Volume 95 — Massachusetts Reports

<p>Bill in equity alleging that on the 8th of September 1845 the plaintiff, being the owner of certain land bordering on Mumford River, conveyed to Warren Hunt “ the right and privilege to flow and cover with water any land of the said Moses Knapp which the said Warren Hunt may flow and cover with water by means of a certain dam which the said Warren Hunt is about to erect below the ‘ Lower Privilege,’ so called, and for the purpose of better supplying the same with water, to any extent to which the said Warren Hunt may raise or maintain a head of water by means of said dam without interfering with the present legal rights of the Douglas Manufacturing Company on Mumford River, immediately above said ‘ Lower Privilege.’ It is not intended by this deed to convey the right to flow the land of any person except the land of the said Moses Knapp, and this conveyance is made subject to the legal rights of all other persons whose lands may be flowed by means of said dam.” The bill further alleged that thereafter, in the same year, Hunt erected a permanent dam and raised water"1 thereby and flowed the premises as far as could be done without interfering with the legal rights of the Douglas Manufacturing Company ; that thereafter the plaintiff erected another mill on said land and now uses the same ; that Hunt thereafter conveyed his title and rights to the defendants ; that the defendants have no other or further right to flow the plaintiff’s land than that above set forth; yet they threaten to raise the water by means of flash-boards placed on said dam from twelve to fourteen inches above the height of the dam, and above the height specified in the conveyance aforesaid, which flowing will set back the water upon the plaintiff’s land and destroy his mill. The prayer was for an injunction against raising or maintaining the water of said stream, by means of flash-boards or otherwise, above the height mentioned in the deed aforesaid, and the height of the permanent dam.</p> <p>The answer denied that the permanent dam erected by Hunt raised the water and flowed the premises as far as could be done without interfering with the legal rights of the Douglas Manufacturing Company, but averred the contrary, and alleged that Hunt, immediately upon the erection of said dam, placed flash-boards thereon of the same height as those upon the dam at the time of filing the bill, and that the same, or others of the same height, have remained thereon ever since; that these flash-boards do not raise the water to interfere with the rights of the Douglas Manufacturing Company, or flow the land of the plaintiff more than they are entitled to flow it under said deed; denied that they have no other right to flow the plaintiff’s land than that granted by said deed, and averred that they have a right to flow the same under - the mill acts ; admitted the erection of the plaintiff’s mill, but averred that this was after Hunt had raised his dam and the water to their present height; and denied that they have threatened to raise the water above the height of the dam, and above the height specified in the deed, or have purposed to put on any additional flash-boards.</p> <p>It was conceded that in the year 1846 the defendants’ predecessor erected a dam, either with or without flash-boards, across Mumford River, called the Gilboa dam, which subsequently at various times was raised by means of flash-boards of different heights until the height of thirteen inches above the permanent dam was reached, which is the height of the present flash-boards maintained by the defendants. The time when the height of the dam was so increased was a matter in dispute between the parties. It was also conceded that in 1852 the plaintiff erected his mill on the stream above said dam. The defendants have no intention @f raising the flash-boards above the height at which they were when the bill was filed.</p> <p>The court thereupon directed the following issue to be tried by a jury : “ Have the defendants raised the water by means of their Gilboa dam since the commencement of the plaintiff’s mill higher than they had before, and if so, how much 1 ” To which the jury replied, “ Yes, six inches.” The defendants objected that no such issue could be raised under the bill, but the objection was overruled.</p> <p>It was conceded also that such raising would set back the water to that extent upon the plaintiff’s mill.</p> <p>The cause then came on for further hearing, before Colt, 3., when the plaintiff introduced in evidence a deed from Job Knapp, of whose remaining land he was the heir, to Richard Olney and others, under which the Douglas Manufacturing "Company claim their rights, of a tract of land for the purpose of completing a cotton factory, and such other buildings as the grantees might think best, “ and also the privilege of digging a sufficient ditch in width and in depth to carry the water from the water works which may be erected on the premises through the said Knapp’s other land, and at all times to have free access to repair or alter the said ditch.”</p> <p>The defendants contended that under the deed to Hunt they had the right to flow the land and property of the plaintiff to any extent which did not interfere with the rights of the Douglas Manufacturing Company on Mumford River, as they existed at its date, September 8th 1845, and that, unless the water raised by their dam flowed so high as to set back water upon the wheel of said company, or so as to impede or interfere with the operation of the wheel, or the running of the wheel or machinery of said company, they did not interfere with such legal rights; and they offered evidence that said trench was in 1862 deepened fifteen inches, and that their dam with the flash-boards thereon at the date of the bill had been so maintained for many years, and did not and does not flow back the water upon or so as in any way to interfere with the wheel, machinery, mill or running of the works of said company, as the same were when the grant to Hunt was made, or when said dam was erected, or since.</p> <p>The plaintiff contended that by once erecting and completing a dam, either with or without flash-boards, the defendants or Hunt, under whom they claimed, had exhausted their grant, and could not afterwards raise the same; and that under the grant to Hunt they could not set back the water into the trench of the Douglas Manufacturing Company, even if they did not impede the works, and offered evidence that the original dam without flash-boards set the water back into the mouth of said trench, and that any raising of the same raised and set the water into said trench, and further that the raising of the dam by the defendants raised the water high enough to impede the works of the Douglas Manufacturing Company as they were when the deed to Hunt was given.</p> <p>The judge reserved the case for the determination of the full court, it being understood that if the facts offered to be proved by either party should, in the opinion of the court, be material, further issues might be framed for a jury, if either party should desire it.</p>

<p>The owner of land bordering upon a stream may lawfully dig a canal upon his own land which will prevent it from being flowed by the erection or raising of a dam below, if he does not thereby divert the water from its natural course; and the fact that the owner below has already begun to build or raise his dam is immaterial.</p>

<p>Bill in equity, setting forth that the plaintiff is the owner of land bordering upon a natural stream in Worcester; that he has a factory upon his said land, with steam-power, and has used the water of the stream for his boiler; that the defendant, within the last three years, being a manufacturer, has thrown vitriol and other noxious substances into said stream, a short distance above the plaintiff’s factory, by means of which the water has been corrupted, so that it has corroded the plaintiff’s engines and boilers, and been rendered unfit for use; and that the defendant has.refused to discontinue such practice, though requested. The prayer was for an injunction, and other relief.</p> <p>The answer alleged that the plaintiff’s factory was built since that of the defendant, and below the same, and that for more than twenty years before the filing of this bill, and before the building of the plaintiff’s mill, he used his mill and premises in the same manner now complained of, and admitted the effect upon the plaintiff’s machinery, and the request to discontinue the use, as charged.</p> <p>The parties agreed that, in the use of the premises by the defendant, or those under whom he claims, twenty years prior to the filing of the bill, only small quantities of vitriol and other noxious substances were thrown into the stream, and produced no perceptible injurious effects to the water of the stream, and the injurious effects to the engine and machinery of the plaintiff have only been apparent for the last eight years.</p> <p>The case was reserved by Hoar, J., for the determination of the whole court.</p>

<p>An agreement, under seal, of submission to arbitration provided that either party who should fail to perform the award should forfeit to the other a certain sum, and that each party should get a surety for the faithful payment thereof. By a separate agreement not under seal, but on the same paper and made on the same day, another person guaranteed the performance of the award, on the part of one of the parties, and the payment of the penalty, in case he should refuse to perform the same. Held, that the principal and guarantor could not be sued iu one action, under Gen. Sts. c. 129, § 4.</p> <p>A submission, under seal, to arbitration, can only be revoked by an instrument under seal. Simply proving that an arbitrator was a creditor of one of the parties is not sufficient to invalidate his award.</p> <p>If two persons who have been partners together submit to arbitration all matters between them, and after the commencement of the hearing they and another person with whom they had formed a partnership for transacting a portion of their business submit to the same arbitrators ail partnership matters remaining unsettled between them, and under the second submission an award is made fixing a sum as due from the two original partners to such third person, the arbitrators may take such award into consideration in determining the matters in controversy between the original partners, and may award that one of them shall pay the amount thereof to such third person.</p> <p>An agreement of submission to arbitration provided that either party who should fail to perform the award should “ forfeit to the other party the sum of fifteen hundred dollars as liquidated damages.” By a separate agreement, another person guaranteed the performance of the award, on the part of one of the parties, and agreed to “ pay the penalty of fifteen hundred dollars,” in case he should refuse to perform the same. Held, that the sum of fifteen hundred dollars was to be treated as a penalty, in each agreement, and not as liquidated damages.</p>

<p>A., having leased a mill and machinery to B. and C. for five years, entered into an agreement with them in writing by which he discharged 0. from the covenants of the lease, and B. agreed “ that A. shall have to his own use all the machinery and property mentioned in the schedule hereto annexed now in and about the mill, together with all the additions and improvements thereon, the same to become the property of said A. at the expiration of the lease; and the said B. also agrees with said A. that he will keep a competent man constantly upon repairs upon said mill and the machinery in the same, and that a good and faithful watchman shall be kept to watch said establishment till the expiration of said lease.” C. indorsed thereon his “assent to the disposition within made by the within named B. of the machinery and property.” The machinery and property mentioned in the schedule were destroyed by fire before the expiration of the lease. Held. that A. could not maintain an action against B. upon the agreement, to recover the value of the same.</p>

<p>Contract brought to recover the balance due upon a sub« scription by the defendant to the capital stock of a railroad corporation, after deducting the amount received from a sale of the defendant’s shares.</p> <p>The subscription paper recited that, after the granting of the original charter, and various extensions of the time for constructing the railroad, the plaintiffs were authorized by St. 1852, c. 178, to construct a railroad from Framingham to Sterling, and to build the same in three sections, the capital to build the first section to be $150,000, the second $200,000, and the third $100,000 ; the funds to be raised by subscription in shares of one hundred dollars each ; that the first section had been built, and, by St. 1860, c. 42, an amendment of St. 1852, c. 178, was passed, providing “ that the capital required to build the second section of said road shall be $100,000, and the capital required to build the third section shall be $50,000; ” and continued thus : “ Now, therefore,. be it known that we, whose names are hereunto subscribed, in consideration of the premises,” “ have and do hereby become subscribers to the capital stock of the said railroad company, in the two remaining sections thereof respectively; and we do hereby promise said company, and faithfully undertake, each of us respectively, to pay into the funds of said company, in such instalments as the president and directors, under provisions of law, may require, one hundred dollars for each share set against our names respectively; ” “ provided, however, and it is hereby ex pressly understood, that we are not to be held to pay any part of our several subscriptions made as aforesaid, until the whole amount of said capital stock is actually subscribed by bena fide stockholders; and under this provision we severally promise and agree to and with said company that, when the full amount of said capital stock is subscribed as aforesaid, and when the said president and directors of said company shall have legally assessed and declared payable one or more assessments, amounting in the aggregate to twenty per cent, upon each share subscribed for by us respectively, we will pay the same ; ” and, in case of failure, authority was given to sell the shares, and the subscribers were to be indebted to the company for any deficiency arising from the sale. By a further clause, the subscribers recommended that interest be paid to stockholders on payment for stock, till the said sections of the railroad should be opened for travel.</p> <p>The above subscription paper was signed by the defendant on the 17th of October 1860, for ten shares in the second and third sections. Assessments amounting to one hundred dollars on each share were laid in 1864 and 1865, and notice given, and the defendant’s shares were subsequently sold at auction for four hundred and fifteen dollars. On the 13th of June 1864, the president and directors of the company filed in the office of the secretary of state a certificate declaring that all the shares of the second and third sections of the road, namely, $100,000 for the second, and $50,000 for the third, had been subscribed for by responsible persons, and that a sum equal to twenty per cent, of the par value of all the shares of -such portion of the stock had been actually paid into the treasury of the company. There had been, in fact, subscriptions to said second and third sections to the amount of $170,000; but on one hundred of the shares nothing had then been paid, nor has the whole thereof ever been paid. The construction of the road was commenced in July 1864. Before the commencement of this suit, interest had been allowed to subscribers on their payments of stock.</p> <p>On the above facts, which were agreed in the superior court, the defendant contended that the contract of subscription was void for uncertainty; that twenty per cent, had not been paid on each and every share of the capital stock, as required by the statute and contract of subscription, before the commencement of the construction of the road; that the corporation, in its issue of stock for the second and third sections, had exceeded the amount to which it was limited by St. 1860, c. 42, and that the payment of interest to stockholders was illegal; and that for these reasons the plaintiffs could not maintain their action. But judgment was rendered for the plaintiffs, and the defendant appealed to this court.</p>

<p>Bill in equity, alleging, in general, that the plaintiff held a claim of $15,000 against the defendant Charles J. Anthony, arid that the other defendants, Anna D. Anthony, wife of said Charles, and three other persons who were named, were each in the possession of an estate of great value which they held in trust for the said Charles J. Anthony, and for his benefit and use; and also of an estate of great value which he had conveyed or caused to be conveyed to them without consideration, and with intent to conceal the same from his creditors, and to prevent the same from being taken on legal process, and to delay, hinder and defraud his creditors, all which they well knew; that the plaintiff was unable particularly to describe said estate, but that he believed the same was so invested, held and concealed by said defendants, respectively, that it could not be come at to be attached or taken on execution in a suit at law against the said Charles J. -Anthony. The prayer was for an answer, an account, and a decree that the estate might be applied in satisfaction of the plaintiff’s claim against Charles J. Anthony, and for other relief.</p> <p>Service was made, so far as Charles J. Anthony and his wife were concerned, by attaching certain property alleged to belong to him; by leaving a summons for him at his last and usual place of abode; and by delivering a summons in hand to her.</p> <p>In the above suit, the defendant Anna D. Anthony filed a petition setting forth, among other things, that she and her husband were residents of the city of New York; that long before said suit was brought he left New York to visit Europe, under medical advice, for the benefit of' his health ; that he was now in Paris very sick; that no notice of the suit had been served upon him ; and before he could be required to appear and answer the suit the plaintiff caused her to be summoned before a magistrate to give her deposition therein; that she is advised that her deposition cannot legally be taken therein, or certainly not until her husband is legally bound to enter an appearance • that the cause of action named in the suit was not made or transacted with her ; and accordingly she prayed that the magistrate and the plaintiff might be ordered not to take her deposidon, and for other relief.</p> <p>At the hearing, before Gray, J., it appeared that Anthony and tiis wife formerly resided in Worcester, but whether their domicij was now there or not was in dispute. The motion for an injunction was overruled, and Mrs. Anthony appealed to the full court. It was agreed that, if the motion should have been made by an independent bill or petition, she should have the same rights as if it had been so made.</p>

<p>Appeal from a decree of the judge of probate, disallowing an instrument offered for probate as the will of Augustus Slocomb, deceased.</p> <p>It was agreed that said Augustus was a resident of Grafton, in the county of Worcester, and had goods and estate there to be administered, but at the time of his last sickness and death was at Natchez, Mississippi, where he had gone for a temporary purpose, intending soon to return to his home in Grafton. During his last sickness he made a nuncupative will at Natchez under such circumstances and in such manner and form as to make it a good and valid will in the state of Mississippi, which might be proved and allowed there according to the laws of that state. But the judge of probate refused to receive evidence of these facts, and disallowed the will.</p> <p>The case was reserved upon the above facts, by Gray, J., for the determination of the whole court.</p>

Petition by the administrator with the will annexed of the estate of Sidney Smith, praying for the instruction of this court as to the proper disposition of a sum of money in his hands, upon the following facts : The will contained this clause: “ I give, bequeath and devise to my wife, Nancy Smith, the income of all my real estate, and all my personal property of every description, to have and to hold while she remains my widow and continues to provide a home for my children…

<p>A married woman has power under our statutes to make a valid disposition of specific artificies of her separate personal property by a donatio causa mortis, without her husband’s consent.</p>

<p>If ancillary administration is taken out in another state upon the estate there of a deceased citizen of Massachusetts, a de.cree of the judge of probate there, allowing a claim of the administrator against the estate, and finding a balance due to him over and above the assets there coming to his hands, is not conclusive here, and will not entitle the administrator to charge for such balance here.</p>

<p>Petition for partition. The defence was a denial of the petitioner’s seisin.</p> <p>At the trial in this court, before Colt, J., it appeared that the petitioner claimed title under an officer’s deed purporting to convey to him the right in equity of Charles Hersey to redeem one undivided half of certain land from a mortgage. To show that Hersey had such right in equity, the petitioner put in a deed of one undivided half of the land, subject to a mortgage, from John Kelley, “ in consideration of one hundred and twenty-five dollars paid by Charles Hersey, of Worcester, guardian of the minor children of Edward Hart, late of Auburn, deceased^” but running to said Hersey, his heirs and assigns, without otherwise referring to his guardianship.</p> <p>The respondent was allowed to prove, against the objection of the petitioner, that Hersey was duly a°ppointed guardian of said minor children, and was duly authorized to sell certain real estate belonging to them, and received therefor one hundred and twenty-five dollars, and with said money purchased from Kelley the interest in the land in question; and that since the lana was seized and sold Hersey had conveyed the premises to the defendant.</p> <p>Upon the foregoing facts, the case was reserved for the determination of the whole court.</p>

<p>A complaint for a search-warrant to search a dwelling-house for intoxicating liquors illegally kept therein may be supported, although the oath of one of the complainants, required by Gen. Sts. c. 86, § 43, is in the alternative, in this form: that intoxicating liquor “ has been sold in the house above mentioned by the occupant of said house, or with the consent and permission of the occupant of said house, contrary to law, within one month,” the oath being in other respects sufficient.</p> <p>A search-warrant issued upon such a complaint is not invalid, although the oath alleged to be contained in the complaint is recited with an additional alternative averment, thus: that such liquors “ have been illegally sold in said house within one month last past by the occupant thereof, or with the permission and consent of the occupant thereof, or have been taken from said house for the purpose of being sold, contrary to law, within one month.” Such complaint may describe the liquors to be seized as “ a certain quantity of whiskey, being about and not exceeding fifty gallons,” with a like description of other kinds of intoxicating liquors; and this description will be sufficient although the quantity of whiskey actually found and seized is only two gallons, and although some of the kinds described are not found at all.</p>

Tort to recover damages for a personal injury received in consequence of the neglect of the defendants’ servant, in driving against the plaintiff.

Bill in equity to redeem land from a mortgage. The bill set forth that Samuel Davis, on the 1st of April 1854, made a mortgage, in which his wife joined, of a tract of land in Worcester, to secure the payment of six thousand dollars; that the mortgage was assigned to the defendant Wetherell on the 27th of June 1860 ; that Davis became an insolvent debtor June 5th 1861; and on the 29th of May 1862 his assignees conveyed to Wetherell the equity of redemption in the premises ;…

<p>Since the enactment of the Gen. Sts. c. 108, § 1, the estate of a tenant hy the curtesy initiate in land held by his wife, to her sole and separate use, is not liable to be seized on execution against him.</p>

Two actions of contract brought by a deputy sheriff upon two receipts taken by him for personal property attached by him on two writs against Benjamin D. Williams, to whom the property was thereupon delivered. The receipts were signed by Williams and the defendant.

Contract brought by a deputy sheriff upon a written instrument signed by the defendants, reciting that the plaintiff had attached certain specified personal property valued at one hundred dollars on a writ in favor of Luther Capron, Jr., against James T. Cree, and continuing as follows : “ Now in consideration of the premises, and of said S. Shumway allowing the above property so by him attached to remain in the charge and possession of the said James T. Cree, we hereby…

<p>If a bill of exceptions does not assume to give all the evidence which was introduced at the trial, but mentions the omission of any evidence upon a certain point, and states that upon this evidence the defendant asked for a ruling that the action could not be maintained, which was refused, and a verdict was returned for the plaintiff, the only question open in this court, on the exceptions, is whether evidence upon the point referred to was essential to the maintenance of the action.</p> <p>Occupation of land by a tenant at will is not such a disseisin or adverse occupation as requires an actual entry by the owner in order to make a valid conveyance or lease thereof, or an entry by the grantee or lessee before commencing a process under Gen. Sts. c. 137, to recover possession thereof.</p>

<p>An agreement by a creditor to give time to his principal debtor, in a contract for the payment of money, need not be made in express language, in order to discharge a surety. It is sufficient if a mutual understanding and intention to that effect are proved.</p> <p>In an action against a surety upon an acceptance, there was evidence tending to show that before the maturity thereof the holders promised the principal acceptor that if he would send them another draft, with a certain person’s name upon it, they would let the acceptance run along; and that such a draft, payable in sixty days, was accordingly sent, and was accepted by the holders, who thereupon did not press for payment of the original acceptance until after the expiration of the sixty days. Held, that from this evidence the jury would be authorized to find that the holders of the original acceptance agreed to give sixty days’ time to the principal acceptor thereof, and that the surety was thereby discharged.</p> <p>Under Gen. Sts. c. 129, § 72, the facts set forth in the answer, in an action, cannot be usei as evidence against the defendant therein, on the trial of the action.</p>

<p>The magistrate’s record of an action of tort before him set forth that the defendant was defaulted; “and afterwards, by agreement of parties, it was arranged that the damages should be determined by the said justice” on a specified day, “for which purpose the case stood open and was continued to that day. And now,” on the day specified, “ the defendants, by themselves and their attorney, deny the plaintiff’s right to recover any damages in said action. Whereupon the said parties were fully heard and understood by me, the said justice, and it appears to me, the said justice, that the plaintiff has a righ* to maintain” the action. Damages were accordingly assessed, and judgment rendered therefor, in favor of the plaintiff; and the defendant appealed. Held, that in the appellate court the defendant had a right to answer upon the merits and deny his liabEty te the action.</p>

<p>An action to recover possession of a tenement, under Gen. Sts. c. 137, was commenced on September 29th. The defendant filed a plea in bar setting up a former judgment in his favor in a like action brought against him by the same plaintiff to recover the same tenement on September 22d, and testified in support of it that after the determination of the first action, and before the commencement of the present one, no new notice to quit or other notice was given to him. Meld, that the plea in bar was not maintained.</p>

Tort for the conversion of a yoke of oxen. The writ was dated April 16th 1863. The defendant denied the plaintiff’s title, and also the conversion by himself.

Contract upon a promissory note dated April 26,1865, for $59.90, signed by George W. Lougee and the defendant. At the trial in the superior court, before Rockwell, J., without a jury, it appeared that the note was given to settle a suit commenced by the plaintiff against Lougee upon an account, one item of which was for a cask of cider sold by the plaintiff to Lougee; and that Lougee deposited $60 with the defendant to indemnify him and save him harmless for signing it.

<p>A married woman does not acquire a settlement in a town by her husband’s living on an estate of freehold therein three years successively, if during any portion of that time the town where they formerly lived supported her as a pauper in a lunatic hospital out of the Commonwealth.</p>

Action under Gen. Sts. c. 137, to recover possession of the basement of a meeting-house in Leicester.

Trustee process. The inhabitants of West Boylston were summoned as trustees. The defendant was defaulted, and the only question was as to the liability of the trustees. The writ was dated June 13,1866. At the trial in the superior court, it appeared that the defendant contributed to a fund raised by a voluntary association for filling the quota of West Boylston in 1864.

<p>Bill in equity by ten tax-payers of Boylston, against the treasurer of the town, praying for an injunction to restrain him from paying out moneys of the town for the reimbursement of sums paid by individuals for recruiting purposes.</p> <p>It appeared at the hearing in this court, before Colt, J., that requisitions were duly made in the year 1864 upon the town of Boylston for soldiers for the army, under calls of the president or war department during that year; and that, after these requisitions were made known to the town officers, sums of money were contributed and paid over by various inhabitants of the town for the purpose of filling its quotas and furnishing men under said calls. The amount of sums so furnished was left to be ascertained by a master, if not agreed by the parties.</p> <p>A town-meeting was called for June 5th 1865, and one article in the warrant was “ to see if the town will raise money to reimburse individuals who have contributed money to fill quotas during the year 1864, in accordance with the act passed by the last legislature, or do anything respecting the same.” At the meeting so called, the town voted “that the town raise the sum of $>3272, to reimburse any and all persons who may have paid money for recruiting purposes for the town of Boylston during the year 1864.” The plaintiffs alleged that the sum so voted was more than the amount paid by any and all persons for recruiting purposes in Boylston during the year 1864; and that the vote was illegal and void because it did not conform to St. .1865, c. 152, and was indefinite and uncertain.</p> <p>The case was reserved for the determination of the whole court.</p>

<p>In an action to recover damages to an inn, from a nuisance, by carrying on works and operating machinery in the neighborhood, which shook the building and prevented guests from sleeping, evidence is incompetent on the part of the plaintiff to show that frequently nests, on leaving the inn at night and seeking other lodgings, declared that they did so because they were prevented from sleeping by the jar. And evidence is incompetent on the part of the defendants to show that, in the opinion of witnesses who were familiar with the locality, and who had bought, sold and let real estate in the vicinity, the effect of the stopping of the defendants’ works would be to diminish materially the value of the plaintiff’s premises for occupation, although the plaintiff has introduced evidence to show that operating the defendants’ works has diminished the rentable value of his premises.</p> <p>An action may be maintained to recover damages for a nuisance to a dwelling-house, caused by carrying on works and operating machinery in the vicinity, which fill the air with smoke and cinders, and render ifc offensive or injurious to health, and shake the building so as to injure it and render its occupation uncomfortable, although all persons owning estates in the vicinity have sustained similar injuries from the same cause. It is only when the nuisance complained of is an invasion of some common or public right that the remedy is confined to a public prosecution.</p>

<p>Bill in equity to set aside proceedings in insolvency, commenced on the 24th of March 1866 against the Worcester Horse Railroad Company, a corporation established under Sts. 1861, c. 148; 1863, c. 19; and 1864, c. 102. The question whether this corporation could at that date be the subject of proceedings in insolvency, under the laws of the Commonwealth, was reserved by consent of parties by Gray, J., for the determination of the full court.</p>

<p>If an executor has made payments on account of the estate of his testator beyond the amount of funds in Ms hands, and dies before reimbursing himself, and the amount due to him has been ascertained upon a settlement of his account by his administrator in the probate court, and an administrator de bonis non of the testator has been appointed, who has no funds except such as have been received from the avails of real estate sold under license from the judge of probate, the remedy to obtain from these funds payment of the amount so found due to the executor is to cite in the administrator de bonis non to render his account, and to apply to the judge of probate for an order to the administrator de bonis non to pay the amount; and a refusal to comply with such order would furnish cause of suit upon the bond of the administrator de bonis non.</p> <p>If such payments were lawful and just when made, the claim of the executor for reimbursement will not be barred by the lapse of time thereafter; but the question whether by reason of his loches or official misconduct the claim ought not to be paid may be determined upon the application to the judge of probate for the order to the administrator de bonis non to pay the same.</p>

<p>. One who has verbally guaranteed the debt of another at his request may pay the same and recover the amount so paid in an action against the original debtor; and the statute of frauds will be no defence to such action, although it would be a defence to an action brought on such guaranty. And if such guarantor has given his memorandum check for the amount of the debt, he may pay the same and recover the amount from the debtor, although the latter, after the giving of the check, forbade the payment of it by the guarantor.</p>

Bill in equity by the executors of the will of Daniel Jackson, praying the instructions of this court as to the execution of their trust.

Contract brought to recover back the amount paid by the plaintiff for a tax, assessed to her in Hanover in 1861, upon certain real estate.

<p>Contract brought by the administrator of a widow’s estate against the executor of her husband’s will, to recover the amount of an allowance to her out of her husband’s estate. The following facts were agreed in the superior court:</p> <p>The judge of probate made a decree, allowing to her as necessaries for herself and family under her care, “ personal estate of said deceased to the amount of two hundred and fifty dollars.” The defendant knew of this decree within thirty days and did not appeal. The defendant’s testator left real estate appraised at $2650; and personal estate to the amount of $142.87, besides gas stock which was appraised at $250, but was of little market value, and household furniture, which was bequeathed to his widow during life, and then to his brothers and sisters. The widow did not demand her allowance of the defendant, but he called upon her and asked her if she needed any part of the allowance ; to which she replied that she did not until she had the whole. The defendant thereupon said to her that he had nothing to get her allowance out of but the personal property, and offered to her to take of the furniture at the appraisement, in discharge of the allowance, which she declined to do.</p> <p>The parties agreed that if the widow’s claim for an allowance did not survive, the plaintiff should become nonsuit; that if it survived, and the defendant was bound, in case of the insufficiency of the personal estate, to sell real estate, or to sell the furniture during her lifetime, or to sell it now, to pay the allowance, then judgment should be rendered for the plaintiff; but if the defendant was not so bound, then judgment should be rendered for the plaintiff for the amount of personal estate (besides the furniture) that came to the defendant’s hands, such amount to be determined by an arbitrator.</p>

<p>One who has bought for his own use and by an absolute purchase a promissory note, under such assurances of its validity from the maker as to estop him from denying it afterwards, may recover from him the full amount of the note, although it was bought at a discount and was invalid in the hands of the payee.</p> <p>An innocent omission to stamp a promissory note made after the passage of the U. S. St. of 1864, c. 173, though ante-dated to November 1862, will not render it inadmissible in evidence, if it is subsequently stamped in the presence of the court.</p> <p>So an innocent omission to stamp an order for the payment of money, drawn after the passage of the U. S. St. of 1865, c. 78, will not render it invalid or inadmissible in evidence. Note.</p>

<p>Parol evidence is incompetent to show a vote passed at a meeting of the district of Gay Head.</p> <p>The district of Gay Head, as incorporated by St. 1862, c. 184, is not the successor of the Gay Head Indians, or in any such privity with them as to be legally liable for any debts or demands alleged to exist against the Indians prior to the enactment of that statute. Prior to the enactment of St. 1862, c. 184, the Gay Head Indians were incapable of contracting a debt for which they could be held legally liable, without the consent of their guardian; and the fact that no guardian had been appointed for a long period did not render them legally competent to enter into contracts.</p>

Contract brought to recover for certain goods delivered by the plaintiff to Joseph Hoar.

Tort, originally commenced against Heman Baxter, and prosecuted against the defendant as the administratrix of his estate, for the conversion of a small wooden dwelling-house.

Contract brought to recover damages for a breach of a conTact on the part of the owners of a codfishing schooner of Bevjrly to employ the plaintiff as her master for a fishing season. The first count in the declaration alleged that the plaintiff’s compensation was to be the lay usual in codfishing vessels sailing from Beverly, including a share of the bounty to be received from the United States.

<p>A record in the original Book of Possessions of the town of Boston, which book appears to have been made between 1639 and 1645, of a possession of a house and lot “ bounded with the street,” shows title in the possessor to tlie centre of the street, even if the possession was granted by the general court or the town after the street had been laid out.</p> <p>Whenever land is described as bounded by other land, or by a building or structure the name of which, according to its legal and ordinary meaning, includes the title in the land of which it has been made part, as a house, a mill, a wharf, or the like, the side of the land or structure referred to as a boundary is the limit of the grant; but where the boundary line is simply by an object, whether natural or artificial, the name of which is used in ordinary speech as defining a boundary, and not as describing a title in fee, and which does not in its description or nature include the earth as far down as the grantor owns, and yet which has width, as in the case of a way, a river, a ditch, a wall, a fence, a tree, or a stake and stones, then the centre of the thing so running over or standing on the land is the boundary of the lot granted.</p> <p>The rule of construction that public grants are to be taken most strongly against the grantee is only to be resorted to when the language is so ambiguous that all other rules of construction fail; and when words having an established and definite meaning are used in an ordinary grant of land, they are tu receive the same construction whether the grant is a public or a private one.</p> <p>A town may make common sewers and drains under a highway, whether it owns the soil or not.</p> <p>A record of “ staking out ” a highway in Boston in 1683 furnishes no evidence that the town did, or did not, own the land under it.</p> <p>Upon the trial of a writ of entry to recover flats to which the tenant claims title, and the course of the side lines of which is in issue, the declaration in a former action on the case, brought against the demandant by the tenant, describing these flats as not belonging to him, is admissible in evidence against him.</p> <p>Evidence of a line established under and according to a judgment in an action between the owners of adjoining parcels of flats is admissible in a subsequent action between one of them and a third person concerning another parcel of flats in the same cove, so far as it tends, in connection with other evidence, to identify and locate the monuments by which the lines of the latter parcel have been drawn, and so far only.</p> <p>Upon the trial of a writ of entry to recover a parcel of flats, the course of the lines established in the division of flats belonging to another estate in the same cove, under the owners of which neither of the parties to this action claims title, and separated from the flats in question by intervening estates, the lines of which are not allowed to be given in evidence, is inadmissible to show the course of the side lines of the demanded premises.</p>

Bill in equity by the prudential committee of the first school district in the town of Wrentham, on behalf of the inhabitants of that… Held: the warrant foi which contained this article : “ Article 2d. To see if the town will reconsider a vote passed April 23, 1866, abolishing the school districts.” On which the record of the meeting shows this action : “ Article 2d. It was voted that the vote passed April 23,1866, abolishing the school districts, be reconsidered; and it…

<p>Bill in equity against a corporation and two of its directors, who had notice of its doings when they took their title, to enforce the performance of a covenant by the corporation to discharge a parcel of land in Roxbury from a mortgage, and to obtain an injunction against enforcing that mortgage.</p> <p>At the hearing before Gray, J., the following facts appeared : On the 29th of March 1859, Stephen M. Allen conveyed to the Tremont Improvement Company a parcel of low land in Roxbury, containing 159,420 square feet, subject to a mortgage made by him on that day to Charles M. Parker to secure, among other things, a note of $9675.05, payable in three years from date. This mortgage contained a stipulation that Parker should release portions of the land from time to time, on payment therefor at certain specified rates. On the 30th of said March the company entered into a written agreement with the plaintiff, by which he was to fill up their land, and they were to sell him 100.000 feet thereof, upon certain terms. On the 24th of. March 1860, the company delivered to the plaintiff a deed of the 100.000 feet, with covenants of warranty against all incumbrances, and with an agreement to cause the above mentioned mortgage to be discharged at its maturity. When the note of $9675.05 (secured by the mortgage) fell due, two of the directors of the company obtained an extension of the time of payment for three years, for the convenience of the company, on their own guaranty.</p> <p>On the 24th of August 1864, the plaintiff made the following offer in writing to the company : “ I propose to purchase from the Tremont Improvement Company all the land they own on Parker Street, Roxbury, at twenty cents per foot, and assume the mortgage of $9675, the balance in money as soon as deeds are made out.” On the 31st of the same month, the directors, who were duly authorized to act in the matter, voted “ that the proposition of Roger Drury to purchase the land of this company on Parker Street and Parker Place be accepted, and that the president be authorized to execute and acknowledge the íecessary instruments to carry the sale into effect.” And by a deed dated on the same day, to which a copy of the above vote was annexed, the company, in consideration of $2497.90, conveyed to the plaintiff the parcel of 59,420 feet, “the premises being subject to a mortgage from Stephen M. Allen to Charles M. Parker, dated March 29, 1859, on which the sum of $9675.05 remains unpaid; ” and also another parcel of land containing about five thousand feet, separated from the first parcel by Parker Place, and not included in that mortgage; with general covenants of warranty, “ except against the incumbrances hereinbefore set forth.” The treasurer of the company testified that this deed was based on the plaintiff’s proposition of August 27th; that the consideration to be paid was at the rate of twenty cents a foot, or $11.884 for the large parcel, making no charge for the smaller parcel, over which private ways had been laid out, from which sum the amount of $9675.05, due on the mortgage, was deducted, and the balance of $2208.95 was paid by the plaintiff to the company; the consideration being incorrectly stated in the deed ; and that the plaintiff then paid the interest on $9675.05 from the 13th of September to the 1st of October; and afterwards, from the 1st of October 1864 to the 1st of April 1865.</p> <p>On the 25th of March 1865, the treasurer of the company notified the plaintiff that the principal of the note for $9675.05 would fall due on the 29th of that month, and requested him to pay the same to Charles M. Parker; but the plaintiff did not do so; and on the 1st of April 1865 the two directors of the company who had guaranteed the note, paid the same, and took an assignment of the mortgage to themselves, and on the 26th of the following June entered for the purpose of foreclosure.</p> <p>The case was reported for the determination of the full court.</p>

<p>Tort, brought on the 16th of June 1865, by the assignees of Edward P. Boardman, of Milton, an insolvent debtor, to recover the value of personal property alleged to have been transferred by him to the defendant in fraud of creditors and of the insolvent laws; some by a mortgage dated May 12th 1864; some by a mortgage dated May 18th 1864 ; and the residue by sales at different times in June 1864. The first publication of notice of the issuing of the warrant in insolvency was upon the 11th of July 1864.</p> <p>At the trial in this court, before Gray, J., the plaintiffs, as evidence tending to show that the defendant knew that Boardman was insolvent at the time of these conveyances, introduced the following testimony of an attorney in Lawrence, where the de fendant resided : “ On the 11th of April 1864, John McGregor came to my office in Lawrence, and said that John Myers, who was Board man’s father-in-law, was in town, and wanted to see me; that Myers had got involved by signing notes for Board-man which Boardman could not take care of, and that he (McGregor) hoped I would do the best I could for Myers. I fixed the time, and McGregor and Myers came to see me, and I had a private interview with Myers.” The defendant objected to the admission of this testimony, upon the ground that it related to a communication between counsel and client, or an agent of the client, acting for him. But the objection was overruled, and the evidence admitted.</p> <p>The plaintiffs offered evidence tending to prove that, on the 20th of May 1864, Boardman and hi= wife executed to the defendant a mortgage of her land in Milton, in which he had an estate by the curtesy, which mortgage Boardman caused to be recorded on the same day, and the defendant afterwards took from the registry ; that this mortgage was expressed to be made to secure the payment of a promissory note for $6500, but that Boardman never received upon it but $2000; and he testified that the note for $6500 was given as collateral security for $2000, that no other money was ever received on this mortgage, and that McGregor never to Boardman’s knowledge claimed more than that sum, but declined to give a receipt for the $2000, saying that if Boardman would trust him he would be honorable with him. The plaintiffs contended that the whole mortgage was fraudulent. The plaintiffs, for the purpose of proving that the mortgage of May 20th was fraudulent, offered evidence that the defendant, in his written answers to an examination under an order of the judge of insolvency, in the autumn of 1865, and in an answer filed in February 1866 to a bill in equity brought by the plaintiffs to assert their title in the land conveyed by this mortgage, claimed that the whole sum of $6500 was really lent by him to Boardman upon this mortgage. The defendant objected that "this evidence had no tendency to show the intent of the defendant at the time of receiving that mortgage. But the evidence was admitted; and it was ruled that the fact that the defendant in those answers claimed $6500, when only $2000 had been in part advanced, was evidence to be submitted to the jury of a fraudulent intent to claim too much at the time of receiving the mortgage, and that if the jury were satisfied that such fraudulent intent existed at the time «of the mortgage of May 20th, it was competent evidence upon the issue whether the mortgage executed on the 18th of May was fraudulent. The plaintiffs also introduced evidence tending to show that, upon the 19th of May 1864, Boardman and wife-executed to the defendant a mortgage of her land in Maine to secure the payment of a note for $2500, but upon which only $2000 was in fact paid. The mortgages of the 19th and 20th of May were admitted in evidence, notwithstanding that the defendant objected that both of them were distinct transactions, and incompetent evidence of the intent with which the conveyances now in controversy were made and received, and were not conveyances of the husband’s estate, but of land of his wife, in which he had only an estate by the curtesy, and to the admission of the mortgage of May 19th upon the further ground that it was not shown that by the law of Maine the husband had any title in his wife’s land. But no evidence was offered that in this respect the law of that state differed from the common law and the statutes of Massachusetts, by either of which it was admitted he would have an estate by the curtesy in these lands. The defendant, being afterwards called as a witness in his own behalf, testified on direct examination that he advanced $6500 on the mortgage of May 20th.</p> <p>The plaintiffs were also allowed, against objection, to introduce evidence tending to show that Boardman, on the 8th and 9th of June 1864, assigned to the defendant, with the intent known to the defendant of preventing attachments, moneys due and growing due to Boardman under a contract with Edward Crane, which money was not sought to be recovered in this action. There was other evidence tending to show that at the time of all the mortgages and conveyances aforesaid Boardman was insolvent and intended to defraud his creditors, and to defeat the operation of the insolvent laws, and that the defendant knew this insolvency and intent. The testimony of the defendant, who was examined as a witness in his own behalf, went to contradict this. There was evidence that Boardman and the defendant on the 19th of May 1864 took the mortgage executed on the 18th to the town clerk’s office to be recorded. The jury were instructed that earlier or contemporaneous fraudulent conveyances, which the defendant had reasonable cause to believe to be such, were competent evidence, but that distinct subsequent conveyances were not to charge the defendant with an illegal intent in receiving a particular conveyance; that in this case none of the subsequent conveyances were competent evidence of the intent with which the mortgage of May 12th was made and received; that mortgages by Boardman of his estate by the curtesy in land of his wife were not of so much weight as if the land had been his own, but that the mortgages of May 19th and 20th, if the jury were satisfied that they were made and accepted with intent to put all Board man’s property out of the reach of his creditors, might be considered by the jury in connection with the other evidence in the case in determining the intent of the mortgage of May 18th, and of the subsequent conveyances; that if the defendant had since claimed to have advanced $6500 on a mortgage on which he had actually advanced but $2000, that was competent evidence of the intent with which he took that mortgage ; and that a fraudulent intent in making and receiving the assignments of June 8th and 9th was competent evidence to affect conveyances made subsequently, but not those previously made.</p> <p>The plaintiffs, upon the cross-examination of the defendant, called his attention to, and read to the jury, certain statements as to the time, place and circumstances of making the mortgages, and paying the consideration thereof, made by him in writing under oath, in the course of his examination by order of the judge of insolvency.</p> <p>The defendant afterwards offered to put in evidence the whole examination; but it was ruled, against the defendant’s objection, that only those answers were admissible as evidence which related to the particular matters inquired of on his cross-examination at the trial; and that the defendant could not put in evidence certain other answers, which were recited at length in the report, but not copied here because the nature of them is sufficiently stated in the opinion.</p> <p>Instructions were given to the jury as to the fraudulent or illegal intent necessary to be proved in order to avoid a conveyance, either at common law or under the statutes of the Commonwealth, to which no exception was taken. The defendant requested that the jury might be instructed that a conveyance by a debtor could be set aside as fraudulent at common law by his creditors only, and not by his assignees in insolvency; at least, as 'to so much of the property as was disposed of by the defendant before the institution of proceedings in insolvency. But the jury were instructed otherwise. The defendant also requested that the jury might be instructed that, if any one mortgage was made to secure the payment of a note for a greater sum than was actually advanced upon it at the time of giving it, and was virtually made and received with intent to defeat the operation of the insolvent laws, yet if subsequent ad vanees were made upon it with an independent understanding and agreement made between the mortgagor and mortgagee at the time of the subsequent advances, that the note and mortgage should be held as collateral security for these advances, the mortgage would be good at least to the extent of the subsequent advances. But this instruction was refused, and the jury were instructed that any mortgage which was void in part, as contravening the insolvent laws, was wholly void. The defendant had testified that the full consideration of each mortgage of personal property was paid in money at the time of the execution and delivery of the mortgage.</p> <p>The jury returned a verdict for the plaintiffs for $3700.82, being the value of the personal property included in the mortgage of May 18th, and the subsequent conveyances, excluding that mortgaged on the 12th of May. And the case was reported for the determination of the whole court whether the defendant is entitled to a new trial by reason of any of the above rulings, refusals or instructions.</p>

<p>Bill in equity by the assignees of Edward P. Boardman, an insolvent debtor, against Boardman, his wife, and John Mc-Gregor. At the hearing before Gray, J., upon the bill, answers, replication and proofs, the case appeared to be as follows :</p> <p>Boardman and wife, (who were married since I860,) on the 20th of May 1864 executed to McGregor a promissory note for the sum of $6500, together with a mortgage of her land in Milton, in which her husband bad an estate by the curtesy, expressed to be made to secure the payment of this promissory note, and containing a power of sale. The only consideration actually paid for this note and mortgage was the sum of $2000, lent by McGregor to Boardman. The mortgage was made by Boardman and accepted by McGregor, and large sums of money were afterwards expended by Boardman, with the knowledge of McGregor, in building upon the land, Boardman and McGregor both knowing at the time of such making, acceptance and expenditure, that Boardman was insolvent, and both intending to hinder and defraud his creditors.</p> <p>Among the evidence of McGregor’s knowledge and fraudulent intent, the plaintiffs offered the answers made in writing by McGregor, upon being examined under oath by the plaintiffs, by order of the judge of insolvency. One of the plaintiffs testified that this examination took place upon different days, and often in the absence of McGregor’s counsel, with an understanding between the plaintiffs and McGregor that he should have an opportunity to submit his answers to his counsel for revision before signing and tiling the examination; that from time to time during the examination the interrogatories and answers were taken by the defendant, and sometimes kept by him for days, for the purpose, as he said, of being submitted to his counsel; and that, when the examination was nearly completed, the answers were delivered by the plaintiffs to McGregor for the purpose of revision by his counsel, and, although repeatedly demanded of them by the plaintiffs, remained in the possession of McGregor or his counsel for at least two months, and until produced in court. The defendant McGregor objected to the admission of the answers as evidence against him, upon the ground that they had not been revised by his counsel, or signed by himself. But the objection was overruled, and the evidence admitted against him. If this admission was erroneous, the case is to stand for rehearing.</p> <p>The wife, upon signing the note and mortgage, delivered them to her husband, who, with her knowledge, sent the mortgage to the registry of deeds to be recorded, before it was delivered to McGregor. At the time of signing, the wife did not know or believe that her husband was insolvent, and had no knowledge of his pecuniary condition.</p> <p>The bill prayed for an account; for an injunction against a sale, under the power contained in the mortgage, of which McGregor had given notice for breach of condition by non-payment of interest on the sum of $6500; for an assignment of the mortgage by McGregor to the plaintiffs; and for further relief.</p> <p>The defendant McGregor contended that the plaintiffs had an adequate and complete remedy at law, and therefore could not maintain this bill.</p> <p>The question whether the plaintiffs were entitled to any and what remedy in this suit was reserved for the consideration and determination of the whole court.</p>

<p>An object in a highway, with which a traveller does not come in contact or collision, and which is not shown to be an actual incumbrance or obstruction in the way of travel, is not to be deemed a defect, for the sole reason that it is of a nature to cause a horse to take fright, in consequence of which he escapes from the control of his driver, and causes damage.</p>

Tort. The declaration alleged that the defendant placed, used and maintained two sticks within the limits of a highway, which constituted a defect therein, and that one Tower, while travelling on the highway, was injured thereby, and sued the town and recovered damages; and this action was brought to recover of the defendant the amount recovered by Tower of the town.

<p>if trustees appointed under a will to hold certain real and personal estate in trust, with directions to pay out of the income thereof certain annual sums, and in certain contingencies to pay certain pecuniary legacies in gross, and with power to sell the whole or any part of the reaf estate, if such sale should become necessary or expedient for the purpose of raising any of the sums of money bequeathed, and to execute and deliver to the purchaser all such deeds as may be necessary to pass a good tille, decide that a sale of a lot of land is expedient for the purposes mentioned, and their opinion is not so manifestly erróneos as to show negligence or bad faith, and a sale thereof is accordingly made honestly and fairly, to a bona Jkh purchaser, for a fair price, and the highest one that can be obtained, the sale will be valid and the purchaser will take the land discharged of the trust, although the money was not actually and absolutely needed for the payment of the sums referred to.</p> <p>huch sale may be deemed to be made under the power conferred by the will and in the exercise of the discretion vested in the trustees, if it is decided by them to be expedient, and a deed is executed by them and the purchase money received by them, although at the same time deeds are also executed to the purchaser by the cestuis que trusty with a view to insure a good title.</p> <p>If the trustees deem it expedient to sell the land for the purpose of raising the sums of money bequeathed, it is unimportant that another and stronger reason inducing them to make the sale is to increase the income of the trust estate.</p>

<p>Under the present statutes of this commonwealth, an appeal in a probate cause lies from the decision of a single judge of this court to the full court in matter of fact as well as of aw.</p> <p>Although it seems that no notice is required by statute to authorize a judge of probate to make an allowance to a "widow, except in cases where special administration is granted, yet if such allowance has been made without notice to the parties interested, this court in its discretion will allow an appeal, after the expiration of thirty days, upon a petition filed under Gen. Sts. c. 117, § 11.</p>

Bill in equity to restrain the defendant from obstructing a culvert built by the plaintiffs across a highway in Franklin. At the hearing in this court, before Gray, J., it appeared that the highway was laid out more than forty years ago, and led up a steep hillside, over which large quantities of surface water flowed.

<p>Writ of entry to recover a parcel of land in Dorchester. Flea, nul disseisin, with a. specification denying the demandant’s title, and claiming title in the tenant; and claiming also an allowance for improvements. In the superior court, judgment was rendered for the demandant, upon agreed facts, which are sufficiently stated in the opinion; and the tenant appealed to this court.</p>

<p>An indebtedness from one partner to his firm, which upon a settlement of the partnership affairs is assigned to another partner, is a good consideration for a promissory note from the former to the latter: and it is immaterial that such indebtedness was included under the head of “ bills receivable ” and that the other partners did not know who the debtor was.</p> <p>If an action is brought against several defendants on several promissory notes, and the jury find a verdict against all of the defendants on some of the notes, and against only one of the defendants upon one of the notes, separate judgments according to the finding of the jury cannot be entered, but the plaintiff may elect whether he will take judgment against all of the defendants for the amount of the notes on which they have been found jointly liable, or against only one of the defendants for the amount of the note on which he alone has been found liable; and he may amend his declaration accordingly, upon paying costs • on those counts of his declaration which he elects to strike out.</p>

<p>Contract upon a bond in the penal sum of $520,000, executed by Robert N. Woodworth as principal, and Daniel Sanderson, of whose estate the defendant was administrator, and nine other persons, as sureties, with condition for the faithful performance by said Woodworth of the duties of cashier of the plaintiffs’ bank. The sureties were liable severally, in the sum of $2000 each. The bond was the same one sued upon in Bank of Brighton v. Smith, 5 Allen, 413; S. G. 12 Allen, 243.</p> <p>The following facts were agreed in the superior court: The action was originally brought against Sanderson, who died in July 1863, and the defendant was appointed administrator of his estate, and gave bond and notice of his appointment according to the provisions of the statute. Sanderson’s death was first suggested of record in the action in September 1866, more than two years after the date of the defendant’s bond as administrator, and a summons to the defendant was duly issued and served, and he appeared and objected that the action could not be maintained against him by reason of the lapse of time.</p> <p>Before Sanderson’s death it bad been orally agreed between his and the plaintiffs’ counsel that this action should be continued to abide the result of an action then pending against another surety on the same bond. This agreement was assented to by the plaintiffs and Sanderson; and judgment for the plaintiffs was entered in that action in June 1866. After Sanderson’s death, the'defendant, as administrator of his estate, had frequent interviews with officers of the plaintiffs, at which the progress of the suit was discussed, and the defendant at all times admitted that he knew of the pendency of this action, and that the decision of the other action would determine his liability therein. He has assets in his hands sufficient to pay any judgment that may be rendered in this action, and has not settled his accounts as administrator. Sanderson’s counsel were the same as those in the other action, and were consulted by the defendant in regard to the progress of the other action more than two years after his appointment. Certain other facts were also agreed showing the understanding of the defendant and of the heirs of Sanderson that this suit was to abide the result in the other.</p> <p>Upon these facts, judgment was rendered for the plaintiffs, for $2000 and interest, and the defendant appealed to this court.</p>

<p>tn this commonwealth, telegraph companies may limit the measure of their liability to damages for errors in the transmission of messages, by reasonable rules and regulations, brought home to the knowledge of the parties interested therein.</p> <p>If a message is received by a telegraph company for transmission from one point to another in this commonwealth, written upon a blank which contains, as a part of the terms and conditions upon which all messages are received by them for transmission, a statement that every important message should he repeated, by being sent back from the station at which it is to be received to the station from which it is originally sent, for which repetition half the usual price will be charged, and that they will not be responsible for any error in the transmission of any unrepeated message beyond the amount paid for sending the same, unless a special agreement for insuring the same he made in writing, and if an error occurs in transmitting the same, and the same is not asked to he repeated, and the message as erroneously transmitted is written upon a blank containing the same terms and conditions above referred to, and in that form is delivered to the person to whom it is addressed, such person so receiving the same cannot maintain an action against the company to recover greater damages than the amount paid for sending the same, without some further proof of carelessness or negligence on their part than that resulting simply from the error.</p>

<p>If one who has lost goods by theft goes to the house of the person whom he suspects to have stolen them, and there, in reply to questions put as to the object of his visit, accuses that person of the theft and states the grounds of his accusation, the communication is privileged, if made in good faith, with the belief that it is true, and without express malice, although made in the presence of others, and although it may Have been intemperate and excessive from excitement.</p> <p>It is a question for the court to decide, in the first instance, whether words alleged to have been slanderous were privileged by the occasion, assuming them to have been spoken in good faith, without malice, and in the belief that they were true; and if so privileged, then the plaintiff must show express malice in order to recover. And if there is evidence tending to show express malice, that question should be submitted to the jury.</p>

Tort for a malicious prosecution, in complaining of the plaintiff for perjury and procuring the grand jury to indict him therefor. At the trial in the superior court, before Brigham, J., it appeared that the prosecution grew out of a controversy between the parties as to an alleged loan of four hundred dollars by the plaintiff to the defendant, which the plaintiff sought to recover back.

Complaint for refusing to allow Robert J. Stockton, a negro, to play at billiards in a billiard room and public place of amusement kept by the defendant, such refusal being on account of the color of said Stockton. There was no averment in the complaint that the place was licensed, and the defendant moved to quash it for that reason ; but the motion was overruled.

<p>If the name of a person whom it is necessary to refer to in a complaint is unknown to the complainant, it may be so alleged, although he might easily have ascertained the same.</p>

<p>In an action upon a recognizance, the record is not conclusive to show that it was duly taken if the parties agree to a statement of facts by which it appears that it was not duly taken.</p>

<p>The interest of a deceased partner in the real estate of his firm, purchased with partnership funds, and held and used for partnership purposes, and not required for the payment of partnership debts or the adjustment of balances between the partners, is to be treated as realty, in the settlement of his estate.</p> <p>A direction by a testator, in his will, to pay pecuniary legacies out of his personal estate and from the proceeds thereof, will not exonerate the real estate from the payment thereof, if the personal estate proves insufficient.</p>

<p>Land bought and paid for by a debtor, and conveyed to his wife with intent to defraud his creditors, may be taken on execution for his debts, under Gen. Sts. c. 103, § 1; and the levy of the execution thereon will give the judgment creditor a right, under Gen. Sts. o. 103, § 48, to maintain a writ of entry against the husband and wife to recover possession thereof, within one year after the return of the execution.</p> <p>The officer in his return upon the execution in such case may properly describe the land as the estate of the judgment debtor, without mentioning his wife, and may certify that he “ delivered seisin and possession thereof” to the creditor, without stating that it was only a momentary seisin and possession.</p> <p>If the husband’s intent was actually fraudulent in taking the conveyance in the name of his wife, it is not necessary, in order to invalidate the conveyance, to show that she participated in such intent, if she paid no part of the consideration.</p> <p>If evidence has been introduced of an admission by a debtor that he was owing several little bills, for the purpose of showing his indebtedness at the time of a conveyance alleged to be fraudulent, the judge may properly submit it to the jury, without instructing them that this evidence, “ unaccompanied by other evidence of indebtedness, is not sufficient, standing by itself, to warrant them in finding that he was indebted beyond the amount he was indebted” to the creditor who was seeking to set aside the conveyance; and without instructing them that u the burden of proof is on the demandant to prove at least approximately how muóh the debtor was indebted beyond the amount he owed to the demandant.”</p> <p>For the purpose of proving that a debtor, at the time of a conveyance alleged to be fraudulent, had no visible attachable property, evidence is competent to show that prior to that time a lawyer who held a demand against him for collection made inquiry and could find no property; but this evidence is not competent for the purpose of showing the indebtedness of the debtor.</p>

<p>Writ of entry. At the trial in the superior court, before Rockwell, J., it appeared that on the 26th of May 1864 the right in equity of the defendant Harrison Doty to redeem the premises from a mortgage was taken on an execution against him, in favor of the demandant, and due notice of the sale thereof was given by the officer; and on the 22d of the following July the debt secured by the mortgage was paid and the mortgage discharged by an instrument written on the back thereof, which was acknowledged and recorded on the same day. The sale upon the execution was made upon the 23d of the same July, to the demandant, and a deed was made and delivered, from the officer to him, on the same day, and was duly recorded. On these facts, the judge ruled that the demandant acquired no title by virtue of the said levy, and a verdict was accordingly returned for the tenants. The demandant alleged exceptions.</p>

Contract brought by the collector of taxes of Freetown for the year 1865 against trustees appointed by the will of Job Terry, late of Freetown, deceased, to recover a tax assessed in that year upon the trust fund in Freetown.

<p>Contract brought by the collector of taxes of Freetown, to recover the amount of certain state, county and town taxes assessed upon a mill and mill privilege in that town, in 1862 and 1863.</p> <p>At the trial in the superior court, before Rockwell, J., “ it appeared that the defendant, living in New Bedford, had a title to said property, either absolute or conditional, from the former owner, Samuel R. Brown, of said Freetown, who still remained in possession, either as mortgagor or under the defendant, and this estate was taxed to said Brown, with his other property, in both of said years; and the same were duly committed to the plaintiff, as collector, on or about the 20th day of August in each year. On or about the first of September 1863, the defendant took possession of said mill and mill privilege, and shortly afterwards the plaintiff called upon him for the amount of the taxes against Brown; and the defendant then told him that he did not have all the property which was then taxed to Brown, but that, if the plaintiff would get the assessors of Freetown to apportion the same to the property which he had of Brown, he would pay the plaintiff the amount which belonged to him; and thereupon the plaintiff procured the assessors of Freetown (acting under a special vote of the town) to examine said assessment against Brown, and to divide and apportion said taxes to the property still retained by Brown, and that held by the defendant.</p> <p>“ The assessors did so examine and set to each party under their hands the proper amount due from each, and delivered the same to the plaintiff to collect; and the plaintiff, in March 1864, exhibited the same to the defendant, who expressed himself satisfied -with the amount, which is the amount claimed in this suit, and promised the plaintiff to pay him the same if he would call upon him again in a few days. The plaintiff called upon him again at that time, and received substantially the same answer.</p> <p>“ This was repeated several times, but, the defendant still neglecting to pay, the plaintiff served a regular notice or demand upon him in the summer of 1865, that, unless said taxes were paid in fourteen days, his duty would be to compel payment by process of law ; and thereupon the defendant wrote the plaintiff the following note:</p> <p>“ ‘ New Bedford, July 3d, 1865. Capt. Burr — I don’t want you to make any more expense on them taxes. I will attend to them this week. Yours truly, Henry T. Wilcox.’</p> <p>“ The plaintiff relying upon those promises forbore to enforce the collection of the taxes by a sale of said real estate, and the same was discharged from the lien about the 20th of August of that year.</p> <p>“ This suit was commenced August 22d 1865. The defend ant, admitting for the purpose of the trial that these facts were true, contended that the action could not be maintained, and the judge so ruled, and directed a verdict for the defendant; but reported the case for the consideration of this court, the parties agreeing that if the action can be maintained, the verdict may be set aside, and the case stand for trial.”</p>

<p>Complaint for flowing land. An answer was duly filed, and a verdict was rendered for the complainant, in the superior court, at September term 1865, and the judge ordered a warrant for a jury to issue. At the next term, the respondent moved for leave to file a supplemental answer, setting up that since the last continuance the damages to the complainant had been fixed by arbitration ; and claimed the right to file this answer without terms. Tose, J. passed an order allowing it to be filed on payment of all the complainant’s taxable costs up to that time, the respondent taking no costs to that time. To this order the respondent alleged exceptions.</p>

After the entry of final judgment for the defendants in this case, in pursuance of the decision reported in 9 Allen, 181, they taxed as one item of their costs the sum of $500 for auditors’ fees paid by them, but the clerk disallowed that item, and the defendants appealed.

<p>The first of these cases was a petition to the judge of probate by the widow of Hervey Sullings, deceased, testate, setting forth that she duly waived the provisions of his will in her behalf, and became entitled to her distributive share of his estate ; that her claim was denied by the executors, and she was compelled to sue therefor, and obtained a judgment in her favor that the executors thereupon brought a bill in equity against her to debar her from taking advantage of said judgment, on which bill a decree was rendered in her favor; that the settlement of the estate has been thereby delayed,- and she has been kept from the use of her share to the present time; and that meanwhile the estate in the hands of the executors has increased very much, of which increase a proportionate share belongs to her.</p> <p>The answer of the executors averred that the proceedings on their part in resisting the claim had been in good faith, in consequence of the execution by the petitioner of an ante-nuptial agreement, barring her therefrom; that upon the bill in equity brought by them this court had issued an injunction restraining her from the collection of any distributive share from the estate ; that immediately upon the rendering of the decree in her favor they paid to her the sum of ten thousand dollars; and denied that she is entitled to receive anything more than that sum.</p> <p>This petition was dismissed by the judge of probate, and the petitioner appealed to this court; and the parties filed an agreed statement of facts as to the amount of the estate at the death of the testator, and afterwards.</p> <p>The second case was a bill in equity, setting forth substantially the same facts, and praying that the defendants might be declared to be trustees, holding her distributive share for her use during the time of its detention from her, and accountable to her for interest thereon or for the actual increase of the property.</p> <p>The answer averred substantially the same facts as the former answer, and a similar agreement of facts was also made; and the case was reserved, by Gray, J., for the determination of the whole court.</p>

<p>A deed to A. of “ one undivided half of a certain lot cf land and one undivided half of fhe buildings, being the lower tenement in said house thereon situated,” with further descriptions of the boundaries of the land, and a deed to B. in terms precisely similar, except the substitution of the words u upper tenement ” in place of “ lower tenement,” will make A. and B. tenants in common of the premises, and the words referring to the lower and upper tenements are to be rejected for repugnancy.</p> <p>One tenant in common may maintain a process against his co-tenant» under Gen. Sts- c. 137, for forcible entry and detainer.</p>

<p>Writ of entry setting forth a seisin in fee by the demand ant. Plea nul disseisin, with specifications of defence that the tenant was not tenant of the premises as of freehold; that the demandant was entitled to an estate of homestead in the premises; and that the tenant claimed only a reversionary interest therein, and was not in the occupation and had no right to the present possession thereof.</p> <p>At me trial in the superior court, before Brigham, J., after prooi oí a deed ot the premises to the demandant, the tenant put in evidence a deed thereof from the demandant to himself, not signed by the demandant’s wife, dated and recorded April 9th 1860, with a condition for him to support the demandant during the demandant’s natural life. The demandant was conceded to be entitled to an estate of homestead in the premises; and he offered to prove that the deed from himself to the tenant was obtained by fraud. But the judge excluded the evidence, and ruled that the action could not be maintained. The jury accordingly returned a verdict for the tenant, and the demandant alleged exceptions.</p>

<p>in a conveyance of a water privilege, the grant of “ all the land that the dam flows ” may reasonably be construed to include all the land that the dam flows when actually used for the purpose for which it was erected and conveyed, although at the time of the conveyance the dam was out of repair and flowed a smaller extent of land.</p> <p>A deed of a water privilege, having a lower and an upper dam, “ also all the land which I, the said grantor, own that said first mentioned dam flows, (reserving all the wood except what stands on said dam,) together with the right to flow all the land that said dam as it now stands will flow; also all the land which the second mentioned dam flows, (reserving the wood,) together with the right to flow all the land that said dam as it now stands will flow,” conveys the land which the upper dam would flow if in us*, although at the date of the deed the dam was not in use and out of repair, and flowed a much smaller extent of land than it would have flowed if in use and in repair, and although some trees were then growing upon the land which was then actually flowed.</p>

Tort to recover damages for an injury sustained by the plaintiff in his mill property by reason of certain acts of the defendants in repairing a highway.

<p>Appeal by the assignees of the estate of Albert L. Clark, an insolvent debtor, from the decision of the judge of insolvency, allowing'the proof of a claim against his estate. The plaintiff filed a declaration in the court of insolvency, setting forth the grounds of his claim, and in the superior court Brigham,, J. sustained a demurrer to this declaration; and the plaintiff alleged exceptions. The case is stated in the opinion.</p>

Contract brought to recover for about fifty thousand feet of boards sold by the plaintiff to the defendant. The answer, amongst other defences, set up that there was no sufficient delivery and acceptance, under the statute of frauds.

<p>Action against the collector of customs of Fall River, containing a count in contract and one in tort, to recover an informer’s share of certain money received by the defendant. Upon facts which are stated in the opinion, Ames, J. directed a verdict for the defendant, in the superior court, and the plaintiff alleged exceptions.</p>

<p>Contract upon a policy of life insurance, by which the defendants insured the life of Matthew J. Cluff, the plaintiff’s husband, in the sum of $3000, payable to the plaintiff, or, if she should die before him, to their children. The policy contained the following clause :</p> <p>“ Or in case he ” (the insured) “ shall die by his own hand, in or in consequence of a duel, or by reason of intemperance from the use of intoxicating liquors, or by the hands of justice, or in the known violation of any law of these states, or of the United States, or of the said provinces, or of any other country which he may be permitted under this policy to visit or reside in, this policy shall be void, null and of no effect.”</p> <p>At the trial in the superior court, at April term 1865, before Brigham, J., the plaintiff proved that she duly notified the defendants of her husband’s death, and introduced no other evidence except two depositions, the material portions of which were as follows :</p> <p>Frank Bugbee, a physician, of the parish of Ascension and state of Louisiana, testified that Cluff was killed on the 25th of February 1864, on the- Doyle plantation in that parish ; and on cross-examination he answered thus :</p> <p>1. “ He died from a pistol shot wound, fired from the hands of William Cox. Mr. Cluff had been away from his home for a couple of days before the day of his death, and returned about four o’clock in the afternoon. Shortly after his return he and I went in company to the Doyle plantation. We were sitting on our horses, on the levee, when William Cox, a boy, drove along with a load of water. Mr. Cluff asked me who that boy was. I told him it was a Cox boy. He asked the boy when they were going to leave the place. The boy answered, they were going soon. Mr. Cluff asked the boy when they were going to pay the bill. The boy answered, 1 they were not going co pay it all.’ Mr. Cluff said, ‘ I will take your horse then.’ The boy dared him to do it, and to try it then. Mr. Cluff then went unhitching the horse from the wagon. After having partly unhitched, he tried to get the reins or ropes from the boy. The boy then got down from the wagon, by the side of Cluff. Cluff then took a small pen-knife to cut the ropes. The boy said Don’t do that.’ Mr. Cluff then got [sic.] the ropes. The boy then ran about three rods, drew a pistol, fired at Mr. Cluff, and shot him in the right side between the fifth and sixth ribs. The boy then cocked his pistol again, but did not fire. Mr. Cluff said to me, ‘ He has hit me, doctor,’ and never spoke afterwards, and died immediately.” 2. “ Cluff was in the act of taking the horses from the wagon in which the boy who killed him was. He had not taken any other property in his control.” 3. “ Mr. Cluff did not assault said boy otherwise than by unhitching his horses. He did not beat him, nor did he threaten him, just before he was shot, only to the taking of his horses.” 4. “ The bill Cluff talked of was a bill for feed for the horses and cáttle of the Coxes, used by them from the plantation of which said Cluff was the lessee.” 5. “ He [Cox] was, as near as I could guess, from sixteen to eighteen years of age. He was, as near as I could say, about five feet three inches high, and weighing about one hundred and ten pounds.” The witness also testified, in answer to further inquiries, that Cox was tried for the offence, and acquitted.</p> <p>William Scott, an engineer, of the parish of St. Charles, in Louisiana, after stating the fact of the killing, testified as follows :</p> <p>Int. 5. “ I was present at the time he was shot. William Cox was coming along in a wagon, having a load of water. Dr. Bugbee and Matthew J. Cluff were standing on the levee in front of the gate at Mount Houmo plantation. Cluff asked the doctor who that was that had the wagon. The doctor told him it was William Cox. Mr. Cluff then called Cox and told him to halt with his wagon. When Cox halted his wagon, Mr. Cluff asked him when was he going to move. Cox said he had moved some of their things; and then Mr. Cluff asked him when he was going to finish moving. Cox said be did not know; when he got ready. Then Mr. Cluff asked him where he was moving to. Cox said, to Baton Rouge. Mr. Cluff •hen asked Cox when was he going to pay the bill that he sent 111 to him. Cox said he was not going to pay it all. Mr. Cluff then said, ‘ You are not going to pay it at all? ’ Cox said, ‘ No, sir, I am not.’ Mr. Cluff then said, ‘ You have got some stock, hain’t you, some horses and cattle?’ Cox said,1 Yes.’ Cluff then says, 1 Well, if you won’t pay the bill, I will take your horses and cattle to pay it.’ Cox then said, £ You better get at it now.’ Mr. Cluff got off the levee and went down on the road where Cox was, and unhitched both horses out of Cox’s wagon, and then went up to the wagon, and told Cox to turn loose the lines. Cox said he would not do it. Then Mr. Cluff pulled out a little pen-knife about three inches long and started to cut the lines of the wagon, and Cox then told Cluff not to cut his lines. Cluff then shut the knife up, and put it in his vest pocket, and went up to the horses’ heads and started to untie the lines from the bridle. By that time Cox left the wagon and went up to the horses’ heads where Cluff was, and then grabbed Mr. Cluff by the throat. Mr. Cluff then struck Cox and knocked him off from him, making Cox a sort of staggering on his all fours. Then Cox run off about three strides behizid the wagon, and drew out his pistol and fired at Cluff. Mr. Cluff then dodged round the horses’ heads to keep himself fz_om getting the second fire. William Cox tried to get the second fire at him, until he heard Cluff halloa out to the doctoz-, saying he was struck. At this tizne William Cox whirled and run. Cluff then fell. The doctor run to him and found him dying, and so near gone he could not do him any good.” Int. 6. “ Cluff did assault Cox, after Cox caught him by the throat.”</p> <p>On cross-examination, this witness added some statements, the material ones of which are as follows: 8. “ Cluff did not threaten said Cox.” 9. “ Cluff’s conduct and language were not violent and threatening towards said Cox.” Int. 10. “ When said Cluff was shot, was not an open knife in his hand ? ” Ans. “ No.” 11. “ Cox was about three strides, say about three yards, behind the wagon, and said Cluff was at the horses’ heads Jluff was not facing Cox, nor approaching him with an open knife in his hand, nor approaching him at all.” 12. “ He was not then threatening him; he was not saying anything.” He further testified that he thought Cluff was about forty years old.</p> <p>The defendants offered no evidence ; and the judge instructed the jury that, upon the evidence, the defendants were liable as matter of law; and a verdict was accordingly returned for the plaintiff. The defendants alleged exceptions.</p>

<p>Contract. The original declaration containeu two counts, upon a policy of insurance for $1000, issued by the defendants to the plaintiff upon her buildings in Newton, which were subsequently destroyed by fire while so insured. Three additional counts were afterwards filed, the first two of which alleged an agreement to insure the same, in consideration of an agreement to pay a premium of six dollars and twenty-five cents; and the last count was upon the policy.</p> <p>The answer, amongst other things, denied the making of any contract, in any form, and denied the authority of any agent of ihe defendants to make an agreement to insure in their behalf.</p> <p>Prior to the filing of the amended counts, interrogatories were filed by the plaintiff to be answered by the defendants, and were answered as'follows, the interrogatories and answers being here printed-together:</p> <p>“ Int. 1. State whether or not Reed & Brother, insurance agents, and having their office in the Old State House in Boston, were agents of the defendants in the business of insurance during the year 1863. Ans. Yes.</p> <p>“ Int. 2. Have Reed & Brother continued to be such agents to the present time? Ans. Yes.</p> <p>“ InU 3. State whether or not the defendants, or their said agents, Reed & Brother, in the year 1863 filled out a policy of insurance purporting to be in favor of the plaintiff, on a house in West Newton, for one thousand dollars. Answer this question without stating whether such policy was delivered or not, or whether the same took effect or not as a contract. Ans. The defendants did not fill out such policy, but are informed that the agents Reed & Brother did fill out an instrument purporting to be a policy of insurance in favor of the plaintiff on a house in West Newton of the amount named in the interrogatory ; but said instrument was not filled out in pursuance of any contract with said plaintiff, nor in accordance with any agreement with any person on behalf of said plaintiff, and the terms thereof were never made known to the plaintiff, nor to any one in her behalf, nor assented to by her nor by any one in her behalf, and said instrument was never delivered to the plaintiff nor to any one in her behalf.”</p> <p>The further answers simply disclosed that the defendants supposed this instrument to be in the possession of their agents, and that they declined to annex it to then’ answers, in pursuance of the call of the plaintiff.</p> <p>Subsequently, on motion of the plaintiff, all the latter part of the third answer, after the word “interrogatory,” was stricken out by order of the court, on the ground that, though it might be relevant to the issue raised by the pleadings, it was not relevant to the issue raised by the interrogatory; and the defendants were ordered to annex the policy to their answers, which they accordingly did; saving exceptions to both of these orders.</p> <p>The policy was dated September 8tb 1863, and purported to insure the plaintiff on her dwelling-house in West Newton in the sum of $1000 for one year, in consideration of six dollars and twenty-five cents, and was signed by the officers of the defendants, countersigned by Reed & Brother as their agents^ and stamped.</p> <p>At the trial in the superior court, before Putnam, J., the interrogatories and answers, with the omission of that portion of the third answer which had been stricken out, and also the policy, were allowed to be read to the jury, against the defendants’ objection.</p> <p>Horace L. Hazelton testified substantially as follows: “The plaintiff bought the property of Mr. and Mrs. Cushman. I had been her counsel and had charge of her property, and took the deed for her, and found a policy of insurance upon it, issued by the defendants, and payable to a mortgagee, and the mortgage was assigned to the plaintiff. Mrs. Cushman and I went to the office of Reed & Brother; Mrs. Cushman surrendered the old policy, and I applied for a new one, for the benefit of Mrs. Baxter ; Reed took his books and entered my application upon the books of the Massasoit Company. I had been accustomed to do business with the Reeds, and they had always sent policies in for the premiums when ready. The premium was not paid. Before a policy came in, I went west and was gone about a month. We had not much conversation, which I can only state in general terms. I remember asking the rate. He said, three fourths per cent.; that this was the usual rate. I said I had property insured like it that was insured at one half per cent. I started to go out. I said, make the policy, but you ought to do it at one half per cent. He entered the matter on his book, and made some remark which I understood substantially to be, 1 that property is now insured.’ When I returned from the west, he declined giving me the policy and refused to receive the premium.”</p> <p>Mrs. Cushman testified : “ I went in and told Mr. Reed that I had given up the house. Hazelton came in and had a talk about insuring it. They said they would insure it. Reed pointed to the clock and said, ‘ From noon to-day the house is insured.’ ”</p> <p>The plaintiff called several persons engaged in the insurance business in Boston, who were allowed to testify, under objection to a usage, that where there has been an agreement for insurance, the terms agreed upon, and the policy made out, though the premium has not been called for or paid, the policy is considered as being held for the benefit of the insured; and that where there has been a verbal contract and the terms agreed upon, but not reduced to writing, except by memorandum in the books of the company, and the premium is not paid, the agreement is considered binding on the company the moment the memorandum is entered on their books ; that the contract is for the benefit of the insured, and the insurance is held as good for the insured. This usage, some of the witnesses stated, related as well to home offices as to cases where foreign offices had only agencies in Boston. The defendants’ office was in Springfield.</p> <p>The defendants introduced evidence in contradiction of Mr. Hazelton and Mrs. Cushman, tending to show that no agreement was reached in the negotiation with Hazelton; that the policy was filled out and within two weeks taken to Hazelton’s office to see if it was satisfactory, and if so to deliver it and take the premiums ; but Hazelton was absent and nothing further was done.</p> <p>Reed & Brother were supplied with blank policies, signed by the defendants’ officers, and were appointed agents by a written instrument, “ with full power to take surveys of property to be insured by ” the defendants, “ and to indorse upon all policies-issued by them, permission for the assured to assign the same or to vary the risk; and all policies of insurance against loss or damage by fire issued by the said agent shall be to all ititents valid and binding upon the said Massasoit Insurance Company, when signed by the president and attested by the secretary thereof, and countersigned by the said Reed & Brother.” The property was destroyed by fire October 10th 1863.</p> <p>The defendants asked the court to instruct the jury that, if the evidence failed to prove a contract by the policy, the plaintiff could not recover upon the agreement to insure set forth in the first and second of the additional counts, because the evidence did not show sufficient authority in Reed & Brother to make such an agreement, and because the purpose and time of operation of such an arrangement had expired. The judge did not so rule, but submitted the case to the jury under instructions which were not otherwise excepted to, than on account of the refusal to give the instruction above requested.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>If a bill in equity brought to ascertain the amount of the profits of a joint enterprise, and to obtain a decree for the payment of the plaintiff’s share thereof to him, has been referred to a master, who in his report allows the defendant to charge a salary for his superintendence of the work, without reciting the evidence upon which he makes such allowance, this court will not sustain an exception to the report on account thereof, although in the written agreement under which the enterprise was undertaken there was no provision for the payment of such salary.</p> <p>If in such case the defendant has rendered an account, but some of the items are in dispute, and the balance is not liquidated, and no special demand is made upon him, interest on the balance found due should only be allowed from the commencement of the suit.</p> <p>1., having a contract for the manufacture and sale of three thousand rifles to the Russian government, spent considerable time in collecting men, and in procuring a shop, machinery, tools and materials, and in superintending the work, and during this time paid out moneys for his personal expenses, which he charged to his own account, and not to the cost of the rifles. Afterwards he assigned the contract to B., who entered into an agreement with C., in consideration of moneys advanced by the latter, to divide with him “the net profits accruing from the manufacture and sale " of the rifles. The master in chancery, to whom a bill in equity for the adjustment of the account between B. and C. was referred, found that said personal expenses of A. were not properly chargeable to the cost of the rifles; and this court refused to sustain an exception to such finding.</p> <p>Said agreement between B. and C. provided that, whereas the Russian government had advanced $30,000, without interest, under their contract, which money had been expended in the purchase of material and the construction of machinery and tools, it was agreed that in the estimation of the net profits no interest should be charged on the amount already-expended in said machinery, tools and materials. In fact, more than $30,000 had been thus expended, the excess having been borrowed. Held, that the interest paid for such excess should, be charged to the cost of the rifles.</p> <p>A. obtained his said contract with the Russian government at St. Petersburg, and paid certain sums in travelling in Europe before and while obtaining it, and also certain other sums for aid in obtaining it. Held, that the sums so paid by him should not be charged to the cost of the rifles, under the agreement between B. and C.</p>

<p>Bill in equity to compel Henry Gassett and Francis Bacon, trustees under the will of Henry Gassett, senior, to surrender to the plaintiff a promissory note for $5000, signed by the plaintiff and his wife, Eleanor, a daughter of the testator, at the time of their marriage. The defendants filed separate answers, Francis Bacon professing his desire to deliver the note to the plaintiff, but his inability to do so on account of its being in the possession of his co-trustee; and Gassett insisting that his duty as trustee under the will obliged him to hold the note.</p> <p>At the hearing in this court, before Gray, J., it was admitted that the testator gave to each of his children in his lifetime the sum of $5000, taking their promissory notes therefor, in which the husbands of such as were married women joined ; that the note now in question was given for the sum of $5000, paid by the testator to his daughter Eleanor at the time of her marriage and that no demand of payment of the note, or interest thereon, has ever been made by the trustees or the executors.</p> <p>After making certain specific bequests, and giving to his wife $10,000 absolutely, and the income of $30,000 during her widowhood, the material portions of the will were as follows:</p> <p>“ Item sixth. The rest, residue and remainder of my estate, both real and personal and mixed, of whatever kind and quality soever, or wherever to be found, of which I am now lawfully seized or possessed, or of which I may die seized, possessed, or entitled so to be, I will shall be divided and distributed into six equal parts or shares, corresponding with the number of my five children now living, (a. d. 1854,) and my granddaughter, Eleanor G. Bacon, she taking the place of her deceased mother, the wife of William B. Bacon; and I do give, devise and bequeath to each of my children and grandchild aforesaid, to wit, Henry Gassett, Jr., Oscar Gassett, Catharine Hall, wife of Edward R. Hall, Edward Gassett, Francis Gassett, and granddaughter Eleanor G. Bacon, one of said parts or shares to each, to them and to their several and respective heirs and assigns forever; the said parts or shares of daughter Catharine Hall and granddaughter Eleanor G. Bacon, qualified and devised in trust, as hereinafter provided.”</p> <p>“ Provided, however, that all sums of money which shall previously have been advanced to my said children, or their husbands, or for their benefit, including the advance and settlement for the use of my said daughter Catharine, of 3d October, a. d. 1854, and all notes taken therefor, or hereafter taken, shall first be deducted from the shares or portions of such child or children for whose use and benefit such advance or advancements shall have been made; and, of course, as my granddaughter, Eleanor G. Bacon, stands in the place of her deceased mother, the note of five thousand dollars, signed by her father and mother, must be deducted from the share devised for her use.”</p> <p>11 And in regard to the share or portion hereinbefore given or intended to be given and devised for the use of my said granddaughter, Eleanor G. Bacon, I do now further give, devise and bequeath the same, with such accumulation or increase thereof as may accrue or arise by the provisions herein contained, to my greatly respected acquaintance, Francis Bacon, Esquire, president of the China Insurance Co., and to my said son, Henry Gassett, and to the survivor of them, his.heirs, executors, administrators or successors in said trust, in trust for the following uses and purposes, and none other: In trust, to manage the same, and keep the said share or portion safely and securely invested on interest, and from time to time to collect and receive the dividends, income and interest thereof, and quarter yearly, or at other times more convenient, to apply so much thereof as may be necessary to the support, maintenance and education of said Eleanor G. Bacon, during her minority; and afterwards to pay over any of the residue of said income and interest to the said Eleanor G. Bacon, personally, when she shall arrive at full age; and afterwards, during the natural life of said Eleanor G. Bacon, from time to time, quarter yearly, or at other times more convenient, to pay over to her the accruing net interest, dividends and income of said share or portion, for her own use, free from the control or interference of any husband or husbands, should she be married.”</p> <p>“ In trust, upon the decease of my said granddaughter, Eleanor G. Bacon, leaving issue, to divide and distribute the said share or portion, or so much thereof as may then remain, with all the accumulation thereof, equally and in equal shares and portions, to and among such issue or children then living, to them and to their several and respective heirs and assigns forever ; but in default of such issue or children, to divide and distribute the same among my other children as herein provided.”</p> <p>“ And whereas, also, at the time of the intermarriage of my much lamented daughter Eleanor, now deceased, with Mr. William B. Bacon, I took their joint promissory note, she being then a minor, for the sum of five thousand dollars, it is my will that in case their only child, the said Eleanor G. Bacon, already before named as my granddaughter, should die without issue, that said note should be given up to him ; and I do accordingly on the happening of such contingency, give and devise the same promissory note to the said William B. Bacon.”</p> <p>The case was reserved for the determination of the whole court.</p>

<p>Appeal from a decree of the judge of probate, allowing an account of the trustees under the will of Isaac McLellan. The case was reserved for the determination of the full court upon the following facts, agreed by the parties:</p> <p>Isaac McLellan, by his will dated May 23d 1849, and duly proved, gave to James F. Baldwin and William Parker, his executors, as trustees, and their successors, (the appellees in this case,) “the sum of sixty-six thousand and seven hundred dollars,” in trust, to pay the interest on $47,500 thereof to his seven children respectively, “ during the life of each of them,” in certain unequal proportions; “which interest on said several sums, together with the sums heretofore paid and advanced to them individually from time to time, I deem an equitable distribution for their permanent income. The balance of the amount hereby conveyed in trftst to said Baldwin and Parker, being the sum of nineteen thousand two hundred dollars, I will and order shall be equally divided among my said children in equal proportions, upon the events hereinafter mentioned, excepting however the-proportion and share which would fall to James A. McLellan, and as respects him, I hereby order that the proportion of said Tames, which falls to him, shall be retained and kept at interest by the said Baldwin and Parker, for the purposes of his support and maintenance, if need be, to be paid and disbursed at the discretion of said Baldwin and Parker. And if my said property should exceed, or if it should fall short of, the estimated value put upon it by me, I will and order that said balance, be it more or less, be distributed among my said children in the same relative proportion as above mentioned, always however reserving as aforesaid said share of said James, to be appropriated as aforesaid by my said trustees. The payments of said interest as aforesaid are to be made to each of my said children individually, on his or her personal receipt or order; and the same are not to commence or be made, till after the decease of myself and wife.</p> <p>“ And it is further my will that from and after the decease of my said children, or any of them, leaving issue, the amount of interest to which they would severally be entitled to receive as aforesaid shall be paid to the issue of such deceased child or children, to be divided equally among them, if there be more than one; but if not, then the whole to be paid to such child. But should any of my said children die without issue, then my will is that the interest, which would otherwise go to such child or children, shall be divided equally among my other children then living, and to the issue of any deceased child, by right of representation ; always however providing for the above reservation in relation to said share of said James.</p> <p>“ The interest on the several sums aforesaid is to be paid to the persons and in the manner hereinbefore provided, until the decease of my last surviving child. And at the death of my mst surviving child, then the proper share of each child shall go to the issue of such child, except where such child shall leave a wife or husband, then and in that case such wife <fr husband (if any) while he or she shall remain unmarried; and not afterwards, shall receive such child’s income in the same manner as her husband or his wife had before received it; and after the marriage or death of such husband or wife, said share shall go to the issue of such child forever.</p> <p>“ And it is further my will, that should either of my said sons die, leaving no issue, but leaving a widow, the interest of his share as aforesaid shall be paid to his widow, on her personal receipt or order, while she remains unmarried, and not after-wards. And it is also my will, that should either of my daughters die, leaving no issue, but leaving a husband, the interest of her share shall be paid to her husband, on his personal receipt or order, while he shall remain unmarried, and not afterwards. But this is not to prevent the partial distribution provided for on the death of the last surviving child.”</p> <p>The testator also gave and devised to the same trustees and their successors all the residue of his estate, real and personal, (except his household furniture and certain other personal property which he bequeathed to his wife,) upon trusts similar to those above expressed, giving equal shares to his children ; and declared it to be his will, “ notwithstanding anything hereinbefore or after written, expressed or provided,” that his wife should during widowhood receive the whole, and, in case she should marry again, half of the income of his estate, real and personal, except the articles of personal property bequeathed to her absolutely.</p> <p>By a codicil, dated August 31st 1849, he ratified and confirmed all the provisions of his will, except that he substituted for the sum of $47,500 the sum of $51,500, and changed the shares of his children respectively therein ; and provided that the whole interest given to his son James should be reserved by the trustees for his. comfortable maintenance and support, to be paid at their discretion so as to enure to his personal use and advantage exclusively; and declared that the balance of $15,200 would remain of his property after these changes had been made, and ordered the trustees to dispose of that balance according to the *provisions of the will.</p> <p>The testator died on the 13th of September 1849. His son James died on the 31st of December 1849, and another son in 1863, both intestate and unmarried. Two sons and two daughters were married and had children before the death of the testator, and with their wives, husbands and children, as well as one unmarried son of the testator, are still living. The testator’s widow received all the net income of bis estate during her lifetime, and died on the 21st of October 1864. His whole property, according to the inventory, consisted of real estate, valued at $54,685, and personal, valued at $3016.</p> <p>The trustees, after the death of the widow, paid the income to the testator’s children according to the provisions of the will and codicil, and rendered an account, treating the trusts as still continuing, which was allowed by the probate court. Some of the testator’s children appealed, upon the ground that the trust created by the will had terminated, in whole or in part; that the account should have set forth a final distribution of the property by the trustees ; and that the limitations of t.he will, relating to the disposition of the property after the death of the widow, were void as violating the rule of law against perpetuities.</p>

<p>Writ of entry, dated June 20th 1865, to recover a lot of land on Emerald Street, in Boston. Plea, nul disseisin.</p> <p>At the trial in the superior court, before Russell, J., without a jury, the demandants claimed title as devisees under the will of Thomas Brewer, deceased, whose title to the premises was admitted. The material portions of this will, after giving to the widow, for life, the net rents, use and improvement of all the testator’s estate, were as follows :</p> <p>“ Third Item......And'being of opinion that my real estate is so situated that it will be likely to improve greatly in value, it is my will, wish and desire that no part of my real estate be sold unless the same be absolutely required for the payment of debts, until the lapse of at least ten years from and after the probate of this my last will and testament.</p> <p>“ Item Fourth The residue and remainder of my estate, both real, personal and mixed.....I do give, devise and bequeath the same to my sons, Gardner Brewer, Thomas Mayo Brewer and John Beed Brewer, and to my daughters, Katharine Dorcas Brewer, Elizabeth Haskins Brewer, and Abby Jane Storer, wife of Dr. Humphrey Storer of said Boston, physician, (three sons and three daughters,) to be equally divided between them, to them and to their several and respective heirs, executors, administrators and assigns forever.’"</p> <p>A codicil to the will contained the following provisions :</p> <p>“ Second. For the purpose of better enabling my executors to carry into effect the instructions contained in the second clause of said ‘ Third Item,’ respecting the sale of my real estate, I do hereby authorize and empower them, whenever any mortgage debt shall become due, either to procure a renewal and extension of the same, or for the purpose of paying the same to negotiate a new mortgage on any part of my rt al estate, as they shall deem most for the advantage of my estate and of all interested therein.</p> <p>“ Third. As to all the residue and remainder of my estate, described in ‘ Item Fourth ’ of my said will, my will is that, notwithstanding anything in said 1 Item Fourth,’ or in any other part of my said last will contained, no part of the said residue and remainder shall be divided or distributed until the expiration of the ten years specified in the second clause of said ‘ Third Item,’ but that the whole thereof, including all rents and income of every kind, shall be retained in the hands of the executors, the better to enable them to pay any mortgage or other debt that may fall due ; any surplus, which they may deem it unnecessary or inexpedient to retain for such purpose, to be paid by them to my said wife, Abigail Brewer, the same to constitute the ‘ net rents, use and improvements of all my estate,’ which by the ‘ Second Item ’ of my last will are given, devised and bequeathed to her.”</p> <p>The share devised in the will to Thomas M. Brewer was revoked, and given instead to a trustee for his benefit, with directions, in case he should die or become incapable to support his family before the final division of the estate, to pay such sums as might be deemed necessary for the support of his family.</p> <p>The testator’s widow died before the commencement of this action. The tenants put in evidence a lease of the demanded premises made by the executors to Eliza Keene, dated December 1st 1864, for one year; and provea that the lessee on January 11th 18,65 served upon one of the tenants in this action a notice of the lease, and demanded possession of the premises, but failed to obtain the same, and on the 14th of the same January commenced a process to recover possession of the premises in the police court of Boston, in which suit the defendant prevailed.</p> <p>The tenants contended that the demandants could not maintain this action, because by the will and codicil the right of possession of the demanded premises did not vest in them at the date of the writ, but was in the executors ; and that the making of the lease to Eliza Keene divested the demandants of any right of possession during the term thereof. But the judge ruled otherwise.</p> <p>The tenants claimed an allowance for betterments; but the judge found that they did not hold the premises under a title which they had reason to believe good, and that they were not entitled to any such allowance ; and he found for the demand-ants. The tenants alleged exceptions.</p>

Tort in favor of a common carrier against a warehouseman, to recover for the conversion of ten barrels of zinc paint.

<p>Contract brought to recover for five bales of dead green hides and one bale of dry hides, weighing in all 4986 pounds, at seventeen cents a pound, $847.62, and interest. The answer denied the purchase, and set up that the alleged sale was void by the statute of frauds.</p> <p>At the trial in the superior court, before Tose, J., it appeared that on the 9th of September 1865 William C. Morey, a broker in hides and goat-skins, bargained with the plaintiff for the purchase from him of the hides in question at seventeen cents a pound, and took from him a memorandum of the weights, and told the plaintiff to charge the hides to the defendants; he not having instructions at that time to make any purchase for them. Immediately afterwards Morey sent his brother Charles H. Morey, with the memorandum of weights, to Mr. Butler, one of the defendants, to inform him that he could have the hides of the plaintiff at seventeen cents a pound. Charles accordingly went and delivered the message. Butler asked who should be the judge of the quality. Charles replied, “ Mr. Butler.” Butler said, if that was so, he would take them. Charles returned to his brother’s office, and there, by direction of his brother and in his presence, made the following entry in his brother’s book; “ Boston, September 9, 1865. Sold Wm. B. Spooner 5c Co. ace. B. G. Boardman, 5 bales D. G. cow hides, 1 bale dry do. @ 17c pr lb. net cash delivered in N. Y.”</p> <p>On the same day, the plaintiff sent a bill of the bides, with an order for their delivery, to the broker, who sent them to Butler. The hides were then in the warehouse of a general warehouseman in the city of New York, and the order was on the storekeeper, as follows : “ Boston, Sept. 9, 1865. Please deliver the bearer four bales marked H. J. B. and two bales no. 24 5c 50 of Tucker, Carter 5c Co. invoice, 5c oblige B. G. Board-man, by E. M. Dennie. To Storekeeper, Coe’s Wharf, N. Y.” The bill was as follows: “ Boston, Sept. 9th 1865. Mess. Wm. B. Spooner 5c Co. Bought of W. G. Boardman, 133 Milk St. Cash delivered in N. Y. 6 bales D. G. 5c dry Patnas, 5028 lbs. less tare, 42, 4986 lbs, 17, $847.62,” together with figures showing the weight of éach bale.</p> <p>Nothing further passed between the plaintiff and defendants until after September 18th 1865, when the warehouse in New York, and the hides, were destroyed by fire. There was no evidence whether the storekeeper had or had not been informed of the existence of the order upon him, or whether the defendants had made any demand upon him for the hides. These six bales were all the hides belonging to the plaintiff in that warehouse, and were of prime quality, and the weights were correct. The memorandum of weights, the delivery order and the bill were produced by the defendants at the trial, on notice from the plaintiff; and when so produced the memorandum of weights and the bill were stamped with the name of the defendants’ firm, with a machine. It did not appear when or for what purpose they were so stamped.</p> <p>William C. Morey testified as follows : “ In the ordinary way in which we sell hides situated in New York, it is expected that the purchaser will either go himself or have some agent there to see if the quality is satisfactory. I believe it is a well settled custom in our trade that three days are allowed for the examination of goods, and three days’ grace allowed for the payment of the bill, unless there is some express stipulation to the contrary.” “ The sale in this case was no exception to the general rule.” “ Goods are always sold subject to approval of purchaser, or of public inspector. There is no public inspector of this kind of hides.”</p> <p>The judge ruled that this evidence, which was introduced by the plaintiff, was insufficient to take the case out of the statute of frauds, and directed a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Contract brought against the consignees of bay, to recover damages for their neglect, duly to account for the proceeds thereof. The following facts were agreed in the superior court:</p> <p>The plaintiff, a merchant in the State of Maine, shipped in the summer of 1864 four hundred and fifty-five tons of hay to New Orleans, anA consigned the same for sale to the defendants, who were commission merchants in that city. The defendants advanced and paid the freight and some other charges thereon, amounting to $12,682.25, and their charge and commission for advancing, selling and storage amounted to $1,621.20. The defendants never requested the plaintiff to reimburse them for such advances or to pay said charges, nor called on him to put them in funds therefor or for any part thereof, nor gave any notice that they should sell on account thereof.</p> <p>On the fourth day of October 1864 the defendants sold for cash to the "United States, acting by the military officers then in command at New Orleans, two hundred and seventy-six tons of the bay, at the rate of fifty-two dollars per ton; and, on the seventh of said October, forty-five tons, at the rate of fifty dollars per ton, for cash. After said bay was delivered, the United States, by said military officers, refused to pay cash therefor or to make any other settlement or payment therefor, except in the certificates of indebtedness of the United States, but they offered to the defendants such certificates of indebtedness therefor at par; and the defendants, being unable to obtain payment therefor in money or in any other mode or way, in the exercise of their discretion accepted the same. These certificates were negotiable by delivery, drawing and bearing interest at the rate of six per cent, per annum, and were bought and sold in the market at prices which fluctuated from time to time.</p> <p>On the twenty-third day of said October the United States government, by its military officers and by military order, seized the remainder of the hay, and forcibly took the same away from the possession of the defendants, and offered the defendants payment therefor at the rate of fifty-three dollars a ton, in certificates of indebtedness as above' described, but refused to make any other or different payment, or payment in cash, or at any different rate; and the defendants, for the same reason and in the exercise of the like discretion, as above stated, accepted the same.</p> <p>The defendants, without any notice to the plaintiff or advising him of said seizure or the settlement for said hay by the government by giving such certificates, and without requesting the plaintiff to reimburse the advances made by them, sold these certificates of indebtedness in New Orleans, on or about Octobei 25th, at ninety-three cents on the dollar, that being their value in New Orleans at that time, and on the 28tb of October made up and sent to plaintiff an account of sales of said hay, crediting themselves with the cash actually received from the sale of said certificates, and charging their advances and the usual commissions and charges amounting as hereinbefore stated, and remitted to him the amount of the balance so found due to him.</p> <p>It was agreed, if it would be competent evidence, that factors and others in New Orleans, at that time, generally, but not invariably, received such 'certificates in settlement of sales to the United States government, and for goods seized by the government, and also sold them in the market under the circumstances as above stated; that such certificates had only been given since the breaking out of the war, and at New Orleans subsequently to its possession by the United States forces, which was about May 1st 1862; and that the fact of factors so receiving and selling such certificates was not known to the plaintiff. It was not contended that in taking these certificates and selling them as aforesaid the defendants acted otherwise than in good faith and according to their best judgment.</p> <p>The par value of all of said certificates received by defendants was $23,704, and the amount received by the defendants for the sale of the certificates was $1659.28 less than that sum.</p> <p>On these facts judgment was rendered for the defendants, and the plaintiff appealed to this court.</p>

<p>A contract made between citizens of this commonwealth, by which one of them agreed, for a good consideration, never to “ set up, exercise or carry on the trade or business of manufac luring and selling shoe-cutters at any place within the Commonwealth of Massachusetts ” is illegal, as being in restraint of trade; although the manufacture of shoe-cutters is an art which can only he carried on by persons instructed in the same, and at the time of making the above contract the person so promising was ignorant of said art, and his said promise was made as a part of an agreement of partnership with one who was skilled and actually engaged in carrying on the same, and to take effect at the expiration of the partnership, and although at that time only three other persons were engaged in the business.</p>

<p>Contract. The declaration alleged that on the 9th of December 1864 the plaintiff was the owner of a certain promissory-note made by the Canada Lead Mining Company, for $3531, payable on the 12th of December; that on said 9th of December the defendant made an agreement with the plaintiff, a copy of which was annexed, whereby the defendant promised that if the plaintiff would renew said note the defendant would pay the renewed note at maturity; that in consideration of said agreement the plaintiff renewed said note by receiving another note of said company for the same amount in place thereof, dated December 9th and payable in three months from date; and due notice of said renewal was given to the defendant, yet, though requested, he refuses to pay said renewed note.</p> <p>The following letter was annexed to the declaration:</p> <p>“ New York, Dec. 9, 1864. Henry Crocker, Esq. Dear Sir I have a letter from Mr. Case about the Canada Lead Co. note due on the 12th inst. They want to have it carried over for a month or so, that they may get the ore to market and realize upon it. It can do you no good to allow the note to go to protest, as you would then have to take it up. By renewing it for a month or so you will be saved this trouble, and I will promise you that I shall see the renewal note paid at maturity, as I am quite satisfied the company will be in a position to do so. I therefore trust you will arrange to carry the note over. You may take my word that it will be all right if you do so. Yours truly, James Foley.”</p> <p>The answer denied the making of any agreement to pay the renewed note, or the renewal of the note by the plaintiff in consideration of any such agreement by the defendant, or due notice to him of such renewal.</p> <p>At the trial in the superior court, before Russell, J., without a jury, the plaintiff testified substantially as follows : “ I held the original note referred to, with thirty-five hundred shares of the company as collateral security therefor, and some days before its maturity called upon Albert Case, treasurer of the company, and asked if it would be paid when due, and Case said the company had no funds in the treasury, and that it belonged to Foley (who was agent and manager of the company and a large stockholder therein) to pay it; I replied that I must have the money, and should have the note protested if not paid, and Case said he would write to Foley about it, and a day or two afterwards Case read to me a letter from Foley, [which was put in evidence,] urging Case to get the plaintiff to renew the note for two or three months. I still objected to renewing it, and threatened to protest the note and sell the stock, if the note was not paid. On December 10th I found the letter annexed to the declaration upon my table and read it, and on the same day Case called upon me and read a letter from Foley to him, in which he said the letter to me was inclosed, as follows : ‘ I have yours of yesterday, and am surprised at the way that Mr. Crocker is acting. He can do no good by protesting the note, as he would then have to take it up. It is much better for him to renew it. I enclose a letter to him on the subject. Please read it, seal it, and send it down to him. I think you had better see him soon after, and try to get the note renewed for one or two months. Tell him he must do it. Pay the interest and I will arrange with you.’ I told Case I did not wish to renew the note, and insisted upon the money. He urged me to renew it. Afterwards I had several interviews with Case, demanding the money. He urgsd me accept Foley’s proposition and renew the note. I replied that the collateral security was then worth something, and might not be in three months; and asked Case about Foley’s responsibility, and to give me references, which he did, and I made inquiry of them as to the means of Foley. These inquiries necessarily delayed me several days. Finally, I told Case I would accept Foley’s proposition, and renew the note for three months, but the interest must be paid ; and Case gave me the new note, ante-dating it, and attaching to it the certificate of stock as collateral security, and I surrendered to him the original note. Case gave me his own note for the interest, which he afterwards paid. I asked him to notify Foley of my acceptance of his proposition; and afterwards called upon him to see if he had heard from Foley, and he showed me a letter from Foley, dated January 4th 1865, saying,61 have yours of yesterday, and am glad to hear that Crocker has arranged the notes.’ I had the original note protested.”</p> <p>The plaintiff also called Case as a witness, who produced the letter above referred to, and also another dated December 12th 1864, to himself, from Foley, saying, “ I think Crocker will renew ; he would act very foolishly if he did not. What I am looking at is the stock he holds as collateral. If he had not this, we could force him into terms. I hope to hear from you in the morning that it is arranged.” Case testified that he read this letter to the plaintiff; that on the renewal he gave a note for the interest, which he afterwards paid from money sent to him by Foley for that purpose; that Foley also paid at the same time for the stamps put upon the new note; that he wrote to Foley that Crocker had renewed the note for three months, and received in reply the letter of January 4th.</p> <p>The defendant objected to the introduction of his letter of December 9th for want of a stamp upon it; but it was admitted.</p> <p>The defendant offered in evidence the following letter from Case to himself, dated December 28th 1864:</p> <p>“ I received your note last evening. Called on Crocker. He says the note is beyond his reach. He realized on it, and others own it. I asked to have it accommodated by two notes as you wished, or by one for thirty days, till the lead could arrive and be sold. Said he could do nothing about it. He took measures to ascertain from respectable sources that the note would be paid at maturity; that himself and another had indorsed it. He had received the money and would not ask for accommodation. I told him, as before, we depended on selling the ore, but the delay in getting it down prevented. No use, he said. So I left him. Tremont Bank, 9th, 12th, $3531.”</p> <p>The bill of exceptions did not state anything further in relation to this letter than that it was offered in evidence; or that there was any evidence to show the truth of its contents.</p> <p>The defendant contended that the evidence failed to prove any such agreement by him as alleged; that the alleged agreement declared on was at most an offer of guaranty, which could only be binding if accepted within a reasonable time and in conformity to its terms, and that the evidence did not warrant the inference of such acceptance, but showed an absolute rejection of the offer of guaranty, whereby the offer became void; and that the renewal of the note was made after such rejection, and there was no evidence to show that the offer had ever been renewed by the defendant.</p> <p>But the judge admitted the letter, and found that thereby the defendant offered that, if the plaintiff would renew the note, he would pay such renewed note at maturity; that this offer, while in force, was accepted within a reasonable time by the plaintiff according to its terms, and the renewal was accordingly made; that due notice was given to the defendant, through his agent Case ; and that the defendant refused to pay the renewed note. And the judge accordingly found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Replevin of five hundred barrels of flour. The writ was dated May 3,1865. The answer alleged that the defendants, as common carriers, had a lien upon the flour for charges of transportation, and were entitled to the possession thereof until said charges were paid.</p> <p>At the trial in the superior court, before Vose, J., the plaintiffs introduced evidence tending to show the following facts: The flour was forwarded to the plaintiffs by their agent from Milwaukee, over the Detroit and Milwaukee Railroad, which connects with the defendants’ railroad at Detroit Junction, and the defendants’ railroad, to Boston, at a freight of $2.60 per barrel, and arrived at Detroit on or before the 26th of December 1864 and on that day, and daily thereafter, was offered to the defendants, by requesting them to send cars to load it, according to the usual course of business, in reply to which the defendants said they would take the flour as soon as they could; and on the 8th of February 1865 they did take three hundred barrels thereof, and the remainder on the 20th of said February, and transported the same to Boston, where it arrived on various days shortly after the 22d of April 1865. The defendants’ agent refused to deliver the flour to the plaintiffs until their freight and charges, amounting to thirteen hundred dollars, were paid ; and the plaintiffs presented to him an account of losses and damages sustained by reason of the delay in the transportation, amounting to about sixteen hundred dollars, being solely for the decline in the general market value of the flour. The usual time for transporting flour from Milwaukee to Boston by this route was from ten to twenty days. The defendants, after taking the flour, and before delivering it in Boston, received and transported over their road other goods, consisting principally of dressed hogs, sent from Chicago and St. Louis, and delivered them before the arrival of the flour, receiving for some of them a higher rate of freight than for flour. They also gave preference to goods, consisting principally of boxed salt meats, destined for England by the Portland and Liverpool steamships. Dressed hogs are perishable freight, and are usually preferred, and the freight for England was of a kind which could be sent on open platform cars, while flour could not. The flour was of a grade and quality well known in Boston, and had there a market price ascertainable daily. Between January 1st and March 15th 1865 this market price ranged from $11.25 to $10.50 per barrel; and about the middle of March it began to decline, and was from $7.75 to $8 per barrel when this flour arrived there; and at that time freight had fallen, and the defendants were then delivering flour from Milwaukee at $1.50 per barrel.</p> <p>The plaintiffs contended that they were entitled to recoup from the defendants’ freight the damages suffered by them by reason of the non-delivery within a reasonable time by the defendants of the goods in respect of which the defendants claimed said freight, and that the measure of their damages was the difference between the market price of the flour at the place of delivery, and at the time when it should have been delivered, and the market price thereof at the time when it actually arrived in the place of delivery, with interest from that time, no evidence being offered of any other damages, and that, if the jury should find the amount of such damages to be equal to or to exceed the amount of freight due to the defendants, their verdict should be for the plaintiffs.</p> <p>The defendants did not open their case to the jury, but contended that, upon the evidence offered by the plaintiffs, they were entitled to a verdict in their favor; and the court so ruled, and also that where damages are claimed against a common carrier for delay in the transportation of goods intrusted to him, in the absence of any stipulation to deliver at a time certain, and of any notice as to the purpose for which they are to be used, the measure of the plaintiffs’ damages is interest upon the value of the property from the time when it should have been delivered to the time when it actually was delivered, such value to be computed and ascertained in the place of delivery and at the time when the delivery should have been made; that, applying this rule to the present case, the amount of the plaintiffs’ damages could not equal the defendants’ freight; and he directed the jury to return a verdict for the defendants.</p> <p>The plaintiffs alleged exceptions.</p>

<p>Contract brought to recover damages for the breach of covenants of title contained in a bill of sale from the defendants to the plaintiffs of a shop on Broad Street in Boston, together with the unexpired term of the lease of the land on which the shop stood.</p> <p>At the trial in the superior court, before Wilkinson, J., it appeared that the shop was built on leased land, and the plaintiffs contended that it became part of the realty; and the defendants contended that liberty to remove the same at the end of the term was reserved by special agreement. The lease had not expired, and the plaintiffs had never been disturbed in theii possession. The defendants contended that on this ground the plaintiffs could not recover; but the judge ruled otherwise.</p> <p>The defendants requested the court to rule that under the circumstances of the case the plaintiffs could only recover nominal damages; but the judge admitted evidence of the value of the shop, and ruled that the measure of damages, in case the jury-should find that the defendants were not the owners of the shop, would be the difference in value between such title as the plaintiffs took and such title as the defendants covenanted that they had conveyed.</p> <p>The jury accordingly returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

<p>Contract brought to recover the amount of a tax assessed upon a corporation, under St. 1864, c. 208.</p> <p>At the trial in the superior court, before Brigham, J., without a jury, it appeared that on the 30th of May 1864 the defendants’ treasurer sent to the treasurer of the Commonwealth the following statement: “ The par value of shares is $50 each. The cash market value, so far as I know, is $30 to $50 per share. The capital stock is $300,000. Its real estate is situated in Hampton, New York. Neither the real or personal estate has been hitherto assessed, to my knowledge, since owned by the present company.” A list of stockholders was appended to this notice.</p> <p>The defendants were a corporation established in Boston; but no return was made by the assessors of Boston to the treasurer of the Commonweath, under St. 1864, c. 208, § 1. On the 1st of October 1864 the treasurer and auditor of the Commonwealth made a record, certifying that, having ascertained, they did thereby determine the excess of the market value of all the capital stock of each of certain corporations therein named, over the value of its real estate and machinery, as returned by the assessors of the several cities and towns in the Commonwealth, to be the amounts set down in a schedule annexed ; and in that schedule the whole value of the defendants’ capital stock was put at $300,000, and the excess of value over the value of real estate and machinery was also put at $300,000; and a tax of $3500, or one and one sixth per cent., was laid thereon, and notice thereof was sent by mail to the defendants’ treasurer. This excess was afterwards determined to be $180,000, but no new notice was sent to the defendants, indicating the change. This reduction was made by estimating the cash market value of the stock at thirty dollars per share, instead of fifty, and no allowance was made for real estate or machinery. The commissioners made no attempt to ascertain the value of the defendants’ real estate and machinery, all of which was situated in Hampton, New York, and was of the value of more than $5000. The defendants also owned 8550 shares of the Boston and New York Slate and Tile Company; and in 1864 they paid taxes in Hampton upon their real estate and machinery situated there, and also paid taxes in Massachusetts upon their above named shares.</p> <p>The judge ruled that the Commonwealth was entitled to recover $2100, with interest thereon ; and the defendants alleged exceptions.</p>

<p>Contract brought to recover back the sum of $280, received by the defendant to the use of the Commonwealth.</p> <p>The following facts were agreed in the superior court: The money in question was paid by the Commonwealth to the defendant in May 1864, as a part of the state bounty, under St. 1863, c. 254, of George V. Hill, a volunteer enlisted into the military service of the United States, upon two orders given by Hill to the defendant, upon both of which a forged approval) apparently signed by Hill’s mother, was written; she being his only living parent. At the time of said payment, Hill had not elected to accept the bounty and pay provided for in § 3 of that statute, nor had he assigned any part of his bounty to the treasurer of the Commonwealth, under § 4; and the disbursing officer of the Commonwealth and the defendant believed the signature of Mrs. Hill to be genuine. The orders had been purchased by the defendant for a valuable consideration; and before such purchase Hill had nominated the defendant as his guardian; and after the payment by the Commonwealth to the defendant, the latter was appointed as guardian of Hill, and gave bond as such, and thereupon, before the commencement of this suit, ratified in writing the payment made by the Commonwealth on said orders. But Mrs. Hill never in any way ratified the same.</p> <p>On these facts, judgment was rendered for the defendant, and the Commonwealth appealed to this court,</p>

<p>If one under indictment for crime has been defaulted in the superior court upon a recognizance taken in the police court, when he was held to answer for the same offence, and has been arrested and brought into court on a warrant, and in compliance with the order of court has entered into a new recognizance, upon which he afterwards makes default, it will be presumed, in the trial of an action brought thereon, although the fact does not appear of record, that the court found, before ordering it, the existence of some reasonable excuse for the first default.</p>

<p>Contract on a recognizance taken under Gen. Sts. c. 124, § 10, with condition that the judgment debtor, who had been arrested on an execution in favor of the plaintiff, should within thirty days deliver himself up for examination, giving notice of the time and place thereof, and duly appear, making no default, and abide the final order of the magistrate thereon.</p> <p>At the trial in the superior court, before Wilkinson, J., it appeared that the arrest was made in Middlesex County on an execution issued upon a judgment rendered in the superior court of Suffolk County. The plaintiff was not a resident of Middle-sex County, and no agent or attorney of his lived or had a usual place of business therein. The notice to take the oath was served upon the plaintiff in Suffolk County. The only question raised was whether the notice could properly be served upon the plaintiff, instead of upon the officer who made the arrest; and the judge ruled that it could, and a verdict was accordingly rendered for the defendants. The plaintiff alleged exceptions.</p>

<p>A certificate of shares of the guaranteed capital stock of a corporation contained this provision: 11 Said stock is entitled to dividends at the rate of ten per cent, per annum, payable semi-annually in New York, on the first days of June and. December in each year, out of the net earnings of said company, and is also entitled to share pro rata with the other stock of the company in any excess of earnings over ten per cent, per annum; and the payment of dividends as aforesaid is hereby guaranteed.” Held, that the holder of such certificate could not maintain an action at law against the corporation for a failure to declare and pay dividends as therein mentioned.</p> <p>No equitable relief can be granted in this commonwealth against a foreign corporation which has neither officers nor place of business here, for a failure to declare and pay dividends according to the stipulations of their certificates of stock.</p>

<p>If an executor misapplies the funds of his testator’s estate, and invests the same in purchasing a.share of a patent right and of the business of manufacturing a patented article, from one who knows that the purchase is made with the funds of the estate, the residuary legatee under the will may maintain a bill in equity against the seller, to compel the repayment of the money so received by him.</p>

Tort for the conversion of two coats. At the trial in the superior court, before Wilkinson, J., the defendant offered evidence tending to show that the plaintiff was a seaman on a United States gunboat, which was a part of the blockading fleet stationed off the coast of certain of the states lately in rebellion, and that a vessel illegally attempting to run the blockade was captured, having these coats on board, which were given at sea by an officer to the plaintiff, who had…

<p>The plaintiff sent a writ by mail to an officer, with money to pay for the fees of service; and afterwards, having recovered judgment, sent the execution by mail to the same officer, with directions to “ collect and remit.” The officer collected the amount, fifty dollars, and remitted it to the plaintiff by mail, and the letter was lost. Held, in an action against the officer to recover the money, that there was evidence sufficient to justify a finding that the plaintiff authorized the officer to remit the money by mail.</p>

Libel for divorce for adultery. The cause was tried before Gray, J., by a jury, who, after deliberating for two hours, returned into court for the first time, and stated that they were unable to agree upon a verdict; and, being asked by the court whether they wished instructions in matter of law, said they did not; and received further instructions from the court, to which no exception was taken.

<p>A testator, living in this commonwealth, devised his estate to trustees with directions, upon the marriage of his daughter “ to invest for her benefit any sum of money,Tuot exceeding twenty thousand dollars, in such dwelling-house, land, furniture and household goods, as they may deem proper for her, and to hold the same in the names of said trustees during her life; ” with a power of re-investment. In 1858, after the testator’s death, she married a citizen of North Carolina. In 1866 the trustees, not having acted upon the above direction, applied to this court for instructions as to their power and duty. Held, that they have authority, in their discretion, to invest the money in a dwelling-house, land, furniture and household goods in North Carolina, and to decide upon the proper apportionment of it among the diiferent kinds of properly named.</p>

<p>In the absence of actual fraud, a purchase by an administrator at a sale by him of his intestate’s estate will not be set aside in a suit at law, without repayment of the money advanced by him; but the remedy is in equity.</p>

Contract brought to recover for the use and occupation of i piece of land on Castle Street in Boston. At the trial in the superior court, before Putnam, J., there was evidence tending to prove an implied contract between the parties for the use of the premises, though it was not contended that any specific sum was agreed to be paid therefor by the defendant.

<p>Bill in equity brought by the plaintiffs as legal successor? of the Grand Junction Railroad and Depot Company, alleging that a certain mortgage executed in 1852 by that company to the defendants, of a portion of their railroad and franchise, is void, and praying for a decree that the said mortgaged property may be surrendered to the plaintiffs, discharged of the mortgage. There was also a prayer for leave to redeem the property from the mortgage. The case was reserved for the determination of the whole court, upon facts which are sufficiently stated in the opinion.</p>

<p>The location of a railroad track near a highway will not make it the duty of the town to build a fence in order to prevent animals that may be frightened by the cars from escaping into the adjoining fields, although such occurrences may be probable; but the question of the necessity of a fence, in order to render a highway safe and convenient for travellers, is to be determined irrespective of the consideration of the proximity of the railroad track.</p>

<p>Tort to recover damages for a personal injury received at East Boston by the plaintiff, who was employed by the defendants as a carpenter in their repair shop, while being carried on one of their cars.</p> <p>At the second trial in this court, before Chapman, J., after the decision reported in 10 Allen, 233, the evidence as to most of the matters of fact involved in the case appeared to the presiding judge, as he stated in his report, to be irreconcilably contradictory. It appeared that the plaintitF, with other workmen, was going home from his place of work on a platform car, pushed by a locomotive engine; that shortly before their arrival the car was uncoupled, the speed of the engine slackened, so as to allow the car to get a short distance from it, and a switch at a railroad crossing to be so adjusted as to turn the car off on a side track, and then put back to let the engine proceed on the main track to the engine-house. The plaintiff offered evidence that for several months one Shute had been employed as a flagman and switchman at this crossing, and for a considerable part of the time had had charge of this switch; that he was habitually and publicly intoxicated while on duty; that on the day in question he was at the switch, and was so much intoxicated that he could not manage it properly; that he moved it partially so that it would throw the car off the track ; that the brakeman, seeing this, applied his brake so as to check the car and nearly stop it; that the engine came up against the car, and gave it a sudden start, by which the plaintiff was thrown down and injured; and that the defendants’ superintendent, who had charge of their business, was frequently at this crossing, and had opportunity to know Shute’s habits and character.</p> <p>He also offered evidence that Shute had the general reputation of being intemperate. This evidence was objected to by vhe defendants, but was admitted, not for the purpose of showing the fact that he was intemperate, but for the purpose of proving that his habits were well known in the community, in case the fact of his habitual intemperance should be established by other evidence.</p> <p>The defendants offered evidence that Shute was employed merely as a flagman, and not as a switchman ; that it was no part of his duty to attend the switch; that their officers had no knowledge that he ever did take charge of it, or that he was intemperate ; that, according to the rules of the corporation, it was the duty of the conductor of the train to get off and take charge of the switch; that when the car came to this crossing on this day it came to a full stop, and so remained until the switch was adjusted; that the engine also came to a full stop, and so remained until the switch was adjusted ; that, on seeing that the track was right, the engineer started the engine and purposely ran it against the car in order to start the car forward so that it might run to its proper place beyond the switch, and that the collision was not accidental; and that the plaintiff fell off the car from his own carelessness in standing up on the car when it was struck by the engine.</p> <p>The defendants requested the court to instruct the jury as follows :</p> <p>“ 1. If, under the circumstances of this case, Shute was employed by the defendants’ agents simply to act as flagman to attend a crossing, and not for the purpose of shifting the switch, and if he had never been authorized to shift the switch for trains by any agent having control over him or power to regulate the defendants’ business at East Boston, then the defendants are not liable in this case for any carelessness of said Shute in shifting the switch, although he undertook to do it, or did it, in pursuance of a request from one of his fellow-servants.</p> <p>“ 2. If the car on which the plaintiff was riding and the engine pushing it had been stopped, because the flagman Shute failed from carelessness to adjust the switch at the proper time, and after such stopping, and after the switch had been adjusted, the engine was started and pushed so violently against the car as to throw the plaintiff off and injure him, the defendants are not liable for the negligence of said Shute, it being too remote to sustain this action.</p> <p>“ 3. The jury must be satisfied, to justify a verdict for the plaintiff, that the negligence of Shute was the sole cause of the plaintiff’s injury ; that this negligence was the result of his intemperance ; and that the agents of the defendants either knew of such intemperance, or should have known of it by the exercise of proper care; and if the plaintiff received his injury by reason of Shute’s negligence under such circumstances, and also of the negligence of the engineer or any other servants of the defendants, then the defendants are not liable in this action.</p> <p>“ 4. If the jury should be satisfied that Shute was negligent from intoxication, and the defendants’ agents knew he was intemperate, or by the exercise of ordinary care might have known it, and such negligence contributed to the inj'ury, still, if the injury would not have been received if it bad not been for the negligence of another servant of the defendants, in reference to whom no proof had been offered that he was not a fit and proper person for his place, then the plaintiff cannot recover in this action.</p> <p>“ 5. If, under the circumstances of this case, the officers of the defendants employed a proper person to superintend their business at East Boston, where the accident to the plaintiff happened, to whom properly and rightfully was committed the duty of hiring and superintending such servants as were necessary to transact their business there, and if this was the usual course pursued by railroad corporations under similar circumstances, and was reasonable, then the defendants would not be liable in this action for an injury received by the plaintiff, being one of their servants, from the carelessness of a fellow-servant, although their agent employed to hire and superintend their servants and employees was negligent in engaging an unfit person as a servant, through whose negligence the injury was received.”</p> <p>The judge did not give the above instructions, but instructed the jury as follows:</p> <p>“ At the time of the accident the plaintiff was in the service of the company; and it is admitted that a servant of the company does not stand in the same relation to them as if he were a stranger. As to him, they are under obligation to use reasonable care in keeping their road and machinery in a suitable and safe condition, so that he can work in safety; also to use reasonable care in employing men who are competent to the discharge of their duties, so as not to expose him to danger by the incompetency of such servants. [On these points portions oí the opinion of the court in Snow v. Housatonic Railroad Co. 8 Allen, 444, and of the opinion in the present case, as reported in 10 Allen, 236-239, were read to them.] If the company use reasonable care in employing proper servants, and, through the carelessness of one, another is injured, the company is not liable. And if the accident in this case happened through the carelessness of the conductor, brakeman, engineer or fireman, the defendants are not liable, because there is no evidence tending to show that either of these persons was incompetent or unfit for his position. The plaintiff puts his case on the ground that the accident happened through the carelessness or incompetency of Shute, who, he says, was intrusted with the management of the switch, and was incompetent by reason of intemperate habits. If this is so, the defendants are liable ; for it is as much a breach of duty to keep in their service a drunkard as to ran a car with a broken wheel or to keep broken rails on their track. The burden is on the plaintiff to show,</p> <p>“ 1. That Shute was incompetent for the reason alleged.</p> <p>“ 2. That his habits were so well known that it was negligence in the officers of the corporation to keep him in their service; that the officers are bound to exercise reasonable care, not merely in hiring men at first, but in observing and knowing their course of conduct after they are employed. If Shute was a notorious and habitual drunkard, the question is not whether the officers did in fact know it, but whether, by the exercise of due care, they would know it.</p> <p>“ 3. That Shute was intrusted with the care of the switch by 'the superintendent, or some officer authorized to employ switch-men. The rules of the company are evidence tending to show that Shute was not to have the care of the switch, but they are not conclusive. If it merely happened that the conductors or other servants of the company employed him to discharge a duty which belonged to them, without the knowledge or fault of the officers, the company would not be liable. But if he managed the switch so frequently that the officers, using due care, would know that he was habitually intrusted with it, then the company is responsible for his conduct in its management. The plaintiff must prove that he was intrusted with it habii> ually, or so frequently that the officers, exercising proper care, would know the fact that he had the management of it.</p> <p>“ It is admitted that the switch was not properly placed when the car approached ; and on that account the brake was applied and the car was stopped, or its speed was checked. The plaintiff must prove that Shute was at that time incompetent to manage the switch, and was intrusted with its management; that, being incompetent, he put. the switch in such a position as to expose the car to the danger of running off the track; that the car was broken up to avoid that danger, and that, while its speed was thus checked, the engine in pursuing its course ran against it accidentally. In this way only can it appear that the collision was a direct consequence of the displacement of the switch. The plaintiff cannot recover unless he proves that his injury was the direct and‘immediate consequence of the act of Shute. If, before the collision, the car and engine came to a full stop, or if the engine came to a full stop, the car would then be in safety, and the danger occasioned by the act of Shute would have ceased, and the plaintiff cannot recover.</p> <p>“ If the engineer ran his engine against the car purposely, as alleged by the defendants, the accident was not a proximate consequence of the act of Shute.</p> <p>“ The burden is also on the plaintiff to prove that he used due care, adapted to the circumstances in which he was placed. The jury are to judge from the evidence what his position was, and whether he was careless in taking such a position.”</p> <p>The jury returned a verdict for the plaintiff, with $9000, damages ; and the defendants alleged exceptions.</p>

<p>Contract brought by the assignees in insolvency of Patterson Brothers, to recover the sum of $1060.90, deposited with the defendants by said insolvent debtors.</p> <p>At the trial in the superior court, before Wilkinson, J., it appeared that on Saturday, September 23d 1865, Patterson Brothers had on deposit with the defendants about $7000, and thereafter gave checks to various persons, amounting together to about $20,000, which reached the bank the following Monday, and were paid until the deposit was reduced to $1060.90, when the cashier found the remaining checks to be severally for larger amounts than the above balance, and on that account refused payment of any more of them. Amongst these unpaid checks was one of $4375, given to a broker for stock belonging to one Sohier, and purchased by Patterson Brothers of the broker on September 23d. On the return of this check unpaid, on September 25th, tr the broker, the latter commenced an action thereon against Patterson Brothers, and summoned the bank as trustees; but this action was not prosecuted. On the following day, the broker delivered the check to Sobier, and they togethei demanded payment of the sum of $1060.90, offering to indorse the same on the check and leave it with the defendants as a voucher, but the defendants refused to pay it. The insolvency of Patterson Brothers was known to all parties on the 25th of September; and they subsequently went into insolvency, the first publication of notice being made on the 7th of October. The plaint,iffswere appointed as assignees on the 17th of October, and on the following day demanded the money in controversy of the defendants, who refused to pay the same. On the 28th of October the defendants paid the money to Sohier, taking from him a bond of indemnity.</p> <p>Upon these facts, the judge instructed the jury to return a verdict for the plaintiffs, which was accordingly done; and the defendants alleged exceptions.</p>

<p>Intoxicating liquors are not liable to be seized on execution, under the statutes of this commonwealth.</p>

Tort for the conversion of certain articles of household furniture. At the trial in the superior court, before Russell, J., it appeared that the plaintiff, who was a deputy sheriff, attached the articles in question on a writ against one Sawyer, and appointed Saw yer’s wife as the keeper thereof. The defendant afterwards carried away the property, after being twice informed that Sawyer’s wife was acting as keeper under the plaintiff.

<p>The officers of a manufacturing corporation who have neglected to file the certificates required by Gen. Sts. c. 60, § 24, are not liable in an action at law for the debts of the corporation contracted during the continuance of such neglect; but the remedy against them is by a suit in equity.</p>

<p>A widow is not dowable if her husband was only seised of a remainder during the coverture, with a life estate preceding it which was not terminated during his life.</p>

<p>Statements contained in the answer filed in a cause cannot be used as evidence against the defendant on the trial of the same cause, or commented on by the plaintiff’s counsel in argument to the jury.</p>

<p>Buildings which are sold without the land on which they stand, with the intention of all parties to sever them from the land, pass to the purchaser, with a right to remove them &r personal property within a reasonable time.</p> <p>The owner of land on which three wooden buildings stood authorized his agent to sell them to be removed before a certain day and not put up again in the same town. The agent there upon sold the same to A., giving a common bill of parcels thereof, and informed the owner of the sale, to which he did not object, though not of the giving of the bill of parcels, and paid him the money. Before the day fixed for their removal, A. sold the buildings to B. giving him a common hill cf parcels thereof, and informing him who was the owner of the land, and that the buildings must oe removed as soon as possible, to which B. replied that he would see the owner and arrange it with him. The buildings not being removed, the owner, after another notice to A. which was sent by him to B., sold them to C., who removed them. Held, that B. could not recover back the money paid by him to A. for the buildings.</p>

<p>Replevin of a gold watch and chain and sundry articles of jewelry. The writ was dated November 10th 1864.</p> <p>At the trial in the superior court, before Ames, J., it appeared that Francis Frye, in October 1864, was struck by the engine attached to a railroad train in West Roxbury, and was killed. The defendant, as a coroner of the county, caused an inquest to be duly held, and thereafter took charge of the articles described in the writ, all of which were found upon the person of the deceased. The plaintiff, who at first represented herself to be the wife of said Frye, claimed the property as her own, and demanded it of the defendant, before bringing this action. The defendant did not comply with the demand, but insisted that it was his duty to deliver it to the administrator of the estate of said Frye, when appointed; and it appeared that one Shepherd was appointed such administrator on the 7th of November 1864, and claimed and still claims that the property belongs to him in that capacity. It was not claimed that the articles came wrongfully to the hands of said Frye, but the plaintiff insisted that she delivered them to him, and permitted him to use and wear them as a favor and an act of friendship and kindness to him, without a'ny stipulation as to the length of time that such use should continue, as a gratuitous bailment. And it appeared that he had usually worn said articles and carried them on his person for four or five years, and to the day of his death.</p> <p>The defendant then contended that if the articles were ever the property of the plaintiff, (which he denied,) yet, under the circumstances of the case, she would not be entitled to maintain this action.</p> <p>The judge ruled that, assuming the plaintiff’s account of the transaction to be true as above set forth, it was the duty of the defendant, as a coroner, to take charge of the personal property of the deceased found upon the body, including such articles of personal wear as were apparently or presumably his property, and including also such things as were intrusted to him, or in which he had a qualified or special property or right of possession as bailee; and that it was also his duty and his right to retain such articles in his possession, to deliver to the administrator of the estate of the deceased, if one should be appointed within sixty days, who should claim them, or to the public administrator, if no such appointment should be made; and that under Gen. Sts. c. 175, § 17, the defendant would not be liable, under the circumstances of the case, in the present action, but that the plaintiff must seek her remedy against the administrator.</p> <p>The jury thereupon, by direction of the judge, returned a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>If a sale of goods is made by a debtor which, though not fraudulent at common law, is in violation' of our insolvent laws, and the goods are attached by a creditor while in the hands of the purchaser, and are held until the institution of proceedings in insolvency and the choice of an assignee, and are then delivered to the assignee, these facts may be shown in mitigation of damages, in an action brought by the purchaser against the attaching creditor.</p>

Complaint under Gen. Sts. c. 72, concerning the maintenance of bastard children. At the trial in the superior court, before Wilkinson, J., it appeared that the child was begotten in Canada, where both its parents then resided, and afterwards they both came into Massachusetts and have since lived here, and the child was born at the state almshouse. The jury found the defendant guilty, under instructions authorizing them to do so; and he alleged exceptions.

<p>A gift for the poor of a particular church is a good public charity.</p> <p>A church fund arising principally from contributions on communion Sundays, during a period of one hundred and fifty years, will not be deemed to be held as a public charity, if only a small portion thereof was specially designated to be for the poor, and there is no clear evidence that the residue was intended to be so applied, and it reasonably appears that the portion so designated has been so applied.</p> <p>If the officers of a religious society intermingle funds held by them upon distinct trusts, one of which is charitable, and another, although not strictly charitable, is in the nature of religious uses, and there is evidence by which the amount of each fund can be approximately ascertained, the charity will not for that reason be entitled to the whole amount; but the court will determine, with as much accuracy as possible, the amount now justly belonging to each fund.</p> <p>Trustees of a charity may be required by a court of chancery to account for income which has been misapplied, for any length of time, without regard to the statute of limitations; but an application of such income, made in good faith, and continued for many years, will not be lightly disturbed, especially after the lapse of a considerable time.</p> <p>A court of chancery will order a charitable fund to be paid to a corporation authorized by law to receive and hold it, without first, prescribing a scheme for its application.</p> <p>Where the officers of a religious society had intermingled charitable with other funds, and an information filed to redress the abuse was sustained in part, the court ordered the costs incurred in support of the information, taxed as between counsel and client, to be paid out of the fund of the charity, and that the defendants bear their own costs.</p>

<p>Petition filed on the 24th of February 1866, under Gen. Sts, c. 68, § 35, by a majority in number and interest of the members of a corporation, confirmed and established by St. 1803, c. 56, called “The Proprietors of the New South Meeting-House in Boston,” setting forth that said corporation owns certain land and a meeting-house thereon in Boston; that it has become much diminished in numbers, and owes a large sum of money which it has no present means of paying; that its annual expenses exceed its revenues, and there is no prospect of any improvement in this respect; and that at a meeting of the proprietors, duly called, on February 13th 1866, it was voted to apply to this court for the dissolution of the corporation; and praying that the corporation might be dissolved, and a receiver of its property and assets be appointed, who might sell the real estate, and distribute the proceeds, after payment of debts and expenses, among the members.</p> <p>A minority of the members of the corporation filed an answer denying that the corporation has no means of paying its debt, and averring that by proper management all the debts might be paid, and an income obtained sufficient for all its expenses; representing that the corporation is a public religious society or corporation, and not such a corporation as can be dissolved by a decree of this court, upon petition of a majority of the members thereof; that it was incorporated as and for a perpetual corporation, and for the purpose of maintaining forever the worship of God and the teaching of the Christian religion; that all the proprietors of pews bought them upon the understanding and agreement-that the property of said religious society should be used for the above purposes, and no other, and they paid for and obtained no rights of ownership in the property of the corporation which entitled a majority of them to petition for a decree of dissolution of the corporation, a sale of all its property, and a distribution of the proceeds among those who may be proprietors of pews; that more than half of all the pews have become the property of the society; that these pews, if offered for sale upon the understanding that the society was to be preserved and continued for the purposes of its incorporation could be sold for a sum of money which would pay all debts of the corporation, and the reasonable assessments laid upon the pews would give an income sufficient to meet all expenses ; and that the present meeting-house was erected by the society in a time of great pecuniary embarrassment, by the liberality and benevolence of pious men, who trusted and believed that they were aiding in making provision for the permanent worship of God, and had no intention of giving property to the society for purposes of profit and speculation to the proprietors of pews in after years.</p> <p>The deacons of the church also filed an answer, setting forth that Sarah Preston of Dorchester, by her will proved in 1813, bequeathed the residue of her estate to the deacons of said church, and their successors in office forever, in trust, that the income of the same should be added to the collections which might be made at the quarterly charity lecture in Boston, and appropriated forever to the relief of the poor and destitute in the same manner and at the same time as said collection might be distributed; that the quarterly charity lecture is an old, established and well known service, at which a sermon is preached by one of the ministers of certain Congregational parishes in Boston, and a contribution taken up, which is divided among the poor of those parishes, and that the testatrix by her will founded a charitable trust for the relief of the poor, of which the deacons of this church were forever to be the trustees ; that they accepted said trust, and have ever since duly administered said charity, and the fund now amounts to over $17,000 ; and they prayed that, in any decree which might be made, the rights of said public charity might be preserved.</p> <p>The truth of the facts stated in the answer was admitted; and the case was reserved for the determination of the whole court, by Gray, J., upon the petition, answers, and certain other facts which appear in the opinion.</p>

<p>Although the declaration in an action of contract does not in terms allege that the agreement therein set forth was in writing, yet if a copy of a written agreement is annexed to the declaration, and the defendant in.his answer denies “ that he ever signed a paper as alleged by the plaintiff, and if he did ever sign such a paper it was without consideration,” the written agreement is thereby put in issue, and the declaration may be supported by proof thereof.</p> <p>Forbearing to eject a tenant at will, whose rent was in arrear, from a tenement, is a good consideration for a guaranty, by a third person, of both the past and the future rent.</p> <p>A guaranty of payment, by a third person, of rent already due, and to become due for a certain time, from a tenant at will, is not extinguished by the landlord’s ejecting the tenant, before the expiration of that time, at the request of the guarantor, or by his subsequent^ receiving a new tenant.</p> <p>In an action against the guarantor of rent already due and to become due for a certain time from a tenant, it is not necessary to prove a demand of payment from the tenant, and notice to the guarantor of the tenant’s non-payment, unless the terms of the contract of guaranty or the nature and circumstances of the particular case require it.; as where the omission to make such demand or give such notice has been attended with some loss to the guarantor.</p>

<p>The Gen. Sts. c. 167, § 6, prohibiting the making, selling or having in possession with intent to sell, false or fictitious lottery tickets, and imposing a punishment therefor, apply to tickets in lotteries set up in this commonwealth as well as elsewhere.</p> <p>No presumption arises, under Gen. Sts. c. 167, § 7, that a lottery ticket is false or fictitious unless the defendant has sold the same, or offered it for sale, or received a valuable consideration therefor.</p> <p>An indictment under Gen. Sts. c. 167, § 6, for selling, or having in possession with intent to sell, a false and fictitious lottery ticket, which is described, need not set forth the nature of the lottery, or negative the existence of any lottery, or show in what respect the ticket is false or fictitious.</p> <p>An indictment under Gen. Sts. c. 167, § 1, for setting up and promoting an illegal lottery, need not more particularly describe the acts done by the defendant; nor is such indictment bad for duplicity because it charges that the defendant set up and promoted such lottery.</p> <p>One who has set up or promoted an illegal lottery in this commonwealth, and sold tickets therein to different persons, may be convicted and sentenced for such setting up or pro* motion of the lottery, under Gen. Sts. c. 167, § 1; for selling a ticket therein to one person, under Gen. Sts. c. 167, § 3; and for selling a false and fictitious lottery ticket to another person, under Gon. Sts. c. 167, § 6.</p>

<p>Indictment on the Gen. Sts. c. 83, § 13, alleging that the defendants on the 9th of April 1866, at Ipswich, unlawfully and injuriously took and carried away from their beds in Ipswich eight bushels of clams, without having a permit in writing from the selectmen of Ipswich to take the same, and both the defendants not being inhabitants of Ipswich, and not having lawful authority to take said clams from their beds as aforesaid.</p> <p>• The defendants were tried and found guilty in the superior court, before Brigham, J., and alleged exceptions, in which the case was stated as follows : “ It appeared at the trial that the defendants were inhabitants of Newburyport and were fishermen, and that they took clams for bait from a beach in Ipswich, between high and low water mark, in a greater quantity at one time than seven bushels. Upon this state of facts the court instructed the jury, against the request of the defendants, that the evidence was sufficient to warrant a verdict of guilty, and that the statute in question was constitutional.”</p>

<p>Complaint alleging that on the 29th of Maren 1866 the defendant moved from a certain house in the city of Lawrence to the Bellevue Cemetery in that city, the dead bodies of two persons, he not being superintendent of the cemetery, of employed by such superintendent, or duly appointed and legally qualified as an undertaker in Lawrence, or otherwise specially authorized to move the bodies of dead persons.</p> <p>At the trial in the superior court, before Brigham, J., the following facts appeared:</p> <p>The mayor and aldermen of Lawrence, who constituted the board of health of that city, passed certain regulations concerning Bellevue Cemetery and the interment of the dead, providing amongst other things for the annual election, by the board of health, of a superintendent of the cemetery, and specifying his duties, and establishing fees for certain services; and article 12 was as follows: “ No person except the superintendent of the cemetery or those employed by him” “shall be allowed to dig any grave, bury any dead body, or open any tomb at the said cemetery; and no other person, unless appointed an undertaker or otherwise specially authorized by the board of health, shall dig any grave,- bury any dead body, or open any tomb in any cemetery, graveyard or other place in the city other than the cemetery, or move from any house or place within the city to any place of burial whatsoever the body of any deceased person.” It was also made a part of the duty of undertakers to attend funerals when required, and to collect and pay over the fees for services of the superintendent. The superintendent was required to give bond for the faithful performance of his duties, with penalty in the sum of five hundred dollars, and undertakers to give like bonds in the sum of two hundred dollars. And a penalty of not less than two or more than twenty dollars was fixed for any violation of these regulations, to be recovered for the use of the city by a complaint.</p> <p>The doing of the acts charged in the complaint was proved.</p> <p>On the 1st of January 1866 the defendant was appointed by the board of health as an undertaker, and it had been the usage for persons thus appointed to act for one year, and on the 2d of January 1866 the defendant was notified by the city clerk of his election as undertaker 11 for the current municipal year;” but he gave no bond, and on the 27th of February 1866 the board of health revoked his appointment and gave him notice of the revocation.</p> <p>The defendant offered to prove that the provision under which this complaint was made was not inserted in the regulations “ with reference to the public generally, but especially to prevent the defendant from performing the acts here complained of,” unless he would give the required bond; but the evidence was excluded. The defendant then offered to prove that the board of health unreasonably refused specially to authorize him to perform these acts, and that they thus refused without reference to his qualifications, except his failure to give the required bond; but this evidence was excluded.</p> <p>The defendant presented very many requests for instructions, the substance of which was that he was duly appointed for one year; that his neglect to give a bond did not vacate the appointment, or disqualify him from serving in it; that he was not removable by the board of health, and especially not except for cause and on previous notice to him; that the requirement in the condition of the prescribed bond that he should collect the fees for the superintendent was not reasonable; and that the provisions under which this complaint was made were unreasonable and void.</p> <p>The judge declined to give any of these instructions, and instructed the jury that this complaint was supported by the facts proved, and directed them to return a verdict of guilty, which they accordingly did. The defendant alleged exceptions.</p>

<p>The first of these? cases was a complaint against the defendant, made originally in the police court of Boston, and charging that the defendant on “ September 24th 1865, and from that day to March 24th 1866, at said Boston, did habitually walk the streets of said city in the night time for the purpose of prostitution, and was and now is a common night-walker, against the peace,” &c. At the trial in the superior court, on appeal, before Ames, J., the defendant moved that the complaint be dismissed, because “ the time is not set forth with sufficient certainty, and the same is bad for duplicity, and there is no sufficient statement of the offence ; ” but the motion was overruled, and the defendant was found guilty, and alleged exceptions.</p> <p>The second was a complaint, also made originally in the police court of Boston, and charging that “the defendant, on the fourth day of December in the year of our Lord one thousand eight hundred and sixty-five, and on divers other days and times between that day and the fourth day of June in the year of our Lord one thousand eight hundred and sixt.y-six, at said Boston, was and is an idle and disorderly person, and at said Boston on said days and times has neglected all lawful business and habitually misspent her time by frequenting houses of ill-fame, gaming-houses and tippling-shops, against the peace,” &c. At the trial in the superior court, on appeal, the defendant moved that the complaint be dismissed, and afterwards moved in arrest of judgment, on the ground that no offence was set forth in the complaint; that the St. of 1866 as to vagrants virtually repeals all former laws as to idle and disorderly persons; and that the complaint is wanting in legal certainty and precision. These motions were overruled. The defendant was found guilty, and appealed to this court.</p> <p>The two cases were argued together.</p>

<p>The caption of an indictment was as follows: “ Commonwealth of Massachusetts. Middlesex to wit. At the superior begun and holden at Lowell, within and for the county of Middlesex, on the third Monday of October in the year of our Lord one-thcasand eight hundred and sixty-three.” By the record of the superior court it appeared that this indictment was returned by the grand jury into that court at a term beginning on the day named in the caption, and duly filed therein, and a certificate made by th* clerk upon the back of the indictment that it had been so returned. Feld that the omission of the word u court” in the caption was immaterial.</p>

Habeas Corpus. The petitioner was convicted in the police court of Boston of larceny from the person, of fourteen dollars, and was sentenced to imprisonment in the house of correction for six months; and appealed to the superior court, where he was again convicted, and sentenced to the house of correction for two years.

<p>Affcez a jury had been empannelled to try the defendant in an indictment for a felony, hia counsel desired to present a motion to quash the indictment for formal defects therein, and, in order to enable him to do so, it was agreed by the district attorney and the counsel for the defendant, in the defendant’s presence and without objection from him, and with the consent of the presiding judge, that what had been done should be treated as null, and the motion should be made, and if overruled the jury should be sworn over again. The motion was accordingly made and overruled. Reid, that the defendant could not afterwards object to being tried upon a new empannelling of the same or an other jury, on the ground that he had been once put in jeopardy.</p> <p>An indictment is valid which purports to be found by the grand jury “ upon their oaths,” • instead of “ upon their oath.”</p> <p>An indictment under Gen. Sts. c. 165, § 9, for an unlawful attempt to procure a miscarriage need not allege that the act was done “ maliciously and without lawful justification,” but it is sufficient to allege that it was unlawfully done, with intent to cause and procure the miscarriage.</p>

<p>An indictment for doing business in violation of the statutes for the observance of the Lord’s day need not aver that the defendant did not conscientiously believe that the seventh day of the week ought to be observed as the Sabbath, and refrained from secular business on that day.</p> <p>A person may be convicted of doing business in violation of the statutes for the observance of the Lord’s day, although the business done by him is selling intoxicating liquors in violation of law.</p>

Indictment for keeping a tenement used for the illegal keeping and sale of intoxicating liquors.

Complaint under Gen. Sts. c. 86, § 42, for a search-warrant for certain intoxicating liquors, namely, “ a certain quantity of rum, being about and not exceeding sixty gallons; a certain quantity of whiskey, being about and not exceeding sixty gallons ; a certain quantity of gin, being about and not exceeding forty gallons ; a certain quantity of brandy, being about and not exceeding ten gallons; a certain quantity of ale, being about and not exceeding thirty-two gallons; a…

<p>After a plea of not guilty, the defendant in an indictment cannot file another plea without leave of court. So after a plea of not guilty and a trial thereon in the police court, the defendant in a complaint cannot file another plea in the superior court, on his appeal, without leave of court.</p> <p>1 plea in bar to an indictment for a violation of the statutes of this commonwealth, concerning the manufacture and sale of intoxicating liquors, is not good, which sets up in defence that the defendant had a license granted under the internal revenue laws of the United States, and had paid a tax to the United States upon the liquors, and that the statutes in question are unconstitutional, as requiring excessive bail, imposing excessive fines, and inflicting cruel and unusual punishments; and there is nothing in such plea requiring an answer from the district attorney.</p> <p>liter the filing of an invalid plea in bar to an ndictment, the defendant may properly b* required to plead further, and, if he refuses*x> do so, a plea of not guilty may be entered for him, unler Gen. Sts. c. 171, § 29.</p> <p>The omission of the district attorney to make any formal reply to an invalid plea in har to an indictment will not make the averments thereof competent evidence in favor of the defendant.</p> <p>Requiring a witness to produce a memorandum which is not in court, and which he has not been summoned to produce, is a matter within the discretion of the presiding judge.</p> <p>The defendant in an indictment, by offering himself as a witness, waives his right to object to any question pertinent to the issue, on the ground that the answer may tend to criminate him.</p> <p>Requiring a witness to answer a question to which he objects on the ground that it mar tend to criminate him will not be a ground for sustaining exceptions and granting a new trial, if the bill of exceptions does not show what his answer was.</p> <p>A plea in bar drawn by the attorney of the defendant in an indictment, and filed in the case, if rejected as invalid by the court, is not competent evidence against the defendant on the trial, upon his plea of not guilty.</p>

Indictment for larceny of money in a building. At the trial in the superior court, before Brigham, J., there was evidence tending to connect the defendant Walker with the larceny ; and a Mrs. Newhall, a witness for the Commonwealth, testified that she lived in the neighborhood of the house in which the larceny was committed, and on the night of the larceny Walker came to her house with another man whom he called Cary, but who did not correspond in size or appearance with…

<p>The question whether Mealy is idem sonans with Malay or Maley, when it arises ir evidence in the trial of an indictment, on the general issue, is for the jury, and not for the court.</p>

<p>When competent counsel retained'in a cause were present in court prepared to argue it, the court declined to hear other counsel, not retained in the cause before the court, or in any other cause in which similar questions would arise; but who expected to have a similar cause thereafter.</p> <p>The supreme court of the United States have no jurisdiction, on writ of error, to revise a judgment of a state court, under the judiciary act of 1789, unless it appears that some one of the questions therein mentioned did actually arise in the state court and was decided in the manner required by that act; and, if a writ of error has been issued by one of the justices of that court in a case where the above facts do not appear by the record, it wii be assumed by this court that it was improvidently issued, and will be dismissed.</p> <p>To an indictment for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, the defendant pleaded specially, in bar thereof, that he had a license under the internal revenue laws of the United States to do all the acts complained of, and also that he had paid a tax upon the same liquors, and also that the statute on which the indictment was founded was unconstitutional. The district attorney demurred to this plea, assigning, among the grounds of demurrer, that it was double and otherwise informal and insufficient. This demurrer was sustained, and, the defendant refusing to plead further, a plea of not guilty was entered for him, and he was found guilty by the jury. There was nothing in the record to show that the matters set forth in the special plea were relied on at the trial before the jury. Held, that the special plea was bad in form, for duplicity and insufficiency; and that this court will presume that the demurrer was sustained for that reason, and therefore will not discharge the defendant, after sentence, on habeas corpus, although a justice of the supreme court of the United States has issued a writ of error in said case.</p> <p>In criminal cases, a special plea in bar is bad which sets up more than one ground of defence.</p>

<p>Complaint charging the defendant with keeping a tenement used by him for the illegal sale and illegal keeping for sale of intoxicating liquors, from August 17th to October 17th 1865. Judgment was entered against the defendant in the municipal court on the 25th of July 1866, and he was thereupon sentenced to pay a fine of fifty dollars and costs; and he appealed to the superior court, where at November term 1866 he pleaded guilty, and moved in arrest of judgment, on the ground that there was no law by which sentence could be imposed upon him. This motion was overruled, and he alleged exceptions.</p>

<p>JB'tr the purpose of showing that an expressman, who has conveyed intoxicating liquor in kegs and a barrel from a railroad station, had reasonable cause to believe that the same was intended to be sold in violation of Gen. Sts. o. 86, evidence is admissible to show that he had removed from the same station a keg of liquor on each of several different days within a short time.</p>

<p>A witness on his cross-examination testified that during the trial he had consulted a memo* randum book in his possession to refresh his memory as*to certain dates,°which otherwise he would have been unable to state correctly, and that there were entries in it not relating to this case, which he did not wish to have seen. Held, that the refusal of the judge to require the witness to submit to the inspection of the counsel and the jury those portions of the book not relating to the cause on trial, was not the subject of exception.</p>

<p>An indictment against carriers of passengers, under Gen. Sts. c. 160, § 34, to recover the penalty therein provided in case the life of a passenger is lost through their negligence or that of their servants, may be found at any time within six years.</p> <p>Such indictment, by describing the deceased as of Boston in the county of Suffolk and Commonwealth of Massachusetts, and by alleging that A. B., otherwise called A. B. the younger of that name, of said Boston, has been duly appointed and now is administrator of said deceased and of his goods and estate, sufficiently shows that letters of administration were taken out in this commonwealth, and describes the administrator with sufficient certainty.</p> <p>If such indictment alleges that the defendants were common carriers of passengers for hire in a steamboat, and that the deceased was a passenger for hire in said steamboat, no further averments relating to their tolls are necessary, and the indictment is not subject to demurrer for the reason that such further allegations may be defective.</p>