Volume 96 — Massachusetts Reports

<p>An estate of homestead acquired under St. 1855, c. 238, cannot be lost by mere abandonment, until a new homestead is acquired elsewhere.</p> <p>If one who has agreed to convey land is unable to give a perfect title thereto, and the purchaser elects to take such title as the vendor can give, with compensation for the deficiency, he will be allowed as damages only the fair value of what is not conveyed.</p>

<p>Replevin of a quantity of clothing. The answer simply set up title in the defendant.</p> <p>At the second trial in the superior court, before Brigham, J., after the decision reported in 11 Allen, 520, there was evidence tending to show that the goods in question were obtained from the plaintiff by fraud by one French, and that the defendant, who claimed to have purchased them of French, was either a conspirator in the original fraud, or a purchaser with notice of it. French purchased the goods on credit, giving for them a note on time, with certain bonds as security as described in the formel report. This note, when produced, bore an indorsement by the plaintiff without recourse to James Manning, and there was evidence, in the plaintiff’s case, tending to show that it had become the property of James Manning before the replevin, and had remained so ever since.</p> <p>At the conclusion of the plaintiff’s evidence, the defendant asked the court to rule, as a matter of law, that the evidence was insufficient to support the action ; but the judge declined to make any ruling upon that subject unless the defendant would rest there. The defendant declined to do this, and the trial proceeded.</p> <p>The defendant also asked the court to rule that if the plaintiff had ceased to be the owner of the note before the replevin, but had passed it away for value, and had never reclaimed it, then he could not maintain this action. The judge refused so to rule, and instructed the jury that the question to whom the note belonged was immaterial upon any issue raised in this case; but, at the request of the plaintiff, submitted this as an independent issue to the jury, who found that the note was the property of James Manning at the time of the replevin.</p> <p>The jury returned a general verdict for the plaintiff, and, upon the special finding above mentioned, the defendant moved for judgment in his favor, notwithstanding the general verdict; but the. court refused so to order. The defendant alleged exceptions.</p>

<p>Contract for goods sold and delivered. The defendant, among other things, denied the sale and delivery. •</p> <p>The defendant filed certain interrogatories, in the superior court, to be answered by the plaintiff on oath; and at June term 1865 an order was passed that the plaintiff should answer them by the first day of the next term. This order was not complied with, and at December term the defendant moved for a nonsuit; but the judge refused to order a nonsuit, on the ground that it had been made to appear that the claim had been assigned before suit, and the plaintiff in interest had used all proper means to find the nominal plaintiff and obtain the answers, but without success. At March term 1866 the defendant renewed his motion ; but Morton, J. refused to order a nonsuit.</p> <p>At the trial, the only evidence introduced was the deposition of Bernard Adler, taken in the city of New York, under a commission. In the answer to the third direct interrogatory, Adler, who had formerly been employed by the plaintiff, testified thus: “ I know of a sale of goods by Stern to Filene. [Here the date and a description of the goods, with the prices, were given, which corresponded with the bill of particulars annexed to the declaration.] They were sent to another house to be packed for him, and the receipt thereof acknowledged. The goods were sold at market prices.” In reply to the fourth cross-interrogatory, he testified that he was present at the time of the sale. The 11th cross-interrogatory, referring to a conversation between the plaintiff and the defendant, was as follows: “ Did not Mr. Filene claim from Mr. Stern that there was something due him for not delivering a lot of goods purchased of him ? ” The answer to this was, “ There was a bill of goods amounting to about $14 or $15 or thereabouts, which I sold to Filene, and delivery was refused by Jacob Stern except on receipt of cash on the strength of which refusal Mr. Filene objected to paying ” the bill in suit.</p> <p>The defendant objected to the answer to the 11th cross-interrogatory, as not responsive; but the judge allowed the same to be read to the jury. The defendant also requested the judge to instruct the jury that there was no evidence of any delivery of the goods to the defendant, or to any one by his request, or to any one authorized to receive them for the defendant; but the judge declined so to rule.</p> <p>The jury returned a verdict for the plaintiff, and the defend ant alleged exceptions.</p>

Trustee Process. After the former decision in this case, reported in 10 Allen, 27, a question arose concerning the funds in the hands of the trustees, which were claimed by Walter H. Eastman under a written assignment made by the defendant Whipple to him, dated August 7th 1863. The cause of action arose the day before the assignment, and the writ was dated the day after the assignment.

<p>Trustee Process. Norris and Plummer, summoned as trustees, disclosed funds in their hands to the amount of three hundred dollars. Charles C. Hunkins appeared as claimant of the funds in the hands of the trustees.</p> <p>At the trial in the superior court, before Morton, J., it appeared that Nathan F. Hunkins and Charles C. Hunkins had entered into a written agreement, the material portions of which were as follows i</p> <p>“ The said N. F. Hunkins, for and in consideration hereinafter mentioned, promises and agrees to cut, work, sell and market to the best advantage all the wood and timber now standing on five acres of land situated in Plaistow, it being the same that I, the said C. C. Hunkins, have bought of Henry Noyes, of Atkinson, for one half of the proceeds arising from the sales of the said wood and timber, after deducting three hundred dollars, half the amount paid for the same; and the said N. F. Hunkins is to keep a true and correct account of all receipts for wood and lumber, and is to pay all bills for chopping, manufacturing and converting the same into cash. And the said C. C. Hunkins agrees and promises to furnish a team, to consist of two good horses with harnesses, wagons and sleds for the purpose of marketing the same.”</p> <p>It appeared that the indebtedness disclosed by the trustees was for wood and timber cut from said land, and sold to them ■ by the defendant, without disclosing to them that he was not the sole owner thereof.</p> <p>Upon this evidence, the judge ruled that one half of the sum in the hands of the trustees was liable to attachment m this suit as the property of the defendant; and a verdict was returned accordingly. The claimant alleged exceptions.</p>

<p>Contract upon a written and sealed agreement, dated March 31st 1865, signed by the defendant and other creditors of the plaintiff, promising “ on the receipt or tender to us of twenty per cent, of our respective claims, and reckoned on the original amounts without interest or costs, within sixty days from the date hereof” to “give to said Fowler a full and complete discharge of our respective claims with the vouchers thereof, which shall be in full settlement and satisfaction.” “ Said Fowler signs this obligation, and undertakes for the considerations aforesaid to pay twenty per cent, upon his original indebtedness upon the said terms.” This agreement was signed and sealed by about twenty-five creditors of Fowler, each of whom put opposite to his name a certain sum in figures, and most of whom also put their residences, there being three columns, headed “ Names,” “ Residence,” and “ Am’ts,” respectively. The defendant’s signature appeared thus : “ Frederick Perley, Danvers, $1797.04,” and seal.</p> <p>At the trial in the superior court, before Morton, J., the plaintiff testified that he failed in business in New York in 1861, most of his creditors living in Massachusetts; that he came here .n the spring of 1865 for the purpose of compromising with his creditors, and brought to the defendant the composition deed declared on; that he also brought with him a schedule of his creditors, and showed it to the defendant, containing, amongst others, the name of the defendant as holding three notes, amounting together to $1170.50, and a book account, amounting to $326.54; that he then learned that the defendant held another note of $300 against him, and the defendant signed the agreement, and wrote the figures 1797.04 against his signature; that he afterwards, within the sixty days, tendered to the defendant a sum sufficient to pay the twenty per cent, upon $1797.04, but the defendant refused to accept the same, on the ground that, prior to signing the above agreement, he had negotiated two of the notes, amounting together to $710, and that he had notified the plaintiff thereof at the time, but did accept the percentage upon the residue of the $1797.04. On cross-examination, the plaintiff testified, under objection from his counsel, that at the time of signing the agreement the defendant told him that one of the notes was not then in his possession, but was where he could readily obtain it, and that he was not certain as to another of them whether he had it or not, but that if he did not then have it he could and would obtain it.</p> <p>The judge, upon this evidence, directed a verdict for the defendant, which was accordingly rendered; and the plaintiff alleged exceptions.</p>

<p>If a bargain is made on the Lord’s day for the sale of goods, which are accordingly delivered and accepted by the purchaser on Monday, the vendor may maintain an action to recover the value of the goods, upon an implied assumpsit; but the price fixed on the Lord’s day will not be binding on either party, nor will the vendor be bound by any warranty made on that day.</p> <p>If certain animals in a drove are sold under a warranty that all the animals in the drove are free from contagious or infectious diseases, the purchaser may recoup in damages, in an action for the price, the whole loss occasioned to him by the presence of the disease in the drove at that time, although some of the animals purchased by him did not take the infection till afterwards.</p>

<p>Petition to this court, representing that Benjamin Porter, late of Danvers, deceased, by his last will, devised certain estate, both real and personal, in trust for the use and benefit of Ms son, Benjamin F. Porter, as appeared by a clause of the will, of which a copy was annexed, and appointed the petitioner as trustee; that Benjamin F. Porter has been allowed to occupy said real estate, and is now in possession thereof; that he has children, some of age and others minors; that it is expedient and necessary, and for the best interest of the parties interested, that the real estate should be sold, and the proceeds of the sale thereof invested in such manner and upon such security as shall be safe and beneficial for all interested therein, and will best effect the objects of said trust; and praying that the court will order and decree the sale and conveyance of said real estate, in such maimer as shall seem proper, and an investment of the proceeds by the petitioner as trustee, upon the uses and trusts named in the will.</p> <p>The material portions of the first clause of the will were as follows:</p> <p>“ 1st. I give and devise to my executor hereinafter named, and any other executor or executors, if any, I may hereafter nominate and appoint, all that my farm and buildings situate in said Danvers, where I now dwell, and all my parcels of woodland situate in Middleton in said county, [and certain personal property,] to have and to hold the same to and upon the following trusts, that is to say, that he shall allow and permit my son Benjamin Franklin, during the term of his natural life, to take and receive to his own use the net income of all said real and personal estate, and to occupy, possess and enjoy said real and personal estate during the term of his natural life, or any portion thereof, if he shall elect to do so. And my said executor shall continue to hold said estate after the decease of said Benjamin Franklin, for the benefit and to the use of his children, if he shall leave any, until they shall each arrive at the age of twenty-one years or be married; and I then give and devise the same to them, their heirs and assigns respectively forever, to be divided and distributed however as follows: If my said son shall only leave one male child, then on his arrival at the age of twenty-one years, or at his marriage, he shall be entitled to have and take to his own use, if he shall so elect and determine, as his share and portion of said estate, the mansion-house, barn and all the other buildings, together with ten acres of land under and adjoining said buildings ; said parcel to be formed by a line running from the main road to the rear line, and so as to make said parcel of ten acres as near square as possible. But should there be more than one male child, then the oldest child shall be entitled to the same, under the limitations aforesaid, if he shall 10 elect; otherwise the second son in the order of age, and so as to any other sons, in the same order of age, the elder brothers having elected not to take the same. If all said sons elect not to take said estate, then I give and devise the whole of said estate, as heretofore devised for the use of my son Benjamin Franklin, to his children, to be equally divided between them, and to their heirs and assigns forever. If eiiher of said sons as aforesaid shall elect said ten acres and buildings as his share and portion of said estate, then I give and devise the residue of said entire estate to the remaining children, to be divided as aforesaid equally among them, and to their heirs and assigns forever, to be held in trust, however, as aforesaid, until they severally arrive at the age of twenty-one years, or are married. But if my said son Benjamin Franklin shall die leaving no issue living at his decease, then I direct my said executor and trustee to hold the same entire estate during the life of my son John Henry; ” [Similar provisions to those before recited were made for the benefit of John Henry, and his children; and also further provisions, in case neither of the testator’s said sons should leave any issue.] And my said executor and trustee, during the continuance of said trust, is charged with the duty of keeping the buildings and .farm aforesaid in good order and condition, as to repairs and improvements, if there should be any failure in this respect by the tenants in possession or any one occupying the premises.”</p> <p>Various of the parties interested assented to the granting of the petition; but, it appearing that minor children of Benjamin F. Porter and John Henry Porter were interested, and that there might be other contingent interests which would be affected by any decree of the court, J. A. Gillis, Esquire, was appointed guardian ad litem for the said minor children, and also for any parties not in being who might be affected; and he made the following answer: J</p> <p>“ That he has considered the question of the expediency of the sale of the property referred to, with reference to the rights and interests of those whom he represents; that the property consists of dwelling-house, outbuildings, and land adjoining; that the buildings and a portion of the fences are now in good repair, bu that they can be maintained in their present condition, and the taxes and insurance paid, only at a considerable and disproportionate expense, and that a very much less income would probably be derived from the estate than would be obtained from the proceeds of a sale ; and this respondent has no doubt that it is for the interest of Benjamin F. Porter, the person entitled to a life interest in the estate, that it should be sold.</p> <p>“ That a sale would ultimately be for the interest of the minor children of B. F. Porter and of the other parties represented by this respondent, cannot be stated with certainty, as this would depend upon certain contingencies which cannot be foreseen. For instance, by the terms of the will the eldest son of B. F„ Porter, upon his arrival at the age of twenty-one, and after the death of his father, can select as his portion of the testator’s estate the dwelling-house and ten acres of land adjoining. If his father should die at or about the time he reached the age of twenty-one, it might be greatly to his advantage that the property should remain unsold, inasmuch as it would probably increase in value; whereas, if his father should die long previous to that time, it would undoubtedly be for the interest of the son that the property should be disposed of, inasmuch as he might then be entitled to the accumulation of interest, which would probably be much greater than the increased value of the estate, if remaining unsold. This respondent is not aware that there is any way of accurately determining, under the peculiar provisions of the will, what on the whole would be for the interest of those whom he represents.</p> <p>“ It is provided by the will, as above suggested, that the eldest son of B. F. Porter, and, on certain contingencies, others of the issue of said testator, may have the right, upon the happening of certain events, of choosing as his portion of testator’s estate the said dwelling-house and ten acres of land adjoining the same, as will more fully appear upon reference to said will; and this respondent further says that this power of choice may be of great benefit and advantage to the person who may have the right to exercise it; and he is of opinion that the property should not in any event be sold, unless some provision is made in the order of the court for keeping, as a separate fund, subject to the provisions of said trust, such portion of the proceeds of the sale as the value of said house and ten acres may bear to the value of the whole estate, or in some other mode providing that this right of choice may be substantially exercised by the person who may ultimately be entitled to it.”</p> <p>. The case was thereupon reserved, by Chapman, J., for the determination of the full court.</p>

Contract against a surety in a recognizance, the condition of which provided that the judgment debtor, who had been arrested on an execution in favor of the plaintiff, should within thirty days deliver himself up for examination, giving notice, in the manner required by Gen. Sts. c. 124, and make no default, and abide the final order of the magistrate thereon.

Contract brought to recover for the use and occupation of a tenement by Mary E. Ford, a pauper, from May 17th 1865 to October 3d 1865.

Contract brought by the assignee of S. A. Stowell, an insolvent debtor, to recover back the sum of nine hundred dollars paid by Stowell to the defendant, about the 20th of September 1864, by way of preference as a creditor. At the trial in the superior court, before Morton, J., it appeared that proceedings in insolvency were commenced against S. A. Stowell by creditors on the 10th of October 1864.

<p>A married woman having paid debts of her husband, at his request, out of property whitfd came to her from her relations, he afterwards, in consideration thereof, and wishing to secure her therefor, executed a note and mortgage to a trustee for her benefit. After hw death, the administrator of his estate paid this note, with notice that the heirs at law disputed its validity. Held, that the note was invalid, and that the administrator was not entitled to be allowed, in his account, for paying it.</p>

<p>Tort for breaking and entering the plaintiff’s close in Salem, bounded southeasterly by the defendant’s house and southwesterly by the plaintiff’s house, digging up the soil, erecting a pigpen thereon, and covering the soil with heavy stones so as to destroy all use of it. The answer denied all the allegations in the declaration, and alleged that the defendant entered upon the close by license from the plaintiff.</p> <p>At the trial in the superior court, before Morton, J., the plaintiff gave in evidence a deed to himself of the close in question and of the house now occupied by the defendant; and entry and possession by himself under the same; and also offered evidence tending to show that the defendant erected a pig-pen over the platform of a well on the close, and dug a large hole in the close, and allowed the same to remain for a considerable time.</p> <p>The defendant gave in evidence a subsequent deed from tne plaintiff to himself of the house now occupied by him, bounded “ northwesterly by the common land herein described, and by the way leading to the well of water on said common land; ” “ Also the use, in common with the owner and occupants ” of the plaintiff’s dwelling-house, ££ of the land next northeasterly thereof, and the well of water on said common land,” which was the close described in the writ.</p> <p>The defendant requested the court to instruct the jury that, he having a right and license from the plaintiff to use the close in common with the occupants of the plaintiff’s house, there was no trespass of breaking and entering, and the plaintiff could not maintain this action, even if he proved the other acts alleged in the declaration.</p> <p>But the court refused so to instruct the jury; and instructed them that the grant of the use of the close in common with the plaintiff conveyed only an easement or right to use it in common with the plaintiff, and not the soil or the right to an exclusive use by the defendant; that such right of use was to be exercised reasonably and in such mode as was consistent with the similar use by the plaintiff; and that if such acts as were proved in the case were in the opinion of the jury such as were not authorized by the grant as thus described, then they were trespasses for which the defendant was responsible in this form of action.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>The estate of a tenant at will, who occupies under an agreement to pay rent monthly, ojb the first day of each month, may be determined by a written notice, given on the firs! day of a month, and directing him to quit and deliver up the premises on the first day of the next month, although the monthly terms began on the first day of each month.</p> <p>After an estate at will has been so terminated, one who has been put in possession by the agent of the owner, though secretly and under an invalid written lease for years, becomes a tenant at mil to the owner, and may maintain a process of forcible entry and detainer against the former tenant, who has regained possession.</p>

<p>After taxes have been duly ascertained and assessed, and lists thereof prepared by the assessor, under U. S. St. 1864, c. 173, they become absolutely due from the tax-payers, although such lists have not been committed to the collector or any deputy collector for collection; and if a deputy collector collects within his district taxes so assessed, a list whereof has been so prepared, he and the sureties upon his official bond will be liable therefor, although such list has not been committed to him.</p> <p>A deputy collector of taxes under the United States internal revenue laws, having collected certain taxes upon a list duly committed to him, and certain other taxes which had been duly ascertained and assessed, and a list thereof prepared by the assessor, though not committed to the deputy collector for collection, and having resigned his office without accounting for any part thereof, thereafter paid to the collector certain money and conveyed to him certain land upon the agreement, which was subsequently reduced to writing, that the same “ should be used towards payment of certain liabilities of” the deputy collector “ on account of sundry collections of sums of money assessed or to be assessed” under the internal revenue laws; and said agreement further provided that whereas the collector, in consideration of said conveyance, had advanced to the deputy collector a certain sum, “ which sum is appropriated towards the payment in part of the sums " so collected, the collector might therefore sell the land so conveyed, and apply the proceeds to reimburse himself for the sum so advanced by him. Held, that even if the sureties upon the deputy collector’s bond were not liable thereon for his failure to account for taxes collected by him before the list thereof was committed to him, still they could not avail themselves of the above transaction to diminish their liability for the taxes collected by him upon the list which had been duly committed to him.</p>

<p>Tort against a railroad corporation to recover damages for discharging water upon land of the plaintiff.</p> <p>At the trial in the superior court, before Brigham, J., the plaintiff offered to prove the following facts: The defendants, in building their railroad in 1846, opened up a large supply of underground water; and, in consequence of the inundation of their railroad by this water in 1860, they made an additional excavation where the water was found, in order to provide a passage for it along their track, until, at a point opposite to the land of the plaintiff, they turned it upon his premises, by a channel made by them at right angles; and after-wards, in consequence of remonstrances by the plaintiff, they continued the channel for some distance along the side of their track, and again turned it off in the direction of the plaintiff’s land, so that the water must of necessity flow upon the same. The plaintiff contended that these acts of the defendants were not necessary for the purpose of relieving their railroad from water, and that, by conducting the water a short distance further, a natural watercourse would have been reached, into which it might have been discharged; but the judge ruled that the facts which were offered in proof were not sufficient to support the action, and directed the jury to return a verdict for the defendants, which they did. The plaintiff alleged exceptions.</p>

<p>In an action to recover for money had and received, the plaintiff can only recover interest from the date of the writ, unless in his declaration he alleged a demand before that time.</p>

Contract. The declaration was as follows: “ And the plaintiff says that the defendant entered into a contract and agreement with the plaintiff, whereby they were to become copartners in the business of making and selling shoddy, to which copartnership the plaintiff contributed his time, skill and knowledge of said business, and the defendant was to furnish machinery, stock and cash capital; said business and co-partnership to continue for the space of three years, and the…

<p>An action of replevin was brought in the names of “A., B. & C., the Trustees of the Ministerial Fund in the North Parish in Haverhill.” In the subsequent portions of the writ they were referred to as “ the said trustees ” and “ the said plaintiffs.” The replevin bond described them in the same way as they were first described in the writ, and was signed by them individually, with separate seals. Other papers in the case referred to them in a similar manner. There was a corporation under the name of “ the Trustees of the Ministerial Fund in the North Parish in Haverhill,” whose title was relied on in support of the action. Held, that the action was not brought in the name of the corporation, and therefore could not be maintained.</p> <p>A defendant in replevin, who prevails, can only recover such damages as he proves; and in case securities for the payment of money, bearing interest, have been replevied, there is no presumption that any actual damages have been sustained thereby.</p>

Contract. The declaration alleged that the defendant took a certain estate as devisee under the will of John Adams, upon the condition that he should within two years after the death of John Adams pay to Charles Adams, the plaintiff’s intestate, the sum of six hundred dollars; that the defendant has been in possession of the devised estate, and has made repairs and improvements thereon; that John Adams died April 30th 1863, and Charles Adams died in December 1864, and the…

<p>ff a bond is given upon the filing of a petition for a review, under Geif. Sts. c. 146, § 38, with condition forthwith to prosecute the review to final judgment, &c., this condition is not broken by the omission to take out an order of notice of the petition, returnable at the next term of court, in compliance with the original order upon the petition, provided a new order of notice, returnable at a subsequent term, is afterwards passed, and the case is still pending in court.</p>

<p>Writ of entry to recover several parcels of land in Havesp» hill.</p> <p>At the trial in the superior court, before Morton, J., it was admitted that on the 5th of March 1852 John Ayer, the demandant’s husband, was seised of the demanded premises, on which day he executed a warranty deed thereof to the tenant, “ in consideration of two thousand dollars paid by, and in consideration of the fulfilment of certain agreements herein mentioned, and hereto attached, marked A, paid and to be performed and fulfilled by ” the tenant. Following the description of the premises conveyed was this clause: “And this conveyance is upon the consideration that said Emery, his heirs, executors and administrators, shall well and truly fulfil all the agreements on his part contained in an indenture hereto annexed or written on the other half of this sheet and herewith recorded, and shall also pay to the heirs, executors or administrators of said John Ayer two thousand dollars, in equal payments of two hundred dollars per year, with interest, which payments shall commence in one year after the death of said John Ayer and his present wife, or the survivor of them.”</p> <p>■ By the indenture, dated on the same day, in consideration of the covenants, promises and agreements thereinafter contained, Ayer leased to the tenant, his executors, administrators and assigns, the same premises, during the lives of said Ayer and his wife, and the survivor of them ; and the tenant, for himself and his executors, administrators and assigns, in consideration of the said lease and deed, covenanted to cultivate all the parcels of land, during the lifetime of Ayer and his wife, and the survivor of them, “in a good and workmanlike manner,” and pay half the income thereof annually to him and her and the survivor of them, and to keep on the premises one horse, one yoke of oxen and four cows, and to divide the milk or the proceeds thereof with Ayer and his wife, and the survivor of them, and to divide with them the earnings of the oxen, when worked off the premises, and permit them to use the horse whenever they should choose, and consume all the hay and fodder upon the farm, and keep the fences in good repair, at his own expense when not obtainable from the premises, and cut and draw to their door for them all necessary fuel, not exceeding ten cords, and cut and split the same ; and entered into certain other covenants of the same general description.</p> <p>John Ayer by his will devised to the demandant the income during life of all his real estate of which he might die seised and possessed; and authorized her, if necessary, to sell and dispose of the lease given by him to the tenant, and all his real estate, if she should find it necessary to do so for her comfortable support and maintenance.</p> <p>The demandant offered to prove that her husband owned no other real estate than that described in the deed; that the tenant complied with the stipulations of the lease during her husband’s life; but that since her husband’s death the tenant has repeatedly, continually and habitually violated and refused to fulfil all of said agreements.</p> <p>It was admitted that she is now eighty years of age, and has always lived on the demanded premises, and prior to the commencement of this action served a notice of re-entry upon the tenant.</p> <p>Upon these facts, and the evidence offered as above stated, the judge ruled that the demandant could not maintain her action, and directed a verdict for the tenant; and the demand-ant alleged exceptions.</p>

<p>Petition to this court under St. 1864, c. 306, by William C. Wonson and James Davis for the division of flats in Coos’s Cove in the harbor of Gloucester. The petitioners alleged that they were respectively seised of adjoining parcels of land and flats in that cove, together with the buildings and wharves thereon, bounded and described as in the petition. The material part of the description of said Wonson’s estate (after describing its boundaries upon the upland) was as follows : “ The width of said parcel, from the land of Davis to the land of Samuel Wonson, (the point begun at,) being one hundred and eighty-five feet along the line of the upland and what was the line of high water mark prior to the erection of a wharf between the points named; and thence from the point named at high water mark at' land of Davis in a westerly direction over the flats and by flats of said Davis to low water mark ; thence in a southerly direction by low water mark to flats of said Samuel Wonson; thence by flats of said Wonson in an easterly direction to the point first mentioned at high water mark.” The material part of the description of the estate of James Davis was as follows : From “ high water mark at land of said William C5. Wonson above described; thence in a westerly direction ove* the flats, and by the flats of said Wonson, to low water mark thence in a northerly direction by the line of low water mark to the flats of William Parsons 2d, Thomas L. - Parsons, Eben Parsons and George Parsons; thence in an easterly direction by the flats of the said Parsonses to a point at high water mark at land of the said Parsonses; the width of said parcel from said point to the land of said William C. Wonson at high water mark being one hundred and thirty feet along the line of the upland and what was the line of high water mark prior to the erection of a wharf between the points named upon the" flats herein described.” “And the petitioners say that their flats described above are the flats respectively appurtenant to and belonging to the upland of these petitioners respectively as described ; that Coos’s Cove is a deep and circular cove in the harbor of Gloucester, the flats whereof are covered by high water, and that the owners of the land abutting upon said cove and the flats adjacent and belonging thereto, and within the said cove and the headlands of the same are, as follows, viz.: the said William Parsons 2d, Thomas L. Parsons, Eben Parsons and George Parsons, being tenants in common of the upland and the flats belonging thereto from the northern headland of said cove, along the same to the land and flats of Davis above described; the said James Davis and the said William C. Won-son being owners of the lands and flats respectively above described ; and the said Samuel Wonson being seised of the up- 'and and the flats belonging thereto, from the land and flats of said William C. Wonson above described, along said cove to the southern headland of the same. And your petitioners further say that they cannot possess, occupy and improve the flats above described, as belonging to them respectively, while their ownership respectively in the same and the boundaries thereof are not settled and determined; and from the form of said cove, the boundary lines upon said flats of the several owners of the same cannot be settled and determined, except by the assent or agreement of all the said owners of land upon said cove and between the headlands thereof; and they further say that the said Samuel Wonson and the said Parsonses, though often requested will not agree upon and determine the ownership and boundaries of your petitioners upon said flats, and that your petitioners cannot therefore well settle and determine the boundary line and the ownership of said flats as between themselves. Wherefore they pray that notice may be issued in due form of law; and that their ownership in such flats respectively and the boundaries thereof may be settled and determined.”</p> <p>The court appointed three commissioners to divide the flats, who, after having met and heard the parties and with them examined the premises, made the following report:</p> <p>“ The uplands of the parties as described in said petition border upon a deep salt water cove in Gloucester, in said county, called Coos’s Cove, a plan of which, correctly drawn, with the lines and bounds of the several parties upon the line of high water, made by A. Bosehke, civil engineer, is herewith submitted,” the material part of which and of a transcript thereof afterwards mentioned in the report was as follows:</p> <p> </p> <p>“ The limits and boundaries of the propriety of the parties in the flats adjoining their uplands aforesaid have not been marked out or determined, except so far as the same are indicated by the wharves and structures of the respective parties erected thereon as the same are marked upon said plan. All of said wharves have been constructed and used by said parties in severalty for the purpose of laying vessels thereat for a period of twenty years and more prior to the date of the filing of the petition in this case, except portions of two wharves, to wit: twenty feet of the outer or southerly end of the wharf of the respondents Parsons and twelve feet of the outer or northwesterly end of the wharf of said Samuel Wonson, which last have both been erected within that time.</p> <p>“ The original line of high water at ordinary high tides prior to the erection of the wharves aforesaid, with the extent of the ownership of the parties respectively thereon, is correctly marked upon said plan. The line of low water beyond which the tide never ebbs is within the headlands of said cove and within a hundred rods from said high water line. We were not able from observation or by testimony to fix the line of low water as it now is at the lowest ebb tide, and still less the line of the lowest ebb as it was at the time when the line of high water was as it is marked upon the plan; and inasmuch as this line must be a shifting line, dependent upon the effects of changing currents, affected by the filling in and building wharves upon the flats, and the increasing deposits upon the bottom of the cove, and as the plan of division which we have adopted does not require it, we have not deemed it material to ascertain it. The approximate line marked upon the plan is, however, substantially correct, and the parties consent that the same may be taicen and treated as the true line of low water if in the opinion of the court it shall become material;</p> <p>“ No rule to our knowledge having been established for the division of flats in a cove of this description, out of which the tide never entirely ebbs, nor any rule of division in any case adopted, Which is capable of a general application to shores of different shapes, it was suggested to us that the mode heretofore adopted in some cases, claimed to be analogous to the present, of deep coves out of which the tide entirely ebbs, to wit: by drawing a line across the mouth of the cove between the headlands and giving to each shore owner bis proportionate length of flats on that line, should be followed in this. But we were of opinion that this mode was not properly to be applied to this case, or to cases of coves from which the tide does not wholly ebb at the lowest tide, inasmuch as the base line upon which the division would be made must pass outside of the limits of the ownership of the parties, and where no actual measurements or monuments could be had.</p> <p>“ And we deemed it incumbent on us to adopt a mode which shall secure to the parties a proportionate share of the flats within the limits of the cove, in the direction of low water, in the ratio as the length of their respective ownerships upon the line of high water. And in ascertaining the limits of the cove for this purpose we were of opinion that we ought not merely to include the flats inside and between the headlands of the cove, but that we ought also to include a portion of the flats lying off the headlands and to low water mark or a hundred rods. And we have established the boundaries of such flats and of the cove for this purpose in manner following, being in our opinion one substantially accurate, and of more easy practical application than any other, to wit: we have drawn a tangent line from headland to headland, and at the point where it touches the northerly headland have erected a perpendicular to said tangent as the northerly boundary to low water mark — there being nothing in the form of the northerly adjoining shore to require a less angle than a right angle — and at the southerly end at the point of junction we have drawn a line from the shore to low water mark at an angle of 74 deg. 53 min. from said tangent line that being one half of the angle formed by said tangent line and a tangent line drawn across the adjoining cove from headland to headland, as the southerly limit of the flats of the cove to be divided, as the same are indicated upon the plan.</p> <p>u And we have adopted the following mode of division as one fair and proper in this case, to wit' We fix the boundaries by division lines drawn through a series of points 01 lines between the established limits of the cove equidistant from the line of high water, which points are found by dividing said equidistant lines in the ratio as the length of the lines of upland owned by the parties on said high water line, giving to each shore owner his proportionate share of the area of each belt of flats thus formed around the cove, until the limit of his ownership in the direction of low water is reached; the said belts as represented upon the plan being ten feet in width ; the division lines so ascertained being represented upon the plan by the irregular and curved lines from the bound marks on high water line to low water line,” (and marked, on the plan, ante, 73, a 1, b 1, c 1.) “ It was objected to this mode, that it gives division lines of boundary, curved and irregular and not adapted to the construction of wharves upon the premises. But we have considered that the use for construction of wharves is not the sole purpose for which the premises are valuable, nor the purpose for which such property is always of the most value, and that by law the right of occupation of flats adjoining the upland is not co-extensive with the ownership; since it cannot ‘ stop or hinder the passage of boats or vessels to other men’s houses or lands.’ And further that the courses of these lines will not be more irregular than the shore lines, upon which they depend, nor than the line of low water, nor than natural lines of boundary generally ; and that they mark a division fair and proper in the premises, which gives to each owner his due proportion, and that the rule by which they are run is capable of a general application to coves of all shapes, and to headlands and shores of the open sea as well, giving to the shore owners in all cases their proportionate shares of the area of the adjoining flats, marked by boundary lines in the direction of low water upon the courses indicated by nature in the formation of the shore. And in accordance with this rule — except where the lines so drawn intersect the lines of the wharves aforesaid, in which case we define the boundary lines by the lines of wharf which have existed for twenty years or more — we find and report the boundary lines of the ownership of the petitioners in the premises as follows:” [The commissioners then “ apportioned and set out ” to each of the petitioners by monuments, courses and distances, a parcel of flats, extending from high water mark upon the shore of his upland, to the line of low water at its lowest ebb.] “ And we find and report the above to be the lines and boundaries of the ownership of the petitioners in the flats in question.</p> <p>“ At the request of the parties or some of them we have ascertained the results of a division of these flats by several other and different modes, to wit: by a division, in the ratio of the length of ownership on high water line, of the tangent line from headland to headland of the cove,” (marked a 2, b 2, c 2, on the plan, ante, 73); “ of the line of lowest low water between the established limits of the cove as above set forth,” (marked a 3, b 3, c 3, on the plan); “ also of the line of lowest low water that is inside of said tangent line,” (marked a 4, b 4, o 4, on the plan); “ all of which are marked out and shown upon the transcript of the aforesaid plan of the cove, which is also herewith submitted; and also the result of a division, in the same ratio, of the line of mean low water, marked upon the original plan aforesaid,” (which last is omitted in the printed plan, as not tending to assist the understanding of the case). “ And in the event that a division by either of those modes shall be held to be the correct one, the result of such division is correctly indicated upon said plan and transcript thereof.”</p> <p>The petitioners objected to judgment upon the report of the commissioners for the following reasons: “ 1st. That the division reported by the commissioners is not the true and legal method for dividing the flats in said cove and determining the boundary lines of said petitioners. 2d. That the true method of division is in the ratio of the length of ownership of the petitioners respectively on high water line, upon the line of lowest low water between the established limits of the cove as determined in said report, or upon the tangent line between headland and headland; as these two methods of division are indicated upon the plans returned by said commissioners. 3d. That said commissioners should have divided the flats in said eove, and determined the boundaries of the petitioners, by setting off to the petitioners the flats appurtenant to their upland respectively, without reference to any wharves or structures upon the same.”</p> <p>The case was reserved by Gray, J., upon the petition, the report of the commissioners, the plans referred to therein, and the petitioners’ exceptions thereto, for the consideration and determination of the full court. The parties agreed that if in any part of the report the commissioners had exceeded their authority, that part might be stricken out without affecting the rest of the report, if otherwise free from objection.</p>

<p>A. statute for supplying a city with pure water, after authorizing the city to take certain water rights and lands, and to build and maintain aqueducts, dams, reservoirs and other works adapted to the purpose, and providing for the payment of damages caused thereby, and for the appointment of commissioners to execute the work, authorized the city council, “ for the purpose of defraying the cost ” of whatever was so taken, and of constructing the works, and paying all expenses incident to the accomplishment of said purpose a to issue scrip to an amount not exceeding in the whole five hundred thousand dollars.” Held, that the city were not thereby restricted in the amount of expenditures which they might make for the accomplishment of said purpose, but only in the amount of permanent debt which they might create.^</p> <p>A statute authorized the city council of a city to issue scrip to a certain amount, bearing interest at a rate not exceeding six per cent, per annum, and provided that the act should be void unless approved by a majority of the voters of the city present and voting, at meetings held on a certain day. The city council issued and sold scrip with principal and interest payable in coin. A subsequent statute authorized the city to contract íor the payment in coin of the principal and interest of said scrip, and ratified all acts of the city or any officer thereof having in contemplation the payment thereof in coin, without providing for any new submission of the matter to the voters of the city. Held> that the issue of the scrip with principal and interest payable in coin, was legal.</p> <p>A city which is authorized to issue scrip to a certain amount, for the purpose of defraying the expense of a public work, may lawfully issue the same all at once, and invest the money not required for immediate use upon the work in United States securities.</p>

<p>Contract. The writ was dated September 17th 1857. The declaration alleged that, on the 25th of June 1857, the defendant executed to the plaintiff a bond of the same date, the condition of which recited an agreement by the defendant, upon the payment to him by the plaintiff of a certain sum of money, in thirty days from the date of the bond, to make, execute and deliver to the plaintiff “ a good and sufficient deed, with the usual covenants of warranty, release of dower,” &c., of a tract of woodland, situated in Lunenburg, in the county of Worcester, containing twenty-four acres and one hundred and sixteen and one half rods, more or less, described by distances and lands of abutting owners, and in part by courses. The declaration alleged a tender by the plaintiff of the money on the twenty-fifth day of July 1857, and a refusal by the defendant to give a deed according to his agreement, and prayed for a decree for specific performance of the agreement, and concluded with a general prayer for relief in equity.</p> <p>The defendant answered under oath setting forth, with other matters, that the land was incumbered with a right of way, which incumbrance he could not remove; that he had a wife living who had an inchoate right of dower in the land, which she refused to release; that he executed the bond while under a mistake as to the quantity of land contained in the tract; that the defendant, when the tender was made and the deed demanded, desired the plaintiff to let him read the bond so referred to, and to make a copy of it, but the plaintiff wholly refused to let him do so and had refused ever since, although the defendant was ignorant of the true tenor of the bond. The defendant also alleged in his answer that, on or about the 11th of August 1857, he, to save litigation and expense, which was threatened by the plaintiff, offered to execute and deliver to the plaintiff a good and sufficient deed of his land in Lunenburg, with the usual covenants of warranty, except as against said incumbrance, but without release of dower, and then tendered to the plaintiff such a deed, being the best conveyance he was able to make to the plaintiff; but the plaintiff wholly refused to receive the deed.</p> <p>At the hearing before the judge on the whole case for a final decree, it appeared that the land was incumbered by a way extending across it; that the defendant’s wife had an inchoate right of dower in the premises which she refused to release; that the tract contained twenty-eight acres and one hundred and twenty rods of land, instead of twenty-four acres and one hundred and sixteen and one half rods of land, as alleged in the declaration, and as the defendant believed when he signed the bond; that the excess of four acres and three and one half rods constituted about one fourth of the valuable land; that the plaintiff at the time of making the bond knew or believed that the tract contained more land than the defendant supposed, and did not communicate such knowledge or belief to the defendant, but agreed to pay for the land about twice as much as the defendant thought it worth; that on the 25th of July 1857, the plaintiff, with witnesses, called on the defendant at his house, with the bond, and tendered the balance due to the defendant, and demanded a deed according to the bond; that the defendant, without refusing to give a deed as demanded, desired to read the bond and to take a copy of it, and actually took it in his hand and began to read it, whereupon the plaintiff snatched it out of the hand of the defendant, gave it to a man who came with the plaintiff as a witness, and told this witness to keep the bond and never let the defendant see it again, and the defendant has never seen the bond since; that the defendant did not know precisely the description in this bond, in which the boundaries of the land were expressed in part by courses and distances; that on or about the 11th of August 1857, the defendant offered the plaintiff a deed dated August 10, 1857, of his land in Lunenburg, duly executed and acknowledged, containing a covenant that the premises were free from all incumbrances, “ excepting a privilege for people to pass and repass, if any there be,” and also containing the other usual covenants of warranty, but without any release of dower by the defendant’s wife, and then told the plaintiff that this was the best deed he could give him; and that the plaintiff refused to accept the deed, without a release of dower.</p> <p>Before the case was opened, the defendant moved to dismiss the action on the ground that it was local and ought not to be brought or tried in Middlesex county, but the court ordered the trial to proceed notwithstanding the motion.</p> <p>The plaintiff declared his willingness to accept a conveyance of the land without including the right of way, but claimed compensation for the inchoate right of dower, unless the wife should release it.</p> <p>The defendant contended that the plaintiff ought not to have a decree for specific performance, 1. Because of the defendant’s mistake in the quantity of land. 2. Because of the plaintiff’s refusal to let the defendant read and copy the bond, and his concealment of it afterwards. 3. Because the plaintiff before he brought this action refused to accept the deed offered by the defendant. 4. Because the action was brought in the wrong county. And he claimed that these reasons, either separately or in combination, furnished sufficient ground for refusing to the plaintiff the special remedy for which he prayed.</p> <p>But the judge after hearing the parties and their evidence found as facts proved in the cause, 1. That the ignorance of the defendant of the true quantity of the land had no influence in inducing him to make the bargain, but that the defendant would have considered it highly advantageous to him if he had known how much land there really was; that he had all the means of knowing the true quantity which the plaintiff had, and was well acquainted with the land. 2. That the refusal of the plaintiff to show the bond did not prevent or hinder the defendant from performing his contract. 3. That the deed tendered was not such a one as the plaintiff was bound to accept. And he ordered that a decree should be entered that the defendant convey to the plaintiff the land described in the bond, but without the right of way above mentioned, by a deed with the other usual covenants of warranty and with a release of dower; and that "f the wife still refused to release her inchoate right of dower, and the defendant did not therefore execute and tender such a deed, the case should then go to a master to ascertain the value of the inchoate right of dower, and afterwards judgment should be awarded for damages in the amount thus ascertained, and a final decree entered for a conveyance without a release of dower, and excepting the right of dower from the covenants of warranty, and for the plaintiff’s costs.</p> <p>The defendant appealed to the whole court.</p>

<p>Specific performance of a contract to convey a farm in exchange for tenement houses wi 2 not be decreed in equity, in favor of one who has materially misrepresented the amount of rent yielded by the houses which he on his part is to convey, and thereby induced tile other party to enter into the contract; although such misrepresentations were not fraudulent, and the party making them offers to make good the deficiency in the rent, and although, before the discovery that the representations made were not true, the parties entered upon the execution of the contract.</p>

<p>Under Rev. Sts. c. 59, § 13, the voluntary acknowledgment of a deed might be taken by a justice of the peace out of his county.</p>

<p>Certain matters in dispute were submitted to referees “ to settle and determine; ” and the agreement of submission provided that “ the award of such referees, or a major part of them, when made, shall be final and conclusive between the parties. The said referees are to determine all questions according to the rules of law and equity, the same as though the matter was to be tried in a court of law or equity.” Held, that in the absence of fraud, corruption or mistake apparent upon the face of the award, the decision of the referees was final upon the questions of law as well as the questions óf fact involved in the case.</p> <p>If the plaintiff in a suit in equity has been induced to settle the same by fraud, and his bill has thereupon been dismissed, without any entry that it was “ without prejudice,” he may by a proper process obtain a correction of the decree; and if, instead of applying t* the court for a correction of the decree, an agreement is made to submit to arbitration “ all claims, whether in law or equity, existing between the parties,” the arbitrators are »ot bound by such decree, but, if they find that the settlement was obtained by fraud, they may re-open and consider and determine upon the subject matter of the bilL</p> <p>Under a submission to arbitration of “ all claims, whether in law or equity, existing between the parties,” an award that one of the parties shall pay to the other a certain sum of money, “ which award is in full of all matters referred by said parties,” is not invalid for the reason that it does not in terms dispose of a personal action pending between the parties; but the entry of “ neither party ” should be made therein.</p> <p>A bill in equity will not lie to set aside an award on the ground of mistake, on the part of the arbitrators, or failure to determine all the matters submitted. These matters may be pleaded in defence to an action at law upon the award.</p>

<p>Petition for partition. The petitioner claimed to own three undivided fourth parts of the land in question, and of a small house, shed and bam standing thereon. The respondent admitted the petitioner’s title to the land, but denied that the petitioner had any title to the buildings, and claimed title thereto in himself and his son, Albert L. Fessenden. The only question in issue was as to the title to the buildings.</p> <p>At the trial in the superior court, before Rockwell, J., it appeared that in 1841 Luther Spaulding, the owner of the land, died, leaving the same to his wife for life, with remainder to his daughter, Mrs. Eliza Howard, for life, and remainder over tc such of his grandchildren as should, also be heirs of said Eliza. Mrs. Spaulding died in 1841; and Mrs. Howard, who after wards married one Searles, died in 1865, leaving four children namely, Spaulding Howard, Lucy Day, and two others. Afte the death of Mrs. Howard, Spaulding Howard acquired the title of two of the other children; and Lucy Day and her husband conveyed her interest in the land, reserving and excepting the buildings, to the respondent, Walter Fessenden; and after-wards, on the 2d of April 1866, Mr. and Mrs. Day executed an instrument to convey the buildings to the respondent and his son, Albert L. Fessenden.</p> <p>Mr. Day testified that he bought the barn for $40, and put it upon the land, while Mrs. Searles [Mrs. Howard] was tenant for life, by her consent; that afterwards, by her consent, he built a small shop there, taking the timber from the land and paying her therefor by work; that he afterwards enlarged the shop, and changed it to a dwelling-house, by her consent; that the barn always rested upon blocks, and there was a small cellar under the house, walled with cobble stones, such as the rest of the house was supported by ; that, after the death of Mrs. Searles, the petitioner said he would give as much as anybody else would for the buildings; that, after some negotiations, they failed to agree upon a price; that he believed that he told the petitioner that he thought Fessenden would pay more for them than he (the petitioner) would; that he moved out of the buildings on the 24th of March 1866, leaving them unoccupied, and after putting up written notices sold them at auction to the Fessendens.</p> <p>Walter Fessenden, the respondent, testified that soon after he bought the land of Mr. and Mrs. Day the petitioner said to him, “ I am glad you have bought the land of Mr. Day, for I could not do anything with him ; ” to which he replied that he had not bought the buildings; and the petitioner said, he had offered Day more than the buildings were worth, and should not do anything more about it, and Day might move them off, or do what he had a mind to. The respondent further testified that he had heard that the buildings were once under attachment, and asked the petitioner, who said he did not know of any ; and that, at the time be bought the land, he told Day that, so far as he (the respondent) was concerned, the buildings might remain there till he could have a chance to dispose of or remove them. On cross-examination, the respondent testified that he told the petitioner that Day asked more for the buildings than he would give for them, and “ we said to each other, if he won’t take that, he may give them away.”</p> <p>The petitioner asked the court to rule that there was no evidence competent for the consideration of the jury, tending to prove title to the buildings in Walter and Albert L. Fessenden as separate from'the land.</p> <p>The judge, being of opinion that, whatever might have been the rights or title of Mr. Day to the buildings during the life of Mrs. Searles, or after her death, while his occupation and possession of them continued, yet, as the testimony went to prove, among other things, that, before the sale of the buildings at auction, and the conveyance of them by Day to the Fessendens, Day had left them on the land, not retaining possession or continuing occupation, he could convey no title to the buildings; and if he should submit the evidence to the jury, he must instruct them that such was the law, and that the testimony in relation to the acts and declarations of the respondent would have no effect upon the titles, ruled as requested above by the counsel for the petitioner.</p> <p>Whereupon, by consent, a verdict was rendered that the petitioner was seised of three undivided fourth parts of the buildings.</p> <p>The respondent alleged exceptions.</p>

<p>Contbact brought to recover damages sustained by the plaintiffs by reason of the defendant’s failure to furnish lumber and timber for building a bridge, in accordance with his written agreement.</p> <p>The written agreement, after providing that the defendant should furnish to the plaintiffs the lumber and material required for the rebuilding of a bridge over Merrimack Eiver, according to certain specifications and schedules annexed, at such places in Lowell as might be directed from time to time by the building committee, and that the lumber should be inspected by the committee before its acceptance by the city, and all lumber offered for acceptance, and not in accordance with the schedules and specifications, might be rejected, and that the delivery of the lumber should begin by a certain date and be completed by a certain other date, contained this provision:</p> <p>“ And it is distinctly agreed and understood by the parties to this contract, that if any portion of this timber is not delivered, or is rejected in accordance with this agreement as hereinbefore stated, the city of Lowell may supply the deficiency in such manner as the said committee may deem expedient, and any extra cost incurred by the city in obtaining the same over and above the price agreed to be paid under this agreement for the sum, and any damages accruing to the city by reason of such delay, may be deducted from the money due the said Allen, and shall be paid by him to the city.”</p> <p>The specification for a portion of the lumber was as follows : “ To be sound, old growth, white pine, entirely free from wane, shakes, loose knots, and all knots more than two [inches] in diameter, and free from sap exceeding one inch either way from the corner, and to be accurately sawed.”</p> <p>The declaration, after setting forth the contract, averred that the defendant failed to deliver said lumber as agreed, and that the city supplied the deficiency in accordance with the terms of the contract, and were obliged to furnish a large amount at an expense of $1700 additional cost thereof, exclusive of a sum credited to the defendant for such lumber as had been furnished by him and accepted.</p> <p>At the trial in this court, before the chief justice, it appeared that a large quantity of lumber delivered by the defendant was rejected, and the defendant introduced evidence tending to show that some portion of this was rejected because it was not free from sap exceeding one inch from either corner, as well as for not conforming to the contract in other respects; and also that the lumber purchased by the plaintiffs to supply the deficiency under the defendant’s contract was not so good as his lumber, end that some of it had more than one inch of sap. The defendant also introduced evidence tending to show, as he contended, that the prices paid in supplying the deficiency were too much.</p> <p>The defendant requested the court to instruct the jury that if the plaintiffs elected to supply the deficiency, as is provided In the contract, and to deduct the extra cost in obtaining the same, over and above the price agreed to be paid by the contract for the same, from the money due to him under the contract, and supplied the same in that way, they would be confined to that remedy, though inadequate, and could bring no action for the balance; and that if the plaintiffs undertook to supply the deficiency of the lumber provided for in the contract, which he failed to deliver, or which was rejected in accordance with the contract, and to claim of him the extra cost incurred by the plaintiffs in obtaining the same, over and above the contract price, they must supply said deficiency according to said contract and specification, and free from sap exceeding one inch either way from the corner; and they would not be entitled to recover of him as supplying said deficiency under the terms of the contract, the extra cost incurred in obtaining any of said lumber which was not free from sap exceeding one inch either way from the corner.</p> <p>The chief justice refused to give these instructions ; and instructed the jury that the right to deduct from the sum due to the defendant, damages or loss sustained by the city, if incurred by the city, did not exclude them from a further remedy to recover additional damages, if any, in this action; and if the jury were satisfied that the city had sustained other and further damages beyond the sum due to the defendant for the lumber which he furnished, and which was received and accepted by the city, such additional damages might be recovered in this action ; that the defendant was bound to perform the contract according to its terms; that in the event which happened of the failure of the defendant to supply the lumber according to the contract, the city had a right to supply the deficiency, and to recover the additional cost of doing so of the defendant; that in supplying the deficiency the city would not be bound to procure exactly the same kind and quality of lumber as the defendant had agreed to furnish, but only such as was substantially the same in kind and quality, and if the lumber procured by the city was substantially like that which the defendant had agreed to furnish, it would not prevent a recovery in this action, although some of it was not free from sap exceeding one inch each way from the corner ; that the city were bound to act fairly and in good faith, with reasonable care and diligence, in supplying the deficiency with lumber as nearly like that which the defendant had agreed to furnish as was possible to procure within a reasonable time, and if the city did so act, and did procure lumber substantially the same as that which the defendant had agreed to supply by his contract, they could maintain this action to recover such sum in damages as they had sustained by his breach of the contract, which would be the cost of the lumber purchased by the city to complete the bridge, less the amount due to him for lumber which he had supplied, and which had been received and accepted by the city under the contract.</p> <p>The jury returned a verdict for the plaintiffs, with $1692.09 damages; and the defendant alleged exceptions.</p>

<p>V fixtures are added to real estate by one who is in possession thereof under a bond for a deed, without paying rent, his right to remove them, after breach of the bond, must be determined by the rule which prevails as between vendor and purchaser, and not that which prevails as between landlord and tenant.</p> <p>Accordingly, under such circumstances, a trip-hammer firmly attached to a block set in the ground; the blower of a forge; a force-pump and its pipes, for raising water on the premises; and shafting fastened to the building by screws and bolts, cannot be removed after breach of the bond. But a steam-engine and boiler, which are portable and can be removed without removing brickwork; a planing machine and anvils not fastened to the buildings; vices fastened to a work-bench merely by screws and bolts; a grindstone on a movable frame, and an emery machine fastened to the floor with bolts, and both capable of removal without displacing or materially injuring any part of the building or land and of being used elsewhere as well as on the premises, may be removed after breach of the bond.</p>

<p>A lien which has accrued to a partnership, for work done and money expended upon machinery, is not lost by the dissolution of the firm and the assignment by one partner of his interest therein to the other; but in such case the partner to whom the claim and lien have been assigned may enforce the same in the name of the firm.</p> <p>A justice of the peace has original jurisdiction of a petition to enforce such lien, under Gen. Sts. c. 151, § 21, although the amount of the claim exceeds one hundred dollars.</p> <p>The notice to be issued upon such petition need not set forth a statement in detail of the work done and money expended.</p> <p>No time being fixed by the statutes for the commencement of proceedings to enforce such a lien, a petition may be sustained for that purpose though not commenced for more than two years, and though no written demand of payment was made for more than fifteen months, after the completion of the work.</p> <p>It is no objection to the maintenance of a petition to enforce such lien, that the petitioner never completed the work upon the machinery, and that in the condition in which it was left by the petitioner when he ceased to work upon the same it would be of no value to the owner for the purpose for which it was designed; if the reason why the petitioner so ceased to work upon the same was that the owner failed to furnish materials therefor, according to his agreement.</p> <p>Such lien may be enforced though the agreement under which the work was done was not</p> <p>in writing, and no written notice has been given by the petitioner, or recorded in the town clerk’s office, of his intention to claim the lien.</p> <p>The objection that one item in the petitioner’s bill of particulars, filed in the case, was for “ balance due on settlement,’’ cannot be taken for the first time at the argument upon agreed facts in this court.</p> <p>Such lien may cover the cost of materials.</p> <p>A petition to enforce such lien will not he defeated by reason of the petitioner’s demanding of the owner of the machinery too large a sum, or omitting to describe the property intended to be covered by the lien.</p>

<p>The owner of land lying on both sides of a street granted the portion on one side, which bordered upon the ocean, subject to the condition that the same should only be used for bathing and boating from the beach, and that omy low bathing-houses should be built thereon. It did not appear that he then intended that the land so granted should be subsequently divided and held by different owners. This, however, was done, and the deeds of conveyance were made subject to the condition. The purchaser of one end of the land also purchased from a stranger a lot opposite thereto, on the other side of the street. Held, that such purchaser could not maintain a bill in equity against the purchaser of another portion of the land, to restrain the latter from violating the condition.</p>

<p>A railroad company built a fence along the side of its railroad, and placed bars therein for the accommodation of the owner of the adjoining land. The bars being left down, his cow escaped through the same and went upon the railroad, and afterwards passed on to another adjoining lot, and then in some way not clearly shown found her way upon the railroad again, where she was run over and killed by the engine. Beld, that the owner could not recover damages therefor without proof that the bars were down without his fault, or that after leaving the railroad the cow was able to come upon it again by reason of some fault of the company.</p>

<p>A complaint under the statute concerning the maintenance of bastard children, made before a police court five years ago, on which no proceedings have been had subsequent to the issuing of a warrant, and which has not been continued or brought forward on the docket, cannot be deemed to be a pending suit in any such sense as to operate in abatement of a new complaint.</p> <p>A complaint for the support of a bastard child during its life may be commenced and maintained after its death.</p>

<p>A magistrate has no jurisdiction to discharge a poor debtor on Fast Day.</p>

Contract on a recognizance, taken on July 10th 1865, under Gen. Sts. c. 124, § 10, with condition that William H. Eaton, who had been arrested on an execution in favor of the plaintiff should within thirty days from the time of his arrest deliver himself up for examination, giving notice as therein provided, and duly appear, making no default, and abide the final order of the magistrate thereon.

Tort to recover damages sustained by the bite of a dog. The action was originally brought before a magistrate, where the defendant offered to be defaulted, and that judgment might be rendered against him for twenty dollars damages. The case came to the superior court by appeal.

<p>The plaintiff in an action of contract recovered a verdict of less than twenty dollars. The defendant relied both upon payment and an account in set-off. A question arose upon the taxation of costs whether the plaintiff’s demand had been reduced below twenty dollars by payment or set-off. Meld, that the judge in determining this question might decide upon the facts, as they appeared in evidence at the trial, without regard to statements contained in a former bill of exceptions signed by him for the purpose of presenting to this court other questions which arose at the trial of the case.</p>

<p>The sole deed of a married woman, executed without her husband’s written assent, of land which was conveyed to her before the date of any of the statutes providing for the separate estates of married women, is absolutely void, and a note given in payment of the purchase money thereof is without consideration; and no action can be maintained on such note, although the grantee named in the deed has entered into possession of the land, and cut and removed wood to the full value of the purchase money, and although in the deed the grantor was described as a married woman.</p>

Tort to recover for the conversion of a buffalo robe. At the trial in the superior court, before Putnam, J., it appeared that the plaintiff, on a Sunday, drove to the defendant’s hotel in Waltham, for a purpose not of necessity or charity, where, as he testified, he left his hired horse, wagon and buffalo robe in charge of the defendant’s hostler, and remained at the hotel over night. The next morning he called for his team, and the robe could not be found.

<p>Contract upon two promissory notes, signed by the defendant, dated January 5th 1857, and payable in ten and twelve months respectively. The answer denied that there was any consideration for the notes, and averred that if there ever was any the same had failed, and also set up the statute of limita' tians. The writ was dated January 5th 1864.</p> <p>At the trial in this court, before Foster, J., the plaintiff’s counsel read the notes to the jury, and stated that in December 1849 the plaintiff, with another person, assigned to the defendant a patent right for an improvement in car-wheels, for which the defendant afterwards, in June 1850, gave to him a bond for $5000; and after some payments thereon said bond was given up, and another given in its place in June 1851; and the notes in suit were given for the last named bond. The plaintiff then rested, without any further evidence.</p> <p>The defendant then asked the court to rule that one of the notes was barred by the statute of limitations; but the judge, having inquired if the defendant intended to rest his defence to that note solely upon the statute of limitations, and being informed that he did not, directed him to proceed with the defence. Acknowledgments by the defendant, sufficient to take the note out of the statute, were subsequently proved.</p> <p>The defendant contended that the notes were given for the extension of the patent right for seven years from and after April 10th 1857, which extension was in contemplation at the date of the notes; and that the bonds referred to were obtained under false and fraudulent representations by the plaintiff that the patent was a valid one. And there was evidence tending to show that when the defendant gave the bonds to the plaintiff, he did so relying on the plaintiff’s representations that it was a valid patent, that it had been tested in a court of law in Baltimore, and that there was nothing in the way of its being made a productive property; that the South Carolina Railroad Company had purchased the right to use it, and were to pay $3000.00 therefor, which the defendant was to receive as a part of the consideration for which said bond was given ; that after he took the assignment and gave said bond, he, the defendant, saw the officers of said railroad company, with a letter from McMahon to obtain said $3000.00, which said officers refused to pay. The defendant being a witness, his attorney proposed to ask him if said officers assigned any reason for not paying him, and, if so, what they were; but the judge refused to admit the testimony of their statements as to the reasons why they would not pay. The defendant’s counsel then offered to prove that, at the time of said refusal, said officers declared that it was an old device, and denied that they had- ever promised to pay anything for the use of the patent to the plaintiff; but the judge refused to admit the testimony.</p> <p>The defendant, having been shown to be an expert, was asked by his counsel the following question :</p> <p>“ From investigations made by you as a machinist, in scientific works and otherwise, within three years past, have you ascertained whether or not this was a well known invention prior to the application for and issuing of the letters patent’’ Dut the judge refused to admit the testimony.</p> <p>The defendant introduced in evidence the letters patent, the assignment thereof to him, an attested copy from the records of the patent office of the plaintiff’s application for the renewal and extension of said letters patent, and the decision of the commissioner of patents refusing the extension, and offered, as a part of the record proceedings on said petition, an attested copy of the record of the report of the examiner in said case, made to the commissioner, on which his decision was founded , but the judge rejected the testimony. It was admitted by the plaintiff that the patent had never been extended, and that, if the notes were given for the extension thereof, he could not recover.</p> <p>The defendant proposed to ask the plaintiff whether he had made inquiries and ascertained that the statement that the patent had been tested in a court of law, at Baltimore, was untrue; but the judge refused to permit the question.</p> <p>Upon the evidence, the judge instructed the jury that, if the consideration for the notes was the extension of the patent, they should find for the defendant; but if the consideration was for the bond, they should find for the plaintiff, unless they found that the bond was obtained of the defendant by fraud.</p> <p>The jury returned a verdict for the plaintiff on both notes; and the defendant alleged exceptions.</p>

<p>tf a writ of audita querela and a bill in equity have been brought to obtain relief from the same grievance, and both cases have been reserved for the consideration of the full court without objection being made on the ground that the plaintiff could not at the same 'time maintain proceedings at law and in equity for the same cause, it is too late to raise the-objection at the argument of the cases before the full court.</p> <p>The plaintiff in an action wrongfully recovered judgment against one of the defendants therein and took out execution and levied the same upon an equity of redemption which the defendant had conveyed in fraud of creditors. This levy became ineffectual by reason of the omission of the creditor to bring an action for possession within a year. The defendant thereafter sued out a writ of review of the judgment, and obtained thereon a judgment against,the plaintiff, under Eev. Sts. c. 99, for the amount of the execution which had been levied by the plaintiff, and took out execution thereon, and levied the same upon land of the plaintiff. Held, that the plaintiff had no remedy either by audita querela or bill in equity to obtain relief from the judgment in review and execution thereon.</p>

<p>A wooden building fastened to the ground by numerous iron bolts passing through the lower timbers thereof into rocks in the ground, one or more of which are natural rocks, and constructed so slightly that it cannot be removed without a large expense in strengthening it, and having a brick chimney and furnace therein, the foundation of which is set in the ground, and also a machine of iron and steel of the weight of six tons, placed on a stone and mortar foundation in the cellar of a building, and extending up into the second story thereof, with the first floor fitted close around the bottom of its frame, and braced and bolted to various parts of the building, and so constructed that it cannot be removed from the building without being taken to pieces and talcing up the floor and cutting into the walls and sides of the building, are both fixtures; and, if put there by a tenant, and not removed before the expiration of his term, will pass to the owner of the real estate.</p>

<p>The owner of a reversion, acting as agent for the tenant for life, demised the premises for a term of years by a letter signed by himself as such agent, and the lessee knew that he was acting as such agent. Held, Vast the estate of the lessee ended with the death of the tenant for life, though the term of years had not expired.</p>

<p>A complaint for flowing land having been brought against a married woman, she in her answer admitted her seisin of certain premises, but professed ignorance whether they were the same which she was alleged to own in the complaint; and alleged a right to flow the complainant’s land by virtue of an award under a submission to arbitration entered into by the complainant and her husband, which award identified the premises referred to as hers. Held, under these circumstances, that it was no defence to the complaint to prove that the land was purchased and paid for, and the dam maintained, by her husband, and that the deed was taken by him in her name, all without her consent or knowledge.</p> <p>If one who contemplates the purchase of a mill-site, and has an agreement for the purchase of a bond for a deed thereof, while proceeding to erect a mill thereon enters into an agreement with the owner of the land above to submit the damages from flowing to arbitration, and an award is made that certain damages shall be paid within a certain time, and he fails to pay or offer to pay the same within that time, and afterwards takes the deed of the mill-site in the name of his wife, she cannot avail herself of such award in defence to a complaint for flowing, brought against her by the owner of the land above.</p>

<p>The first of these causes was a writ of dower, to which the tenant pleaded that the demandant had released and conveyed away her dower, and that there was an outstanding mortgage upon the demanded premises which the demandant must redeem before dower could be decreed.</p> <p>At the trial, before Bigelow, C. J., the title appeared to be as follows:</p> <p>1. A mortgage of the premises by Michael McCabe, the demandant’s husband, to Stephen S. Seavy, dated September 16,1846, to secure a promissory note. The demandant joined m this mortgage, to release dower. 2. Deed of quitclaim from Michael McCabe to Samuel M. Bellows, dated June 27, 1851, containing the following provisions: “ Said premises are subject to a mortgage given by said McCabe to Stephen S. Seavy, bearing date September 15th 1846, on which there is now due about the sum of four hundred and thirty dollars, which mortgage said Bellows assumes and agrees to pay as a part of th • consideration of this deed; and said Bellows agrees to pay th, amount now due on said mortgage, and save said McCabe harmless by reason of the same.” The demandant did not sign this deed. 3. Deed of quitclaim from said Bellows to Isabella Swap, the tenant, dated October 4th 1851. 4. Assignment of the above named mortgage by said Seavy to said Bellows, dated October 11th 1851.</p> <p>The demandant contended that the mortgage was extinguished; and, to meet this claim, the tenant offered certain testimony, which is sufficiently stated in the opinion, for the purpose of showing that the intention of Bellows and Michael McCabe was to keep the mortgage alive. The evidence was admitted de lene.</p> <p>The second cause was a bill in equity to redeem the same premises from the mortgage, and is the same cause in which, at former stages thereof, decisions of this court are reported in 7 Gray, 148, and 1 Allen, 269.</p> <p>These causes were reserved for the determination of the whole court, with the agreement that if the demandant should be found entitled to recover in her writ of dower, judgment should be entered therefor, and for damages to be determined by an assessor; and the bill in equity should be dismissed; otherwise, judgment for the tenant in the writ of dower, and such decree in the bill in equity as justice might require.</p>

<p>In an action brought against a manufacturing corporation to recover damages for a personal injury sustained by a workman employed by the corporation, while aiding other workmen in removing a heavy machine into a room by means of trucks, one wheel of which broke through the floor and thus led to the injury, the presiding judge, at the conclusion of the plaintiff’s evidence, which showed that the injury was received in the manner above set forth, ruled that “ the principle of law that an employee injured by the negligence of others in the service of the same employer, while he was acting in the discharge of his duty, and all acting in a common service, would not apply to this case, so as to be fatal to the plaintiff’s right to recover." The defendants thereupon introduced evidence upon the question of their own negligence, and this question was submitted to the jury, who found for the plaintiff. Held, that the defendants were entitled to a new trial.</p>

Complaint under Gen. Sts. c. 72, concerning the maintenance of bastard children. At the trial in the superior court, before Brigham, J., the child was in court, and the judge, against the defendant’s objection, instructed the jury that they might consider, with the other evidence, any resemblance between the child and the defendant, if they found such resemblance to exist. The jury found the defendant guilty, and he alleged exceptions.

Tobt for forcibly entering the plaintiffs’ close in Newton, bounded easterly in part by an ancient stone wall, dividing the plaintiffs’ close from the close of the defendant, and digging up the soil, carrying away the plaintiffs’ wall, and erecting a barn and building a wall on the plaintiffs’ land. These acts were set out in three counts, and were alleged to have been done in October 1862 and July 1863. The answer contained general denials.

<p>Contract brought by the surviving partner of the firm of Fowler & Baker, lately doing business in Maine, to recover for certain doors and blinds sold and delivered by that firm to the defendant in August 1858.</p> <p>At the trial in the superior court, before Brigham, J., it appeared that Nathan Fowler, father of the plaintiff’s deceased partner, in the summer of 1858 took from the defendant an order for the delivery of said articles. The plaintiff introduced evidence that Nathan Fowler delivered said order to him in the summer of 1858; and, after certain evidence of the loss of the order, which the defendant contended was insufficient to. show such loss, the plaintiff was allowed, against the defendant’s objection, to introduce secondary evidence of its contents.</p> <p>Certain declarations of Nathan Fowler, that he had full authority to act for the plaintiff and Fowler & Baker were put in evidence by the defendant. It also appeared that the defendant went into insolvency in November 1858, and obtained his discharge, and that Nathan Fowler, who also lived in Maine, came to Massachusetts, made oath to á claim against the defendant’s estate in insolvency, and assented in writing to his discharge. But it was in dispute and was not settled, so far as appeared by the exceptions, whether the claim now in suit was included in the claim so proved by Nathan Fowler against the defendant’s estate.</p> <p>The defendant introduced the testimony of B. J. Gerrish, counsellor at law in Boston, that Nathan Fowler told him chat he owned said demand, before so proving the same in insolvency; but, from the whole testimony of said Gerrish, it appeared to the judge that the relation of counsel and client then existed between him and Nathan Fowler; and he instructed the jury to disregard said testimony.</p> <p>The defendant also offered in evidence a bill of N. Fowler & Co. (under which style Nathan Fowler formerly did business) against the defendant, settled and paid June 30th 1860, receipted by N. Fowler, in the name of N. Fowler & Co., containing the same items as the said demand proved in insolvency, and also some others, for the purpose of showing that the items were the same so contained in the demand proved in insolvency; but it was excluded.</p> <p>The defendant asked the court to instruct the jury that, if N. Fowler & Co., or Nathan Fowler, was the owner of the demand in suit, or acted under the authority of Fowler & Baker in the proceedings in insolvency, the discharge in insolvency would be a bar to this action. The judge declined so to rule, but instructed the jury that, if Nathan Fowler was the owner of the demand in suit, and the same was contracted with him as doing business under the style of Fowler & Baker, the plaintiff could not maintain this action, irrespective of the proceedings in insolvency.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Bill in equity by the administrator de bonis non, with the will annexed, of the estate of Asahel Haynes, seeking instructions as to the proper mode of distributing the estate. The only material clauses of the will were the third and sixth, which were as follows:</p> <p>“ Thirdly, I give and bequeath to the heirs of my sister, Lydia Walkup, seven hundred dollars.</p> <p>“ Sixthly, I give and devise to my brothers, John W. Haynes, Amos Haynes and Charles Haynes, and my sisters, Susan Boyd, wife of Stephen Boyd, Ruth Boyd, wife of Warren Boyd, and the heirs of Lydia Walkup, and their heirs respectively, all the rest and residue of my real and personal estate .... to be divided in equal shares between them. ” There were five heirs of Lydia Walkup, and they each claimed one tenth of the residue; but the other residuary devisees claimed one sixth each.</p> <p>The case was reserved, by Wells, J., for the determination ot the whole court.</p>

Writ oe entry to foreclose a mortgage of various parcels of land, given originally by Adam Wiley to William L. Brown. Brown assigned the mortgage to the plaintiff in 1861, and died in the same year. Wiley was made one of the defendants, under Gen. Sts. c. 140, § 8, though he had conveyed the equity of redemption to the other defendants before the commencement of this action.

Writ oe ektby, brought April 29th 1865 to recover possession of a parcel of land in Waltham. Plea, mil disseisin. At the trial in the superior court, before Brigham, J., the demandant introduced in evidence the following deeds of the premises: Lewis Smith to Brown, dated September 9, 1839. Brown to Goodnow, May 1, 1847. Goodnow to Miller, February 13,1854. Miller to Benjamin A. Patten and Theodore A. Barry, February 13,1854. Patten to Theodore A. Barry, ¡November 19, 1858.

<p>A ,B. and C. were wagoners between Boston and Somerville, having several stands in Boston. B. and C. sold to A. tneir share of all the property used in the business, and the interest and goodwill in the business, and agreed in writing not in any manner to do anything which should in any wise impair or injure said interest and goodwill. B, and 0. afterwards purchased two other stands, already used by other wagoners near the stands of A., and established wagons there, and engaged in the business of wagoners between Boston and Somerville, and carried merchandise for man)7 persons who formerly employed A., B. and C., but did not solicit such business otherwise than by having such stands and wagons, and holding themselves in readiness to do it, and on one occasion at least doing it for less than former prices. Held, that an injunction should issue to restrain B. and C. “ from soliciting, doing or obtaining any work, trade, custom or teaming business for or from any of the customers or persons ” who had formerly been customers of A., B. and C., “ and from doing anything to impair or injure the said interest and good will in said teaming business.”</p>

<p>A trial justice who has received from the county treasurer money for fees taxed and allowed to an officer for the service of warrants and other criminal processes, without authority from the officer, is not chargeable by reason thereof in a trustee process agains# the officer.</p>

<p>Complaint under the mill acts. The following facts were agreed in the superior court:</p> <p>The complainant is the owner of the land described in the complaint, and the defendants and their grantors have owned and maintained the dam for more than forty years. In 1853, and for many years before, flashboards were placed on the dam to the height of sixteen inches, on the 1st of November, and maintained there till the 1st of April in each year; but during the other months there were no flashboards on the dam. In that year the complainant brought her bill of complaint against the New England Worsted Company, from whom the defendants derived their title, for damages to her land caused by said dam, and the matter was referred to arbitrators, who, on September 24th 1853, awarded to her the sum of two dollars a year, as a just and reasonable compensation for the damages to be occasioned by the dam so long as it should be used in conformity to their award, or sixty dollars as gross damages to be thereafter occasioned by such use of said dam, and for the right of maintaining the same forever in manner aforesaid; and they determined that “ it is necessary for the convenient and advantageous operation and working of the Worsted .Mills” “that the said New England Worsted Company should have and exercise the right and privilege of keeping and maintaining the said darn of the said Company in the state and condition in which said dam now is.” This award was accepted, and the complainant accepted the sixty dollars, as gross damages. On the day of making the award, no flashboards were upon the dam. The defendants, until April 1st 1866, have maintained the flash-boards upon the dam, as before the award, and contend that they had a right to do so, under the award ; and since April 1st 1866 have maintained the flashboards upon the dam, for which they acknowledge their liability, and have tendered ten dollars as damages.</p> <p>Judgment was rendered in the superior court, by Putnam, J., for the complainant; and the defendants appealed to this court.</p>

<p>Tort against the late sheriff of Middlesex, to recover damages for the act of Edwin L. Shed, one of his deputies, in attaching on a writ against Mary J. Woods a part of her stock of millinery goods, and certain other articles. The case was referred to an auditor, whose report was the only evidence introduced, at the trial in the superior court. The defendant contended that the plaintiff was bound by the conclusions of the auditor; but it was ruled otherwise, and, under directions from Rockwell, J., the jury returned a verdict for the plaintiff for $191.43; and the defendant alleged exceptions. The material facts are stated in the opinion.</p>

Bill in equity, submitted to the court upon the following agreed facts: On the 18th of April 1860, Levi S. Fales executed two mortgages of certain real estate to D. Wheeler, one of which was given to secure five notes, amounting together to $2750, and the other to secure a note for $1250.

<p>Where the shore line of a tide water cove does not depart much from a straight line, the flats may be divided by drawing a base line from headland to headland, and running straight lines at right angles with the base line from the ends of the division lines of the upland to low water mark, even if the sea never wholly ebbs beyond the base line, provided the situation and shape of the channel are not such as to require a different mode of division. •</p> <p>Upon a tide water cove in which the legal dividing lines of the flats were at right angles with the base line of the cove, three lots of the upland were conveyed by parallel side lines which struck the shore obliquely, the deed of each lot describing it as having a boundary line of a certain number of feet on the shore, together with flats of that number of feet in width to low water mark. The side lines, if extended over the flats at right angles with the base line of the cove, would give substantially the specified width of flats; but if extended in the same direction as the side lines of the upland, would give a less width, and would, by means of intersecting the legal boundary of the flats belonging to a neighboring estate, afford to one of the lots granted no access to low water. Held, that the side lines of the flats were not to be extended in the same direction as those of the upland.</p>

<p>Tools, implements a.id fixtures of a milliner, not exceeding one hundred dollars in value, and necessary for carrying on her business, are exempt from execution, under Gen. Sts. c. 133, § 32, cl. 5; and under this head may be included a clock, stove, screen, pitcher and table-cover, if the jury find them to have been necessary.</p> <p>If tools, implements and fixtures which are exempt from execution are attached, and are plainly distinguishable as articles which are exempt from execution, the owner may maintain an action against the attaching officer, without first demanding the articles or pointing them out to him*</p> <p>The testimony of a deceased witness, at a former trial, cannot be proved at a subsequent trial of the same action, without showing the whole of his testimony touching the matter in controversy.</p>

<p>A testator in his will gave to his wife the use of one third of his real estate during her life, and one third of his personal estate absolutely, and to each of his children, all of whom were minors at the time of his death, a certain sum of money to be paid upon arriving at the age of twenty-one years, and a like sum upon arriving at the age of twenty-six years ; and the residue of his estate to his wife, during the time she should remain his widow, with remainder to his children in equal shares. The personal estate was insufficient for the payment of the debts, but the real estate was much more than sufficient for the payment of the debts and legacies. The widow died before any of the children became of age. Eeld, that the legacies to the children should be paid to them upon their reaching the ages of twenty-one and twenty-six respectively, without interest; and that, after setting aside a sufficient sum to be held by the executor for this purpose, the residue of the estate should be divided among the children.</p>

<p>Contract brought by the plaintiff, as treasurer of the Kansas Land Trust, to recover the amount of three promissory notes for $5000 each, signed by the defendant and payable to the plaintiff, as such treasurer, or order, dated August 11th 1857, and payable June 1st 1858, December 1st 1858, and June 1st 1859 respectively.</p> <p>The following facts were agreed in this court: For some time prior to the correspondence hereinafter mentioned, the plaintiff was treasurer of the Kansas Land Trust; the defendant was the agent, and resident in Kansas; and Amos A. Lawrence, William D. Piekman and Robert B. Storer, all of Massachusetts, were the trustees. A correspondence took place between the plaintiff and defendant, respecting the sale to the defendant of the lands of said trust remaining unsold, and such portions thereof as are material are shown by the following abstract and extracts:</p> <p>On the 11th of June 1857, the plaintiff wrote to the defendant saying that the trustees of the Kansas Land Trust, who held the title to the lands, had requested a list of the property, and he had given them one which he recites in the letter; that the trustees would be willing to sell all this property to the defendant; he then asked the defendant on what terms he would take the above list at cash ; or if he preferred time, at what short time and on what terms as to security.</p> <p>June 28th the defendant replied that he should like to purchase this property, but could not pay cash, and he wished to know what kind of security would be required, and said that if he could give it he should be glad to make the purchase and would make an offer.</p> <p>July 13th the plaintiff wrote in reply that the trustees would take the defendant’s notes or other satisfactory notes on six, twelve and eighteen months, secured on the premises offered, and other good real estate, and added, “ I hope you will be able to make an offer for this property that the trustees will accept.”</p> <p>July 29th the defendant wrote that he would give twenty per cent, advance on all the general fund property in payments of six, twelve and eighteen months, with ten per cent, interest; this to include all the purchases of general fund.</p> <p>August 11th the plaintiff replied to this offer, that the trustees could not then go into such an investigation and settlement of accounts as would be required to settle the amount of the defendant’s proposal, and prefer to nave from him or some good party “ a simple offer to purchase all of their property and interest in Quindaro remaining unsold.” The letter continued as follows : “ From conversation with the trustees, I think they would accept an offer from you of $15,000, in your notes with interest, payable, one third, say $5000, 1st June 1858 ; and like amounts payable 1st December 1858,1st June 1859. The above in full for your services and commissions for the trust, and for the remaining property belonging to the trust unsold.....These notes might be secured by mortgage on the premises offered, or on other real estate. But perhaps it would be best to have the lots and parcels of land valued proportionably to the valuation of the whole at $15,000, and the title retained in the hands of the trustees. Then, whenever you should make any sale and remit the amount of the valuation, the trustees give a deed to your purchaser. In this way we should avoid putting any incumbrance on the land, and to that extent the sales and titles would be more clear and convenient.”</p> <p>September 1st another letter from the plaintiff contained the following paragraph : “ I have no advice as to the situation and quality, &c., of the land bought for the trustees of Otis Webb, except that the deed has been sent to me, and from the description in that deed (as copied by my clerk) I cannot spot the land on the map. When the deed returns from record through your office, please see if the description is correct; and at any rate let me know as to the quality and position of the purchase.”</p> <p>September 14th the defendant replied to the letter of August 11th : “ I will give $15,000 for the trust general investment, in addition to the amount forwarded to you, and on the terms you propose. I think the last proposition you make would be less cumbersome and quite as safe for you as the mortgage, and would suit me quite as well.” “ If you will send out the notes, agreement, &c., I will execute them.”</p> <p>The plaintiff’s answer of October 2d was as follows: “ I have yours of 14th ultimo, accepting of the offers of mine of 11th August; those expressed in the terms following, for the purchase of all the property (of this trust in Kansas) and the interest in Quindaro remaining unsold for $15,000, in your notes with interest, payable, one third, say $5000,1st June 1858; and like amount payable 1st December 1858, and 1st June 1859. The above, in full for your services and commissions for the trust, and for the remaining property belonging to the trust unsold. The lots and parcels of land (thus sold) to be valued proportionably to the valuation of the whole at fifteen thousand dollars, and the title to be retained (as at present) in the hands of the trustees. Then, whenever you should desire to make any sale and remit the amounts of the valuation to the' trustees (which amounts should be indorsed on the notes payable as received) the trustees will give a deed either to yourself or to your purchaser. It will not be very difficult to carry out the effect of this understanding between us. The notes for $15,000, with interest, should bear date on the 11th August, (the date of the offer accepted,) each for $5000, with interest, and due at the dates as above set forth. Upon the above notes coming to hand, the trustees will give you a receipt for the notes in a form not to effect any incumbrance upon the lands, but acknowledging fully their responsibility to yourself. Accompanying the notes, you should forward to us a complete list or schedule of the lands and interests in question, affixing to each parcel of land, or Quindaro share or interest, such a proportional valuation as shall make the whole come to $15,000. As the above does not include any land of the purchase of which we were not advised 11th August, it will be proper for you to render and settle your account to the latest date, and the trustees will turn over to you any such purchase at cost, adding the cost to the $15,000. Your accounts, as far as formally rendered to me (without vouchers) stands to your debit on the books of the trust $4041. From this amount should be deducted such amounts as you may have since paid for our account for special investments, &c., of which you should hand in an account to the latest date, and pay the balance of the same. Thus will the affairs of the general fund of the trust be brought to a close in a manner most advantageous to your interests. If you have associates in this purchase their names, as well as your own, should be signed to the notes as above.”</p> <p>The defendant replied October 16th, as follows: 61 Yours of 2d instant is received. Herewith is account with trust since the last statement.....I have appraised the property as follows r</p> <p>98 acres of J. Williams’ land.....$1000</p> <p>69fA “ Porcupine “..... 900</p> <p>40 “ Webb........ 2000</p> <p>66f “ Ferry lot ...... 3400</p> <p>30 “ Bargained to Hall and others 600</p> <p>19 shares in Quindaro C. 250 .... 4750 30 “ in Delaware C. 100 .... 3000</p> <p>50 acres in “ ........1000</p> <p>- $16,650</p> <p>“ Inclosed are three notes of $5000 each, payable June and December 1, 1858, and June 1, 1859. I have not yet arranged for a partner; but if I do, and you desire it, I will get him or them to sign the notes at some future time.....Should you find anything wrong in the settlement or appraisement, I will correct it.....You will of course forward a suitable paper, as evidence of the sale.”</p> <p>The receipt of this letter was simply acknowledged by the plaintiff October 28th. And he wrote more fully, November 17th 1857, as follows: “ Since my last, acknowledging the re ceipt of the accounts, &c., from you, I have been so much occupied that I have not been able to examine those papers with a view of preparing the agreement between the trustees and yourself for the sale and purchase of that property. I now find that you have included in the schedule of it the land purchased of Otis Webb for $2000. If you will refer to my No. 64 of the 2d of October, of which yours of the 16th of October is a reply, you will find on 2d page as follows: 6 As the above does not include any land of the purchase of which we were not advised 11th August, it will be proper for you to render and settle your account to the latest date, and the trustees will turn over to you any such purchase at costpadding the cost to the fifteen thousand dollars.’ From the above, it would seem to me that the land covered by the deed from Oapt. Webb may be at your option declined; or, if you receive it from the trustees at cost that the amount of its cost should be added to the notes for fifteen thousand dollars. The trustees had never received any advice of this purchase, as far as I am aware, either in letters or accounts; and, until Mr. S. C. Smith showed me its location on the map, I had supposed it to refer to some previous purchases for the trustees, which were included in your accounts rendered to 30th April last. I would suggest that you should not include this Webb lot in your purchase, as I think it would be well for the trustees still to retain an interest there of some small amount. Then, if you will amend the valuations by fixing each Quindaro share at $300, instead of $250, and striking out the Webb pur chase, the papers can be at once settled.”</p> <p>February 8th 1858, in reply to the last letter, the defendant said: “ I supposed the Webb land was to be included in the arrangement; but should you prefer to except that, I propose that $2000 be deducted from the price $15,000. I think that would be fair, under the circumstances.”</p> <p>April 21st 1858, the plaintiff wrote : “ In relation to the purchase by you of the lands of our trust, I think you will see that I can myself do nothing. They were put to you at the lowest possible price that the interests of the depositors would bear; and you will observe in my letters that lands of which I had no advice of the purchase for our account at the time of the purchase were expressly excepted, and stated not to be included in the offer.”</p> <p>May 11,1858, the plaintiff wrote: “ What am I to do about your note, due June 1st, for $5000; and what is the condition of your proposed purchase of the trust lands ? ”</p> <p>May 24th the defendant replied: “ I conversed with Mr. Lawrence while in Boston in regard to the trust lands, which of course he will relate to you. When I. purchased it I supposed that I was purchasing all of it, and intended making such arrangements by sale and otherwise as to enable me to meet the notes when they became due. The money crisis drained our territory of money and discouraged all trade. It would be impossible just now to make any arrangements by which the note could be paid. There are parties here disposed to make investments, with whom I think I shall be able to conclude a bargain for a large portion of it.”</p> <p>July 19th the plaintiff wrote : “ Any information you may be able to transmit to me respecting the values of our lots in Quindaro or the lands in its neighborhood will thankfully be received.”</p> <p>October 21st 1858, the plaintiff wrote: “ I hand you the inclosed respecting the titles being given for Quindaro lots..... Your note of $5000 comes due 1st December next.....Any information respecting Quindaro or the trust lands generally, and the prospects of our investments, I shall gladly receive.”</p> <p>April 25th 1860, the plaintiff wrote: “ All the deeds for lands purchased should be made to the trustees, as has heretofore been done, as far as deeds have been received for the purchases made with their funds. And I am desired to impress it upon you that the deeds should be completed and forwarded^ as soon as possible.”</p> <p>August 21st 1860, the defendant, in sending certain deeds, wrote : “ I believe now the trustees have a perfect title to all their land; and if they desire to settle up the trust, they can divide up the land among the contributors to the fund. This in my opinion is the only way it can be settled now, without wry ¿/eat sacrifice, as it is utterly impossible to realize money for land at the present time; and the land is better than any securities that can be obtained for it. Should you desire to make a division of the land, I will forward a fair appraisal of each lot separately; and the division can be then made by the trustees without further trouble.”</p> <p>September 22d the plaintiff acknowledged the receipt of the foregoing letter, and promised to write further when instructed by the trustees.</p> <p>November 30th the plaintiff wrote as follows, concluding the correspondence: “ I regretted not to have seen you when you were in these parts during the late elections; and the expectation of meeting you personally has delayed my writing you, as I do at present, to advise you of the action of the trustees of the Kansas Lar,d Trust, upon the proposition made by you in yours of 21st August last, to divide the lands bought for the trust among the depositors of the general fund. Upon the receipt by me of that favor on the 22d September last, I acknowledged the receipt of the same, and promised to lay the proposition in question before the trustees. I was not however able to obtain a full meeting of them until the 7th inst., and then, all being present, the whole of your communication was read. They concurred in instructing me to reply to you respecting the same, that they do not consider themselves authorized to disturb the arrangements of sale and purchase by you of the lands settled in August and September 1857, and for which they hold your notes.”</p> <p>It was agreed that, unless the sending of the notes to the plaintiff, and the letters, constituted a valid contract, the notes were and are without consideration.</p> <p>No deed of any of the premises referred to in the letters was ever made to or for the defendant, and no other receipt or instrument than said letters was given or received by either of the parties. All the lands of the trust remaining unsold, including the lands of the trust in Quindaro and vicinity, and the Webb lot, were described in the schedule in the defendant’s letter of October 16th 1857, and they did not purchase or sell any lands in Quindaro thereafter.</p> <p>The case was reserved by Gray, J., with the agreement that the plaintiff should recover or become nonsuit, as the full court should determine.</p>

<p>For the purpose of impeaching a material witness, it is competent in this commonwealth for the party against whom he has testified to prove declarations made by the witness out of court, showing bias "or hostile feeling against him in regard to the matter involved in the case on trial.</p> <p>In an action upon a bond which was given by several persons to indemnify the obligee against loss from signing a guardian’s bond as surety, the guardian, A., was called as a witness for the plaintiff, and on cross-examination denied that he had said, in words or in substance, that he meant to get the money on this bond of B., who was one of the defendants, so as to get back the rent he had paid B. for a house. A witness called for the purpose of contradicting and impeaching A. was asked, “ If A. gave you any notice in regard to this bond, or made any statement in regard to holding you or B., state what it was.” This question was objected to and excluded. The witness was asked “ Whether A. said anything to you about intending to get this out of B.” This question also was objected to and excluded. Held, that the defendants were entitled to a new trial.</p> <p>If a promissory note is taken from a judgment debtor for the amount due upon an execution, and the execution is thereupon discharged, this is prima facie evidence of payment of the execution.</p> <p>Payment of a judgment by giving a promissory note for the amount due thereon, and taking a discharge of the execution, will entitle the person making such payment to maintain an action against one who has agreed to indemnify him against liability on the claim for which the judgment was rendered; and the defendant in such action has no ground of exception to an instruction to the jury that, if the settlement of the execution was not fraudulent it was immaterial whether the plaintiff was a man of property or not.</p>

<p>The first of these actions was an action of contract brought by the owners of the brig Cascatelle against Charles P. Gage & Co., to recover the freight on a cargo of ice, shipped by the defendants at Eichmond, Maine, for Mobile, Alabama, on board the plaintiffs’ vessel, under a bill of lading, acknowledging the receipt of “ four hundred and six tons of ice; it being understood and agreed as follows: That as ice is a perishable article, the hold of the vessel where it is placed shall not be opened or exposed to the air, unless by stress of weather or wants of the vessel; in which ease due protest shall be made, and an account kept of all ice thrown overboard in case of jettison; that the vessel shall be kept regularly pumped out during the passage ; that no fish, meat or other articles shall be placed in or with the ice without the consent of the shipper. Which is to be delivered in like good order and condition, with all due diligence (excepting what may be lost by the natural waste of the article) at the aforesaid port of Mobile, Alabama, (the dangers of the sea only excepted,) unto Messrs. Charles P. Gage & Co., or to their assigns, he or they paying freight for the said ice at seven dollars fifty cents per ton with average accustomed.”</p> <p>The ice was a full cargo, and was stowed by the shippers in the hold and around the mast. The brig sailed from Eichmond May 8, 1866, and while prosecuting her voyage lost her foremast and suffered other damage, which made it necessary for her to put into New York for repairs, which she did May 28. In making the repairs, it became necessary to take out the old mast and put in a new one, and there was some melting and loss of ice occasioned by admitting the air into the hole where the mast was taken out, as also by the delay occasioned by putting into New York for repairs. The vessel sailed from New York June 12, and arrived at Mobile July 14.</p> <p>In an ordinary voyage from Eichmond to Mobile, a cargo of ice would not usually -waste more than twenty-five per cent.; in this case, there was only about fifty per cent, of the ice delivered. The custom in regard to ice freights on ordinary voyages is to pay freight on the amount of ice put on board, although the Whole amount put on board is never delivered, as ice is always wasted somewhat on a voyage.</p> <p>The parties submitted the case above stated to the decision of the court, and agreed that if the plaintiffs were entitled to recover the whole amount of the freight money as by the bill of lading, judgment should be rendered for them accordingly; if not, the action should be referred to an assessor to determine the amount due under the direction of the court.</p>

<p>A. and B., who were the owners of adjoining wharves, and of the space between, established a division line between their respective estates, which ran through the open space between the wharves, at a distance of one hundred and fourteen feet from the principal part of the line of A.’s wharf, and seventy-six feet from B.’s, and mutually agreed that there should be an open dock and common passage for all vessels of every description, with free ingress and egress therefor, between said wharves, and that neither party would erect any building or place any fixtures therein, nor permit any vessels to be stationary at a greater distance than sixty-six feet from their respective sides of the dock. The outer end of A.’s wharf protruded into the dock fifty feet, and there diminished by that number of feet the space for ingress and egress of vessels. Subsequently, certain encroachments having been made into the dock by each party, a new agreement was entered into, establishing new lines, by which B. was allowed to extend his wharf, at the outer end thereof, sixteen feet furtner into the dock, it being expressly understood and agreed “ that no more than one vessel at a time shall ever be permitted to lay stationary at the berth made by said projection; ” and A. was allowed to continue his projection of fifty feet, above referred to, a short distance further along his wharf, and to have the right to lay two vessels abreast thereof, stationary. Held, that by the restriction above mentioned, B. was not limited to one vessel of the size then in use or known at that port; but that he might lay at said projection one vessel of any size, not exceeding sixty-six feet in width.</p>

Contract, upon two promissory notes given by the defendant’s testator to the plaintiffs. The defence was that the consideration of each note was intoxicating liquors sold in New York by the plaintiffs to the defendant’s testator, to be brought here and sold in violation of law.

Action under Gen. Sts. c. 137, to recover possession of a house in Boston, leased by the plaintiff to the defendant. At the trial in the superior court, before Wilkinson, J., it appeared that a portion of the house was underlet by the defendant, without objection on the part of the plaintiff; and the plaintiff claimed possession under Gen. Sts. c. 87, § 8, alleging that part of the house so underlet was used by the undertenant for the illegal sale of intoxicating liquors.

Tort. The declaration was as follows: 1£ And the plaintiff says that he was possessed and the owner of a certain sleigh, and a certain horse which was harnessed to said sleigh, and the plaintiff was sitting and riding in said sleigh so harnessed, in a certain highway called Eliot Street, in said Boston, into and across Tremont Street; and one Thomas Baker on the same day was possessed of a certain sleigh, and also of a certain horse drawing the same through and along said…

Contract upon a policy of insurance on the bark Fredonia, issued to the plaintiff by the defendants, to recover a sum of money as general average for throwing over a part of a cargo of fruit belonging to the plaintiff.

<p>If a vessel has been condemned for unseaworthiness during a voyage, and gpods on board which are insured against total loss only are thereupon, in the exercise of due fidelity and discretion, transshipped into two other vessels, one of which is wrecked and totally lost with all its cargo before reaching the port of destination, and the other arrives there in safety, the insurers are liable on the policy for the goods lost</p>

<p>Contract upon a policy of insurance by which the defendants insured the plaintiff to the amount of $2000 “ on his stock of clothing, manufactured and in process of manufacture,” and $250 on his furniture. The policy contained these provisions “The company are not to be liable” for “loss for property owned by any other party, unless the interest of such party is stated on this policy; and if the title of the property is transferred or changed ” “ this policy shall be void.” In case of loss the insured was required to give immediate notice, stating, among other things, “ the whole valúe and ownership of the property insured.”</p> <p>It was agreed, in the superior court, that the property claimed by the plaintiff to have beqn insured was burned within the time covered by the policy, and consisted of cloth in the process of</p> <p>being made up into garments, and some furniture which was injured to the amount of ten dollars. The cloth was the property of William It. Lovejoy & Co., who cut the same for garments, and sent the same to the plaintiff to be made up by him, and he received the same under the following agreement, signed by Lovejoy & Co., which accompanied the parcels:</p> <p>“ Mr. Joshua Getchell. We send you this day to manufacture for us, as follows, on the following terms and conditions, the receiving of the goods by you hereby being an acknowledgment of the same, unless we are notified to the contrary, and the goods returned to us immediately. The goods are to be manufactured as by directions inclosed, or, if sample is sent, to correspond in every respect to the same; the seams to be neatly and strongly sewed, and well pressed; button-holes carefully made, and the whole garment to be, in every particular, in merchantable shape for sale. If they are not sent to us thoroughly manufactured, and do not conform to the sample sent, or as per directions given, then the same are to be repaired by us at your expense in such manner as may be deemed necessary, or returned to you for repairs, or the value of the same charged to you, as we may elect.</p> <p>All goods are at your risk, from their delivery by us until returned to us at our place of business, and no amount to be allowed for the making of the same to be considered, in any way, as a lien on the goods until the same shall be received at our place of business and duly inspected by us. Terms of manufacturing, unless otherwise specified, to be 8 mos. credit from the return of the goods by you to us duly inspected. All charges of transportation, unless otherwise agreed, to be paid by you.” [A description of the goods was added.]</p> <p>At the time of the fire, the labor to be performed by the plain tiff upon the cloth had all been performed, except pressing, and if this had been done would have amounted to $601.90. The bill for pressing would have been $30. The cloth destroyed was of the value of over $2000. The defendants had due notice and proof of loss.</p> <p>It was further agreed, if paroi evidence to prove the same would be competent, that the plaintiff agreed with Lovejoy & Co. to keep the property insured, and informed them that it was insured, and showed them the policy.</p> <p>Upon these facts, judgment was rendered for the plaintiff for the amount of his policy; and the defendants appealed to this court.</p>

Conteact upon a policy of insurance by which the defendants insured the plaintiffs’ building situated at the corner óf State and Washington Streets in Boston against loss or damage by fire for seven years from February 1st 1859.

Bill in equity brought by a citizen of Mobile, Alabama, alleging, 1. That the defendants, a corporation established under the laws of the state of New York, on the 6th of March 1848 made a policy of life insurance upon his life, a copy of which was annexed. [The policy was dated at New York, and described the plaintiff as of Mobile.] 2.

Petition by the insurance commissioners of the Commonwealth, alleging that they were of opinion that the condition of the Eagle Fire Insurance Company was such as to render its further proceedings hazardous to the public and to those holding its policies, and praying for an injunction to restrain the company from proceeding further with its business.

Two actions of contract, the first of which was brought against the principal and surviving sureties, and the second against the administrator of a deceased surety, on a bond given by Elihu C. Baker and seven sureties to the clerk of this court for Suffolk county, with condition that said Baker should well and faithfully discharge the duties of receiver of the property and effects of the Traders’ Mutual Fire Insurance Company, according to the order and decree of said court.

<p>Bill in equity brought by a marine insurance company established in New York, setting forth that on the 15th of February 1866 the defendant was or pretended to be the owner of a merchant ship called The Young Mechanic; that on that day he effected two policies of insurance with the plaintiffs, one upon said ship for $5000, and the other upon her freight for $2500, for a voyage from Boston to Hong Kong; that it was then represented that the ship was tight, stanch, and in all respects sea worthy; that it was his intention to have her make said voyage with reasonable despatch; that her value was $65,000, and her sargo was to be chiefly ice; that she sailed from Boston on the 5th of March 1866 on her pretended voyage; that before her departure the defendant had obtained other insurances upon her amounting to $67,500; that on the 10th of April 1866, while off the coast of South America, she was destroyed by fire; that at the time of obtaining the insurance from the plaintiffs she was not tight, stanch and sound, seaworthy and competent for the voyage, and the representations in respect thereto were false, and known to be so by the defendant; that it was never intended that she should perform the voyage; that her valuation was grossly excessive; that said false representations were made for the purpose of inducing the plaintiffs to issue said policies; that the defendant then intended that she should not perform said voyage, but that she should be destroyed and the insurance moneys obtained thereby; that in pursuance of this purpose the defendant conspired with the master of the ship to prevent her from performing her voyage by destroying her; that the master accordingly, in pursuance of said plan, caused her to be fired and totally destroyed on said 10th of April; that said policies were obtained from the plaintiffs with the fraudulent purpose and intent of defrauding the plaintiffs; that the defendant still holds the policies and refuses to surrender them to be cancelled, but pretends to have a claim thereon for a total loss; that the evidence of the facts above set forth is now in possession of the plaintiffs, but the defendant neglects to bring an action for his alleged claim, and the witnesses cognizant of the facts are seafaring men, and have no fixed or permanent place of abode, so that they can be relied upon to appear as witnesses to the facts aforesaid at some remote and uncertain time in the future. The prayer was, that an immediate commission might issue for the examination of witnesses to the facts aforesaid at Boston, New York, Rockland (Maine) and other places, and that the defendant might be ordered to surrender the said policies to the plaintiffs to be cancelled; and for other relief.</p> <p>The defendant demurred to the bill, assigning as cause of demurrer that the bill, being a bill to perpetuate testimony, contained a prayer for general relief, and a prayer that the defendant might be decreed to deliver up the policies.</p>

<p>If a citizen of this commonwealth has brought a trustee process here against a corporation established in another state, as principal defendant, and a debtor of the corporation, living here, as trustee, receivers appointed by the courts of that state to wind up the corporation cannot maintain a right, as claimants, to the funds in the hands of the trustee, if the corporation had not been dissolved when the trustee process was commenced.</p> <p>The above case was submitted upon a copy of the record of the court appointing the receivers, which did not show any decree dissolving the corporation, and upon an agreed statement of facts signed by the counsel of the corporation and of the receivers, by which it was agreed that, if the claim of the receivers should be disallowed,-judgment should be for the plaintiff, and the trustee should be charged. After judgment had been rendered for the plaintiff, and the trustee charged, in the superior court, and after that judgment had been affirmed upon full argument in this court, it was held to be too late for the receivers to apply for a rehearing, in order to prove that in fact a decree had been passed dissolving the corporation.</p>

<p>Petition for a writ of certiorari to the board of aldermen of the city of Boston. The facts set forth were in substance as follows:</p> <p>The petitioner, a resident of Boston, duly handed in to the assessors of the city a list of his personal property, claimed to be liable to taxation. In this list were comprised the shares owned by him in seven banks, incorporated in Boston under the national banking act of the United States. When the list was handed in to the assessors, the petitioner protested that the shares in said banks were not legally liable to be taxed. The assessors nevertheless assessed the same. Thereupon the petitioner applied to the assessors for an abatement of so much of the assessment as was laid upon said shares. The application being rejected by the assessors, the petitioner applied in due form and time to the board of aldermen for a revision and reversal of the action of the assessors, and this application was rejected.</p> <p>The defendants admitted the facts set forth in the petition and asserted that the tax referred to was legally assessed.</p> <p>The case was reserved by Wells, J., for the determination of the full court.</p>

<p>Petition for a writ of certiorari to quash the proceedings of the mayor and aldermen of the city of Boston in refusing to abate a tax assessed upon one of the petitioners. The facts are stated in the opinion.</p>

<p>Bill in equity, filed within three years from the time possession was taken, to redeem a lot of land with the buildings thereon in Boston from a mortgage. The following facts were agreed:</p> <p>On the 12th of October 1860 the plaintiff mortgaged the premises to Brooks and Ball, to secure certain notes. The mortgage contained a power of sale, authorizing the assignee thereof, for a breach of condition which existed at the time of the assignment (hereinafter mentioned) and ever since, to sell the premises and all benefit and equity of redemption of. the plaintiff therein, at public auction; such sale to be in Boston, without further demand or notice, except giving notice of the time and place of sale in each of three successive weeks in some newspaper printed in the county of Suffolk, and authorizing the assignee to buy at such sale if he should be the highest bidder thereat, and providing that no other purchaser should be liable for the application of the purchase money.</p> <p>On the 16th of May 1862 the mortgage and notes were assigned to Joseph M. Everett, at the request of the defendant’s husband, Henry Dawes, who furnished the money to pay for said assignment, and Everett took the assignment in his own name, at the request of said Henry, and for his benefit, he not himself furnishing or receiving any money, or having any interest therein. On the 21st of May, Everett made an entry upon the premises in presence of Norris and Hassam, hereinafter mentioned, for the purpose of foreclosure. On the 24th of June 1862, Everett sold the premises at auction, claiming to act under the power of sale. His affidavit setting forth the acts done by him in making the sale, and sworn to before Hassam, stated, among other things, that he advertised the sale by publishing in the Daily Evening Traveller, once in each of three successive weeks, the following notice : “ By Henry A. Norris, Office No. 10 Phcenix Building. Mortgagee’s sale. By virtue of a power contained in a certain deed of mortgage made by George L. Montague, dated Oct. 12, 1860, recorded with Suffolk deeds, lib. 787, fol. 180, and for breach of conditions thereof, will be sold at public auction on Tuesday, June 24, 1862, at 12 o’clock, m., at office aforesaid, all and singular the premises in said deed granted, and all the benefit and equity of redemption of said Montague the grantor, his heirs, executors or assigns therein, the same being situated on Medford Court, and being lot No. 3 on the plan of lands on and in the vicinity of Medford Court, drawn by Alexander Wadsworth, dated June 27,1845, recorded with Suffolk deeds. Refere ice is made to said deed for a more particular description. Per order of the assignee of said mortgagee.”</p> <p>The above notice was printed on the 13th, 18th and 23d of June; and the sale was made at the office of Norris, in the second story of the Phcenix Building in Boston. The location of this building was given in the Boston Directory of the year of the sale and for years previous. The premises, and the equity of redemption of Montague therein, were struck off to Henry Dawes, he being the only bidder, for $2200. No warranty or explanation of the title was given at the sale, except what was contained in the notice and mortgage; and the only persons present at the sale were Henry Dawes, Norris, Everett and Hassam ; the two latter being at their usual place of business, occupying desks in the office of Norris, and Hassam acting as attorney of Henry Dawes in connection with the sale. A deed was made by Everett to Henry Dawes, dated June 27th 1862, purporting to convey all the right, interest and estate which Montague had at the time of making the mortgage, and all of Everett’s right, title and interest therein. No money or other thing passed between them. The affidavit of Everett setting forth his acts was duly recorded.</p> <p>In a conversation, Montague told Henry Dawes that in his opinion the premises had not been advertised long enough ; and on the 9th of July 1862, Everett, without any consideration passing between them, made an assignment of the mortgage and notes to Henry Dawes, who, claiming to act under the power of sale, offered the premises for sale at auction on the 31st of July 1862. The following advertisement of the sale was pub-fished in the Traveller on the 9th, 18th and 26th of July: “ By Henry A. Noras, Office No. 10 Phcenix Building. Mortgagee’s sale. By virtue of a power contained in two certain deeds of mortgage, severally made by George L. Montague, dated respectively Oct. 12, 1860, Jan. 8, 1861, recorded with Suffolk deeds, lib. 787, fol. 180, lib. 791, fol. 318, and for breach of conditions thereof, will be sold at public auction, on Thursday, the thirty-first day of July, 1862, at 12 o’clock, m., at office aforesaid, all and singular the premises in said deeds granted, and all the benefit and equity of redemption of the said Montague, the grantor, his heirs, executors, or assigns therein, the same being situated on Medford Court, and being lot No. 3 and lot No. 5 on a plan of lands on and in the vicinity of Medford Court, drawn by Alexander Wadsworth, dated June 27, 1845, recorded with Suffolk deeds. For more extended description thereof, see deeds aforesaid, or apply to the auctioneer. Per order of the assignee of said mortgagee.”</p> <p>This sale was made at the office of Norris, and the premises were struck off to John D. Dunbar, the only bidder therefor, for $2150; he acting at the request of Dawes, and to protect his rights in the premises. Dawes, in his affidavit setting forth his acts done in execution of the power of sale, stated that, in addition to the public advertisement, he sent written notices of the intended sale to George L. Montague, the mortgagor, and Edward T. Talbot, a subsequent mortgagee; and that he made and delivered a deed of the premises to Dunbar. No money or other thing was paid by Dunbar, but he, at the request of Henry Dawes, conveyed the premises to the defendant, and no money or other thing passed to Dunbar, but credit was given by the defendant to her husband, Henry Dawes, on an account existing between them, for $2150. No persons were present at this auction sale except Henry Dawes, Norris, Everett, Hassam, and one Leach, who attended at Montague’s request, though not for the purpose of bidding. No warranty or explanation of the title was given at the sale, except what was contained in the notice and mortgage, The affidavit of Dawes was duly recorded.</p> <p>The defendant had money left to her about twenty years ago, which her husband has managed for her, taking securities usually in her name, and rendering an account and settling with her about once a year; and the money credited by.her was from the avails of the money left her.</p> <p>The case was reserved by Gray, J., for the determination of the whole court.</p>

Bill in equity to redeem land from a mortgage. The case was reserved for the determination of the whole court, by ■Hoar, J., upon bill, answer and evidence. The facts are suifi ciently stated in the opinion.

<p>Contract to recover the price of five hundred bushels of oats sold and delivered. The answer admitted the sale and delivery of one hundred and five bushels, and offered judgment for the price thereof; and denied the residue.</p> <p>At the trial in the superior court, before Russell, J., without a jury, the following facts appeared : The plaintiffs were owners of a cargo of black oats, received by the schooner Seven Brothers, which on being weighed was found to contain 6695 bushels, and was elevated and stored in the Merchants’ Grain Elevator, a grain warehouse in Boston, not belonging to either the plaintiffs or defendants, but to persons whose business it was to receive, elevate, store, weigh and deliver grain. The cargo was put into two bins, and the plaintiffs thereafter agreed to sell to the defendants five hundred bushels thereof, at ninety-one cents a bushel, and accordingly delivered to them an order upon the proprietors of the elevator, dated June 23, 1864, the body of which was as follows: “ Please deliver Breed & Co. or order five hundred bushels black oats from cargo per schooner Seven Brothers, storage commencing, to the person or persons in whose favor this order is drawn, June 29,1864.” This order was presented on June 25th 1864 to the proprietors of the elevator, who accepted the same in the usual manner by retaining the order and entering it in their books, and on the same day delivered to the defendants one hundred and five bushels of the oats. Before July 5th 1864, the whole cargo had been sold and delivered and removed from the elevator except 1274 bushels; and this amount which remained in the elevator included 305 bushels of the quantity agreed to be sold to the defendants. On the 5th of July a fire occurred, without the fault of either of the parties to this action, and rendered the oats which remained in the elevator nearly worthless. The price for weighing and elevating these oats was charged to the plaintiffs.</p> <p>It was the general usage of dealers in grain in Boston to place cargoes and other large quantities of grain in elevators, where the same remained until sold, either in entire lots or in smaller quantities, by orders given by the vendor to the purchaser, and after such sale it was removed from the elevator or kept therein at the election of the purchaser. After the acceptance of such order by the proprietors of the elevator, the grain covered thereby was treated by them in all respects as the property of the purchaser; the vendor had no further control over it, and did no act in reference to separating it from the rest, or removing it from the elevator; but the proprietors held the same subject to the order of the purchaser, obeyed his directions in all respects in reference thereto, received orders from him in the same manner as from the original vendor, or weighed it out to him in such quantities and at such times as he required, they guaranteeing to deliver out the full number of bushels weighed into the elevator. They made no charge to the purchaser except for storage. Different cargoes of the same quality, belonging to different owners, were sometimes mingled in the bins. Parcels of grain, bought as above, were paid for according to contract, and without regard to whether or not they had been separated and removed from the elevator, and all damage to grain so sold, from internal causes occurring after the delivery of the order, was borne by the purchaser. All the above usages were known to the defendants; but they objected to the evidence to prove the same.</p> <p>Upon these facts, the judge ruled that there was no such change of title to the grain, except as to the one hundred and five bushels actually removed by the defendants from the ele vator, as to make the defendants liable to this action; and found that the plaintiffs were only entitled to recover the price agreed for the one hundred and five bushels, with interest. The plaintiffs alleged exceptions.</p>

<p>Bill in equity brought by trustees under a mortgage issued by the Grand Junction Railroad & Depot Company, as security for certain bonds of said company, to compel the defendant specifically to perform his written agreement to accept and pay for certain land in East Boston, bid off by him at auction. The following facts were agreed:</p> <p>By the act incorporating the Grand Junction Railroad and Depot Company, and acts in addition thereto, prior to the adoption of the by-laws hereinafter referred to, that corporation was authorized to hold lands in East Boston for depots and storehouses, as well as for railroad purposes, and to allow any other railroad corporation to establish depots upon its premises, and to sell or lease the land necessary therefor; and at the date of the mortgage hereinafter referred to, the corporation owned large tracts of land in East Boston, upon which it was engaged in constructing wharves and warehouses for storage of merchandise, and the lands conveyed by said mortgage, and the subject of this suit, were purchased for the like use, and were not required for the railroad track of the corporation, or for other railroad purposes.</p> <p>Among the by-laws duly adopted by the corporation, it was provided as follows: “ The directors shall have, in the management of the affairs of the corporation, and are hereby invested with, all the powers which the corporation itself possesses, not incompatible with the provisions of these by-laws and the laws of the Commonwealth; ” and there was nothing in the by-laws incompatible with the exercise by the directors of the power to borrow money, or to issue bonds, or to convey in mortgage the lands of the corporation as security therefor. At the annual meeting of the corporation, held May 30, 1855, the said by-law was amended by striking out all that part thereof following the words “ itself possesses,” and inserting in lieu thereof the words “ which are not in violation of the rights of the stockholders ; provided, also, that the directors shall not enter into any contract or make any expenditure which relates to the permanent leasing or disposal of the property of the corporation, or the purchase of new property to an amount exceeding $50,000, without the consent of the stockholders having been first obained thereto, at a meeting legally notified for that purpose; ’ and, at a special meeting of the corporation, held December 14, 1855, the said amendment to the by-laws was reconsidered.</p> <p>On the first of January 1853, a mortgage was executed to the plaintiffs, as trustees, in the name of the corporation, of several parcels of land owned by the corporation, and about a mile of its railroad track, in East Boston, to secure bonds of that date to the amount of $100,000, payable in five years. This mortgage was signed on the part of the corporation by its president, in pursuance of a vote of the directors authorizing him to do so, and to cause the seal of the company to be affixed thereto.</p> <p>There was not upon this mortgage any seal of wax or wafer or other adhesive substance, distinct from the paper on which said indenture is written; but, at the time of executing the same, there was impressed upon the paper opposite to the signature thereof, by the president of the corporation, the steel die adopted as the seal of the corporation, said die being: constructed in two parts; upon one part thereof was raised, and upon the other part was sunk a corresponding device,, with letters and figures denoting the name of the corporation and the date of its incorporation ; and, by means of said die, said device was indelibly and ineradicably impressed upon and into the substance of said paper; and such impression was so made by the president as and for the seal of said corporation, and in pursuance of the vote hereinbefore referred to. And a similar impression was in like manner made upon each of the bonds at the time of signing and issuing the same.</p> <p>At several annual meetings of the stockholders of the corporation, prior to the date of the attachments hereinafter referred to, the directors presented their reports, containing a statement of the affairs of the corporation, wherein the indebtedness of the corporation upon said bonds, and the security given therefor by said mortgage, were fully stated and set forth, which reports were accepted by vote of the stockholders.</p> <p>The equity of redemption of the corporation in the lands conveyed by the mortgage was sold on execution to one Welch, who conveyed the same to George W. Gordon; and by said sale and conveyance a good title to the equity of redemption was vested in Gordon, provided the mortgage was valid; and the corporation never redeemed the premises therefrom.</p> <p>The plaintiffs likewise, upon default of payment of the bonds and after demand made upon the corporation for payment of one of them, and by the request of the holders of more than one half in amount of the bonds, entered upon the premises, and, in pursuance of the terms of a power of sale contained in the mortgage, sold the parcel of land which is the subject of this suit by auction to the defendant, he being the highest bidder therefor; and a memorandum of the sale was accordingly signed by the defendant in which he agreed to comply with the terms thereof, and he paid into the hands of the auctioneer one hundred dollars to bind the bargain. The terms of sale provided that if any defect of title should appear, which could not be remedied by the sellers within thirty days, the sale should be void at the option of either party.</p> <p>The plaintiffs, on the 20th of March 1866, tendered to the defendant their own deed, a deed from Gordon, and a deed from the corporation, and the defendant refused to accept them on these grounds, and others, namely: 1. That said indenture of mortgage was not authorized by the stockholders of said corporation, but only by a vote of the directors thereof; 2. That in and by said indenture there was undertaken to be conveyed, in addition to the parcels of land aforesaid, about one mile of the road-bed and track of said railroad, being but a fractional part thereof; 3. That there is no seal on said deed of indenture, of wax, wafer or other adhesive substance, but only an impression of the corporation seal, as hereinbefore set forth ; 4. That prior to the deed of release purporting to be that of said corporation to the defendant, dated March 20,1866, two large attachments, amounting in the aggregate to over one hundred thousand dollars, were placed upon all the real estate of said corporation in the county of Suffolk, in suits against said corporation, which suits are still pending. But it was agreed that said suits were commenced and said attachments made long after the levy of the execution against the corporation hereinbefore referred to, and the conveyance under the levy and sale thereon to said Gordon.</p> <p>Upon the foregoing facts, the case was reserved by Foster, J., for the determination of the full court.</p>

<p>Three actions of contract brought to recover the value of certain ounces of silver due under indentures between the plaintiffs and defendants for the rent of certain mill powers on Merrimack River The indentures were annexed to printed “ Proposals by the Essex Company for the sale of their mill power and land on Merrimack River, in Massachusetts,” which proposals were by the terms of the indentures adopted as a part thereof. One of the articles of these proposals provided as follows :</p> <p>“ In order to continue in the grantors an interest in common with the grantees for the preservation and support of the mill powers which may be granted, and to secure a fund to indemnify the grantees for expenses which may be incurred by them for making repairs, if the grantors should improperly neglect to make them; it is proposed that part of the consideration of every sale, and all that is to be allowed the grantors for the repairs, &c., by them assumed, should be paid or secured to them in the form of a reservation of rent. It is therefore declared that each mill power, with the land to which it is annexed, shall forever be subject to a perpetual annual rent, of at least two hundred and sixty ounces troy weight of silver of the present standard fineness of the silver coin of the United States, or an equivalent in gold, at the option of the grantee at the time of payment; which rent is to be paid in yearly payments forever, free from all charges or deduction whatever for taxes or assessments of every description which may be assessed or levied upon any granted premises after the making of the deed, all of which are assumed by the grantees; and a perpetual annual rent, at least equal to the above, shall be reserved for every mill power hereafter sold ; and no rent shall be reduced or extinguished by the grantors but by consent of all the grantees.”</p> <p>Each indenture provided accordingly for the payment to the plaintiffs, for each mill power granted, the yearly rent of “ two hundred and sixty ounces troy weight of silver, or its equivalent in gold ; ” payable on the 1st of March in each year forever.</p> <p>The first action was brought to recover the value of 6930 ounces of silver, due on the 1st of March 1865, under five several indentures of the form above described.</p> <p>The second action was to recover the value of 2860 ounces of silver, due on the 1st of March 1865, under three several indentures of the form above described.</p> <p>The third action was to recover the value of 4160 ounces of silver, due on the 1st of March 1865, under four several indenture's of the form above described.</p> <p>In the first action, it appeared that, on the 1st of March 1865, 6930 ounces of silver were due from the defendants to the plaintiffs, of the fineness of nine parts of pure silver to one part of alloy, or an equivalent in gold; which the defendants neglected to pay. On the 3d of April 1865 the defendants tendered to the plaintiffs $8111 in gold, this sum being made up as follows:</p> <p>“ 26§ mill-powers at $302.54§, which is the equivalent of 260 ounces of silver under the act of 1846 . $8067.87</p> <p>“ Add one month two days' interest .... 43.03</p> <p>$8110.90 ”</p> <p>The plaintiffs declined to take this, in full settlement, but offered to take it and account for it, which offer was refused, and the gold was carried away by the defendants. It was agreed that the case should be determined as if the same had been duly paid into court.</p> <p>On March 1st 1865 the market value of said silver was $2.43 an ounce, in United States treasury notes, amounting to $16,840; and on April 3d it was $1.78 an ounce in treasury notes, amounting to $12,275; and the market value thereof has been fluctuating almost daily ever since, but it has never been so high as $1.78.</p> <p>The defendants also offered to prove, and if material it is to be taken as a fact, that $1.16f*r of the silver coinage authorized by the act of 1837, and $1.25 of the small silver coinage author-«zed by the act of 1853, each weighed one ounce of silver of the fineness of the silver specified in said indentures; that on March 1st, 4th and 18th, and April 3d 1865, one ounce of silver of said fineness, and thirty-one grains of gold of said fineness, (being the amount of gold contained in $1.20 United States gold coin,) were of equal market value; that if said metals of said standard fineness were in the form of coins of the United States, or of coins the fineness of which has been reported by the director of the mint, pursuant to U. S. St. 1857, c. 56, or in the form of bars bearing the stamp of the United States Mint or of any known assay office, certifying the fineness, the said weights of metals would each have been of the market value of $1.20 in United States gold coin.</p> <p>Neither gold nor silver is merchantable or ever bought oi sold in the market without its fineness being first authenticated by being coined or stamped as above. The expense of causing unstamped bullion of said fineness to be cast into bars and stamped at the United States Mint is at the rate of two cents pei ounce for silver, and two cents per thirty-one grains of gold, and therefore, if unstamped, said weights of metals would have been, on said days, of the value of $1.18 in United States gold coin.</p> <p>The same weight of silver is not always of equal value with the same amount of gold, their values fluctuating as compared with each other.</p> <p>It also appeared that the United States treasury notes are the currency in which the business of the country is carried on, accounts kept, prices stated and quoted, and values reckoned, except that as to a considerable number of imported articles the prices are given and quoted in and dealings take place for gold coin, with the express statement, expectation and agreement that they are to be paid for in gold coin, and not in United States treasury notes; also with this further exception, that the precious metals in the form of bullion are dealt in in both ways, but the dealings in coin, which are very much larger than the dealings in bullion, are mostly for treasury notes, as first stated above.</p> <p>In the marine insurance business, also, it is common for the assured, if he prefers, to pay his premium in gold, upon the promise of the underwriters to pay the loss in gold.</p> <p>In the second action, it appeared that, on the 1st of March 1865, 2758 ounces of silver were due from the defendants to the plaintiffs, of the same fineness as before stated; which the defendants neglected to pay. And the same facts above stated in regard to silver and gold bullion and coin, and United States treasury notes, also appeared. But in this case there was no tender.</p> <p>In the third action, it appeared that, on the 1st of March 1865, 4012 ounces of silver were due from the defendants to the plaintiffs, of the same fineness as before stated; which the defendants neglected to pay. And in other respects the same facts appeared as in the second action.</p> <p>These cases were all reserved, by Chapman, J., for the deter* mination of the full court.</p>

Bill in equity to enforce specific performance of an award of arbitrators “ that Edward G. Nickerson shall pay Thomas Howe forty-six dollars and twenty-seven cents in currency, and eighteen hundred and ninety-seven dollars and fifty-one cents in gold, and interest from August 25, 1865, until it is paid.” The defendant filed a general demurrer; and the case was reserved, by Foster, J., for the determination of the full court.

<p>Contract against a corporation established by law in this commonwealth, alleging an agreement between them and the plaintiff to employ him for three years as their agent and superintendent in California; and a breach of the agreement by the defendants, by discharging him before the end of the first year.</p> <p>At the trial in this court, before Gray, J., the plaintiff put in evidence the record of the following votes by the defendants’ directors, at a meeting held April 28, 1864 :</p> <p>“ Voted, That we do hereby choose Mr. Alfred Tufts, as agent and superintendent in California, for three years, at a salary of $2500 for the first year, $3000 for the second year, and $3500 the third year, payable in specie; he to be subject to removal by the directors for" good and sufficient cause.</p> <p>“ Voted, To pay his expenses out to California.</p> <p>“The agent in California shall, under the direction of the board of directors, have charge of the mine, and all operations in mining there; shall employ and pay all the men needed; shall keep full and accurate accounts of all his receipts and disbursements, and of the business done at the mines, and in California in proper books of accounts; shall send copies of his accounts to the treasurer on the first day of each month. He shall also, on the first day of each month, send the proceeds of the mine to the treasurer, in such way as he shall be directed by the treasurer. He shall, by letter, keep the treasurer fully informed of the state of the property and its prospects. He shall report twice in each year the state of the mine, with a schedule of the property and buildings on the same, and the condition thereof, and shall follow the instructions of the board of directors.</p> <p>“ He shall give bond for the faithful performance of his duties, in the sum of ten thousand dollars, with sureties to the satisfaction of the board.”</p> <p>The plaintiff also put in evidence a letter from the defendants’ treasurer, dated June 8th 1864, inclosing a copy of the above vote in regard to the duties of the agent in California.</p> <p>The defendants at a subsequent stage of the trial put in evidence the following proposal of the plaintiff to them : “ Boston, April 26, 1864. Directors of Plymouth Mining Co. Gentlemen : I hereby propose to make an engagement with you, as superintendent for one year, for $2500 in specie, and expense of passage to the mines. Or for a term of three years, with an addition of $500 to the above salary for each succeeding year, Yours very respectfully, Alfred Tufts.”</p> <p>It appeared that the plaintiff, on the 7th of June, 1864, executed and delivered a bond to the defendants, which they accepted, for the faithful discharge of his duties as the defendants’ agent and superintendent; received the letter of June 8th, with its inclosures, from the defendants’ treasurer on the 9th of June, sailed for California, with his wife, on the 13th of June and then entered upon the office of the defendants’ agent, from which he was discharged by the defendants within one year afterwards.</p> <p>The plaintiff testified that he was told of the vote of April 28th, appointing him agent for the term of three years, by one of the defendants’ directors, but not by their treasurer, on the day of its passage, but never saw any of the votes until the copy was handed to him by the defendants’ treasurer with the letter of June 8th, and then only so much as was contained in that copy; that he sailed for California in the employment of the defendants, as their agent and superintendent for three years, and received from them, before he sailed, a ticket for his own passage from New York to San Francisco, but no money • and that no other agreement was made between him and the company than what was contained in the votes of the defendants and the letter of their treasurer.</p> <p>The defendants, having duly pleaded the statute of frauds as to contracts not to be performed within one year from the making thereof, contended that the plaintiff had not proved any sufficient note or memorandum in writing, signed by the defendants, or by some person by them lawfully authorized, of the promise, contract or agreement between the parties. But the judge overruled this objection, and instructed the jury that the votes of April 28th, and the subsequent acts of the parties, sufficiently proved a binding contract between them.</p> <p>By agreement of parties, the only question submitted to the jury was whether the defendants had unjustifiably discharged the plaintiff. The jury returned a verdict for the plaintiff; upon which judgment is to be rendered, unless the ruling upon the statute of frauds entitles the defendants to a new trial.</p> <p>The question of the rule of damages was reserved for the full court; and it was agreed that the amount of damages should be ascertained by an assessor.</p> <p>The plaintiff offered in evidence the statute of California of 1863, c. 421, and also offered to prove the market value of gold and silver coined money of the United States, in treasury notes of the United States, at the times when his salary had fallen jue; and claimed to be entitled to recover the unpaid balance of the salary stipulated in the votes, in gold or silver, estimated at its market value, deducting what he had been able to earn otherwise during the three years mentioned in the votes, and the travelling expenses of himself and his wife to California and back, a memorandum of which was produced, showing, among other things, charges for expenses from San Francisco in California to the defendants’ mines; and offered to show that these expenses were paid as follows, namely, the outward expenses on the eastern coast in treasury notes; those on the western coast in gold coin, which he had purchased for the purpose with a larger nominal sum in treasury notes; the expenses on the return on the western coast in gold coin which he had received in California on account of his salary; and on the eastern coast in treasury notes, which he had bought with such gold coin. All questions of the rule of damages arising in the case were reserved for the determination of the full court.</p>

<p>Contract brought to recover damages for non-payment of the rent reserved in a lease, executed on the 14th of August 1828, by which David Sears leased a parcel of land in Roxbury, for the term of one hundred years, to Edward Battles and Samuel Goodhue, their heirs, executors, administrators, successors and assigns, “ upon condition of their punctually yielding and paying therefor and thereout, to the said David Sears, his heirs and assigns, the yearly rent of four ounces, two pennyweights and twelve grains of pure gold, in coined money, to be paid in four equal and quarter-yearly payments, on the first days of the months of September, December, March and June, in each and every year hereafter, during such term, without any deduction, abatement, diminution or defalcation whatever, for or on account of any taxes, charges or assessments which shall or may hereafter at any time be assessed or laid, either on the hereby bargained premises or on the improvements thereof, or for or on account of any matter or cause whatever.”</p> <p>The following facts were agreed in the superior court: The rent sued for was for the five quarters ending June 1st 1864. Before the beginning of that period, the reversion had duly vested in the plaintiffs, and the term had come to the defendants by assignment. The rent reserved in the lease for each of those quarters had become due, and on each quarter day the defendants had offered to pay to the plaintiffs United States treasury notes, of various denominations, amounting to twenty-two dollars, except on one quarter day, when similar notes and postal currency were offered, amounting to twenty-one dollars and thirty-five cents; and on September 10th 1864, the defendants offered to the plaintiffs similar notes amounting to one hundred and ten dollars; all of which offers were declined.</p> <p>One ounce and fifteen grains of pure gold were of much larger value in the market, at the time each quarter’s rent became due, than United States treasury notes amounting according to their denominations to twenty-two dollars; and five ounces, three pennyweights and three grains of pure gold were of much larger value in the market than one hundred and ten dollars in United States treasury notes, on September 10th 1864.</p> <p>It being agreed that the court should render such judgment as in their opinion was proper, and might if necessary send the case to an assessor to estimate the damages, judgment was rendered in the superior court for the defendants; and the plaintiffs appealed to this court.</p>

Tort to recover damages for a personal injury sustained by Thomas Hickey, the plaintiff’s intestate, while riding upon a passenger car of the defendants.

<p>Action containing one count in contract and one in tort. Bach count alleged that the defendants were common earners of passengers between Boston and Lynn, and that on the 15th of September 1865, the plaintiff was a resident of Nahant, near Lynn, and the defendants before then publicly undertook and contracted with the public to run a train for the carriage of passengers from Boston to Lynn at nine and one half o’clock in the evening each week day, Wednesdays and Saturdays excepted; and the plaintiff, relying on said contract and undertaking, purchased of the defendants a ticket entitling him to carriage upon their cars between Boston and Lynn, and. paid therefor twenty-five cents or thereabouts, and on a certain week day thereafter, neither Wednesday nor Saturday, namely, on the 15th of said September, presented himself on or before the hour of nine and a half o’clock in the evening at the defendants’ station in Boston and offered and attempted to take the train undertaken to be ran at that hour, as a passenger, but the defendants negligently and wilfully omitted to ran the said train at that hour, or any train for Lynn till several hours thereafter; wherefore the plaintiff was compelled to hire a livery carriage and to ride therein to Lynn by night, and was much disturbed and inconvenienced.</p> <p>The following facts were agreed in the superior court: The defendants were common earners, as alleged, and inserted in the Boston Daily Advertiser, Post and Courier, from the 15th day of August till the 15th day of September an advertisement announcing the hours at which trains would leave Boston for various places, and among others that a train would leave for Lynn at 9.30 p. m. except Wednesdays, when it would leave at 11.15, and Saturdays, when it would leave at 10.30.</p> <p>The plaintiff, a resident of Nahant, consulted one of the above papers, about the 9th of September 1865, for the purpose of ascertaining the time when the latest night train would start from Boston for Lynn on the 15th, in order to take the train on that day, and saw the advertisement referred to. On the 15th, which was on Friday, he came to Boston from Lynn in a forenoon train, and in the evening shortly after nine o’clock presented himself at the defendants’ station in Boston for the purpose of taking the 9.30 train for Lynn, having with him a ticket which previously to September 9th he had purchased in a package of five. This ticket specified no particular train, but purported to be good for one passage in the cars between Boston and Lynn during the year 1865. He learned that this train had been postponed to 11.15, on account of an exhibition, and thereupon hired a buggy and drove to Lynn, arriving there soon after 10.30. He had seen no notice of any postponement of this train. He once in 1864 observed a notice of postponement, and heard that the defendants sometimes postponed their late trains.</p> <p>For several years before 1865, the defendants’ superintendent had been accustomed occasionally to postpone this train, as often as from once to three times a month, for the purpose of allowing the public to attend places of amusement and instruction, and also upon holidays and other public occasions in Boston ; giving notice thereof by handbills posted in the defendants’ cars and stations. On the 13th of September 1865, in pursuance of this custom, he decided to postpone this train for September 15th till 11.15, and on the same day caused notice thereof to be printed and posted in the usual manner. The train was so postponed, and left Boston at 11.15, arriving at Lynn at 11.45.</p> <p>The defendants offered to prove, if competent, that this usage of detaining the train was generally known to the people using the Eastern Railroad, and that the number of persons generally going by the postponed train was larger than generally went by the 9.30 train, and was larger on the evening in question ; but at the station in Boston there were persons complaining of the postponement of. the train, and leaving the station.</p> <p>It was agreed that, if on these facts the plaintiff was entitled to recover, judgment should be entered in his favor for ten dollars, without costs. Judgment was rendered for the defendants, and the plaintiff appealed to this court.</p>

<p>Tort against a railroad corporation for the conversion of twenty-eight barrels of flour.</p> <p>At the trial in the superior court, before Morton, J., it appeared that Messrs. Clap & Brother, dealers in flour, were the owners of a large quantity of flour of the same brand as the flour claimed to have been converted by the defendants, which had been consigned to them at Boston, and brought to that city by the defendants as common carriers, and was deposited in their freight depot. The plaintiffs entered into a contract with Clap & Brother for the purchase of fifty barrels, part of this flour, and paid them therefor, and received a bill of sale thereof. Clap & Brother delivered to them an order upon the railroad company for the flour so purchased. The plaintiffs gave the same to Murphy, a teamster, who presented it to Elder, a clerk of the defendants, signed a receipt for the same and received from him a “ flour check,” no flour being then actually delivered or received. This receipt and “ flour check ” were as follows :</p> <p>“ Boston, Oct. 20, 1865. Received of Boston & Worcester Railroad Corporation in good order for J. G. Hall & Co. per order of Clap & Bro., 50 Bbls. Flour — Safford. David Murphy.”</p> <p>“ Flour Check .... B. & W. R. R. No. 1051. Boston, Oct. 20, 1865. Deliver the bearer, fifty Bbls. Flora Safford brand of Clap & Bro., Lot. Fogarty. 2 ct. Stamp Cancelled</p> <p>(Indorsed,) “Received the within.</p> <p>“ 12 Bbls. flour. 6 Door O. H. David Murphy.</p> <p>“ Rec’d 10 Bbls. David Murphy.</p> <p>“ 18 A. Hall.</p> <p>“10 D. Donnovan.”</p> <p>This check Murphy took to another part of the depot where the flour was, and presented the same to Crabtree, a person authorized to deliver the same, and received from him at two different times twelve and ten barrels of flour, which were indorsed on the check. It was proved that the remaining twenty-eight barrels were not in fact received by the plaintiffs, but delivered to some other parties not authorized to receive them.</p> <p>It was and long had been the practice of said Elder, known to the other officers of the defendants, when such orders were brought to him by a teamster or other person authorized to receive goods for a consignee, to require the party bringing the same to receipt for the goods, and then to give him a check to be taken to the person authorized to deliver flour, who thereupon took and kept possession of the check; and, as the flour wds delivered from time to time, took receipts therefor upon the back of said check, and, when the check was filled, returned it +o Elder as his voucher, as was done in this case.</p> <p>was not contended that freight had not been paid.</p> <p>Nothing was charged or paid for storage as such, but the flour remained wholly for the convenience of the party taking the same, at an inconvenience to the defendants, who preferred to have the goods taken away at once. No statement of this kind was made to the plaintiffs, and no objection was made to their taking their flour from time to time in accordance with the usage above named, which was known to them. No notice was given to the defendants, and they did not know that there had been any contract for a sale of the flour to the plaintiff's, or that this order was for any other purpose than to obtain the. flour for Clap & Brother, except so far as implied in the order for the same. The fifty barrels of flour were not separated from the other flour belonging to Clap & Brother, by them or by the plaintiffs or defendants, unless as otherwise stated herein There were indorsements on the check of the delivery of twenty-eight barrels to persons who, as the plaintiffs proved, were not authorized to receive them, and were entirely unknown to them, and the plaintiffs contended that this was a separation.</p> <p>The judge instructed the jury that, if the facts above stated were proved, there was a sale of the fifty barrels of flour to the plaintiffs, by which the property therein passed to them without separation or other act, or manual delivery, to enable them to maintain this action; that there was also an acceptance of the order by the defendants, which bound them to deliver fifty barrels therein mentioned to the plaintiffs, and made them liable to the plaintiffs for ordinary care and diligence in keeping and delivering the same; and that if without such care they delivered them to a person not authorized by the plaintiffs to receive them, or, under the circumstances of the case, refused to deliver them on demand, it would be a conversion which would render them liable for the value of the flour not delivered; and that Crabtree in reference to such delivery was the agent of the defendants, and not of the person entitled to receive the flour, although said check remained with him as aforesaid, so that the defendants would be responsible for his acts in delivering them.</p> <p>The defendants requested the court to instruct the jury that the defendants were not liable to the plaintiffs as bailees or warehousemen for hire, but only as depositories bound to slight diligence ; but the judge refused, and instructed them as above.</p> <p>The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

<p>4. railroad company may lawfully erect a building within the limits of the location of their railroad, for depot or station purposes, although they thereby obstruct a private way over the land upon which the building stands; and the Gen. Sts. c. 63, § 46, providing that if a railroad is laid out across a turnpike road or other way it shall be so made as not to obstruct the same, do not apply to private ways.</p>

<p>Contract. The declaration alleged that the defendants received one tub of sugar, the property of the plaintiff, and agreed with him to deliver the same to him in Boston, and the plaintiff paid to them a legal consideration therefor, and duly demanded of them to deliver the same to him, but they neglected and refused to do so, and owe him the value thereof. The answer is sufficiently set forth in the opinion.</p> <p>At the trial in the superior court, before Brigham, J., it appeared that in May 1864, the plaintiff had notice of the arrival at the freight depot of the defendants in Boston of a tub of maple sugar, consigned to him, and went to the office of the defendants and paid the freight, and received an order for the delivery of the sugar to him at the freight depot; and, upon calling for the sugar at the freight depot, was informed, after a search for it, that it could not be found and had probably been stolen. And there was evidence tending to show that at the time when the sugar was known to be missing, it had been about eight days in the depot, where eight men were employed in attending to the unloading, delivery and taking an account of freight.</p> <p>The defendants offered to prove that the same care was exercised in relation to this property which was usually exercised in Boston by other railroad corporations in relation to such property; but the evidence was excluded.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>Contract brought in this court to recover damages for an injury to nine cars of the plaintiffs, while being transported over the defendants’ railroad. The action was brought upon a written agreement between the parties, dated August 1st 1854, the material portions of which were as follows:</p> <p>“ The Fitchburg Railroad Company, in consideration of the covenants and agreements of the Vermont and Massachusetts Railroad Company, hereinafter contained, covenant and agree to and with the said Vermont and Massachusetts Railroad Company to furnish the requisite motive, power, and draw over the railroad of the said Fitchburg Railroad Company, all the passenger and freight cars of the said Vermont and Massachusetts Railroad Company, and the roads connected therewith, and the passengers and freight in said cars, at such times, and at such proper rates of speed, as shall be to the mutual advantage of both corporations, and to furnish all the necessary depot accommodations on said Fitchburg Railroad for passenger and freight business of the Vermont and Massachusetts Railroad Company, and the roads connected therewith, and to do the loading and unloading of such freight at stations on the Fitch-burg Railroad, as they have heretofore done.</p> <p>“ The Fitchburg Railroad Company also covenant and agree to collect all such bills as may be payable at stations on their road for freight, and charges for freight, coming over the Vermont and Massachusetts Railroad, and the roads connected therewith, and. guarantee the payment of such bills, and to furnish and sell the usual passenger tickets at all stations on the Fitchburg Railroad where tickets are now sold or may be sold during the continuance of this contract, to all stations on the Vermont and Massachusetts Railroad, and the roads connected therewith.</p> <p>“ In consideration whereof, the said Vermont and Massachusetts Railroad Company covenant and agree to and with the said Fitchburg Railroad Company to pay the said Fitchburg Railroad Company for the transportation of all passengers over the Fitchburg Railroad, as above provided and agreed, as follows, that is to say: [here followed a list of rates for passengers, and afterwards another list for freight.]</p> <p>i( The Vermont and Massachusetts Railroad Company further covenant and agree to indemnify and save harmless the Fitch-burg Railroad Company of and from all claims, damages, costs and expenses, of every nature and description, arising from or in any way growing out of or connected with any injury to any passenger or passengers, and any loss or damage to any baggage or property of any passenger or passengers, and any loss of or damage to any and all goods and freight of every description, going to or coming from the Vermont and Massachusetts Railroad, and the roads connected therewith, while in transit over the Fitchburg Railroad, or in its depots, or upon its premises, unless such injury, loss or damage, shall be clearjy shown to arise from or be occasioned by the negligence or default of the Fitchburg Railroad Company, its servants or agents, or from some defect in the road, buildings or machinery of the said Fitchburg Railroad Company, in which case any and all claims, damages, costs and expenses arising from or resulting from such negligence, default or defect shall be borne by the Fitchburv Railroad Company.”</p> <p>The following facts were agreed :</p> <p>On the 7th of March 1864, a train of freight cars belonging to the plaintiffs, and loaded with cattle and sheep and other things, came down over the plaintiffs’ railroad, which connects with the defendants’ railroad at Fitchburg, hauled by the plaintiffs’ engine, and in the charge of the servants of the plaintiffs. Upon the arrival of the train at Fitchburg, the engine of the plaintiffs was taken off the train, and the engine, of the defendants attached thereto, and the train proceeded on its way to Boston, under the conduct of the servants of the defendants, and under said agreement. While said train was in transit over the railroad of the defendants, in the town of Weston, at about midnight, a portion of the train was thrown from the track, and the cars of the plaintiffs injured, and some of the cattle and sheep were killed, and some of the other property destroyed. The cause of the accident was as follows:</p> <p>The flume of the millpond of John and Samuel W. Dudley, in said town of Weston, and about one mile from the railroad, being rotten, unsubstantial and insecure, broke away, in the night of the said 7th of March, and by reason thereof the waters of the pond were suddenly released, and came down in extraordinary and unusual quantity and with great velocity, overflowing the roads and the surrounding fields, and flowed along the side of the defendants’ railroad, and, meeting with obstruction, overflowed the road-bed of the railroad, and washed away the embankment from beneath the rails and sleepers. The rails, being unsupported when the train passed over that part of the defendants’ railroad, bent and broke, and a portion of the train was thrown from the track, and the cars of the plaintiffs were injured and broken, so as to be unfit for use, and the cattle and sheep killed, as before mentioned.</p> <p>The engineer and fireman in charge of the engine, and the brakemen on the train, at the time of the accident, were the servants of the defendants.</p> <p>The railroad of the defendants, at the point where the accident happened, was properly constructed, and was in a proper and safe condition, until washed away by the waters of the pond, as before mentioned.</p> <p>The freight train was suitably equipped and conducted, and no fault or negligence is attributed either to the plaintiffs or defendants, so far as the condition of the road or the cars is concerned, or in the conduct of the train, unless as is herein stated Both plaintiffs and defendants are common earners, except so far as modified by this agreement.</p> <p>The case was reserved, by Foster, J., for the determination of the full court, with an agreement that, if the court should be of opinion that the plaintiffs are entitled to recover, the case should be sent to an assessor to ascertain the damages.</p> <p>It was agreed at the argument that the case should be decided on the merits, if in any form of action the plaintiffs have a remedy on the facts agreed.</p>

<p>Contract against a corporation upon a bill of exchange for $5500, brought originally in the superior court. Joseph M Wightman, in behalf of the defendants, filed an affidavit of defence, and moved that the action be removed to this, court and it was accordingly so removed. The plaintiff then moved in this court, that the action be remanded to the superior court, with directions to enter a default and render judgment for the plaintiff; averring that the attorney professing to appear for the defendants had no authority to do so.</p> <p>On the hearing of this motion, it was admitted by the counsel for the plaintiff that there is an intention to proceed against the directors under whom this debt was contracted, and the stockholders liable, if the corporation does not pay the judgment which may be recovered. The action was entered in the superior court at October term 1866, and removed under Gen. Sts. c. 114, § 8. Mr. Wightman is a stockholder and was formerly a director, and employed the attorneys who appear in defence. There was no evidence that they were employed by any other person; but Louis Agassiz, James Sturgis, George S. Hillard, Joseph Vila, F. G. Dexter, George Snell, George S. Dix, and Charles H. H. Cook, who were the president, the whole board of directors with one exception, and the treasurer of the corporation, testified that they had given no authority, and most of them added that they knew of none, to appear and defend this suit. The corporation is insolvent, and its property has been assigned to a trustee.</p> <p>The plaintiff’s motion was reserved by Soar, J., for the determination of the whole court.</p>

Contract brought by the trustees under the will of Joshua Sears to recover the additional five hundred dollars rent for store No. 9 in State Street Block in Boston for the sixth year of the term under a lease thereof from the plaintiffs to the defendants for ten years from June 1st 1858, which provided for the payment of an annual rent of $6000, with the following stipulation in regard to additional rent: “In addition to the foregoing stipulation for rent, it is agreed that,…

<p>Tort to recover damages for an injury sustained by the plaintiff bv reason of a defective way.</p> <p>At the trial in the superior court, before Ames, J., it was admitted that Bromfield Street in Boston was a public street which the defendants were bound to keep in repair, and there was evidence tending to show that it had been out of repair for twenty-four hours preceding the accident.</p> <p>The plaintiff testified that on the 3d of December 1865, which was Sunday, he had been somewhat unwell during the day, so that he remained at home and within doors until the evening; that early in the evening of that day a young friend called at his house in Hanover Street, and invited him to take a walk; that, thinking a walk would be useful to him, he accepted the invitation, and started off with his friend; and that, when he had proceeded a little way, he was joined by other friends and companions, and together they extended their walk to Bromfield Street, where the injury complained of was received.</p> <p>Upon this evidence, the defendant’s counsel requested the judge to rule that it was incumbent on the plaintiff, in order to entitle him to a verdict, to prove that he was travelling from necessity, or for purposes of charity. But the judge refused so to rule ; and instructed the jury that a person walking under the circumstances testified to was not travelling unlawfully, within the meaning of the statute prohibiting travel on the Lord’s day except from necessity or charity ; and that the plaintiff, if he had otherwise proved his case, was entitled to a verdict, as much as he would have been if the same occurrence had happened on any other day of the week.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>Tort to recover damages for a personal injury received by the plaintiff while riding as a passenger in one of the street railway cars of the defendants.</p> <p>At the trial in the superior court, before Ames, J., it appeared that the plaintiff resided in Boston ; that on Sunday, November 19th, 1865, he went with a friend to Charlestown to collect a debt due to him, and spent the greater part of the day there • that late in the afternoon, or early in the evening, he, in company with the same person, and to visit one of that person’s friends in Boxbury, took passage in a car of the defendants, and while on the way to Boxbury was injured as described in his declaration.</p> <p>The defendants objected that it appeared on this evidence that the plaintiff was travelling on the Lord’s day, not from necessity or charity, and for that reason was not entitled to maintain this action; and the judge so ruled, and directed a verdict for the defendants. The plaintiff" alleged exceptions.</p>

<p>Contract brought upon a check for $2000, dated New York, •Aly3, 1865, payable to Hazard & Apthorp (the plaintiffs) oz ordei, payment of which was refused on presentation. Two of the grounds set up in defence were that the note was obtained by fraudulent representations as to the real estate hereinafter referred to, and that it was void by reason of having been given on the Lord’s day. The plaintiffs were afterwards allowed to file an additional count, for $5000, amount of cash payable under contract of sale of the Chace estate, to which the same grounds of defence were set up.</p> <p>At the trial in the superior court, before Ames, J., without a jury, the defendant, having admitted facts sufficient to constitute a primd facie case, testified that, being in Newport, Rhode Island, in the summer of 1865, his attention was called to an estate which the plaintiffs, as real estate agents, had for sale; that on visiting Hazard, one of the plaintiffs, he obtained certain representations as to the value of the land and cost of the building ; and that he Soon after went to New York, and while there had a correspondence with the plaintiffs, both by telegraph and mail. This correspondence was put into the case, and was as follows, the dates being from June 27th to July 1st 1865:</p> <p>“ Newport, 1865. To Horace H. Day, 23 Courtland. Owners telegraph, can you make cash seven thousand ? Reply by telegraph. Hazard & Apthorp.”</p> <p>“ New York, 27th, 1865. To Hazard & Apthorp. Five all can conveniently do now; two more February next. H. H. Day.”</p> <p>“ Newport, 1865. To Horace H. Day, Courtland St. You have it. Contracts to-night by mail. Hazard & Apthorp.”</p> <p>“ New York, 28th, 1865. To Hazard & Apthorp, House Agents. I withdraw my February offer, and stand on the original, which I withdraw Thursday night if not accepted before. I write you mail. Horace H. Day.”</p> <p>“ Newport, R. I., June 28, 1865. My dear Sir: At ten this a. m. we telegraphed you that you had the Chace house, and 1 so informed Mrs. Day, who, by the way, went immediately to examine the premises, and has had them all opened and aired. At 11 o’clock I had your despatch withdrawing the offer of $2000 in February. On examination- of our authority, we believed it full, and therefore have made the contracts, as required by you ; one inclosed, the other having been forwarded to Boston, and will be returned to-night.</p> <p>“ Please sign the inclosed contract, before a witness, and forward it, together with your check for $2000, to Mrs. Day. We will have the duplicate properly signed, witnessed and stamped, and deliver it to her, in exchange. You can take immediate possession ; but the payment of $3000 (three thousand) will not be required for a week or two, as one fifth interest cannot be conveyed without the order of the orphans’ court, which is in progress, but will not be obtained in less than a week, or more than two. We will wait upon Mrs. Day on the evening of the 29th. Very respectfully, Hazard & Apthorp.</p> <p>“ Horace H. Day, Esq., 23 Courtlandt Street, New York.”</p> <p>“ New York, 28th, 1865. To Hazard & Apthorp. Your despatch saying you have it, received at noon. Two hours before that, I telegraphed you I would take it only on my first offer. Form contract accordingly. H. H. Day.”</p> <p>“ New York, 29, 1865. To Mrs. H. H. Day. Can’t take that house yet. Received your letters. Written fully. H. H. Day.”</p> <p>“ New York, 29,1865. To Hazard & Apthorp. Unexpected circumstances prevented my consummating the proposed purchase. Will write mail. H. H. Day.”</p> <p>“ No. 23 Courtlandt Street, N. York, June 29,1865. Gents: I am sorry to say that, since my return to New York, I have been called upon by an estate to pay up a sum of money on a piece of property, which I should lose by failure, and which will consume.all my available funds for six months and longer, rendering it impossible for me to make the proposed purchase at this time. [The rest of the letter is omitted.] Very respectfully, your obedient servant, Horace H. Day.</p> <p>“ Messrs. Hazard & Apthorp, Newport, R. I.”</p> <p>“New York, 4 p. m., June 29. Mr. Hazard,—Dear Sir: I have written you this morning; since then, I received copy of your agreement. I regret the necessity which compelled me to decline to take that valuable house, and I shall make a very strong effort to-morrow and Saturday to be in a situation to change my course. Will you drop in my residence Sunday morning, before church time — the Clark House, Redwood St. ? I leave here for Newport Saturday night. Yours truly, Horace H. Day.”</p> <p>“ Newport, R. I., June 30, 1865. My dear Sir: Your two favors of yesterday are received. We had reported the sale to our principals; and have to-day offered the place to Mr. Scott, of Philadelphia, for you, at thirty-six thousand dollars, framed in such a way, however, as not to bind you, if you determine to keep it. Will call on you on Sunday morning, and remain very truly yours, Hazard & Apthorp.</p> <p>“ Horace H. Day, Esq., New York.”</p> <p>“ New York, 1st, 1865. To Hazard & Apthorp. Yours received. Assuming all in, upon and about property, goes with it, I expect shall close on arrival. H. H. Day.”</p> <p>The defendant further testified that he returned to Newport on Saturday July 1st, and had an interview with Hazard the next morning, the result of which was that he on that morning signed and delivered a written contract for the purchase of the estate at $35,000, and also signed and delivered the check in suit as part payment. The plaintiffs had, on the Wednesday before, procured the signature of the person representing the owners of the estate to one part of the contract, which part they delivered, duly signed, to the defendant on that morning. This contract, between the administrator for the heirs of Caleb Chace and the defendant, provided that “ the said party of the first part, in consideration of the sum of two thousand dollars, to him duly paid, hereby agrees to sell unto the said party of the second part, the Chace House, so called,” “ together with the stables, and the land, 54,000 feet, more or less, enclosed therewith,” “ for the sum of thirty-three thousand dollars, which the said party of the second part hereby agreés to pay to the said party of the first part, as follows: Three thousand dollars on signing and delivery of the deed, and thirty thousand dollars in five years from the date thereof, by his notes for thirty thousand dollars secured by mortgage on said premises, made in New York, and bearing seven per cent, interest, payable semi-annually with the privilege of paying a part or the whole at any time by giving ninety days’ notice.” There was also provision for the delivery of a sufficient deed to the defendant.</p> <p>The defendant further testified that early on Monday he gave notice to Hazard that he (the defendant) had found that he had been deceived by the plaintiffs’ representations, and would not complete the contract, and should stop the payment of the check; which he did.</p> <p>The employment of the plaintiffs as real estate brokers, by the owners of the estate, who lived in Boston, was admitted; but there was no direct evidence of any special or express authority to the plaintiffs, from such owners, to receive payment for said estate, in whole or in part, and no evidence to that effect, except such as may be inferred and implied from the fact that they were employed generally as brokers, and did make the preliminary contract, and were intrusted with the duplicate to deliver to the defendant. No evidence was offered showing the extent or limits of the authority of real estate brokers in general. In pursuance of the alleged contract of sale, deeds of the premises from the owners to the defendant were duly tendered to him at Newport, July 28, and by him declined.</p> <p>The statute laws of Rhode Island, and reports of decisions of its courts, were put in evidence to show the law existing in that state respecting the Lord’s day. The Rev. Sts. of Rhode Island, referred to, c. 216, § 16, were as follows : “ If any person shall do or exercise any labor or business or work of his ordinary calling, or use any game, sport, play or recreation, on the first day of the week, or suffer the same to be done or used by his children, servant or apprentices, works of necessity and charity only excepted, he shall be fined not exceeding five dollars for the first offence, and not exceeding ten dollars for the second offence.”</p> <p>The judge found that the alleged false and fraudulent representations on which the defendant relied were not fully or satisfactorily proved; that the purchase of a dwelling-house for the personal occupation of the defendant and his family, the signing of a contract therefor, and the making and delivery of the check in part payment, were not within the “ ordinary calling ” of the defendant, within the meaning of the statute relied upon by him in his defence ; but that the acts of the plaintiffs, in delivering the contract signed by their principal, and in receiving from the defendant the duplicate of the contract and the check signed by him, were acts within their ordinary calling, and were in violation of the aforesaid statute of Rhode Island; and that the various letters and telegraphic messages and other documents and paper writings relied on by the plaintiffs as proofs of a contract entered into, previously to the Sunday in question, between them and the defendant, were not sufficient in law to amount to or prove such alleged contract.</p> <p>The judge thereupon found for the defendant; and the plaintiffs alleged exceptions.</p>

<p>The father of a minor who enlisted as a soldier cannot recover from the person through whose agency he enlisted, a sum paid to such person by the city, as bounty for the enlistment.</p>

<p>Tort. The declaration was as follows: “ And the plaintiff says that on the 17th day of July current, and for thirty years previous thereto, he had followed the business and calling of shipping-master and agent in Boston; had acquired great experience therein, and a numerous and valuable set of customers and employers; and, from the pursuit thereof, had acquired great gains, and had established a valuable and lucrative business; all of which was well known to the defendants. Yet the defendants heretofore, to wit, on the first day of June, 1863, and from that time forward to the present time, unlawfully and maliciously conspired together, and with others whose names are to the plaintiff unknown, for their own private good and ends, and to injure the plaintiff in his business and calling, and to control the business of the shipping-masters of Boston, for their own private good and ends, by compelling them to ship all their seamen from them, and their fellow-conspirators, and at rates established by them, and to destroy the business and calling of such shipping-masters and agents as disregarded their terms rates and rules, a copy of which is hereto annexed. And now the plaintiff avers that he disregarded said conspirators, and their rates and rules, pursued his said business as aforetime, and according to law; and that the said defendants, pursuing their said conspiracy, counselled and agreed among themselves and their fellow-conspirators that they and their fellow-conspirators should and would prevent the plaintiff’s obtaining any seamen as shipping-master, and counselled and agreed among themselves, as aforesaid, to refuse to ship any seamen to him as shipping-master; and to refuse to allow any seamen boarding at their houses to ship with him at his shipping-office, to prevent his obtaining any seamen ; to prevent any seamen going in any ship for which he was acting as shipping-master and agent; and publicly to notify merchants and ship-masters not to employ him; and publicly give notice that said plaintiff had been 1 laid on the shelf,’ meaning thereby that they, the said conspirators and their fellow-conspirators, were acting against him, as aforesaid. And the plaintiff avers that the said defendants, with their fellow-conspirators as aforesaid, in pursuance of their conspiracy as aforesaid, did each and every of the above acts and things against the plaintiff; did take their men out of ships because the plaintiff’s men were in the same; did refuse to furnish and ship men to him; did prevent men from shipping with him; did notify the public thai they had laid him on the shelf; did publicly notify his customers and friends that he could not ship seamen for them; did interfere with his business, as aforesaid did prevent his getting seamen to ship; did prevent his getting employ as shipping-master; and did break up the plaintiff in his business and calling by their conspiracy, acts and doings, as aforesaid, and compel him to abandon his said business.”</p> <p>The terms, rates and rules referred to were contained :m a small pamphlet entitled “ Constitution and By-laws of the Seamen’s Mutual Benefit Association of the city of Boston,” and the material provisions thereof were the following:</p> <p>“ No person shall be admitted a member of this association who does not keep a regular seaman’s boarding-house.</p> <p>“ No member of the association shall ship any seamen at less wages than the following rates: To the Mediterranean, Coast of Africa, South America, and West Indies; also to the eastward of the Cape of Good Hope and westward of Cape Horn, eighteen dollars per month. All other voyages, except the above-mentioned, twenty dollars per month.</p> <p>“ We will use our best endeavors to prevent our boarders shipping in any vessel where any of the crew are shipped from boarding-houses that are not in good standing with the association.</p> <p>“ Any member of this association, knowingly or wilfully shipping men in any vessel where men are shipped from houses not in good standing with this association, shall be fined the sum of five dollars for each man shipped in any such vessel.</p> <p>“ Any member of this association who may be known to ship men in any office after this association shall have suspended business with said office shall be fined five dollars; but any men that may be shipped previous to the suspension may be permitted to proceed to sea, in whatever vessel they may be shipped in.</p> <p>Charge. You promise that, as a member of this association, you will do all in your power to promote the object of its organization, that you will conform to its constitution and by-laws. More especially do you pledge yourself to see that those parts of the constitution relating to rate of wages, promulgated by this association, shall not be violated, either in your own person or those of your fellow members, without immediately informing the standing committee of the same; that you will not ship any man against the expressed wishes of the Association, in any shipping-office that violates the rate of wages promulgated bj us, and that you will do all in your power tc preserve those wages inviolate.”</p> <p>There was also a provision for aiding each other to collect their board-bills.</p> <p>The defendants filed a general demurrer; and the case was reserved, by Gray, J., for the determination of the whole court.</p>

Contract brought to recover the balance of an account for moneys expended and commissions charged in purchasing cotton for the defendant. The answer alleged that the plaintiff did not exercise proper care and skill in buying and managing the cotton, whereby the defendant sustained great loss.

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

Contract against the surety in a recognizance, the condition of which provided that the judgment debtor, who had been arrested on an execution in favor of the plaintiff, should within thirty days deliver himself up for examination, giving notice of the time and place thereof, and duly appear at said time and place, and from time to time until the examination was concluded, and not depart without leave of the magistrate, making no default at any time fixed for his…

<p>An oral announcement by a magistrate of his decision not to administer the poor debtors' oath to one who has been arrested on execution and examined before him, will not authorize the debtor to depart from the presence of the magistrate before the refusal to administer the oath has been indorsed upon the execution; and such departure will be a breach of the condition of the recognizance..</p>

<p>If a trastee sells the trust estate to a purchaser for value, with warranty, and without any intimation, in the deed of conveyance, of a subsisting trust, and the vendee enters and occupies the estate, doing no act which recognizes in any manner the existence of the trust, and there is no fraud or concealment, and the cestui que trust is under no disability, the possession must be regarded as adverse both to the trustee and the cestui que trust, and the time which would bar the legal right is equally effectual to bar the equitable right.</p>

<p>If the owner of the equity of redemption of land takes an assignment of the mortgage, and of the debt secured thereby, to himself “ trustee, and his heirs and assigns,” this raises a presumption that he takes the same in trust, and will constitute a cloud upon the title; and a purchaser who, after his death, has agreed to buy the land from his heirs at law, upon the delivery of a good and sufficient deed, free from incumbrances, will not be compelled to accept a deed executed by them, without a discharge of the mortgage, or proof that there is no trust to which the land is subject.</p>

Contract brought against the executors of the will of George Odin, who died July 10th 1865, to recover for money had and received to the plaintiff’s use; namely, for the plaintiff’s share of one'fifth of certain rents collected by the defendants for property devised by said testator in the tenth clause of his will, which clause was as follows : “ I do hereby give and devise to William White Dorr, Dalton Dorr, Mary Warren Dorr, Esther Dorr, and Harriet Dorr aforenamed,…

<p>A note given by one partner in the name of hia firm, and for a debt of the firm, but after i voluntary dissolution thereof, is binding upon the other partner, if the giving of notes for debts of the firm was usual during the continuance of the partnership, and the creditor had no notice of the dissolution.</p>

<p>Tort against a deputy sheriff for attaching goods of the plaintiff on a writ against Joseph B. Hamblen.</p> <p>At the trial in the superior court, before Russell, J., to prove title in himself, the plaintiff put in evidence a bill of sale signed by Hamblen, which included these goods, (namely, “ all my right, title and interest in and to all the goods, property, chattels and fixtures belonging to the firm of Carruth & Hamblen, which is this day by mutual consent dissolved; also all the goods and property which I own as an individual, and situated in store 199 Broad Street and 135 Purchase Street; also all my or the said firm’s interest in all the property situated in Vinal Haven, in the state of Maine, heretofore used by me in my business; also all accounts, bills and debts due and owing said firm, it being understood and agreed that the said Carruth shall assume and pay the liabilities of the said firm,”) dated January 22d 1866, for the consideration of $8500; and also a separate paper of the same date, signed by Carruth and Hamblen separately, dissolving their partnership. The plaintiff also introduced evidence tending to show that at and before said date Carruth & Hamblen were in possession of the goods in dispute, as partners in business; and also evidence of the value of the goods and the taking of them by the defendant; and there rested his case.</p> <p>The defence was that the bill of sale to the plaintiff was in fraud of Hamblen’s creditors, and therefore void. The attachment was made on the 6th of March, 1866. On the following day, Hamblen went into insolvency. One of the facts relied upon by the defendant was that the property was claimed to have been put into the firm by Hamblen at the price of $24,000, and the whole was finally sold to the plaintiff for $8500. The defendant called Oliver A. Kelley as a witness; and in cross» examination he testified that in November 1865 he was a clerk of Hamblen, and by his direction took an account of the stock in Hamblen’s store, and never took but one such account of stock for him, and this account of stock being produced was identified by him. This account included many items, amounting in all to $24,000. He also testified to his signature as attesting witness to a paper signed by the plaintiff and Hamblen, the contents of which he was ignorant of. This paper was an agreement of partnership between Carruth and Hamblen, dated December 1, 1865, “ for the purpose of carrying on the pickling and preserving business, like or similar to that heretofore done by the said Hamblen.” It contained these provisions, among others: “ The said Hamblen sells to the said firm his stock of merchandise, as per his bill rendered at this time, the amount of which is to be credited to him in the firm’s books as capital paid in by him. The said Carruth is to contribute in cash towards his share of the capital the sum of six thousand dollars, within two months from this time, as needed; and after that, from time to time, as required by the business, an amount to make his capital in the concern equal to that of said Hamblen’s.” “ It is understood and agreed that the said Hamblen shall have the right to withdraw from the funds of the firm, from time to time as needed, to pay his present indebtedness to the extent of not exceeding six thousand dollars.”</p> <p>These papers were both admitted in evidence against the defendant’s objection.</p> <p>For the purpose of showing that the plaintiff knew of Hamblen’s indebtedness and had reason to believe him insolvent, before the execution of the bill of sale on January 22, 1866, the defendant called Elijah C. Schanck as a witness, who testified that he was a member of the firm of Schanck & Romain, in New York, who were creditors of Hamblen, and that in January 1866 the plaintiff came to New York, told him he had formed a partnership with Hamblen, and inquired how much Hamblen owed his firm; that he told him the amounts, and the dates when the notes matured, the first of which was January 26 1866; and Carruth wished his firm to extend the time six months, taking the notes of Carruth & Hamblen for the debt. He also testified that Carruth at this interview talked with him generally about business. Upon cross-examination, Schanck denied that Carruth’s visit to New York related wholly to carrying on the business of putting up lobsters at Vinal Haven, in Maine, and that its whole purpose was to endeavor to make some arrangement by which Schanck & Romain should not carry on this business there in opposition to Carruth & Hamblen. The plaintiff was then allowed, against the defendant’s objection, to put in evidence the following letter, admitted by Schanck to have been written by himself to Carruth & Hamblen :</p> <p>“ New York, January 18, 1866. Messrs. Carruth & Hamblen, Gents. Inclosed please find Bill and B. L. for ten cases glass peaches as per order. I have been talking over the lobster business with Mr. Romain ; he will not agree to have anything to do with two places; says he does not object to pay the rent on Smith’s place (that would buy one half of it) for this year until we got to work, but that he does not think any opposition will come after we get started across the way; says we will be calculated to put up 1000 cans daily more than the other factory could do, and that it would only kill ourselves to undertake two places, as it would give outsiders to understand when we saw fit to leave, if it did not pay, (which he says he knows it will not,) that there could be enough fish got to run two places. Think could easily get along with Smith by not being known in the other place at all until commence work, by saying to him you were afraid we would get all the lobsters, but that you would pay him the rent in advance by deducting the interest, and that you would put up what buildings you would want this year, and see how could get along with us ; then, if found it would pay, you could have substantial buildings put up. That you could not arrange to get to work very early this spring, and that you could use sheds that would not cost much for this season for a trial, and that they would not cost you much more than the lumber would sell for after you got through in the fall, and that you would not cut the boards, &c., and that there would not be much loss, and that as he had bis rent it would be much better for him. There are many ways you could manage with him, and he would not suspect anything. Then you would have the whole season to take away your things, and leave the place with nothing on, and don’t think any one would do anything with the place afterwards. John says he could soon explain it to Mr. Hamblen, why it would not answer, to his satisfaction. Awaiting reply, I remain yours truly, Schanck.</p> <p>“ We would pay you a reasonable price for anything we could use to advantage that you have there, and under this new phase take $2400 ; twenty-four hundred dollars, as that would be the same as proposed if took in the other things, or $2000 and throw the other things into the common stock, and we use what we can, and sell the balance for what we can get for them. S. & R.”</p> <p>For the purpose of showing that Hamblen was indebted tu Schanck Sc Romain in the sum of $6000, promissory notes from him to them for that amount were put in evidence; and Hamblen (called by the defendant) testified that he owed them that sum. Upon cross-examination, he denied that he had told Clark Sc Woodward that he owed Schanck Sc Romain no more than $1500 or $2000; that Schanck Sc Romain had defrauded him; or that he asked Clark Sc Woodward to reply for him to a letter from Schanck Sc Romain, or write a letter to them threatening that, if they showed him up, he would show them up — that he would have a bill too.</p> <p>The plaintiff then called Clark, of the firm of Clark Sc Woodward, who testified that Hamblen came to their store and said he had been badly used by Schanck Sc Romain; that they claimed he owed them $6000, but that he only owed them $1500; that he produced a letter from them, and the witness answered it in the name of Clark Sc Woodward, read the answer to Hamblen, and believed Hamblen took it. And the witness identified the letter, which was admitted against the defendant’s objection, and was as follows:</p> <p>“ Bostcn, Feb. 9th, 1866. Messrs. Schanck Sc Romain, New York, Gentlemen. Mr. Hamblen has just handed us your letter of 1st, and we note your threats, and are surprised that you should take a course of that kind. Sirs, if you have anything that you can show to Mr. Hamblen’s disadvantage, you can do so as soon as you please. We believe Mr. H. has been very unjustly dealt with, and his friends are now determined to see him righted, and no threats or any other forcible acts can intimidate us. This threats of yours is in accordance of another party, but it only confirms our views the more we look into the business. Clark & Woodward. P. S. Hamblen may have a pretty good bill against your firm yet for you to settle. C. & W.”</p> <p>The plaintiff, in reply to the defendant’s evidence, also introduced evidence tending to show that the stock put into the firm by Hamblen was appraised for the purposes of the partnership by Hamblen and his clerk, and that the plaintiff took no part in the appraisement, and was ignorant of the value of the goods; that the value of the stock as then taken was not intended to be final; that it was taken at an overvaluation; and that in consequence of said overvaluation it was arranged that the values should be changed.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Bill in equity by the executor of the will of Francis Jackson, of Boston, (who died in 1861,) for instructions as to the validity and effect of the following bequests and devises:</p> <p>l< Article 4th. I give and bequeath to William Lloyd Garrison, Wendell Phillips, Edmund Quincy, Maria W. Chapman, L. Maria Child, Edmund Jackson, William I. Bowditch, Samuel May, Jr., and Charles K. Whipple, their successors and assign^ ten thousand dollars; not for their own use, but in trust, nevertheless, for them to use and expend at their discretion, without any responsibility to any one, in such sums, at such times and such places, as they deem best, for the preparation and circulation of books, newspapers, the delivery of speeches, lectures, and such other means, as, in their judgment, will create a public sentiment that will put an end to negro slavery in this country; and I hereby constitute them a board of trustees for that purpose, with power to fill all vacancies that may occur from time to time by death or resignation of any member or of any officer of said board. And I hereby appoint Wendell Phillips president, Edmund Jackson treasurer, and Charles K. Whipple secretary, of said board of trustees. Other bequests, hereinafter made, will sooner or later revert to this board of trustees. My desire is that they may become a permanent organization; and I hope and trust that they will receive the services and sympathy, the donations and bequests, of the friends of the slave.</p> <p>“Article 5th. I give and bequeath to the board of trustees named in the fourth article of this will, their successors and assigns, two thousand dollars, not for their own use, but in trust, nevertheless, to be expended by them at their discretion, without any responsibility to any one, for the benefit of fugitive slaves who may escape from the slaveholding states of this infamous Union from time to time.</p> <p>“ Disregarding the self-evident declaration of 1776, repeated in her own constitution of 1780, that ‘ all men are born free and equal,’ Massachusetts has since, in the face of those solemn declarations, deliberately entered into a conspiracy with other states to aid them in enslaving millions of innocent persons. I have long labored to help my native state out of her deep iniquity and her barefaced hypocrisy in this matter. I now enter my last protest against her inconsistency, her injustice, and her cruelty, towards an unoffending people. God save the fugitive slaves that escape to her borders, whatever may become of the Commonwealth of Massachusetts!</p> <p>“Article 6th. I give and bequeath to Wendell Phillips of said Boston, Lucy Stone, formerly of Brookfield, Mass., now the wife of Henry Blackwell of New York, and Susan B. Anthony of Rochester, N. Y., their successors and assigns, five thousand dollars, not for their own use, but in trust, nevertheless, to be expended by them, without any responsibility to any one, at their discretion, in such sums, at such times, and in such places, as they may deem fit, to secure the passage of laws granting women, whether married or unmarried, the right to vote; to hold office; to hold, manage, and devise property; and all other civil rights enjoyed by men ; and for the preparation and circulation of books, the delivery of lectures, and such other means as they may judge best; and I hereby constitute them a board of trustees for that intent and purpose, with power to add two other persons to said board if they deem it expedient. And I hereby appoint Wendell Phillips president and treasurer, and Susan B. Anthony secretary, of said board. I direct the treasurer of said board not to loan any part of said bequest, but to invest, and, if need be, sell and re-invest, the same in bank or railroad shares, at his discretion. I further authorize and request said board of trustees, the survivors and survivor of them, to fill any and all vacancies that may occur from time to time by death or resignation of any member or of any officer of said board. One other bequest, hereinafter made, will, sooner or later, revert to this board of trustees. My desire is that they may become a permanent organization, until the rights of women shall be established equal with those of men; and I hope and trust that said board will receive the services and sympathy, the donations and bequests, of the friends of human rights. And being desirous that said board should have the immediate benefit of said bequest, without waiting for my exit, I have already paid it in advance and in full to said Phillips, the treasurer of said board, whose receipt therefor is on my files.</p> <p>“Article 8th. I now give to my three children equally the net income of the residue of my estate, during the term of theii natural lives, in the following manner, namely: After the payment of my debts and the foregoing gifts and bequests, I give, bequeath and devise one undivided third part of the residue of my estate, real, personal and mixed, to my brother Edmund Jack - son of said Boston, his successors and assigns, not for his or their own use, but in trust, nevertheless, with full power to manage, sell and convey, invest and re-invest, the same at his discretion, with a view to safety and profit; ” and “ the whole net income thereof shall be paid semi-annually to my daughter Eliza F. Eddy, during her natural life; ” and at her decease, one-half of such income to be paid semi-annually “ to the board of trustees constituted in the sixth article of this will, to be expended by them to promote the intent and purpose therein directed,” and the other half to Lizzie F. Bacon, her daughter, during her natural life; and at the decease of both mother and daughter, “ to pay and convey the whole of said trust fund to said board of trustees constituted in the sixth article of this will, to be expended by them in the manner, and for the intent and purpose, therein directed.”</p> <p>By Article 2th, the testator gave another undivided third part of the said residue to his brother Edmund, his successors and assigns, in trust, with like powers of management and investment, “ and the whole net income thereof shall be paid semiannually to my son James Jackson, during the term of his natural life; at his decease, I direct said trustee, or whoever may then be duly qualified to execute this trust, to pay semiannually one-half part of the net income thereof to the board of trustees constituted in the fourth article of this will, and the other half-part of said net income shall be paid semi-annually to his children equally, during their natural lives; at the decease of all his children, if they survive him, I direct said trustee, or whoever shall then be duly authorized to execute this trust, to pay and convey the whole of said trust fund to said board of trustees constituted in said fourth article in this will, to be expended by them for the intent and purpose directed in said fourth article; but, in case my said son James should leave no child living at the time of his decease, then, at his decease, I direct said trustee, or whoever shall then be duly authorized to execute this trust, to pay and convey the whole of said trust fund to said board of trustees constituted in the fourth article of this will, to be expended by them for the intent and purpose therein directed.”</p> <p>By Article 10th, the testator made a similar bequest and devise of the remaining undivided third part of said residue to his brother George Jackson, his successors and assigns, and in trust to pay the whole net income thereof semi-annually to the testator’s daughter Harriette M. Palmer, during her natural life, and at her decease, one half of such income “ to the board of trustees constituted in the fourth article of this will, to be expended by them in the manner and for the intent and purpose therein directed; ” and the other half, in equal proportions, to all her children that may survive her, during the term of their natural lives; and, at their decease, to pay and convey the whole of said trust fund to said board of trustees; “ but, in case my said daughter Harriette M. Palmer should outlive all her children, then, at her decease, I direct said trustee, or whoever shall then be duly authorized to execute this trust, to pay and convey the whole of said trust fund to the board of trustees constituted in said fourth article in this will, to be expended by them as aforesaid.”</p> <p>The bill, after setting out the above provisions of the will, alleged that James Jackson was unmarried and had no issue living, and that Harriette M. Palmer was married and had two children living ; and made all the trustees named in the will, as well as James Jackson, Mrs. Eddy, Mrs. Bacon, and Mrs. Palmer and her husband and children, parties to the bill.</p> <p>Answers were filed in behalf of the trustees named in the fourth article, asserting the validity of all the gifts to them; and in behalf of Mi-, and Mrs. Palmer and their children, denying the validity of all the articles above set forth. The bill was taken for confessed against the other defendants.</p> <p>One argument was had in March 1863, after which the court ordered the attorney general to be made a party, which was done, and he submitted the case without argument, and a second argument by the other counsel was had in November 1865. While the case was under advisement, the thirteenth article of amendment of the Constitution of the United States was adopted, and the effect of this amendment upon the case was argued in March 1866.*</p> <p>S. E. Sewall, for one of the trustees. The legacy designed to promote the abolition of slavery is valid. The trustees are named and capable of taking. The object is specific and definite. The means proposed are definite and legal. The object is good and consonant to public policy. The jurisdiction of chancery over charitable trusts is not derived from St. 43 Eliz. c. 4. But in this case the bequest comes within that statute, being for the relief or redemption of prisoners or captives. Objects held charitable by analogy to those enumerated in that statute are very numerous. Thus, a life-boat for a town, Johnston v. Swann, 3 Madd. Ch. R. 457; a botanical garden, Townley v. Bedwell, 6 Yes. 194; society for encouragement of female servants, Reeve v. Attorney General, 3 Hare, 191; benefit and advantage of Great Britain, Nightingale v. Goulburn, 5 Hare, 484; good of the country and parish, Attorney General v. Lonsdale, 1 Sim. 105; British Museum, British Museum v. White, 2 Sim. & Stu. 594; assistance of respectable Unitarian congregations, Shrewsbury v. Hornby, 5 Hare, 406; a literary man, preferably not less than forty years of age, Thompson v. Thompson, 1 Colly. R. 381; essays on statistics, lb. 392, 399 ; shade trees, Cresson’s Appeal, 30 Penn. State R. 437; Masonic Lodge, Vander Volgen v. Yates, 3 Barb. Ch. R. 242; Universalist denomination, North Adams Universalist Soc. v. Fitch, 8 Gray, 421.</p> <p>The legacy for the benefit of fugitive slaves is also valid. Under this head, the testator no doubt intended all who are liable to be claimed as such, and may need assistance. This would include colored persons born free ; colored persons originally slaves but who have acquired their freedom pursuant to the laws of the state of their origin; colored persons, originally slaves, who by coming into a free state with their master’s consent have become free; slaves claimed by strangers without authority from the owners; and slaves claimed by their owners without due formality. To aid all such is not only legal, but it is aiding the policy of our statutes. Res. 1855, c. 26. Gen. Sts. c. 144, §§ 58-67.</p> <p>The provisions to aid women are also valid. Our laws have already greatly modified the common law, in favor of women. It is true that to give them the elective franchise would require a change of the constitution. But that is no objection to discussing the subject. The constitution only differs from statutes in this, that its provisions are not so easily altered. The policy of its provisions is always fair matter of discussion. And as to this great public question, it will promote the truth to have it discussed.</p> <p>The legacy for promoting the abolition of slavery, and for the benefit of fugitive slaves, may be administered cy pres. The doctrine is fully established in England, that where the specific object of a charity fails, the court will execute the general intent of the donor. Attorney General v. Llandaff, cited in 2 Myl. & K. 658. Attorney General v. Andrew, 3 Ves. 639. Andrew v. Merchant Taylors’ Co. 7 Ves. 223. Andrew v. Trinity Hall, 9 Ves. 525. Hayter v. Trego, 5 Buss. 113. Attorney General v. Wcmsay, 15 Ves. 231. Mills v. Farmer, 1 Meriv. 55, 98. See also Nowrse v. Merriam, 8 Cush. 11, 21. • 2 Story on Eq. §§ 1167-1181.</p> <p>[The argument as to perpetuities is omitted.]</p>