, is not a “ suit or prosecution against any officer of the United States or other person for or on account of any act done under the revenue laws of the United States, or under color thereof, or for or on account of any right, authority or title, set up or claimed by such officer or other person under any such law of the United States,’’ which can be removed into the circuit court of the United States for trial, under the U. S. St. of 1833, c. 57, § 3.</p>

<p>The legislature have power to pass an act authorizing the mayor and aldermen of a city to take land for the widening and laying out of a street, and assess the cost of widening and grading the same, including damages for land and buildings taken therefor, upon the estates which will abut on the street after it shall have been laid out and widened, in proportion to their value at that time; giving to each owner of land so taken, if aggrieved by the doings of the mayor and aldermen, the right of trial by jury.</p> <p>In ascertaining the compensation to be paid to an owner of land so taken, the legislature may provide that the mayor and aldermen shall estimate the damages sustained, “including the value of the whole of the buildings on the land, and part of which shall be so taken, deducting therefrom, however, the value of the materials and of the buildings, if any, which will remain; ” that the land shall be estimated at its value before the widening, and that such estimate shall not include the increased value occasioned merely by the widening, laying out and grading of the street.</p> <p>The legislature may also provide, in such case, that the owner of any estate, a part of which shall be so taken, may, instead of claiming damages therefor, surrender his whole estate to the city, and that the mayor and aldermen shall thereupon estimate the value of the whole of the same, with the buildings, and the owner shall convey the same to the cify, and the city shall pay to him the value so estimated.</p>

<p>Contract upon a bond in the penal sum of $20,000, executed by Robert N. Woodworth as principal, and the defendant and nine other persons as sureties, with condition that said Wood-worth “ shall well and faithfully perform and discharge all the duties which are assigned or which may hereafter be assigned to the office of cashier of the said Bank of Brighton, for and during all the time he shall serve or continue in said office, and shall faithfully observe and obey all the by-laws of said bank which now exist or which shall hereafter be made, and all the rules and regulations which now are or may hereafter oe adopted by the president and directors of said Bank of Brighton, and all the lawful commands and directions of said president and directors, and shall during the time aforesaid at all times faithfully consult and use his utmost endeavors to promote the interest of the stockholders of said bank.” By the terms of the bond, Woodworth bound himself in the full sum named therein, and the several sureties in the sum of $2000 each, severally and not jointly. The writ was dated May 8, 1860.</p> <p>After the former decision in this case, reported in 5 Allen, 413, the case was referred to Henry W. Paine as auditor, who made a report, the material portions of which are as follows :</p> <p>“ The defendant Woodworth was appointed cashier of the Bank of Brighton on the 1st of October 1853. He continued in the office from that time till the 21st of September 1858, when he was removed. It was the custom of the directors to have an' examination of the affairs of the bank once in six months, and of the cashier to lay before them twice a week a general statement of the condition of the bank, showing its assets and liabilities.' On the 20th of September 1858, the cashier presented to the directors a statement which purported to show the state and condition of the bank on the 18th of that month. He at first declared this to be a true statement; but, on being farther interrogated, admitted that it was not. In answer to questions put to him at that time by the directors, he stated that the liabilities of the bank were greater by ten thousand dollars and its assets less by ten thousand dollars than appeared by the statement presented; that he had forced the account; that there were two of his memorandum checks then in the teller’s drawer, one for four thousand dollars, the other for five hundred, which he had given for money which he had taken and appropriated to his own use. He further stated that as cashier of the bank he had drawn two checks on the Fulton Bank, New York, on time, each for the sum of ten thousand dollars; that these checks had been discounted by the Faneuil Hall Bank, Boston; that he had received and appropriated tc his own use the proceeds of these checks, and that they were then outstanding.</p> <p>“ The defendant seasonably objected to the admission of these statements as evidence against him; but the objection was overruled. "</p> <p>“ It was proved that on the 8th of June 1858 the cashier began to force the accounts by changing the figures in the books of the bank, and that he continued to do this while he remained in office ; and that he abstracted of the funds of the bank for his own use the sum of twenty thousand dollars. The accounts were forced for the purpose of concealing this defalcation. It was not proved when or how this sum was abstracted, though it did appear that there had been no forcing previous to the 8th of June 1858.</p> <p>“ It was proved that the cashier had been for a long time in the habit of taking money from the drawer of the teller and leaving with the teller his memorandum check for the amount. At one time, some eighteen months before he was removed from office, the teller had his checks to the amount of fifteen thousand dollars. But it was not proved that the directors were aware of this habit of the cashier. In the statements laid before the directors these checks appeared as cash.</p> <p>“ On the 20th of September 1858 there were in the teller’s drawer the two checks before mentioned, one for four thousand, the other for five hundred dollars. These were given for money which the cashier had appropriated to his own use. On one of the books of the bank an account was opened under this head: 6 Deficiency of R. N. Woodworth.’ In this account Woodworth is charged, September 23d 1858, with $24,500; and he is credited, October 13th 1858, with $7550 ; December 21st 1858 with $3000; September 20th 1859 with $200. The several sums so credited were actually received from Woodworth by the bank. On the 21st of September 1858, certain evidences of property were turned over by Woodworth to the directors; but they were of no value and nothing was realized from them.</p> <p>“ It was proved that Woodworth had been ir. the habit for nearly a year of drawing, as cashier of the bank, time drafts on the Fulton Bank, New York. These drafts in the aggregate amounted to from fifty to one hundred • thousand dollars. In 1857 one of the di-ectors had a note discounted at the bank, and received instead of money a certain draft on the Fulton Bank, on time, to send 4nto one of the United States. A man by the name of Squires obtained discounts at the bank during a period of some eight weeks, beginning in October 1857. Instead of money he received in some instances from the cashier time drafts on the Fulton Bank. They were from six to ten in number, and amounted in the aggregate to from ten to twenty thousand dollars. Money was hard when these drafts were made. They were drawn with the knowledge of the president, as were also two other time drafts. The bank had not at the time of the drawing any of these drafts the funds to meet them in the Fulton Bank. Previous to the 21st of September 1858, Woodworth as cashier drew two other drafts on the Fulton Bank on time. These he procured to be discounted by the Faneuil Hall Bank. They were each for the sum of ten thousand dollars. They did not mature till after the 21st of September. The Bank of Brighton refused to pay them. A suit was brought which was contested. Judgment was rendered in November 1861 for the amount of the two drafts, interest and costs of suit. This judgment was satisfied by the bank. The proceeds of these drafts never came to the bank, but were appropriated by the cashier.”</p> <p>The case came on for trial before Lord, J., without a jury, and no evidence was offered except the auditor’s report. The defendant requested the court to rule as follows:</p> <p>“ 1. That the auditor erred in admitting testimony of the declarations of the principal, not a party to the suit, against the objection of the defendant, and therefore that the report must be recommitted with directions to exclude such declarations and admissions as incompetent against the surety.</p> <p>“ 2. That upon the facts found by the auditor the plaintiffs were only entitled to nominal damages.</p> <p>“ 3. That upon the facts found the plaintiffs were only entitled to recover, if anything, one tenth part of $13,750, with interest thereon from September 23d 1858.</p> <p>“ 4. That it appearing by the facts reported that the president and directors of the plaintiffs’ bank had directed and authorized the cashier to engage in the unlawful business of drawing drafts on time on the Fulton Bank, the plaintiffs having no funds to meet said drafts when drawn, the defendant is not liable for the proceeds of any such drafts drawn and appropriated by the cashier,”</p> <p>The judge declined to recommit the report or to rule as requested, but did rule upon the facts reported that the plaintiffs were entitled to recover the whole amount of the defendant’s penalty, $2000, and interest thereon from September 23d 1858. The defendant alleged exceptions.</p>

<p>Two actions of tort, to recover damages for personal injuries sustained by the plaintiffs, by reason of a defective bridge over the defendants’ railroad, where the same was crossed by a highway. The cases were tried together in this court, before Colt, J.</p> <p>The plaintiffs offered evidence tending to show that at the time of receiving the injury they were riding together in a carriage drawn by one horse, driven by another woman, upon Newton Street in Waltham, and, as they were passing upon a bridge over the defendants’ railroad, a train of the defendants came' along, and the horse was frightened by the smoke and steam from the engine and became unmanageable and rushed upon the fence and went through it, and the horse,. carriage and women were all precipitated down the bank, a distance of fourteen feet below, and the horse killed, the carriage broken, and the plaintiffs injured. There was also evidence tending to show that the plaintiffs were driving at a proper rate of speed with due care and with a suitable horse and carriage; and that the fence was old and rotten and insufficient as a barrier.</p> <p>It appeared that the defendants were incorporated by St. 1842, c. 84, and built their railroad in 1843 and 1844; that in building the railroad across Newton Street they made a cut through the same, at right angles therewith, and built this bridge over the cat, with abutments; that the wooden structure of the bridge and the abutments did not fill up the entire width of the excavation, but the rest of the distance was filled up with earth and graded by the defendants to a level with the planks of the bridge and the highway; that the bridge and abutments were not as wide as the highway, and fences were built by the defendants from the abutments to the line of the defendants’ location, a distance of twenty-seven feet, and the fence where the horse went through was repaired by them before the accident. The evidence tended to show that the horse went through that half of the fence which was nearest the abutment, and very near the bridge.</p> <p>The defendants’ evidence tended to show that the fence was upright and sound and reasonably sufficient for the purpose, and that their train was proceeding in the ordinary manner, properly equipped and manned, and at a rate of twelve or fifteen miles an hour. The plaintiffs contended that the defendants were negligent in running the train with unusual noise and escaping steam ; in narrowing the highway and wooden portion of the bridge; in allowing cracks in the bridge through which smoke and steam came up; and in the structure and condition of the fence where the horse went through.</p> <p>The defendants requested the court to instruct the jury as follows:</p> <p>“ 1. Inasmuch as it appears that the horse by which the plaintiffs were drawn was frightened, unmanageable and beyond control, by reason of the noise or smoke or steam of the defendants’ train, which was passing at the time in its usual and ordinary manner, the plaintiffs offering no evidence that there was unusual or extraordinary use of the defendants’ road at that time, the defendants were not responsible ; and it would make no difference whether the smoke came up through the crevices of the bridge or at its side, if the bridge were otherwise suitable for public travel.</p> <p>“2. The defendants were not bound to maintain the fence through which the horse rushed, inasmuch as it constituted no part of the bridge or its abutments, and consequently they were not responsible for its condition.</p> <p>“ 3. Inasmuch as it appears from the plaintiffs’ own testimony that the horse at the time of the accident was frightened, un manageable and beyond control, without fault on the part ofithe defendants, and while in this state rushed upon the fence, the condition of the fence was immaterial and the plaintiffs cannot recover.”</p> <p>The judge declined to give the instructions asked for, and instructed the jury as follows:</p> <p>“ The burden of proof is upon the plaintiffs to satisfy the jury that at the time of the accident they were in the exercise of ordinary care. The want of due care on their part in any respect, however slight, contributing to the injury, will prevent their recovery. Due care is such care as prudent people use in positions of like exposure and danger. It varies with the circumstances of every case; and the plaintiffs will be affected in the same way by want of care on the part of the person who was driving the horse.</p> <p>“ If satisfied that the plaintiffs were not at fault, the burden is upon them next to satisfy the jury that the accident was caused by the negligence and want of due care on the part of the defendants or their servants, and that this negligence was an efficient cause of the plaintiffs’ injury. As to negligence in running their train with unusual noise and escape of steam, the defendants under their charter have the right to build and operate a railroad, and to cross public highways, and to run their trains with the usual and necessary incidents of noise and escaping steam; and if, while so exercising their rights, the horse of a traveller on the highway is frightened and the traveller injured, he is without remedy. If the train was run without due care and with unusual and unnecessary noise and smoke, the defendants would be responsible for injury resulting therefrom.</p> <p>“ In regard to the construction and repair of the bridge proper, the defendants were bound to provide and keep in repair a bridge reasonably suitable for the safety of the public travel over it, with reference to the use for which the bridge was constructed, but were not bound to build a bridge at such expense and with such appliances as perfectly to protect the traveller from all danger of fright to his horse from noise and smoke that would be impossible. If this bridge was defective by reason of its narrowness, or the cracks through which the smoke escaped, or in any other respect, the jury must go one step further, and find that these defects were the cause of the accident, and that the injury would not have happened if they had not existed.</p> <p>“ As to the insufficiency of the fence where the horse went through, the law required the defendants to construct, maintain and keep in répair, not only the bridge proper and the stone abutments, but all that part of the crossing which is between the bridge proper and the line of the location of the road ; and it is for the jury to say whether it has been so constructed and kept in repair, looking to the dangers to which the traveller was exposed and the consequences of an accident. The jury may consider the greater liability to fright to which horses are exposed at this place, and find, upon the whole evidence, whether the fence was necessary, and whether it was properly constructed and kept in repair.</p> <p>“ If the jury find that a railing or fence was necessary to keep that part of the crossing in repair for the proper security of the public travel, and that the fence as it existed was not sufficient, and that the horse became frightened without the fault of the plaintiffs or the defendants, so as to become unmanageable for the time, and ran against the fence in question; then, if the jury are further satisfied that the injury to the plaintiffs would not have occurred if the fence or railing had been sufficient, they must find verdicts for the plaintiffs.”</p> <p>The jury returned verdicts for the plaintiffs, with $1250 damages in the first action, and $2000 damages in the second; and the cases were reported for the determination of the whole court.</p>

<p>One street railway corporation has no right to use the tracks of another such corporation foi the transportation of passengers in cars, without the authority of such second corporation or of the legislature.</p> <p>if one street railway corporation, being duly authorized by law, has entered upon and used the tracks of another such corporation, commissioners appointed under St. 1864, c. 229, to determine the rate of compensation to be paid therefor, to fix the manner and stated period of such use, and the mode of connection of the tracks, may prescribe a rate of compensation founded upon the amount of business of the first corporation over the track» of the second corporation, and may require accounts to be so kept as to exhibit the amount of such business, which accounts shall be open to the inspection of the second corporation.</p> <p>An award of such commissioners will not be invalid by reason of its omission to require the railway corporation whose tracks are entered upon to keep them in repair, that duty being imposed by statute.</p>

<p>tf a subscriber to articles of association, which are prepared and signed with a view to form a corporation under the Gen. Sts., promises therein to take a certain number of shares upon certain terms, and fails to perform his part of the stipulations, he cannot maintain an action against the corporation, after it is formed, for a refusal to deliver to him the shares, upon his tender of payment therefor, although his name is entered as a subscriber in a subscription book and he is requested to pay for the shares subscribed for by him, and the same are afterwards allowed to be taken by another person, without selling them under the statute for non-payment of assessments.</p> <p>Articles of association were prepared for the purchase of certain patent rights, with a view to form a corporation under the Gen. Sts., providing that the first meeting might be called by a notice signed by one or more of the associates and given to each subscriber and published in certain newspapers seven days before the time of the meeting, and fixing the amount of the capital stock and the numbS: of the shares, and providing that all subscriptions should be payable either wholly or partly (according to the amount subscribed) on the organization of the company. Various persons signed these articles, specifying the number of shares which they would respectively take. Before the first meeting was called one of the subscribers went away from Massachusetts, leaving a place of business in Boston in the charge of his son. A notice of the first meeting was duly issued and published, and the son of the subscriber above referred to acknowledged the due receipt of a copy thereof in the name of his father. The meeting was held; a short extension of time was granted for the first payment upon the subscription; the subscriber above referred to was not present or represented at the meeting, but his name was afterwards entered as a subscriber in a subscription book of the company; due diligence was used in sending to him notices of the extension of the time of payment, but without reaching him; he made no payment on his subscription, and after the expiration of more than two months from the extended time for the first payment, the directors erased his name from the articles of association and the stock-book, and allowed his shares to be taken by other persons, without selling them under the statute for non-payment of assessments. Held, that he could not thereafter maintain an action against the corporation for a refusal to deliver the shares to him, upon his tender of payment therefor.</p>

<p>A testatrix by her will created a trust fund for the use of the child or childien of her son, who should be living at her decease or bom afterwards, and ordered the annual income thereof to be paid to him during his life, to be applied towards their maintenance, but without his being accountable for the manner of its application; and, at his decease, the income to be paid to his then existing wife, if she should survive him, but, if not, the principal to be paid to and distributed among his issue, they if more than one to share alike; and she provided that if all his children should die in his lifetime, then, after the death of the last of them, the income should be paid to him diming life, or until he should have another child or other cnildren, and then, upon the birth of such other child or children, he shou'd receive the income for the use of such after-born child or children “ in the sum manner and for the same purpose as if the children he now has had conti tued in life.*' At the time of making the will and of the death of the testatrix, her son had a wife and five children. The wife and four of the children afterwards died. The son married again, and died, leaving one child by his first marriage and three children by his second. Held, 1st, that it was the intention of the testatrix to make the same provision for each of her son’s children, including those by the second marriage; 2dly, that the fund did not vest in the children, so that it would go to their representatives in case they did not survive their father; and 3dly, that the whole income should be devoted to the maintenance of the children in being when it accrued, and any part thereof not so applied would belong to those for whose use it was received at the time it accrued.</p>

<p>1 testator left three sons, each of whom had several children, and a granddaughter who was the child of a deceased son. By his will he gave to his three sons the use of certain real estate for eighteen years, and also made provision for his granddaughter for the same time; and directed that all his property should be sold at the expiration of eighteen years, “ and divided as follows, namely, one half of the same between ” his three sons “ and the other half to be divided between ” his grandchildren, namely, his granddaughter and the children of his three sons “ in equal proportions. Should either of the said grandchildren have deceased at that time, the part that would have come to him or her had they lived to go to the others of the same family if living; if not, to their parents.” The property was sold accordingly. Held, that the grandáaughter was entitled to one fourth of the entire property.</p>

<p>Bill in equity brought by the administratrix of the estate of Leonard B. Shearer, deceased, against two persons who during his life were his partners, and his three minor children, seeking to compel a sale of certain real estate, and the payment of the proceeds thereof to her. The following facts appeared from the bill and answers:</p> <p>In 1850 Leonard B. Shearer and Daniel L. Shearer, at Boston, entered into written articles of partnership, for the purpose of carrying on the furniture, upholstery and crockery-ware business in Boston, under the name of Leonard B. Shearer, and also in New Orleans, under the name of Daniel L. Shearer; the business in Boston to be under the management of Leonard B. Shearer, and that in New Orleans to be under the management of Daniel L. Shearer; and the profits and losses to be divided in the proportion of two thirds to the former and one third to the latter. In 1854 they entered into a new written agreement reciting that Leonard B. Shearer had purchased certain real estate in Boston, and formed a furniture business in New York city; and providing that the former articles should apply in the division of real estate and of the profits of the business in New York; and should also apply to all real estate, wherever situated, purchased by Leonard B. Shearer subsequently to the formation of the partnership.</p> <p>In 1853 Leonard B. Shearer entered into articles of agreement with John S. Paine, for the purpose of carrying on the furniture business and general Vade for two years, under the name of Shearer & Paine. This partnership was continued under new agreements; and in June 1864 said Shearer & Paine executed a written instrument showing that their said firm had purchased real estate in Illinois, Wisconsin and Michigan, part of which was taken in the firm’s name, and part in the name of Leonard B. Shearer, but the greater part in the name of John S. Paine, all of which was paid for with funds of the firm; and providing that in case of a sale of the whole or any part thereof the proceeds should be paid over to the firm of Shearer & Paine, and, in case of a division of the property, it should be divided as other personal property belonging to said firm.</p> <p>In June 1864 Leonard B. Shearer and Daniel L. Shearer entered into a written agreement reciting the continued existence of their partnership ; the addition of Paine, as a partner, to the business in Boston; the establishment of their business in New York ; the addition of James C. Jones, as a partner, to the business in New York ; and setting forth that “ the addition of partners and the changing of the firm in Boston and New York did not change the business relations and connections existing between them, but that they still exist; and after a settlement with J. S. Paine, at Boston, and J. C. Jones, at New York, all the business in Boston, New York and New Orleans is to be settled by the articles of agreement made and signed at Boston.” And the business was carried on under these several agreements until the death of Leonard B. Shearer.</p> <p>The bill alleged that in the settlement of the business of the firm, as well as of the estate of Leonard B. Shearer, it was necessary that the said real estate should be sold; and prayed that Paine might be ordered to sell the same, and to receive the proceeds as surviving partner of the firm of Shearer & Paine, and deal with the same as the personal property of the firm, and account with the plaintiff, as administratrix, for the share belonging to the estate of Leonard B. Shearer; and for other elief.</p> <p>Certain matters set forth in the answers are stated in the opinion.</p> <p>The case was reserved, by Chapman, J., for the determination of the whole court.</p>

<p>Bill in equity by the trustee under the will of Robert G. Shaw to compel the specific performance of a contract made by the defendant to exchange one share of the Dwight Manufacturing Company owned by him for thirty-three shares of the preferred stock of the New England Worsted Company, which were a part of the trust estate held by the plaintiff.</p> <p>The following facts appeared by the bill and answer s The parties entered into the agreement referred to, and on the 20th of January 1866 the plaintiff tendered to the defendant a transfer of the thirty-three shares executed by himself as sole trustee, but the defendant declined to accept the same, alleging that the transfer by the plaintiff was not sufficient to convey a title to the shares, because the plaintiff was not sole trustee under the will, but there were three joint trustees, namely, the plaintiff, William B. Green, and Francis B. Parker.</p> <p>Robert G. Shaw in his will devised and bequeathed certain property to the plaintiff, George R. Russell and Samuel P. Shaw, upon certain trusts; and therein provided as follow s: “ And whenever any vacancy shall occur in the number of my trustees, I then will and direct that there shall be nominated and appointed such trustee or trustees; and in such case the surviving or acting trustees for the time being shall by an instrument or petition nominate suitable person or persons to be- appointed by the judge of probate for the time being such trustee ■ or trustees in the place of the trustee or trustees dying, resigning or removing as aforesaid; and in making such nomination. I will and desire that my own sons (if living and willing to accept the trust) shall first be nominated and appointed, and after them my sons-in-law, if deemed competent, and there should be nothing in the nature and character of the trusts incompatible with their assuming the said trusts. And in default of such nomination and appointment, I direct that a new trustee 01 trustees shall in every such case be appointed by the said judge of probate or by one or more of the justices of the supreme judicial court in this commonwealth; and the new trustee 01 trustees so appointed shall have the power, right and interest touching the trust premises, and be subject to the same duties and liabilities, as if herein and hereby appointed trustee or trustees; and in case of the death, resignation or removal of any or either of my said trustee or trustees, I hereby declare that the trust powers and duties hereby created and assigned to them be executed and discharged by the remaining trustee or trustees and the new trustees so nominated, constituted an,’ appointed as aforesaid.”</p> <p>George R. Russell and Samuel P. Shaw resigned their office as trustees; and the sons and sons-in-law of the testator declined to accept the trust; and the plaintiff, as sole acting trustee, together with all the sons and sons-in-law of the testator, iri February 1864, presented to the judge of probate a petition, setting forth the facts and praying that the vacancies might be filled by the appointment of William B. Greene and Francis E. Parker as trustees to hold the said property jointly with the plaintiff. And the judge of probate at a probate court held in May 1864 appointed them accordingly. In May 1864 two minor children were interested in the trust fund, who had no guardian or guardian ad litem, and no notice was in any man ner given to them, prior to said appointment.</p> <p>The case was reserved, by Gray, J., for the determination of the whole court.</p>

<p>The legislature have power, by a general law, to require corporations organized here to pay to the treasurer of the Commonwealth a tax upon the excess of the market value of all the capital stock thereof over the value of their real estate and machinery taxable in the city or town where they are situated; and the fact that a corporation owns, as a part of its personal property, bonds of the United States, and that a portion of its stockholders live in other states of the Union, will not exempt it from liability to pay the full amount of such tax.</p> <p>This doctrine applies to mining corporations.</p>

<p>Although a savings bank has invested a portion of its fends in United States securities, tk tax imposed by Sts. 1862, c. 224, and 1863, c. 164, may be assessed upon the whole average amount of its deposits, as therein provided, and may be collected in full.</p>

<p>Shares of the capital stock of a foreign manufacturing corporation, if owned by citizens of this commonwealth, are taxable here for their fhll value, without deducting tibe value of the machinery and real estate belonging to such corporation, and taxed to it it the place where it is established.</p>

<p>Bill in equity seeking to enforce the conveyance of a patent right to the plaintiffs.</p> <p>The original bill, which was brought by Ely alone, against McKay and Lyman R. Blake, and sworn to on the 2d of July 1863, alleged, in substance, that Blake was the inventor of an improvement in sewing machines for which he held letters patent of the United States • that Edgar M. Stevens agreed to purchase the same of said Blake, and to pay him therefor the sum of f.ftv thousand dollars, to be paid by instalments, partly in cash and the rest in obligations of said Stevens; that thereupon an agreement, hereinafter copied as Exhibit A, was prepared and executed by said Blake, and delivered to Stevens, dated May 9 1859; that said agreement having neglected to specify the modes and times of payment of the said fifty thousand dollars, and Blake having agreed to receive and Stevens to pay five thousand dollars in cash on delivery of the deed, and the rest in notes of Stevens in instalments, an agreement, hereinafter copied as Exhibit B, was reduced to writing and signed by Blake and Stevens, dated June 10, 1859; that both of these agree ■ ments were recorded in the patent office on the 24th of June 1859; that both of these agreements were known to McKay; that McKay and Blake confederated together to defraud Stevens, and on the 23d of June 1859 Blake assigned said patent right to McKay; that on the 27th of July 1859 Stevens tendered to Blake five thousand dollars and the notes mentioned in the agreement of June 10th, and notified Blake that he was ready to carry out the terms of his agreement, waiving all preliminary conditions on which he might have insisted under the contract, and Blake declined the tender and refused to conVey the patent right to Stevens; that Stevens on the 9th of August 1860 conveyed all his right and interest in the patent right to Ely, and Blake and McKay were notified thereof; and that Blake and McKay refused to relinquish to said Ely their pretended right t« the patent. The prayer was, for a decree ordering them to con. vey the patent to Ely, and an injunction against conveying th» same to others, or granting licenses or making or selling any machines under the same.</p> <p>Exhibit A was as follows:</p> <p>“ Whereas letters patent have been granted by the United States to Lyman R. Blake of Abington in the Commonwealth of Massachusetts, dated July 6th 1858, and numbered 20,775, for a new and useful improvement in machinery for sewing ob¡ the soles of boots and shoes, and whereas said Blake is now making improvements therein : Now therefore l, the said Blake, in consideration of one dollar to me paid by Edgar M. Ste'.civ» of Medford in said commonwealth, the receipt of which is hereby acknowledged, and of other valuable considerations by me received, do hereby covenant and agree to and with said Stevens and his legal representatives and assigns that I will convey to said Stevens said invention, letters patent and the improvement therein within three weeks after I have perfected said invention and improvement, so that the same shall not be an infringement upon any other letters patent, upon said Stevens paying to me the sum of fifty thousand dollars. In the event that said Blake and Stevens cannot agree as whether said invention and the improvements thereon are an infringement upon other letters patent, the same shall be referred to two competent experts, one of whom shall be chosen by each party, and, if said experts cannot agree, the same to be referred to a third party selected by said two experts.</p> <p>“ Witness my hand and seal at Boston this ninth day of May 1859. , Lyman R. Blake. [Seal.]</p> <p>“ Witness, Josiah W. Hubbard.”</p> <p>Exhibit B was as follows:</p> <p>“ Condishions of the Sail of Blaks Patent Sewing Machien, to E. M. Stevens, of Medford in Massachusetts:</p> <p>“ Now the said Stevens agrees to Pay to the Said Lyman R.</p> <p>Blake, five Thousand Dollars Down on Delivery of the Deeds of Said Patent Sewing Machien, To the Said Stevens. Then the Said Stevens agrees to Give the Said Blake his agreement or his notes to pay to the Said Blake five Thousand Dollars at the end off one year from the date of the Deeds and then Pay Ten Thousand Dollars Perr year untill the Said Blake Resves the Sum of fifty Thousand Dollars.</p> <p>“ Now the Said Blake agrees to ade the Said Stevens all that he Can in Purfecting the Machiens, So that they Can bee Brought into General youse & as a Labour Saving Machine & also Evury Machien Shall Be Marked With the said. L. R» Blaks Name upon it — Now the Said Blake agrees to assygn to the Said Stevens all the improvements that he is Now Making, or May Make apon Machienery for Sewing on Soles tc Boots & Shoues. Now the Said Blake agrees to Build the Moddle that he has Commenced in his Shop with his New improvements apon it & to apply for Letters Patent as Soon as it Can Conveanitly Be Done</p> <p>“ in Witness My hand & Seal at Abington this 10th day of June 1859 Lyman B. Blake, & seal.</p> <p>E. M. Stevens, & seal.</p> <p>“ Witness A. Holmes.”</p> <p>The bill was subsequently amended by adding an offer on the part of the plaintiff to do and perform every act and thing which on his part this court shall decree ought to be done and performed to secure to him all the benefits of said contracts of Stevens with Blake, and his right to the patent and improvements ; by adding Stevens as a plaintiff, as a party beneficially interested with Ely in the patent right; and by adding several persons as defendants who were shown by the answers of McKay and Blake to be beneficially interested with them in the same.</p> <p>The answers set forth, among many other things, that at the time of executing the agreement of May 9th 1859 an improvement known as a “ cast-off” was contemplated, and the sum of fifty thousand dollars was to be paid within three weeks after the completion thereof; that the “ cast-off” was completed on the 20th of said May, and Stevens expressed his satisfaction therewith, but did not within three weeks thereafter, or ever, offer to pay to Blake the said sum of fifty thousand dollars; that by the understanding of the parties as well as by the terms of the agreement said payment was to be made in cash; that on the 10th of June Stevens called on Blake with a paper which he had previously drawn up (Exhibit B) and to induce him to sign it represented that he had seen or was about to see certain persons with reference to their joining with him in the purchase, and that he wished Blake’s signature to this paper that he might exhibit the same to them as an informal proposal or statement by Blake of the periods and sums in which he would probably be willing to receive the payment of the fifty thousand dollars n case the bargain should be consummated, but said paper was to have no binding force on Blake, and Stevens repeatedly assured him that it was entirely informal, and that in case Blake should sign- the paper and waive the payment of the full sum of fifty thousand dollars in cash, forty-five thousand dollars should be seemed to him by notes of other persons besides Stevens, and Blake accordingly signed said paper relying on said assurances; that in fact Stevens never offered to furnish such security, and he was not possessed of any visible property; that on the 18th of June Stevens expressly renounced to Blake all idea of completing the purchase; that subsequently a sale was made to McKay for seventy thousand dollars, of which eight thousand was payable within sixty days, and the residue from time to time according to the success of the invention; that McKay had no notice of the agreement of June 10th, or of the claim of Stevens, at the time when he completed the purchase, but was informed that Stevens had no claim upon Blake; that the patent purchased of Blake, though of much value, as embodying the principle or idea necessary to the sewing of the soles of boots and shoes to the uppers, was of little value as a working machine, without further improvements; that McKay, Without any knowledge of title in Stevens, devoted his time for nearly four years to rendering the machine a practical working machine, and invented improvements, which he secured by letters patent, and finally succeeded in producing a thoroughly practical and successful machine, having expended in all, in so doing, the sum of about one hundred and five thousand dollars; and that he had assigned interests therein to various persons, who were named.</p> <p>Voluminous evidence was taken before a commissioner appointed by the court, and thereupon the case was reserved for the determination of the whole court; the only facts which proved to be material to the decision being stated in the opinion.</p>

<p>The notice required by Gen. Sts. c. 93, § 5, to be given to creditors of the estate of a deceased person, and the guardian of any minor interested therein, before exempting the executor from giving a surety or sureties on his bond, may be given i.y a publication in a newspaper addressed to the heirs at law, next of kin, and all other persons interested in the estate; although a minor who has no guardian is interested therein.</p> <p>If, after the passing of a decree in the probate court exempting an executor from giving a surety or sureties on his bond, he files a bond without any surety, dated on the day when the will was first presented for probate, bearing the approval of the judge of probate written thereon in due form, but dated and actually written on the day of the date of the bond, this will be a sufficient bond, and the statute of limitations will begin to run in favor of the executor on the day when it is filed.</p>

<p>A testator devised his estate in trust, after payment of all his just debts and obligations, for certain uses. His personal estate proved of no value. A married woman, living in New York, who held a note signed by the testator, applied to the executors for payment. They informed her that they would pay it as soon as they should sell certain real estate, which they were in immediate expectation of doing, and constantly assured her that no further legal proceedings on her part were necessary in relation to her claim. She being misled by these assurances neglected to commence a suit thereon within the time limited by law. 3eld, that she could not maintain a bill in equity, under St. 1861, o. 174, § 2, to recover the amount of her claim against the testator’s estate.</p>

<p>If an absolute judgment of foreclosure of a mortgage given to trustees has been rendered, and the mortgagees thereupon bring a suit in equity for the purpose of having their title declared valid, and of obtaining authority to sell the premises for the benefit of the cesluis que trust, the mortgagors and their privies in estate cannot be heard to object that the mortgage was not properly sealed, or that on a true construction of its terms an absolute judgment of foreclosure should not have been entered. And in such suit the mortgagees may have a decree declaring their rights as against all parties claiming under the mortgagors by titles acquired subsequently to the mortgage.</p>

Contract brought to recover back the sum of fifty dollars, paid by the plaintiff to the defendant in exchange for a fifty dollar counterfeit bill.

<p>Petition foe paetition, entered at April term 1860, of certain real estate in Boston devised to the petitioner and respondents by the will of their father, Joshua Nash, who died in 1828, leaving a widow and seven children. The portions of the will material to the present case were as follows :</p> <p>“ I give to my wife, Mary Giles Nash, the use, income and improvement of all my estate, real, personal and mixed, during her life, provided she does not marry again; subject, however, to the expense of the education, support and maintenance of such of my children as may be minors at the time of my decease, until they arrive at the age of twenty-one years.” “ And in case of the death of my said wife without her having been again married, I give and bequeath the whole of my estate at her decease to such of my children as may be then living, share and share alike.” “ And I do hereby will and direct that my estate shall not be so divided until my youngest children or child shall have arrived at the age of .twenty-one years, making my estate chargeable with the expense of education, support and maintenance of such minors or minor.”</p> <p>At the trial in the superior court, before Lord, J., without a jury, it appeared that one of the children died in 1839, unmarried and leaving no issue; that the widow of the testator died February 28th 1859; and that the petitioner was declared a bankrupt in 1842 under the United States bankrupt act, and obtained bis discharge in the same year. The interest of the petitioner in the above real estate was included in his schedule of property, filed in the proceedings in bankruptcy, being there described as subject to certain mortgages, but it did not appear whether or not the assignee ever realized anything from the same, or in any way availed himself thereof.</p> <p>The petitioner contended that under his father’s will he took a contingent remainder, or by way of executory devise, which did not pass to his assignee; but the judge ruled that he took an alienable estate, which did pass to his assignee; and thereupon the judge found for the respondents, and the petitioner alleged exceptions.</p>

<p>Contract against the surviving partners of the firm of Leland & Co. for money had and received to the plaintiffs’ use.</p> <p>At the trial in the superior court, before Lord, J., without a jury, it appeared that in 1861 and previously the firm of Leland & Co. was composed of Thomas J. Leland, since deceased, Gorham A. Leland, Thomas S. Leland, Henry Dunning, and Thomas M. Stockman. Dunning was also a member of a separate firm, under the name of Baldwin & Dunning. The plaintiffs were a firm doing business in Boston under the firm of Russell & Kimball.</p> <p>A stock account had been made up by the firm of Leland & Co. the year previously, and the amount of Dunning’s interest to his credit was transferred to the credit of Baldwin & Dunning.</p> <p>Leland & Co. were engaged in' packing pork at Muscatine, Iowa, for Baldwin & Dunning, and the accounts between the two firms were about balanced, when, in March 1861, Leland & Co. drew on Baldwin & Dunning for $1000. The latter borrowed the money of the plaintiffs. On the 12th of September 1861 Baldwin & Dunning, having failed and being unable to pay the plaintiffs, agreed with them that the amount to the credit of Baldwin & Dunning on the books of Leland & Co. should be transferred to the plaintiffs. ' In pursuance of this agreement, Baldwin & Dunning on that day addressed a letter to O. W. Brown, the clerk of Leland & Co. at Muscatine, having charge of their books there, which, after showing that they understood the balance to their credit to amount to $1,081.38, contained the following: “ In a settlement we have made with Russell & Kimball we have agreed to have this amount on your books transferred over to them; therefore you may charge our account with the amount due us, and give them credit for the same, and write us and give the amount, and also write Russell & Kimball and give them the amount.” On the 16th of September Brown sent a reply to Baldwin & Dunning, stating that the balance was only $1,026.40, and that the transfer had been made as requested; and on the same day he also addressed a letter to Russell & Kimball informing them thereof.</p> <p>None of the members of the firm of Leland & Co., except Dunning, had any knowledge of the agreement between Russell & Kimball and Baldwin & Dunning, or of the transfer of the account to Russell & Kimball, until about the 1st of October 1861, when they were informed by their clerk that the transfer had been made, but were not informed of the agreement between Russell & Kimball and Baldwin '& Dunning. Immediately upon learning of this transfer all the members of the firm of Leland & Co., except Dunning, directed Brown, the clerk, by letter to re-transfer the account from the credit of Russell & Kimball to the credit of Baldwin & Dunning, and on the 12th of October 1861 Brown made the re-transfer, and notified Russell and Kimball and Baldwin & Dunning to that effect. The letter of Stockman, one of the firm of Leland & Co., to Brown, is referred to in the opinion.</p> <p>The firms of Leland & Co. and Baldwin and Dunning were dissolved about the 1st of October 1861. Russell & Kimball never gave to Baldwin & Dunning any release from their inlebtedness, in consideration of the transfer above referred to, ■ut it was taken by the former firm as being all they could obtain for their claim on Baldwin & Dunning.</p> <p>The case was submitted to the court upon the above statement of facts, and the judge ruled, as matter of law, that the plaintiffs could not maintain their action; and the plaintiffs alleged exceptions.</p>

<p>A mercantile firm, whose business was divided into two departments, called the “ lower department” and the “woollen department,” employed A. in their service, with these stipulations: He “ agreed to receive in compensation for his services five per cent, of the net profits of the lower department ” “ in lieu of salary, for the term of three years from January 1st 1860.” “ The profits of the lower department ” were to be “ the final results of the entire business of the said firm, after deducting the profits of the woollen department.” The profits of the woollen department were to be ascertained by deducting from the gross profits thereof interest on the average value of the stock, and a sum for expenses in proportion to the amount of sales in the respective departments, and providing for losses on debts, and were to be credited to that department at the end of each season, or semi-annually. The interest of any party in any branch of the business, in lieu of salary, was to be deemed a matter of expense. A. had a right to draw for his expenses a certain sum annually, “ and at the expiration of this agreement the balance of his interest in the business of the firm ” was to be paid over to him “ upon a settlement of the said firm’s affairs.” And if such interest of A. for three years should not equal the sum drawn by him for his expenses, he was not to be liable for any deficiency. And if he should die before the expiration of the contract, his interest was to cease upon the commencement of the following season after his death. At the end of the three years the firm had on hand, in the lower department, a large stock of goods, and had given orders for other goods, which they subsequently received, which were worth and were finally sold for more than they cost. Held, that A. was only entitled to his percentage of the profits on the goods actually sold within the three years.</p>

Bill in equity by a trustee under a will, to obtain the instructions of the court as to his duty. Held: subject to the order of the trustees. Mrs. Albree and John Albree each claimed to be entitled to said sum, and this bill was accordingly brought by Mr. Atkins, that their rights might be determined.

<p>Contract, in which the plaintiff sought to charge the officers of the Boston Mechanical Bakery Company with a debt contracted in the name of the corporation, in consequence of their neglect to file certificates and statements of the condition of the corporation. At the trial in the superior court, before Ames, J., without a jury, the judge found for the defendants upon facts which are stated in the opinion; and the plaintiff alleged exceptions.</p>

Contract upon a judgment recovered in this commonwealth April 21st 1854, by residents of New York against a citizen of Massachusetts. It was agreed in the superior court that before the recovery of the judgment the defendant went into insolvency and received a certificate of discharge, which was filed in that case. The plaintiffs never lived in Massachusetts, and the claim upon which their judgment was founded was provable in insolvency against the defendant’s estate.

Contract brought to recover rent under a lease. At the trial in the superior court, before Lord, J., it appeared that the house was leased to the three defendants, who were a father and his two sons, by the plaintiffs’ testatrix, by a lease in which it was stipulated that the premises should be “ used only as a dwelling-house for a private family.” The two sons relied in defence upon a discharge in insolvency ; and they were permitted to prove, against the plaintiffs’…

<p>Trustee process. The Bank of Commerce, a corporation organized under the statutes of Massachusetts, being summoned as trustee, in a writ commenced in the superior court, made answer denying that it had any goods, effects or credits of the defendants in its hands, and saying that, before the service of ■ the writ upon it, it had transferred all its funds and effects of every kind in its hands or possession as a state banking institution to the National Bank of Commerce, a corporation formed under the laws of the United States. An amendment was then allowed to the plaintiff, changing the name of the supposed trustee to the. “ National Bank of Commerce.” The latter corporation was then inquired of, whether or not, at the date of the service of the writ upon it, it had any moneys, effects or credits of the defendants in its hands, and if so how much ; to which it made answer, saying it never was served with any writ in favor of the plaintiff, unless the service of a writ wherein the Bank of Commerce was summoned as supposed trustee was to be deemed a service upon it, and that, at the time of the service upon that corporation, this corporation had credits of the defendants in its hands equal to the amount of the plaintiff’s demand.</p> <p>Upon these facts the National Bank of Commerce was charged as trustee, and appealed to this court.</p>

<p>An action upon a contract to pay a certain sum for the names of certain men furnished by the plaintiff to be presented to the naval commissioners of this state appointed under U. S. St. of 1864. c. 237, for allowance to the credit of a particular ward in a city, “ if said men are duly credited to said ward, and go to make a part of the quota of said ward,” will be defeated by proof that, although tne men were credited to that ward, its quota was full at the time.</p> <p>After the passage of U. S. St. of 1864, c. 237, authorizing the president of the United States to call for any number of volunteers for militaiy service, and the appointment of commissioners for this commonwealth to determine the residence of naval recruits, in order to have them duly credited upon the quotas of the towns, districts or wards where they resided, and the call of the president for five hundred thousand volunteers, the agent of a ward of a city, upon receiving from a broker the names of men to be presented to the commissioners to be credited to his ward, signed a paper providing that “ if said men are duly credited to said ward, and go to make a part of the quota of said ward,” then the broker should receive a certain stim for each man. The men were credited to the ward, and the broker, upon informing the agent of the ward thereof, requested him if he did not want the men to give a statement in writing to that effect, so that the broker could use the men elsewhere; and the agent replied that if the men were credited he wanted them and would pay for them. Held, that the agent was not liable on this promise, if at the time the men were credited to his ward the quota of the ward had already been filled.</p> <p>An instrument was signed in this form: “ Eeceived of A. the names of ten men, whose names I this day present to the state commissioners, praying to have them credited to Ward 6, City of Lowell. If said men are duly credited to said Ward 6, and go to make a part of the quota of said ward, then the said A. is to receive the sum of four hundred and sixty dollars for each man so credited, on demand, when the proper evidence is furnished to t1'4* agent of said ward, B., that said men are so allowed and credited tc said Ward 6. (Signed) D., Agent for Ward 6, Lowell." Held, that the question whether thii instrument should he treated as a personal contract of D. or not depended on circumstances, and should be submitted to the jury under instructions.</p>

<p>A city ordinance provided that the land commissioners of the city should have the disposal of the public lands, subject to the approval of the mayor. The city council authorized the land commissioners to sell a certain lot of land on the same terms as they were authorized to sell the public lands. A. made to them a written offer for it. The land commissioners passed a vote recommending the sale of the interest of the city in the lot to A. for the price offered by him. This vote was sent to the mayor, who wrote his approval upon it. A deed of the lot to A. was accordingly prepared by the city solicitor, but was never signed. Bold, that there was no contract on the part of the city, of which A. could enforce specific performance.</p>

Contract. The following facts were agreed in the superior court; On the 8th of December 1864 the parties entered into a written agreement, the material parts of which were as follows i li The said company agree that they will sell said Weed all the ice, more or less, now in the eight ice-houses owned by them at Lynnfield, and found by measurement this day to contain ten thousand six hundred and «eventy-five tons, for the sum of eight thousand and six dollars and fyy to be…

<p>Three actions of contract upon policies of insurance issued by the several defendants upon the stock of ice of the Boston and Salem Ice Company, referred to in the preceding case, two of the policies being made payable to Nathaniel Adams. The facts showing the title to the ice and the circumstances under which it was destroyed are also stated in the preceding case. Upon facts agreed in the superior court, judgments were rendered for the plaintiffs for the full amount of the several insurances ; and the defendants appealed to this court.</p>

Contract upon a policy of insurance for $2000, payable to the plaintiff in case of loss, issued by the defendants to David P. Nickerson, upon seven eighths of the schooner William B. Castle, for one year from April 8th 1860.

<p>The rule that insurers are liable for the amount paid for an injury done by a vessel insured to another vessel by reason of collision is settled in this commonwealth, and will not now be reconsidered.</p> <p>In an action on a policy of insurance on a vessel, issued here, for a sum expressed in dollars, to recover the amount paid in a foreign country for an injury done to another vessel by a collision, the insured may also recover, as a part of his damages, the fees of counsel and commissions of an agent, if fairly and properly incurred in defending against the claim for the injury, and also the premium for exchange paid by the insured in order to enable him to remit the amount to such foreign country.</p>

<p>A general refhsal by insurers to pay a loss, and a subsequent negotiation with the insured for a settlement, without objection to the form of the preliminary proof of loss, will be a waiver of such objection.</p> <p>[f the defendants, in an action upon a policy of insurance, have put in evidence some of the papers which constituted the preliminary proof of loss, without objecting to their sufficiency at any time during the trial, it will be too late to raise the objection at the argument in this court on exceptions; although the judge at the trial refused to require the plaintiff to read the paper to the jury.</p> <p>If a vessel which is insured by a valued policy becomes innavigable by reason of perils of the sea, while on her voyage, and requires repairs which will cost more than her valuation, and is thereupon condemned and sold in a port of necessity, without any repairs being made, and without an abandonment, the owner may recover the full sum insured, deducting the proceeds from the sale, if the amount so found does not exceed his net loss; and it is not necessaiy to inquire into her diminished value at the home port.</p> <p>It is within the discretion of the judge who presides at a trial to require the jury to find specially on questions at issue between the parties. J</p>

Two actions of contract upon promissory notes. The copies of the notes annexed to the declarations did not show that the notes bore internal revenue stamps, and the defendant in each case demurred, for the reason that the note which is therein declared upon has no internal revenue stamp upon it.” The demurrers were overruled, in the superior court, and judgments ordered for the plaintiffs; and the defendants appealed to this court.

<p>All entry for foreclosure of a mortgage which contains a power of sale, and a taking of rents and profits which are insufficient to discharge the mortgage debt, will not prevent the mortgagee from subsequently making a valid sale of the mortgaged premises under the power of sale.</p> <p>A valid title will pass by a sale of mortgaged premises, by an assignee of the mortgage to a bona Jide purchaser without notice, under and in pursuance of the provisions of a power of sale contained in the mortgage, although payment of the mortgage debt has been tendered to such assignee, if not immediately followed by a suit to redeem, founded thereon; or if, in pursuance of the provisions of the power of sale, the assignee is himself the purchaser, and the title is made to him accordingly, he by his deed may thereafter convey a good title to a bona Jide purchaser from him without notice.</p> <p>The omission to record the assignment of a mortgage which contains a power of sale will not prevent the assignee from selling the mortgaged premises, under a power of sale contained in the mortgage, if nobody is misled thereby.</p>

Contract brought to recover for a breach of the covenants in a lease to keep glass in repair and pay water rates and rent. At the trial in the superior court, before Putnam, X, there was evidence tending to show that the plaintiff had agreed to abate one half of the rent now sought to be recovered, after a certain time, when the defendant with the plaintiff’s consent assigned the lease to Jenness & Son ; and that the plaintiff was estopped to deny such agreement.

Tort to recover damages for negligent management of the defendant’s omnibus, by the defendant’s servant, by reason of which it struck against the plaintiff’s express wagon, and injured it and the plaintiff. At the trial in the superior court, before Lord, J., it appeared that a complaint had been made by the plaintiff against William It.

<p>The South Cove Corporation, incorporated by St. 1833, c. 17, were not authorized by their charter to establish public highways across their land, without the assent of the municipal authorities, by laying out streets not required for convenient access to then existing streets from the railroad stations authorized by that statute to be placed upon their land; and did not create a public street by merely marking it on a plan, and covenanting with owners of adjacent land to lay it out, over a place which was covered with tide water until 1850.</p> <p>The mayor and aldermen of Boston ordered u that L. Street be accepted and laid out as a public highway, and that the superintendent of streets be authorized to grade the same from A. to S. Streets, and A. Street from 0. to R. Streets.” Neither L. Street nor A. Street had been previously laid out and accepted. Held, that of L. Street only that part between A. Street and S. Street was laid out and accepted by this order.</p>

Contract brought by the owners of the schooner James House against the consignee named in a bill of lading of a cargo of coal, for five days’ detention and demurrage. It was agreed, in the superior court, that William Hunter, Jr. & Co. shipped the cargo of coal, consigned to the defendant at Boston, taking a bill of lading thereof which provided that the consignee or his assigns should pay the freight, but contained no provision respecting demurrage.

<p>If a mortgagee of land voluntarily promises the mortgagor not to act under a power of sale contained in the mortgage without notice to him, but is afterwards induced by falsehood to assign the mortgage to persons who thereupon proceed to sell the land, under the power of sale, without notice to the mortgagor and clandestinely, whereby the latter ii deprived of his equity of redemption, he can maintain no action at law against the parties guilty of the fraud.</p>

<p>If the answer in an action for trespass quare clausum fregil simply denies the allegations of the declaration, the defendants cannot be allowed to show that they did the acts complained of under the authority of one who was entitled to the possession.</p>

Tort in the nature of trespass for breaking and entering the plaintiff’s dwelling-house. The defendant in his answer alleged his ignorance as to the ownership of the close, and denied the breaking and entering. At the trial in the superior court, before Morton, J., it appeared that the plaintiff occupied the premises as tenant at will of one Jenness, under a paroi agreement made December 9th 1865.

<p>\ statute imposing the penalty of a certain fine and minimum term of imprisonment for £ first offence is not repealed by the enactment of a subsequent statute, providing that on conviction of such an offence the court may in its discretion impose the penalty either of the fine or the imprisonment, where the offender shall prove to the satisfaction of the court that he has not before been convicted of a similar offence, and also providing that all inconsistent statutes are repealed.</p>

<p>statute imposing, for an offence, the penalty of imprisonment in the house of correction m the county where the offence was committed, is not repealed by the enactment of a subsequent statute, providing that the court in its discretion may commit the person under sentence to the house of correction in any county in the Commonwealth, in the same manner as such person might be committed in the county where the court is holden, and "hat all inconsistent statutes are repealed.</p>

<p>A statute imposing, for an offence, the penalty of a fine or imprisonment not exceeding on» year is repealed by the enactment of a subsequent statute, which contains no saving clause as to offences already committed, and imposes for the like offence the penalty of a fine and imprisonment not less than three nor more than twelve months, unless the offender shall prove to the satisfaction of the court that he has not before been convicted of a similar offence, in which case he may, in the discretion of the court, be sentenced to be punished by imprisonment without fine, or by fine without imprisonment. And after the enactment of such subsequent statute, one who committed the offence before its enactment cannot be punished.</p>

<p>Contract. The declaration alleged that under the St. of N. Y. of 1848, c. 40, and an act amendatory thereof, the defendant and others formed a company by the name of the Lee Marble Quarrying Company, and became stockholders therein and trustees thereof, and carried on the business of quarrying marble in Lee, in this county; that said company became and are justly indebted to the plaintiff in several items, which were mentioned, and which they have neglected to pay; that they have neglected to make the reports and returns required by said acts, and by virtue thereof the defendant, being a trustee of the company and a stockholder thereof, is individually liable to the plaintiff for said indebtedness. The writ was dated November 19th 1864; and the items mentioned were notes and an account accruing from December 1858 to May 1859. The account was for services rendered by the plaintiff as superintendent of the defendant’s quarry in Lee.</p> <p>The case was referred by the superior court to an auditor, who found that in March 1854 the defendant and others formed themselves into a corporation in the city of New York as alleged in the declaration, and had their principal place of business there, and that the defendant was a trustee of the company until February 9th 1859; and he accordingly found that the defendant was liable for such portion of the indebtedness sought to be recovered by the plaintiff as accrued prior to that date.</p> <p>At the trial in the superior court, before Rockwell, J., without a jury, the report of the auditor was confirmed, and judgment rendered for the plaintiff accordingly; and the case was reported for the determination of this court.</p>

<p>The averments contained in a declaration in an action are competent evidence against the plaintiff therein, in another action brought against him, although it is not proved that he° dictated or had knowledge of the precise averments.</p> <p>Notice of the dishonor of a bill of exchange drawn by a partnership is sufficient if given at the place where they carried on business and where the bill was drawn, although in fact the partnership has been dissolved and neither of the partners resides there, if no notice of the dissolution has been given and the holder did not know of it, and the notice i* received by an agent appointed to wind up the partnership.</p>

Contract. The first count was as follows : “ The plaintiff says he was chairman of the selectmen of the town of Sandisfield in said county, and was directed by a meeting of divers citizens of the town to procure or cause to be procured the enlistment of volunteers to be mustered into the military service of the United States as a part of the quota of Massachusetts and of the said town of Sandisfield, under a call of the president of the United States for men to put down the…

Indictment, charging that the defendant, on a day and at a place named, “ did unlawfully, and maliciously and verbally threaten one Micajah P. Beach that he would accuse him, the said Beach, of committing the crime of selling spirituous and intoxicating liquors within this commonwealth in violation of law, by then and there uttering words substantially as follows, to wit; ‘ I have complained of you to a justice of the peace, and two warrants are issued and are in the hands…

<p>Indictment. The first count charged that the defendant, on 1 a day and at a place named, “ a quantity of bank bills current within this commonwealth, amounting together to one hundred and fifty dollars, and of the value of one hundred and fifty dollars,” feloniously did steal, take and carry away. The second count charged the defendant with feloniously receiving the same bank bills, knowing them to have been stolen.</p> <p>After the commencement of the trial, in the superior court, before Rockwell, J., the defendant objected to the validity of the indictment, on the ground that no number of bank bills waa alleged, and no reason was assigned for not alleging the number, and that the allegation of larceny of “ a quantity ” of bank bills was bad; but the judge overruled the objection.</p> <p>It appeared that the two counts were for the same transaction ; and the defendant objected that the indictment was bad because there was no averment that the two counts were different descriptions of the same act; but this objection was overruled.</p> <p>Evidence was introduced in behalf of the Commonwealth to show that a pocket-book containing one hundred dollars in bills folded together in one package, forty-eight dollars in bills or paper money folded together in another package, and about two dollars in fractional currency, was stolen from the possession of the person named in the indictment as the owner; that the forty-eight dollars were found in a drawer in the defendant’s grocery, where the larceny was committed, but the residue of the money was not found. The defendant objected that the above evidence would not sustain the indictment, because the charge was of stealing bank bills collectively and of an aggregate value of one hundred and fifty dollars, while no such aggregate value of bank bills was shown to have been stolen ; but the judge ruled otherwise.</p> <p>The jury returned a verdict of guilty on the first count; and being inquired of by the court, said they found the sum feloniously taken by the defendant to have been forty-eight dollars A nol. pros, was entered upon the second count. The defend ant alleged exceptions to the above rulings and verdict.</p>

Contract upon a promissory note, signed by the defendant, absolute in form, and bearing upon the margin these words : ft This note is secured by real estate for their exclusive payment.” At the trial in the superior court, before Rockwell, J., without a jury, the plaintiff offered the note in evidence, with a mortgage of real estate given to secure it.

Tort. The declaration alleged that the plaintiff was the owner of a lot of land, with a dwelling-house thereon, bordering upon the Housatonic River; that the defendant being the owner of a mill and dam across the river, near the plaintiff’s house, raised his dam and thereby caused the water to flow back upon the plaintiff’s nouse, filling the cellar with stagnant and unwholesome water, and rendering the house untenantable and unhealthy, creating noisome and pestilential…

Bill in equity setting forth that the plaintiff was the owner of certain springs, with a right to conduct the water from the same in a certain course across certain lands of the defendant, to her house, and that the defendant had dug up the aqueduct and prohibited her from laying the same down again upon his land; and also that she had the right to conduct said water in a certain other course across other lands of the defendant, to her house, and that the defendant had…

<p>A vendor of land may reserve an assignable right of taking water from a spring situated thereon through pipes of certain dimensions, with the right to enter upon the land to make repairs, upon payment of the damages caused thereby; and such right need not he annexed to any particular estate, or be limited as to the place or manner of its enjoyment.</p> <p>A vendor of land reserved to himself, his heirs and assigns, the right of taking forever so much water from a spring situated thereon, from which water was then taken in a pipe to supply the grounds of a neighbor, as then ran in said pipe, so long as the same should last, together with the right to replace the same with a pipe of a certain size, and thereupon to take so much water as would run through the substituted pipe, and to enter and repair the aqueduct at all times, upon payment of the damages caused thereby. The neighbor received the water under a revocable license'; and no part of the vendor’s remaining land had the use of water from the spring. BeU, that the reservation gave to the vendor an assignable right to take the specified quantity of water, not annexed to any particular estate or limited as to the place or manner of its enjoyment.</p>

Tort, against five defendants, Pratt, Haskell, George and Henry Haywood, and Morrill.

<p>If the mortgagor of an entire lot of land subsequently mortgages a portion of it to A. with full covenants of warranty, and then quitclaims the residue to B., and afterwards quitclaims the first portion to A., who takes the conveyance with notice of the title of B., and the interest conveyed by the last deed to A. is equal in value to the sum due on the first mortgage upon the entire lot, it is th'e duty of A. and his grantees to discharge that mortgage, without contribution from B. And if A. pays the amount due on the first mortgage and takes an assignment thereof, he cannot* maintain an action to foreclose the same against B.</p> <p>If a mortgaged lot of land is sold to different purchasers, subject to the mortgage, and the purchaser of one portion pays the interest on the entire sum secured by the mortgage for more than twenty years, without calling on the purchaser of the other portion for contribution, and the latter thereafter sells his portion with warranty of title, the former cannot, upon purchasing the mortgage, enforce it against the grantee of the latter.</p>

Bill in equity, alleging that on the 10th of May 1865 the defendant, being a married woman, and being seised of certain real estate in Buckland to her own sole and separate use, free from the interference and control of her husband, conveyed the same by her deed of quitclaim to the plaintiff, in consideration of his agreement to support her and her husband during their lives, and took back a mortgage of the same premises from the plaintiff to secure the performance of his…

<p>Complaint for keeping an unlicensed dog on the 1st of May 1866 and thereafter. Before the jury were empanelled, the defendant moved that the complaint be quashed, because the St. of 1864, c. 299,* **§is repealed by the St. of 1865, c. 197, and by the latter no penalty is imposed for keeping an unlicensed dog; but Vose, J. ruled otherwise. The defendant was convicted by the jury, and alleged exceptions.</p>

The declaration in this case contained one count in contract, for money had and received, and one in tort, both being for the same cause of action. Before the case was opened to the jury, in the superior court, the defendant asked the court to require the' plaintiff to elect on which count he would proceed ; but Lord, J. refused so to order, at that stage of the case.

<p>If the answer to a declaration upon a promissory note sets up in defence a want of consideration and the statute of limitations, a replication which simply traverses the Iattar ground of defence does not admit that the note was without consideration.</p>

<p>A town treasurer without authority borrowed money on the credit of the town, and gava his note as treasurer. The town already owed two notes to the person from whom the money was borrowed. The treasurer afterwards paid a year’s interest on the three notes, together with a small sum in arrear for interest on one of them; took a receipt therefoi, which he placed among the papers of the town, and charged to the town the amount so paid by him, in one item, and in his annual report entered it simply as interest paid “ on notes ” to that person. In the same report he gave what purported to be a list of all the notes and debts due from the town, in which the note for the money so borrowed by him was not included, but the other two notes were included. The report was read at a town-meeting, and duly accepted by the town. The treasurer became a defaulter, and there was evidence tending to show that the selectmen, in examining his accounts, saw the receipt taken by him for the interest, wrote u passed ” upon it, and settled with him by taking certain securities for such sums as might upon full examination be found to j)e due from him as treasurer to the town, and agreeing to pay to him the surplus realized from them, if any; but they had no knowledge of the note given by him for the borrowed money, and did not realize from the securities anything which was applied thereon. Held, that there was no evidence of a ratification of the note by the town, to he submitted to the jury.</p>

<p>Services rendered for hire in procuring recruits and enlisting them into the militaiy service of the United States in time of war are not contrary to public policy, although the person rendering them has no interest, except under his contract, in filling the quota of the town towards which they are credited; and an action maybe maintained to recover a sum agreed to be paid for such services.</p> <p>Ratification of the unauthorized acts of one who assumes to be an agent, in order to render them binding on the principal, must have been made with full knowledge of all material facts; and ignorance of such facts, whether it arises from want of inquiry by the principal, and neglect to ascertain the facts, or from other causes, will render an alleged ratification ineffectual and invalid.</p>

<p>Trustee process to recover for necessaries. The trustees disclosed credits of the defendant in their hands, for wages due to him; and Tertius S. Davenport was admitted as a claimant, he having a written order from the defendant upon the trustees for his wages due each month from the date of the order. At the trial in the superior court, before Brigham, J., the jury returned a verdict for the plaintiff, and the claimant alleged exceptions. The facts are stated in the opinion.</p>

<p>The legislature have power to pass a statute authorizing a town to raise money for an agrlcultural college to be established therein by the Commonwealth, under U. S. St. of 1862, c. 130.</p>

<p>If an insane pauper, having his settlement in this commonwealth, and confined under sentence in a house of correction, is duly committed by order of a judge of probate to a state lunatic hospital, the town where such pauper has his settlement is liable for the expenses of his support, even after the expiration of the time for which he was sentenced to. the house of correction.</p>

<p>The right to the use of a ditch through the land of another, for the purpose of drainage, may be established by adverse use.</p> <p>An actual use of such a ditch for that purpose for twenty years together, if unexplained, will be sufficient to establish the right; and if there is evidence of such actual use, for that length of time, the question should not be withdrawn from the juiy unless there is clear pi oaf that it was not adverse.</p>

Contract brought to recover the price of certain shingles sold and delivered. One defence was a claim by way of set-off, for money paid by the defendant to the plaintiff upon a draft for the price of another lot of shingles which the defendant never received.

<p>Contract against the indorser of the following promissory note : “ Amherst, January 11,1864. Thirty days after date, I promise to pay to the order of Holland Barton two hundred dollars for value received, at the Northampton Bank. (Signed) Charles H. Barton. (Indorsed) Holland Barton, Henry A. Marsh.”</p> <p>The answer, amongst other things, averred that the defendant was not liable “ because he says that simultaneously with the execution of said note by said maker, and of said indorsement by the defendant, one Henry A. Marsh, the person who was to receive and hold said note, and for whose accommodation and oenefit it was indorsed, in consideration of the making and indorsing of said note signed and delivered to the defendant ” and :he maker the following instrument: “ Received of Charles EL Barton a note of two hundred dollars, thirty days from date, which I agree to pay if said Charles H. has not received his state bounty. Amherst, Jan. 9,1864; ” that by the true interpretation of this instrument Marsh was to pay the note if, at the time when it should become due, said Charles H. should not have received the state bounty to which he was supposed to be entitled as a volunteer soldier enlisted from the State of Massachusetts ; that said Charles H. had not received said bounty when the note became due, and Marsh thereupon paid the note at the Northampton Bank, and held the same for some months, when he sold the same to Porter Kellogg, who sold it to the plaintiff.</p> <p>At the trial in the superior court, before Brigham, J., there was evidence tending to prove the facts set up in the answer, and that at the time when the note was given Charles H. Barton had enlisted on the quota of the town of Amherst, through the agency oí Marsh, to whom Barton gave an order for his state bounty; but upon going to camp and being examined Barton was rejected, and his state bounty upon this enlistment -was never collected, but the town of Amherst paid to him $125, before the maturity of the note; that in the spring of 1865 he enlisted again and was accepted and mustered into service on the quota of Hadley, and received from that town $200, and his state bounty was paid to his mother through the defendant. All of the evidence as to the receipt and the payment of the state bounty and of the sums from Amherst and Hadley was admitted under the plaintiff’s objection.</p> <p>The jury found specially that the note was an accommodation note, made and indorsed for the benefit of Marsh, and that the receipt was given simultaneously with it; that the defendant did not waive the agreement contained in the receipt; and that the bounty referred to was that to be received upon his enlisting for Amherst. The judge thereupon directed a verdict for the defendant, which was accordingly rendered, and the plaintiff alleged exceptions.</p>

<p>Trustee process. The trustee was charged, in the superior court, upon facts which are stated in the opinion; and the defendant appealed to this court.</p>

<p>It is the duty of a railroad company which undertakes to carry live animals for hire to provide cars of sufficient strength to prevent the animals from breaking through the same; and they will be responsible for a loss occurring through their failure to do so, although the animals were unruly and vicious; but they will not be responsible for an injury to the animals occurring simply from their own viciousness or unruliness, while being carried in a proper car.</p> <p>The rule of damages, in an action against a common carrier for a failure to transport live animals to market and deliver them there in good condition on a certain day, in accordance with his "undertaking, is the difference between their market value there in good condition on the day when they ought to have been delivered, and their market value there in their actual condition on the day when they were delivered.</p>

<p>Indictment for manslaughter of Jacob Kreitz, by beating him to an affray.</p> <p>At the trial in- the superior court, before RocJcwell, J., Zreitz’s wife testified, for the Commonwealth, that after midnight some persons knocked at the door of his house, and called for him, he having retired ■ and he asked them what they wanted, and the reply was for him to open the door; that he got an axe, and she got a stick, and she opened the door and he stepped out, asked them what they were doing there at that time, and threatened to ose the axe on their heads, if they did not leave; that after some further talk he was attacked by them; that they soon left, and were followed a short distance by him, for the purpose of identifying them, as the Commonwealth contended, and another affray arose, and he was considerably injured and died in twelve days. She also identified the defendants as among the persons there.</p> <p>It appeared that Kreitz kept a place in his house where liquors were sold. The defendants contended that they went there to get beer to drink, and that while quietly parleying with him for admission Kreitz and his wife assaulted them, and Kreitz followed them into the street to assault them, and did assault them there; and, among other evidence to prove this, offered the declarations of Kreitz made the next morning, at about half past seven o’clock; but these declarations were excluded.</p> <p>The defendants also, for the purpose of contradicting Mrs Kreitz, offered the declarations of her husband, made two or three days after the afiray, as to how the affray begun, and his ignorance of who the parties were; and the witness testified that she stood near and heard these declarations, and took part in the conversation, but made no reply to or comment upon these particular declarations. But the evidence was excluded.</p> <p>The defendants also offered to prove that Kreitz had frequently sold liquors late at night, and had been called up for that purpose without making objection; but this was excluded.</p> <p>The jury'returned a verdict of guilty, and the defendants alleged exceptions.</p>

Complaint for being a common seller of spirituous and intoxicating liquor, originally tried before a trial justice, by whom tie defendant was convicted, upon a plea of not guilty. The defendant thereupon appealed to the superior court. When arraigned in the superior court, before Brigham, J., the defendant proposed to plead that his true name was Dorsey, and that he was called and known by no other name than Dorsey ; but the judge refused to admit such plea.

<p>An indictment for robbeiy of sundry bank bills and United States treasury notes, all together “ amounting to ninety dollars and of the value of ninety dollars,” cannot be supported by proof of a robbery of United States treasury notes alone.</p>

<p>Indictment against Moody Cook and James M. Cook. The first count charged them as common sellers of intoxicating liquors. The second and third counts respectively charged them with having made single sales.</p> <p>At the trial in the superior court, before Brigham, J., the district attorney offered no evidence tending to show that the sales relied on for conviction were sales of liquor in which the two defendants had any community of interest, and the defendants requested the court to rule that such an interest must be proved in order to convict upon this indictment. The judge refused so to rule, and instructed the jury that “ each defendant might be convicted for any sale made by him without reference to any joint participation or privity of the two defendants in said sale or joint interest in the liquor sold.”</p> <p>The jury found James M. Cook not guilty, and Moody Cook guilty on the first count and not guilty on the other counts; ant* Moody Cook alleged exceptions.</p>

Writ of entry. The demandant claimed title under the levy of an execution against Calvin Dickinson upon the- premises ; and, at the trial in the superior court, before Wilkinson, J., the only question was as to the sufficiency of the officer’s return of the appointment of appraisers, which set forth that one of them was appointed by the creditor, and two, who were named, “ were both appointed by me, the within named Calvin Dickinson having been duly notified and neglecting…

Contract upon a promissory note for $469.75, dated November 1st 1864, signed Wilson & Langdon, payable to the plaintiff or order; and also upon an account annexed against Wilson & Langdon, for ale, amounting to $403.50. The action was originally brought against Wilson & Langdon, and Wilson was defaulted, and Langdon defended on the ground that he was not a partner of Wilson.

<p>It is a good ground of defence against a suit to foreclose a first mortgage, brought against the second mortgagee, that nothing is due upon it, and that the first mortgagee is estopped from asserting against this defendant that anything is due thereon; and therefore the second mortgagee cannot on these grounds maintain a bill in equity to restrain the prosecution of such suit. But if in his bill he also prays to be allowed to redeem, in case anything shall be found due upon the first mortgage, and the defence to it shall not be sustained, the bill may stand to await the result of the suit to foreclose.</p>

Tort for the conversion of tobacco. The defendant justified under an attachment made by him as a deputy sheriff, on a writ igainst Robert Ingraham. At the trial in the superior court, before Ames, J., it appeared hat Ingraham raised the tobacco in 1864 on his farm in Hadley, and on the 1st of December in that year purchased of the plaintiff certain land, taking a deed running to his wife, and paying two hundred dollars in money and the tobacco in controversy.

<p>If a lessee, who by the terms of the original contract hires premises for a single year, puts another person into possession thereof, who holds over after the expiration of the year without any new arrangement being made by either- of them for a hiring of the premises, and without any notice to the landlord from either of a termination of the lessee’s liability for the rent, this is evidence of a continuance of the original tenancy, sufficient to warrant a jury in holding the lessee liable for the continued use and occupation of the premises.</p>

<p>In an action to recover for the conversion of property, the plaintiffs, some of whom were described as executors of the wills of deceased persons, claimed title under a purchase made forty years ago. The defendants contended that the purchasers acted simply as the committee of a parish, and that the title vested in the parish, under whom the defendants held. One of the plaintiffs testified that no writing was taken from the vendor, at the time of the purchase, and that the purchase was made prior to 1828. To disprove the plaintiffs’ case, the defendants were allowed to put in evidence a receipt, found among the parish records, and in the handwriting of the testator of one of the plaintiffs, dated in 1828, signed by the vendor, and acknowledging the receipt, from the purchasers, of a certain sum in full for the property. Held., that this evidence was rightly admitted.</p> <p>In such action, declarations of one who claimed as a part owner with the plaintiffs of the property, but now deceased, are not competent evidence in favor of the defendants, if the interest of such deceased part owner is not represented in the suit.</p>

<p>If an action upon a promissory note is defended upon the ground that the consideration of the note was an agreement or understanding to suppress a criminal prosecution against a third person, and there is evidence tending to show that the payee, at the time of the execution of the note, exhibited to the maker a warrant for the arrest of such third person, and the judge has instructed the jury that the action cannot be maintained if there was a mutual understanding that the prosecution should be suppressed, it is erroneous to add, as an independent proposition, and in reply to a request by the defendant for further instructions, that “ if the plaintiff used the warrant for the purpose of procuring the defendant to give the note, and by such use obtained the note, it was void; ” without also including, as an element therein, that there must have been an understanding that the prosecution should be suppressed.</p>

<p>In an action against the indorser of a promissory note the plaintiff sought to recover on the ground that the defendant had waived due presentment, demand and notice. The waiver relied on consisted of a conversation between the parties just before the note fell due, concerning the details of which they both testified. The defendant testified that he said “ he would see the maker before it was due, and he would probably give a new note, or arrange it with a new note; that is the way he usually pays his notes.” The defendant asked the court to rule that if he said “ that he should probably see the maker before the note was due and that it would probably be arranged by a new note, that would not be a waiver.” The judge declined so to rule, but laid down a general rule to the jury which was substantially correct. Held, after a verdict for the plaintiff, that the defendant was entitled to a new trial.</p>

<p>Contract upon a promissory note of $100, signed by the defendant and payable to Zelotes Jenks or order, on demand with interest, and indorsed to the plaintiff.</p> <p>At the trial in the superior court, before Vose, J., it appeared that Jenks and the defendant were joint owners of certain hotel property in Belvidere, Illinois, worth about $6000. Jenks said to the defendant that one of them ought to own the whole property. After some talk, the defendant said he would give Jenks one hundred dollars to say what he would give or take, and accordingly then executed the note in suit. Jenks took the note and shortly after informed the defendant that he would give or take $3000. The defendant thereupon said he would sell his interest to Jenks for that sum. Jenks said he should have to go home for the money, and would get an attorney to draw the papers, and left and did not return, and afterwards refused to carry out the bargain, and soon afterwards conveyed his interest to another person. The defendant never offered Jenks any conveyance of his interest in the property, or communicated with him on the subject. It was a part of the consideration of the note that the party who was to buy the property should fulfil the bargain.</p> <p>The judge instructed the jury that these facts did not constitute a defence to the note, and a verdict was accordingly returned for the plaintiff. The defendant alleged exceptions.</p>

<p>The mere fact that a highway is slippery from ice upon it, so that a person may be liable to slip and fall upon it while using ordinary care, if the way is properly and well constructed, and there is no such accumulation of ice or snow as to constitute an obstruction, and nothing in the construction or shape of the way which occasions any special liability to the formation or accumulation of ice upon it, is not a defect or want of repair which will authorize a jury to find that it is not safe or convenient for travellers, within the meaning of the statute imposing upon towns the duty to keep their ways safe and convenient for travellers at all seasons of the year.</p>

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

<p>Although slanderous words, charging theft, were spoken in the presence of only a single ■ witness, who testifies that they did not affect his opinion of the plaintiff, and that he still "believed the plaintiff to be honest, yet, if the words were spoken maliciously, the jury are not restricted to nominal damages.</p>

<p>Contract. The declaration set forth that the defendant agreed to sell to the plaintiff all the stock in trade and goods in a store then occupied by the defendant in Chicopee, and also the good will and trade of the defendant connected with his business, namely, a grocery business, and give the plaintiff a lease of the store, and not engage in the grocery business or sell any goods of the kind sold by him to the plaintiff in Chicopee within five years, except a few barrels of flour, if the plaintiff would pay to the defendant the market price of the stock in trade and goods, and twelve dollars a month for rent, and five hundred dollars as a bonus for giving up his business and for his good will and agreeing not to engage in business as aforesaid; and the plaintiff made said agreements and payments, and the defendant conveyed the stock in trade and goods, and executed a lease, and gave up the business; but the defendant after-wards within the five years engaged in the grocery business in Chicopee.</p> <p>At the trial in the superior court, before Tose, J., the plaintiff introduced evidence tending to prove verbal agreements on the 19th of November 1864 between him and the defendant substantially as set forth in the declaration. On the same day the parties entered into a written agreement, of which the following were the material portions: “ Witnesseth that the said John Dixon of Chicopee doth hereby promise and agree to give unto the said John Doyle of N. Brookfield a free and full possession of his stock and store on the first day of December next for the term of five years, at a yearly rent as understood by both Witnessetb also that the said John Doyle of N. Brookfield doth hereby promise and agree to pay the said John Dixon the sum of five hundred dollars as a bonus, and also a market price for his stock. Witnesseth also that the said John Dixon and John Doyle do consider this agreement as binding, and that in case either were to back out he is to pay unto the other the sum of two hundred dollars.” The plaintiff introduced evidence tending to show that this writing was drawn up for a temporary purpose, and to fix the amount of forfeiture in case either party should recede from his contract, and was only intended to remain in force till November 21st, when a lease was to be executed, and that it was not intended or understood by either party that the writing should contain their bargain and contract.</p> <p>The defendant requested the court to instruct the jury “ that the plaintiff could not recover upon the written contract, or upon paroi evidence of any promise or statement made by the defendant as part of or during the negotiations preceding or at the time of the writing of November 19th.”</p> <p>The court refused to give the instructions prayed for, but instructed the jury “ that it was a question of fact for them to determine whether the parties executed the paper of November 19th as a written statement of the contract they had made, and with the understanding that it should and did fully contain and express their bargain and agreements; that if such was the fact, then the plaintiff could not recover in this action, because in such ease it was not competent for the plaintiff to set up and claim to recover upon any verbal stipulation or promise of the defendant, made from, to or at the time of the execution of the paper, and not embodied or incorporated into it, and the paper did not contain any such promise or undertaking of the defendant as the plaintiff has averred and offered evidence in proof of. If the paper was a mere memorandum and partial statement of the agreement, and was so understood by the parties, and was executed for a special purpose, such as to fix the amount of forfeiture or bind the bargain until they could execute the lease, and was not intended by the parties to be a full statement of their agreements, and there were other independent verbal agreements, including the one declared on, which the parties intended to have remain in full force notwithstanding the writing, and which they understood to continue binding on them, notwithstanding the paper of November 19th, then the plaintiff Was entitled to recover on such verbal agreement.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Tort against the Western Railroad Corporation and one of its conductors, to recover damages for a personal injury sustained by the plaintiff by being put off from a car while the train was in motion.

<p>The use of an easement under claim of right, by virtue of a paroi contract, is adverse; and if continued for twenty years will create a right.</p> <p>K a bill of exceptions does not show that there was any evidence to prove the existence of facts upon which instructions were requested, the exceptions will not be sustained on account of the refusal of the judge to give those instructions.</p>

Indictment for being a common seller, and for single sales, of intoxicating liquor. At the trial in the superior court, before Morton, J., the Commonwealth relied on the testimony of Patrick Connell.

<p>Writ of entry to recover possession of a homestead farm, containing one hundred and fifty acres, in Ludlow. The tenant claimed title under a deed of the premises from the demandant to him, dated March 22d 1862. That deed was made on severa^ conditions, one of which was as follows:</p> <p>“ That the grantor and his wife Jane Hubbard shall be allowed to reside on said homestead during their respective natural lives, and so long as they thus reside thereon the grantee his heirs and assigns, shall furnish them with a comfortable maintenance and support in sickness and in health, it being understood that the grantee, his heirs and assigns, with their family, may also in the mean time reside on said homestead.”</p> <p>At the trial in the superior court, before Fose, J., the demand-ant contended that the tenant’s title was forfeited by breach of the above condition. It appeared in evidence that prior to the date of the deed the demandant and his wife had lived upon the premises, and the tenant lived elsewhere; and after that time the tenant with his family moved on to the farm and occupied the .main part of the dwelling-house, and the demandant and his wife occupied a wing, keeping house there till about the 1st of June 1863, during which time the tenant furnished them with provisions and the demandant’s wife cooked them. About six weeks before said first of June, the tenant insisted that the demandant’s wife should no longer take her meals at a separate table, but should take them at his table. She declined to do so, and he took away all her cooking utensils and dishes for the table and refused to furnish provisions to be cooked by her. He however continued to send into the demandant’s room food sufficient for him alone. For six weeks the demandant and his wife shared this allowance between them, and then she went to Amherst, and resided there a year, and he continued to take his meals in his own room until she returned ; after which time they took their meals at the tenant’s table till the commencement of this suit.</p> <p>The tenant testified that he wished them to take their meals at his table as they had a number of persons eating and drinking at their table, and she did not manage economically ; that he sent his father’s meals into his room for him because he was infirm, but declined to send Mrs. Hubbard’s meals to her because she was well and able to come to his table. There was no evidence that the tenant did not provide a proper table in his own family, suitable for and adapted to the condition and wants of the demandant and his wife.</p> <p>The demandant contended that the tenant had no right to compel his wife to separate from him, and take her meals at the tenant’s table, and that by so doing he forfeited his title to the property.</p> <p>The judge ruled that the deed gave to the tenant the right to direct the mode in which they should live there, provided he directed a mode and style of living consistent with their comfortable maintenance and support in sickness and in health, and that it was for the jury to determine whether the facts testified to were thus consistent; that it was incumbent on the tenant in all respects to furnish a comfortable maintenance and support; that in determining upon the evidence whether he had performed these duties they must consider the age, infirmities and wants of the demandant and his wife, whether or not their food was of suitable kind and quantity, and whether or not they could comfortably come to the tenant’s table; and if they comfortably came to the tenant’s table, and the food there supplied was suitable in quantity and quality, and served at reasonable and proper hours, and there was no improper treatment of them there, and nothing done or permitted there improper or unpleasant to the demandant and his wife, the tenant had a right to direct them to take their meals there; but if otherwise, then the tenant was bound to furnish their meals to them in their own room.</p> <p>The jury returned a verdict for the tenant, and the demandant alleged exceptions.</p>

Replevin. Both parties claimed title under a sale from War-en Hubbard, Senior. The sale to the plaintiff was the earlier in date, and was upon the same conditions contained in the deed referred to in the preceding case. Under this sale the plaintiff took possession of the property until after the sale to the defendant, which was made in con sequence of the alleged breach of the condition of the sale to the plaintiff.

<p>If land is subject to two mortgages, and “all the right in equity” of the mortgagor to redeem the same is seized and sold on execution and conveyed by a sheriff’s deed, the purchaser is not estopped to contest the validity of the second mortgage.</p> <p>Such purchaser may commence a suit against the second mortgagee to recover possession of the premises after the expiration of one year from the return of the execution; and the Gen. Sts. c. 103, § 48, do not apply to such a case.</p> <p>In a real action brought against a married woman, to recover possession of land in which she has a right of homestead, a qualified judgment may be entered for possession subject to the right of homestead.</p> <p>For the purpose of showing that a mortgage is fraudulent and void as against creditors, evidence is competent to show that in the place where the mortgagee was brought up, and where he afterwards frequently visited, making the mortgagor’s house his home, he was never known to have any property or means, or to be engaged in any business.</p> <p>If there is any evidence to be submitted to the jury tending to show that a mortgage was given for the purpose of delaying or defeating creditors, it is proper to refuse to instruct the jury that proof of the genuineness of the debt secured by the mortgage is sufficient to establish tí e validity of the mortgage.</p> <p>£f evidence has been introduced of a variety of circumstances, for the purpose of proving *>at a mortgage is fraudulent and void, the mortgagee has no ground of exception to a refusal by the court to single out certain of them and withdraw them from the consideration of the jury, although they if taken alone are not evidence of fraud; provided all the circumstances in the case are sufficient to warrant a verdict finding fraud.</p>

Contract brought to recover back the amount of a tax assessed by the defendants upon the plaintiff for the year 1864, and collected by sale of his personal property. The following facts were agreed in the superior court: On the 1st of April 1864 the plaintiff was and always had been a resident of Longmeadow, and was subject to taxation there.

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

<p>Contract brought by the administratrix of the estate of Justus B. Alvord, against the administrators of the estate of Robert G. Marsh, to recover $100 for work done by Alvord for Marsh.</p> <p> a </p> <p>The bill of particulars annexed to the writ consisted of a charge for “ work and labor each month in 1860, 1861, $300.” The defendants admitted that Alvord performed work for Marsh, but professed their ignorance of the amount and value of his services ; averred that Marsh and the plaintiff, had a settlement, and that he paid her the balance found due on accounting together ; and also filed a declaration in set-off,' with an account of about two hundred items, amounting together to $788.95.</p> <p>The case was submitted to the determination of the superior court upon the pleadings, and the report of W. B. C. Pearsons, who made an award as referee under rule of court. The following is an exact copy of the whole of this award, with the exception of the merely formal parts:</p> <p>“ It appeared in evidence that plaintiff’s intestate died June 5th 1861, and letters of administration were issued to plaintiff Nov. 5, 1861. The defendant relied upon a set-off, embracing items of account between June 5th 1861 and Sept. 1st 1861, of goods sold, $11.53; labor of man, $9.00; funeral expenses, $15.87; cash, $6.05; and rent of tenement for June, July and August, 1861, $11.00, furnished to the plaintiff. It was not proved that these items were furnished in pursuance of any contract with the intestate. The plaintiff objected to the allowance of any of these items, as having been made between the death of plaintiff’s intestate and the issuing of letters of administration.</p> <p>“ The defendant also relied upon a receipt duly'proved, of which the following is a copy: £ Holyoke, Aug. 30,1861. Received of R. G. Marsh twenty dollars in full of all demands on account of the estate of Justus B. Alvord, late of Holyoke, deceased, also in full of house rent, and all other bills against myself to Aug. 1st 1861. (Signed) Nancy A. Alvord. Attest: W. A. Judd.’ The amount actually paid upon this receipt was $17.00, and it did not pay the full balance, as appeared upon a careful computation of the books, by the amount of $1.20.</p> <p>“ I therefore allow in defendant’s set-off the items of goods sold, $11.53; funeral expenses, $15.87; cash, $6.05; and disallow for labor of man $9.00, and rent 'of tenement in July and August $7.00. I also allow the plaintiff $1.20, as appears by the correct computation of the books, and adjudge that the plaintiff recover of the defendant the sum of seventeen dollars and twenty cents, as damages and costs taxed at. The costs to be agreed by the counsel for parties, except referee’s costs.”</p> <p>Judgment was thereupon rendered for the defendant, and the plaintiff appealed to this court.</p>

<p>Writ of entry, brought by the assignee in insolvency of Daniel Charter, against him and his wife, to recover three parcels of land in Springfield.</p> <p>At the trial in the superior court, before Vose, J., it appeared that on the 2d of August 1860 Daniel Charter, being the ownei of the premises, and at the request of his sons, who were his creditors, executed and delivered a deed of warranty thereof to Henry Kennedy of Hartford, without pecuniary consideration, but with the agreement that Kennedy should convey the same to Mrs. Charter, to her sole and separate use. This deed was returned to Charter to be placed on record, but, Charter being informed that the deed was not valid by reason of his wife’s not having signed it, he omitted to have it recorded until January 11th 1861; and on the 25th of that month Kennedy executed and delivered a deed of the same premises to Mrs. Charter, which was duly recorded three days afterwards.</p> <p>There was evidence tending to show that Charter, at the date of the deed, owned personal property worth between two and three thousand dollars, and that his whole indebtedness (except certain sums due to his sons, which have never been paid, or proved in insolvency against his estate) did not exceed fifteen hundred dollars; that before the 1st of September 1860 he procured a loan of fifteen hundred dollars, on a mortgage of the demanded premises, with which he paid all his indebtedness, except the sums due to his sons; that in the same September he incurred another debt of f>200, which he paid prior to the next January; that prior to August 1860, he had greatly reduced his business; that he contracted debts, and bought and sold wood and wood lots, in the prosecution of his business, to a greater or less extent from August 1st 1860 until he went into insolvency in June 1863; and that the earliest debt which remained unpaid at the time of his insolvency, excepting his debts to his sons, was contracted in October 1861.</p> <p>The judge gav^ instructions upon the effect of this conveyance upon the rights of existing creditors, which were not objected to. But as to future creditors, the defendant requested the judge to instruct the jury that “ to avoid this deed there must have been not only an intention to secure the property against future creditors, but there must have been a design, then existing in the grantor’s mind, to make creditors with a view to cheating them,” and also, “ that the intention to put this property beyond the control of future creditors would not invalidate the deed, unless there was also the fraudulent intention to obtain credit on the supposition that he was the owner of this property.” The judge declined to give these instructions, but did instruct the jury, that y< in order to recover in behalf of future creditors, the jury must be satisfied that it was at least a part of the purpose which Charter intended and designed to accomplish by this settlement on his wife, to place this property where future creditors could not reach it to satisfy their debts, or, in other words, that he made it to delay and defraud those creditors whose debts he might contract subsequent to its date; that it was not sufficient that it was the effect of such settlement to hinder and prevent subsequent creditors from satisfying their debts out of the property so conveyed to the wife; there must be satisfactory proof that he designed and intended that it should have that effect; that" it might aid the jury in determining whether such was his design and purpose, by inquiring whether, at the time of the conveyance to Mrs. Charter, he contemplated contracting future debts, whether he was engaged in any business at that time, in which, in its ordinary prosecution, he might anticipate the probability of contracting debts.”</p> <p>The jury returned a verdict for the demandant, and the tenants alleged exceptions.</p>

<p>Under St. 1863, c. 107, authorizing the city of Springfield to construct certain drains, the county commissioners have no authority or jurisdiction to revise or reconsider the determination of the city council, either on the subject of the extent of territory benefited by their construction, or the portion of the expense thereof to be borne by the city and by the owners of real estate respectively, or the nature or extent of the benefit which the real estate of an individual would derive from their construction. And an assessment by the assessors upon the real estate of an individual, founded upon a fair cash valuation thereof exclusive of buildings, will not be set aside by this court, although such real estate is not actually drained by the sewers, and is at a considerable distance therefrom.</p>