Volume 97 — Massachusetts Reports

<p>In an action of tort for slander, the declaration alleged that in conversations concerning the plaintiff and his acts as collector of customs in reference to the settlement of a claim in behalf of the United States against W., the defendant used these words z “ G. (the plaintiff) had not accounted to the department for the sum paid by W. by some thirty-two thousand dollars; ” and also words substantially as follows: “ That in the settlement for the alleged frauds by W., amounting to many hundreds of thousands of dollars, the amount paid by them was one hundred and fifty-seven thousand two hundred and twenty four dollars; that only one hundred and twenty five thousand two hundred and twenty-four dollars was accounted for; ” “ that it was not known what had been done with the balance,” “ and it was understood that this settlement was made through the intervention of S. and his partner, the late deputy-collector; that it was discreditable to the government to have it generally known that the sum of one hundred and fifty-seven thousand two hundred and twenty-four dollars was paid by W. in a settlement with the government, and that thirty-two thousand dollars of that sum was not accounted for.” Held, on demurrer, that these words do not, by their natural sense and meaning, impute to the plaintiff any criminal offence, and are not actionable, although the plaintiff by innuendoes avers that they impute to himself the crimes of embezzlement and of receiving « bribe, and were so understood in the conversations alleged.</p>

<p>The first of these three actions was of contract, to recover the balance due on three promissory notes made by the defendant. The second was a writ of entry, to foreclose two mortgages given by the defendant to secure two of these notes, being the two hereinafter described as for the sums respectively of three hundred dollars and one hundred and thirty-seven dollars and fifty cents. The third was also a writ of enti-y, to foreclose a mortgage given by the defendant to secure the other note, being the note hereinafter described as for the sum of six hundred dollars. The writs were dated, respectively, May 28, May 30, and May 31, 1866.</p> <p>By the pleadings it appeared that the first note, dated November 16,1852, was for one hundred and thirty-seven dollars and fifty cents, payable to bearer four years from date, with interest annually. On this note was indorsed an acknowledgment of receipt of interest to July 4, 1857. The second note, of the same date, was for three hundred dollars, payable to bearer three years from date, with interest annually. On this was indorsed an acknowledgment of receipt of interest to November 16, 1856. The third note, dated March 6, 1856, was for six hundred dollars, payable to the plaintiff or bearer five years from date, with interest payable annually. The plaintiff gave credit to the defendant for an account consisting of forty-five items, beginning in December 1859 and closing in April 1864, and alleged in his declaration that it was agreed by the parties that the items of this account should be applied to the indebtedness of the defendant on the three notes, but that the defendant had never made or asked any application of any of the items specifically to either note, and so that the plaintiff had applied items Nos. 1 to 15 to the first note in suit, and had applied the remaining items, Nos. 16 to 45, to the second note.</p> <p>The defendant admitted the making of the notes, and that the items of the account were to apply generally on his indebtedness to the plaintiff, and that he made no specific application of them to any particular note ; but he averred that the application made, as above stated, was made without his knowledge or assent, and should not prejudice the legal rights which he would have otherwise in defence against either note; and he pleaded the statute of limitations in bar of any recovery on account of the second note; and he averred that the third note was usurious, alleging that the consideration therefor was only five hundred and fifty dollars, made up in part of an overdue note of one Chatfield.</p> <p>To this plea, as to the third note, the plaintiff replied denying usury, and averring that the defendant offered to give him fifty dollars and so to make to him a note for six hundred dollars, provided he would transfer to the defendant the Chatfield note with money enough besides to make up the sum of five hundred and fifty dollars; but he denied that the defendant had ever paid the fifty dollars promised; and he offered, in this replication, to deduct fifty dollars from the principal of the third note, and averred that he claimed no interest on that note other than as if it had been originally given and expressed for five hundred and fifty dollars.</p> <p>At the trial in the superior court, which was had, by agreement of the parties, before Rockwell, J., without a jury, the judge found as fact, in regard to the second note, that, applying to it the items Nos. 16 to 45 of the account, as the plaintiff in his declaration elected to do, there was no interval so long as six years between payments thereon; and he therefore reckoned interest on it the same as if these items of credit had been indorsed on the note at their respective dates; and he ruled as matter of law that the plaintiff, at the time of his declaration, had the right so to apply the credits, the defendant never having made any election as to them ; to which ruling the defendant alleged exceptions.</p> <p>In regard to the third note, the judge found as fact, that the Chatfield note, which formed part of its consideration, was good and availed to the defendant for its full amount, and that, so reckoning the Chatfield note, the sum received by the defendant in consideration for the third note was only five hundred and fifty dollars; that the transaction was as if the defendant had borrowed and received of the plaintiff five hundred and fifty dollars in money and given his note for six hundred dollars; and that this was for the agreed purpose of enabling the plaintiff to receive a higher rate,of interest than six per cent, per annum; and he ruled thereon as matter of law that the note was usurious under the statutes in force at the time it was made, and was subject to deduction of threefold the unlawful interest; to which ruling the plaintiff alleged exceptions.</p> <p>In the second and third cases the judge found the sums for which conditional judgments in favor of the plaintiff should be rendered, basing his findings on his rulings in the first case; and he reported all three cases for determination by this court on his rulings of law.</p>

<p>A judgment for the plaintiff in an action on a bond whereby the defendant was bound to the plaintiff to abstain from all injuries to the plaintiff’s property, is a bar to a subsequent action of tort by the same plaintiff against the same defendant for particular injuries to the property committed between the time of giving the bond and the time of beginning the former action; and this, although the judgment in the former action was for a specific cum assessed as damages and so did not conform to Gen. Sts. c. 133, §§ 9,10.</p>

<p>Tort for interrupting the flow of water from the plaintiff’s reservoir on Marsh Brook in Stoekbridge, to the plaintiff’s mill on the same stream, between October 9, 1863, and October 10, 1864. The parties to this action are the same as to the action for similar obstructions prior to October 9, 1863, reported 10 Allen, 441.</p> <p>At the trial of the present action in the superior court, before Rockwell, J.,the facts agreed in that case were admitted in evidence, and it further appeared that since that case the plaintiff had made certain alterations in his mills, which are described in the opinion of the court. The obstructions by the defendant were also proved ; and the defendant offered evidence, which is sufficiently stated in the opinion of the court, tending to show that the diminution in the quantity of water drawn, from the plaintiff’s reservoir at certain times, by reason of the alterations in the plaintiff’s mills, interfered with the running of his intermediate mills as freely as they had been accustomed to run for more than thirty years, and that the obstructions he had made were for the purpose of enabling him to run his intermediate mills as freely as before.</p> <p>On this evidence he asked the judge to instruct the jury that the plaintiff was not within his prescriptive rights determined ip the case, 10 Allen, 441, and had no right to damages for obstructions made by the defendant for his own reasonable use of the stream as riparian proprietor, provided they were satisfied- by the testimony that for more than twenty years before the alterations of the plaintiff’s mills they were so worked that the defendant’s mills above them could be worked freely also, and that an effect of those alterations was and is to prevent the working of the defendant’s mills as theretofore. But the judge declined so to instruct them, and did instruct them that, upon the facts agreed in the previous action, it had been settled as matter of law that the plaintiff has right so to control the current of water between the dam at his mills and his reservoir dam above, as to gather in the reservoir a quantity of water which he can draw out at such times and in such quantities, until it is all exhausted, as may be convenient and necessary for operating the machinery at his mills; and he further instructed them that the defendant had a right to make a reasonable appropriation of the water as it flowed down from the reservoir through his land, having regard, however, to the reasonable exercise by the plaintiff of his determined prescriptive rights, but that the defendant could not lawfully hold back the water for the purpose of filling his own intermediate millpond, and then let it down upon the plaintiff’s mills in such quantities that the plaintiff could not avail himself of it, and it ran to waste; and that the rights which the plaintiff had before his alterations are not affected by them. A verdict was found for the plaintiff, and the defendant alleged exceptions.</p>

Tort for diversion of the water of a spring, situated on the defendant’s land, from flowing through a pipe by which it was previously conducted to the plaintiff’s land ; and also for contaminating the water. This is a case which formerly came before this court on exceptions which were sustained in an opinion reported 12 Allen, 459.

<p>This action was described in the writ (which contained no declaration) as an action of contract. The declaration after-wards filed contained counts in contract, to which, “ deeming it doubtful whether this is a cause of action in contract according to chapter 129 of the General Statutes, the plaintiff adds a count in tort, averring that each count is for the same cause of action.” The defendant demurred to the declaration, because the plaintiff had joined a count in tort with counts in contract, contrary to the provisions of that chapter. In the superior court, Rockwell, J., overruled the demurrer; and to this ruling, after trial and verdict for the plaintiff upon issues of fact raised by the answer, the defendant alleged exceptions.</p>

<p>in an action for breach of an executory contract, commenced before the expiration of the time when the stipulations of the parties, if there had been no breach, would have been fully performed, the declaration contained a count upon the special contract, and also the common count upon an account annexed, with an averment that both counts were for the same cause of action. The defendant did not demur, but, at the trial, after the introduction of competent evidence which supported either count, the presiding judge ruled that the action was prematurely brought and that it could not be maintained under the declaration. Held, that this ruling was erroneous, and that the plaintiff should have been compelled to elect on which count he would proceed and the other count stricken out, or the juiy directed to find a verdict upon one count only.</p>

<p>In a writ of entry brought by an executor to foreclose a mortgage belonging to the estate of his testator, averment of the representative capacity of the demandant is not essential to maintain the action, and his description of himself in the writ as “ administrator *' instead of “ executor” is not available as a defence in bar.</p>

<p>Refusal by the superior court to the plaintiff in an action of waste of leave to change the form of his action so as to make it an action of tort in the nature of waste is not subject to exceptions.</p>

<p>A second mortgagee of personal property cannot maintain an action for the conversion of it against a purchaser to whom a first mortgagee, being entitled to the possession, has sold the entire property.</p>

Contract upon a promissory note payable to Henry Dewey or bearer. At the trial in the superior court, before Brigham, J., the plaintiff produced the note in evidence and rested, the making of it being admitted by the defendant.

Contract brought upon an instrument in writing by which the defendant agreed to cut and haul to the plaintiff’s paper-mill at Glendale, in Stoekbridge, six hundred cords of wood, for three dollars per cord.

<p>H a request for service was made on the Lord’s day, and it does not appear that it was accepted on that day, and subsequently in pursuance thereof the service was rendered on a day which was not the Lord’s day by the person of whom it was made, he may maintain an action upon the promise implied in the request against the person who made it.</p>

<p>Contract for breach of warranty of title to twenty-nine cords and seventy-five feet of wood, sold to the plaintiffs by the defendant, to which one Horace Thompson claimed title by force of a prior transaction between himself and the defendant. At the trial in the superior court, it appeared in evidence that the defendant owned a lot of woodland in the town of Windsor and in September 1864 made a contract in writing with Thompson by which he “let” to Thompson “ all hard and soft wood,” with certain exceptions, on said wood-lot, and Thompson agreed to cut the wood “ for the sum of eight hundred dollars, to be paid in one hundred dollar payments so often as one hundred cords shall be cut,” “ the wood to be cut and piled in good marketable condition.”</p> <p>Four hundred cords were cut and paid for, and on April 1, 1865, Thompson informed the defendant by letter that he had cut the fifth hundred cords and wished pay therefor. On Apri. 18,1865, he and the defendant held an interview, at which they agreed to cancel their contract. Thompson at this time repeated his statement that he had cut the fifth hundred cords, and the defendant, trusting in- this statement, agreed that he should receive seventy-five cords thereof in settlement of their accounts. The defendant accordingly gave to Thompson a bill of sale of “ seventy-five cords of wood ” on the wood-lot, “ beginning at the east end of said lot and taking all wood cut, clean as far west as is necessary to make the seventy-five cords; ” and Thompson receipted to the defendant therefor as “ in full of all demands and claims on contract to date.” On May 30,1865, the defendant trusting, as formerly, in Thompson’s statement of the quantity of wood cut, it not then having been piled or measured and remaining on the lot in the same condition in which it was on April 18, together with portions of the four hundred cords cut previously, “ bargained to the plaintiffs seventy-five cords of the wood, and on the same day met with the plaintiffs’ agent to have the same measured and to deliver it to said agent; but on measuring off sixty-four and three-eighths cords, it was found the wood would not hold out the seventy-five cords of Thompson, and no more was measured, and that amount was accordingly delivered to and accepted by the plaintiffs in lieu of the seventy-five cords; ” and a bill of sale of sixty-four and three-eighths cords was given by. the defendant to the plaintiffs.</p> <p>On September 29, 1865, Thompson began to measure the wood which he claimed under his settlement with the defendant of April 18, “ having knowledge that twenty-nine cords and seventy-five feet of it had been measured and delivered to the plaintiffs by the defendant, as above stated; and in the winter of 1865, Thompson took from the plaintiffs’ possession, without process of law and against their remonstrance, twenty-nine cords and seventy-five feet of the wood sold by the defendant to the plaintiffs; ” whereupon the plaintiffs brought this action.</p> <p>The defendant testified that only four hundred and fifty-eight cords and seventy-four feet, instead of five hundred cords, had been cut, and that had the full five hundred cords been cut, as Thompson represented, there would have been enough wood to make out the seventy-five cords sold to the plaintiffs as well as the seventy-five cords also for Thompson; but there was conflicting testimony on this point.</p> <p>On these facts, Rockwell, J., being of opinion that in any aspect of them the jury could not be properly instructed that they could find a verdict for the defendant, ruled that he had no legal defence, and directed the jury to return a verdict for the plaintiffs for the value of the twenty-nine cords and seventy-five feet of wood; and the defendant alleged exceptions.</p>

<p>The words “ incorporated hank ” in Gen. Sts. c. 161, § 39, include hanks chartered since the passage of that act ns well as those then existing, and include banking corporations organ- ■ ized under the laws of the United States and located in Massachusetts, as well as like corporations created by the laws of the Commonwealth.</p> <p>The offence-of fraudulent conversion, by an officer or person in the employment of a bank incorporated under the laws of the United States and located in Massachusetts, of property of individuals deposited in such bank, is not punishable under any existing law of the United States, and the courts of the Commonwealth have jurisdiction thereof under Gen. Sts. c. 161, § 39.</p> <p>An acquittal on a former indictment for larceny of certain bonds is not a bar to conviction on an indictment under Gen. Sts. c. 161, § 39, for fraudulent conversion of the same bonds, if it does not appear in the pleadings or in evidence at the trial on the second indictment that the defendant was not intrusted with the custody of them.</p> <p>The taking by a person in the employment of an incorporated bank worn their place of d« posit in such bank of the bonds of a depositor and sending of them out of the Commonwealth to be used as collateral security for the taker’s own debt, is a fraudulent conversion, within the meaning of Gen. Sts. % 161, § 39, although at the time of the taking he expected and intended to restore them to the bank or to the depositor before it should be discovered that they were missing, and in the identical form and condition in which he took them.</p>

<p>Under Gen. Sts. c. 172, § 16, an indictment averring that A., by force and against her will, violently and feloniously did ravish and carnally know B.,” “ an unmarried female,” “A. being a married man and having a lawful wife alive other than B.,” with proper averments of time and place, and a verdict thereupon that the defendant had carnal knowledge of the body of the said B., as charged in the indictment, but without violence and not against her will,” are sufficient to warrant a sentence for adultery.</p> <p>In an indictment, the words “ carnal knowledge ” of a woman by a man imply sexual bodily connection.</p>

Complaint under Gen. Sts. c. 86, § 42, for a search-warrant for certain intoxicating liquors alleged to be unlawfully kept and deposited in a certain tenement in Greenfield by Joseph R. Burns. This complaint was addressed to a trial justice within and for the county of Franklin, and in the warrant issued thereon the officer was directed to “ make due return of this warrant.” It was in fact returned at Greenfield before the trial justice who issued it.

Complaint under Gen Sts. c. 86 for a search warrant for cerlain intoxicating liquors alleged to be unlawfully kept and deposited in “ a certain building situate in Wendell, at Wendell Depot so called, kept as a store by William Putnam.” This complaint was addressed to a trial justice within and for the county of Franklin, and described the liquors to be searched for as certain quantities of rum, gin, brandy, whiskey, strong beer, ale and wine, “ being about and not exceeding…

Tort for the conversion of a horse and wagon. At the trial in the superior court, before Morton, J., it appeared in evidence that the defendant was a deputy sheriff for Franklin, and that the conversion consisted in attaching and selling'the horse and wagon as property of Eliza Adams, the mother of the plaintiff, on the writ in an action against her by Eli Ames.

<p>Tort for the conversion of a horse and wagon. In defence, the plaintiff’s title to the property was denied; and it was set up that the defendant was a deputy sheriff for Franklin, andjthat the alleged conversion was by his attaching the horse and wagon as property of Lockhart Risley, on the writ in an action against Risley by Charles O. Hall.</p> <p>At the trial in the superior court, before Wilkinson, J., the plaintiff admitted that the horse and wagon were once owned by Risley, and claimed title to them by an alleged sale from Risley to himself prior to the attachment by the defendant; but the defendant contended that this sale was in fraud of Risley’s creditors, and void as to them. Risley thereupon testified, for the plaintiff, that at the time he sold the property to the plaintiff he did not owe anything to Hall; but this was contradicted by the testimony of Hall, and also of one other witness.</p> <p>It appeared further in evidence that the action of Hall against Risley was commenced subsequently to the date of the alleged sale from Risley to the plaintiff; that the writ was duly returned and entered in court; that Risley was defaulted therein, and judgment entered thereupon, and execution issued on the judgment. The plaintiff, for the reason that he was not a party or privy to that action, objected to the use of this evidence for the purpose of proving that Hall was a creditor of Risley at the time of that sale ; but the judge ruled that it was competent to be considered by the jury, together with the other evidence, for that purpose.</p> <p>A verdict was found for the defendant, and the plaintiff alleged exceptions.</p>

Complaint for flowing land, brought under Gen. Sts. c. 149. At the trial in the superior court the complainant introduced evidence tending to show that he was the owner of two contiguous lots of land situated on a small brook in Greenfield ; that the respondent erected in 1851, and had since then maintained, across the brook, a milldam which flowed back the water upon those lots of land in times of freshet or high water; and that such flowing had injured the land.

Tobt for trespass on real estate. At the trial in the superior court, before Wilkinson, J., it appeared that the land in dispute was woodland, fenced on three sides and part of the way on the fourth by an ancient fence, and having monuments at each of the four corners ; that it had for forty years at least been' a well-understood distinct piece of land, about five acres in area; and that there was open and cleared land adjoining on the three sides fenced.

<p>Writ op entry brought by the demandant as trustee of Almira Richards, wife of Asa F. Richards, for possession of two tracts of land in New Salem, declaring on his seisin for her life. Plea, nul disseisin.</p> <p>At the trial in the superior court, before Devens, J., the demandant claimed title under a deed of Elizabeth F. and Samuel Putnam to Mrs. Richards, and from her to himself. The former deed was executed January 5, 1865, and in consideration of one thousand dollars paid by Almira Richards and her six children, naming them, gave, granted, bargained, sold and conveyed to them, enumerating them again by name, “their heirs and assigns,” the tracts of land in dispute, and contained the following words immediately following the description of the land: “ but the said Almira, wife of the said Asa F., shall have the exclusive control of the said tracts, and the appurtenances thereto belonging, and the income thereof, for her own support and separate use, during her natural life; and the said Almira shall pay all the expenses for taxes, insurance, and keep the premises in proper repair from said income, after the first day of May 1865, when possession is to be given to the said Almira.” The habendum of the deed, immediately following these words, was to Almira and her six children, again naming them, “ their heirs and assigns, to their use and behoof forever; ” and there was a covenant of general warranty running to them also by name.</p> <p>It appeared in evidence that the land was once owned by Ebenezer Felton, who on April 20,1860, made a bond for a deed of it, the condition of the bond being that the “ obligor, his heirs executors or assigns,” should “ execute and deliver a good and sufficient conveyance” of the premises “in fee simple” to “ Almira Richards, her children, their heirs or assigns, her or them, on demand,” upon “her or their” payment to him, “ or his heirs, executors or assigns,” of “ one thousand dollars with annual interest thereon ; ” that he died July 3, 1864, without having executed any conveyance under the bond, nor did it appear that any demand was ever made on him therefor; that he left a will making Elizabeth F. Putnam his residuary devisee and executrix ; and that she and her husband, Samuel Putnam, were appointed administrators with the will annexed, and gave the common administrator’s bond and returned an inventory, but had rendered no account, nor did it appear that the residuary devisee had given bond for the payment of debts and legacies.</p> <p>It was also in evidence that on petition of Almira, pursuant to Gen. Sts. c. 108, § 4, the demandant was appointed her trustee by this court at September term 1865 for Franklin, and that she thereupon executed the second deed above referred to, conveying to him, to hold in trust for her life, the real estate conveyed to her by Elizabeth F. and Samuel Putnam, but without any more particular description thereof than by a reference to their deed. This deed of Almira to the demandant was dated September 30, 1865, acknowledged October 27, 1865, and recorded August 9, 1866.</p> <p>The tenant claimed title by virtue of a levy of an execution in favor of himself against Asa F. Richards, the husband of Almira, and contended that the consideration for the conveyance of the land to Almira was paid by Asa F., and the conveyance was void as against his creditors. The whole of the demanded premises were set off by the officer, on the levy, October 2,1865, and by his return it appeared that they were appraised at the value of two thousand dollars, while the amount needful to satisfy the execution, interest and charges of levy, was nineteen hundred and ninety-four dollars and eleven cents.</p> <p>It appeared in evidence that “ at the time of the levy neither Almira Richards nor any of her children were in personal pas« session of the demanded premises,” and also that “the tenant retained possession of said premises after the levy.”</p> <p>On these facts the tenant asked the judge to rule, 1. that the deed to Almira Richards and her children, from Elizabeth F. and Samuel Putnam, when legally construed, does not give her a life estate in the premises conveyed; 2. that if said deed does purport to give her a life estate, the clause so purporting is repugnant to the grant, and so void ; 3. that if it gives her any estate for life, it is a freehold estate, to commence in futuro, and so void; 4. that the grantors, Samuel Putnam and Elizabeth F. Putnam, had no right under the bond for a deed from Ebenezer Felton, upon whose estate they were administrators, to grant her a life estate; 5. that the deed made in their private capacity conveyed nothing; 6. that the interest of Ebenezer Felton in this land was personal property, (the land being covered by a bond for a deed,) and he had no right to devise this specific land, but only to dispose of the interest secured by the bond ; 7. that the deed from Almira Richards to the demandant, not being acknowledged or recorded before the levy, did not pass such a title as wall enable the demandant to maintain this action. The demandant, also, on these facts, requested the judge to rule that the levy was void for the reason that an excess of land, to the value of five dollars and eighty-nine cents, was set off by the officer to the tenant. The judge declined to rule as requested by the tenant, and did rule that the levy was invalid, and instructed the jury that the demandant was entitled to recover upon the deed to him from Almira Richards. A verdict was thereupon returned for the demandant; and the tenant alleged exceptions.</p>

Bill in equity setting forth facts which are stated in the opinion, averring that they raised a resulting trust in favor of the complainant, and praying for an account from the respondent of moneys expended and received by him under such trust and that he should be decreed to convey to the complainant a certain tract of meadow land in Deerfield, which constituted the subject of the alleged trust, the complainant having demanded from him such conveyance, and he having refused…

<p>Contract on two promissory notes. Defence, that the consideration of each of the notes, in whole or in part, was the price of intoxicating liquors sold in violation of law. The plaintiffs were grocers at New Haven, Connecticut. The defendant was an innkeeper at South Deerfield, Massachusetts.</p> <p>At the trial in the superior court, before 1Wilkinson, J., Francis D. Whiting testified that in June 1865 he was employed by the plaintiffs as a “ runner,” his business being to solicit orders; that about the middle of that month he came to the defendant’s inn at South Deerfield, and solicited an order from the defendant, and sent it to his employers, which was filled by them, and was afterwards paid by the defendant to the witness; that in July 1865, and subsequently, he solicited and forwarded to his employers the order, the value of which is in controversy in this action; that the price of the liquors was agreed upon, but, he thought, the price of certain sugar also included in the order was not agreed upon; that he was the agent of the plaintiffs, and showed to the defendant their card, and asked him, “ Do you want anything in our line ? ” On cross-examination, he testified that he was not their general agent to sell, but was so to receive money and compromise claims. The orders given by the defendant were oral. The defendant paid the freight on the goodssfrom New Haven to South Deerfield, in pursuance of an understanding, but not of any express agreement, had with Whiting at the time of giving the orders.</p> <p>' On this evidence the defendant asked the judge to rule “that under these admitted facts the sale of the liquors was made in South Deerfield.” He refused so to rule, but instructed the jury that if Whiting merely solicited from the defendant an order for liquors, and forwarded it to the plaintiffs at New Haven, and thereupon the plaintiffs filled it, and delivered the goods to a common carrier, directed to the defendant at South Deerfield, according to the order, the sale was made in Connecticut.</p> <p>Whiting, on cross examination, further testified that he had been informed, some time prior to June 1865, that there was a “ Maine Law” in Massachusetts, but supposed it had been repealed or modified, as in Connecticut, where he lived. The witness drank at the defendant’s bar several times previously to the transaction in controversy. The binding force of the witness’s knowledge upon the plaintiffs was not called in question. The defendant thereupon asked the judge to rule that the plaintiffs’ agent, having admitted that he had been informed that there was once a law in Massachusetts forbidding the sale of intoxicating liquors, was presumed to know that the law still existed, and acted at his peril in making sales of such liquors in this state. The judge refused so to rule, but instructed the jury that the fact that the witness once was informed of the existence here of a “Maine Law” was a fact to be considered by them as bearing on the question whether the liquors were intended for sale in this state contrary to law.</p> <p>The jury returned a verdict for the plaintiffs ; and the defend ant alleged exceptions.</p>

Bill in equity alleging that the respondent, being seised in fee of a certain tract of land in Deerfield, entered into an agreement with the complainant for the sale to him thereof, and executed and delivered to him a bond, dated August 2,1865, which was fully recited in the bill.

<p>L. bought a stock of goods, and hired the shop where the business had been carried on, and permitted W. to carry it on thereafter in W.’s name, under an agreement that W. should pay all the hills incurred in conducting it, and always keep a stock of goods on hand equal in value to the amount paid by L., and ultimately pay to L. that amount, and that L. should receive one half of the net profits of the business, and should have a right to secure himself by taking possession at any time. Held, that L. was liable for a debt incurred by W., for goods used in carrying on the business, to one who sold them relying on a belief that L. was a partner in the business with W.</p> <p>In an action on a promissory note, brought by the holder against the maker, the burden is on the defendant to prove that the note was given in whole or in part for the price of intoxicating liquors sold by the plaintiff in violation of law.</p>

<p>owned a tract of land comprising two lots, the first of which was drained by a ditch running across the second. He conveyed the second lot to B. by a deed of full warranty and afterwards the first lot to O. In an action by O. against B., wherein C. sought to establish a right of drainage through the ditch across B’s land by actual use for twenty years together, Meld, that A.’s deed to B. raised such a presumption against A. and his grantee C. as to throw the burden of proof on 0., in order to establish such an easement, not only of open and continuous use, but of use as of right and not by license.</p>

Writ of entry. Plea, nul disseisin. The demandant claimed title under a deed of warranty from Jane W. Smith. In the superior court judgment was rendered for the tenant upon agreed facts, and the demandant appealed to this court. By the facts agreed it appeared that Jane W. was wife of Francis B. Smith, from whom she was divorced May 7, 1864, for his adultery, she receiving under the decree of the court the custody of their four minor children.

Contract on an account annexed for work done by the plaintiff. The plaintiff resided at Huntington in Massachusetts; the defendants at Hartford in Connecticut. The defendants declared in set-off upon a promissory note dated July 3,185-5, made by the plaintiff, at Huntington, for three hundred and fifty dollars, payable three months from date, at the Agawam Bank, in Springfield, to the order of A. Copeland, and indorsed in blank by Copeland.

Trustee process, returnable at October term 1865 of the superior court. The trustee made a general answer disclosing no goods, effects or credits of the deiendant.

<p>In an action by a married woman for the value of services performed by her, evidence that during their performance and for some time previously she had lived apart from her husband, who did nothing for her support, is competent evidence that they were performed on her sole and separate account; and the question whether they were so performed is, upon such evidence, one for the jury.</p>

Indictment for being a common seller of intoxicating liquors. At the trial in the superior court, before Rockwell, J., the only witnesses for the government were two state deputy constables, and one Wotton, who acted in concert with them and under their direction.

<p>Complaint, under Gen. Sts. c. 86, § 34, for unlawfully keeping intoxicating liquor with intent unlawfully to sell it.</p> <p>At the trial in the superior court, on appeal, before Devens, J., it having been proved that a quantity of beer and implements of sale were found March 15,1867, on the defendant’s premises in Easthampton, by Timothy P. Lyman, a state deputy constable, and the defendant contending that this beer was not intoxicating, Lyman testified that it was similar, in color, flavor and strength, to certain other beer taken from the stock of one Prouty in Northampton, and that both were contained in barrels marked “ Phelps’ Hop Beer; ” and that, on or about March 6, 1867, he furnished to the assistant of a state-assayer, for chemical analysis, a small bottle full of the beer taken from Prouty. This evidence was admitted against the defendant’s objection. The assayer’s assistant testified,' (the defendant objecting,) to un experimental analysis of this bottleful of beer, tending to show that it was intoxicating; and he stated that at the time of the analysis it seemed to have been bottled for a week or more, and had begun to sour and was unfit to drink. Severa* saloon-keepers, called by the defendant, then testified that the beer kept by Prouty and by the defendant was the same in kind and strength with beer kept by themselves and was manufactured from similar ingredients by Phelps & Co. of New Haven , and that each barrelful was merchantable and fit for use only during from six to eight days after it was opened; and they further testified, together with several other witnesses, their customers, that this kind of beer was not intoxicating during that period. The assayer’s assistant testified that this beer was strongest and had the largest proportion of alcohol before it began to sour, and became less and less intoxicating afterwards. There was other evidence, to the effect that it had more of alcohol at the second than at the first stage of fermentation, and that it underwent a second fermentation after becoming sour.</p> <p>The defendant also offered evidence tending to prove that he received and sold this beer under an honest belief that it was manufactured expressly to be of such a mild and harmless quality as not to be prohibited under Gen. Sts. c. 86; and that “ it was sold largely, publicly, and to private families, without animadversion from state constables; ” and the defendant asked the judge to instruct the jury that if he had no intent to sell an intoxicating liquor or such as was in violation of law, he could not be convicted. The judge declined to give this instruction, and did instruct that if the defendant kept the liquor for sale, and it was actually intoxicating, although he believed that it was not so, the jury might find that he intended an illegal sale. The jury returned a verdict .of guilty; and the defendant alleged exceptions.</p>

<p>Indictment for being a common seller of intoxicating liquors. At the trial in the superior court, before Devens, J., Philip Har.rison testified that in February 1867, he and one Buckley went to the defendant’s dwelling-house, and joined the defendant and one Reagan there in playing cards for drinks. There were seven, games of cards and seven treats. The defendant lost the firs* two games and treated twice. Of the other five games Harrisor and Buckley each lost two, and Reagan lost one, and severally treated with liquor, Harrison and Buckley each twice and Reagan once. The liquor for these five treats, being either gin or whiskey, was furnished by the defendant. After the games were over, the witness paid the defendant eighty cents for the liquor for the two treats made by the witness, and then went away, leaving Buckley and Reagan at the house. Nothing was paid to the, defendant till the playing was finished.</p> <p>The defendant requested the judge to instruct the jury tho «if the parties played together for the drinks, the defendant being one of them, and there was no settlement or payment till after the playing was concluded, it could not be regarded but as a single transaction of sale.”</p> <p>But the judge refused so to do; and did instruct the jury that if they were satisfied beyond reasonable doubt that the defendant furnished intoxicating liquor on the contract to be paid for it by the loser, so that Harrison was liable to pay for the Equor furnished on the two occasions when he lost, Buckley on the two occasions when he lost, and Reagan on the occasion when he lost, it would constitute several sales by the defendant, although the party played together without interruption from the time they began until they finished. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Indictment, under Gen. Sts. c. 87, for keeping a liquor nuisance. The defendant was the same as in the previous case of Commonwealth v. Hoga/n. At the trial in the superior court the testimony was the same as in that case, except that it appeared in evidence that in the room of the defendant’s house where the parties played cards there was a bed and a table but no bar.

<p>Contract to recover the value of a case of pistols. In the superior court judgment was entered for the plaintiffs on agreed facts ; and the defendants appealed to this court.</p> <p>1. The facts agreed as to the general capacity of the defendants as common carriers were as follows: “ The defendants, in all their advertisements, placards, notices and receipts, designate themselves simply as an express company and express-forwarders. They have established in most of the cities and large towns in certain sections of the country offices and agents, and it is made the duty of the agents, among other things, to receive packages to be sent to different parts of the country where the defendants have other offices established, or to the lines of other express companies, as the destination of such packages may require. These packages the defendants receive and undertake for hire to transmit in the care of their own messengers, and in the manner herein stated, to the points of their destination, as far as their routes extend, and the messengers of the defendants accompany them on said routes in the vehicles by which they are carried. To these offices are also sent the packages consigned to persons living in their immediate locality, where they are distributed to the consignees, either at the office of the defendants or at the place of business or residence of the consignee, as the case may be, by the employees of the defendants, from their carts and wagons. The defendants also undertake and are employed to transmit business orders, to demand and collect notes and accounts and to transmit intelligence, so far as the same may be properly done without violation of the postal laws. The defendants have entered into contracts with certain railroads, steamboats and stage companies and other public carriers doing business within the same parts of the cour try, to receive on their conveyances such packages and freight as the defendants may, from time to time, wish carried by them, and also such messengers as the defendants may wish to send with said freight, and for this service these public carriers are paid by the defendants amounts depending upon the space agreed to be furnished for occupation by said carriers, which upon the railroads is usually a portion of the baggage car. The defendants have not generally the exclusive occupancy of that part of these conveyances occupied by them, but part of the same car in which their freight is placed is often occupied with the baggage of passengers on the train, with other freight, and by the employees of the railroad. The public convenience and the safety of the passengers make it necessary that the persons in charge of the railroad trains, steamboats and stages, should have access to all parts of these conveyances. The defendants have no control over the movements of the trains of cars, steamboats or stages, transporting the freight intrusted to them. Said freight is carried to and from their offices to the depots in wagons owned by and under the control and direction of the defendants, and is for the most part delivered from the same to the consignees on arrival at its place of destination.”</p> <p>2. The facts agreed as to the package, to recover the value of which this action was brought, were as follows : “ The plaintiffs knew, at and before they intrusted to the defendants the package hereinafter mentioned, that it was to be transported in the manner and under the arrangement above described. On January 23, 1866, they delivered to the defendants at Springfield, Massachusetts, a case of pistols to be forwarded by them to Theodore Eagle & Co., Vicksburg, Mississippi. While on its way to Vicksburg, in the custody of the defendants, a steamer in which it was being forwarded was destroyed on the Mississippi River by the explosion of its boiler, and the goods were thereby lost. The steamer was not under the control of the defendants, and the goods were sent by the ordinary method and route of transportation. The case of pistols was originally received by a teamster of the defendants at the manufactory of Smith & Wesson in Springfield, where the plaintiffs purchased it. Neither of the plaintiffs was present at the time. It was delivered by a workman of Smith & Wesson who had authority from the plaintiffs to deliver it to the defendants, but no author ity was given to him to make a special contract for its transportatian unless such is implied from the circumstances herein stated. At the time the case was taken the teamster gave to the workman a receipt and took a bill of the goods and price to be collected on delivery. For some weeks previous to January 23, the plaintiffs had been engaged in purchasing pistols from Smith & Wesson and selling them in different parts of the country It was the practice of the defendants’ teamsters to call daily at the manufactory of Smith & Wesson, which was also the plaintiffs’ place of business, and receive such packages as Smith <& Wesson wished to send by them, and as often as twice a week for several weeks previous to January 23, the plaintiffs gave to the teamster other similar packages to be carried by the defendants to different parts of the country. It was the uniform practice of the teamster to deliver to Smith & Wesson; and, about one quarter of the time prior to this instance, and whenever any receipt at all was given, to the plaintiffs or their agents, receipts, the printed parts of which were duplicates of the one given in this instance, and the written parts of which differed only in the dates and address. The teamster had no authority to give any other receipt or make any other contract for transportation. One of the plaintiffs was at that time, and long previously had been, the bookkeeper of Smith & Wesson, and had charge of the safe keeping of the receipts given to them as aforesaid similar to the one in this instance; and at no time did the plaintiffs express to the defendants any desire that their goods should be carried on any different terms than those expressed in the receipt or make any expression whatever of their desire upon the subject. The defendants, when first informed of the loss and the claim made by the plaintiffs, declined, through their superintendent, to pay the same, and stated that ‘ under the terms of our receipt which exonerates us from the dangers arising from river navigation and steam, we must decline responsibility for the loss,’ and alleged no other reason.”</p> <p>It was not disputed that if, on these facts, it should be adjudged that the plaintiffs assented to the terms of the receipt, its limitations of the defendants’ liability as common carriers are such as exempt them from responsibility for the loss.</p>

Tort for digging up and carrying off a water pipe and thereby cutting off the flow of water to the plaintiff’s house and land.

<p>Tort for trespass upon real estate in Springfield. In the superior court the facts were agreed, and those which are material appeared substantially as follows:</p> <p>The plaintiffs were the widow and the only minor child of W; W. Abbott. The defendant was guardian of the child, who was a girl ten years old. The action was commenced by the widow, for herself, and as next friend of the child, without consultation with the child or her guardian and without the child’s knowledge. The real estate in question was set off to the plaintiffs by the probate court as the plaintiffs’ estate of homestead, and consisted of a part of one of the tenements of a double tenement house, the whole of the barn adjoining it, and a piece of ground around the house and barn used as a yard and garden. After the death of Mr. Abbott the plaintiffs occupied the house of the deceased together, until the defendant was appointed guardian of the child, which was before their homestead estate was set off. Upon his appointment he removed the child to his own family, who lived elsewhere, against the wishes of the widow, who was her stepmother, and was and is desirous that the child should live with her on the homestead, of which, after it was set off, she continued in possession.</p> <p>Continuing in possession, she used the barn on the homestead estate to store fuel and furniture. The defendant, having a key and access to it, used it also for some months prior to this action, with the approval of his ward, as a stable for his horse and wagon, claiming a right to do so as guardian, for the benefit of his ward, and charged himself with the rent of the barn in his guardian’s account filed in the probate court since this action was commenced; and he also “ had attempted to secure for his ward’s individual use, in common with the tenants of the widow, that part of the dwelling set off as homestead.” The widow notified the defendant to remove his horse and wagon from the barn, and forbade his use of it, to which notice the defendant paid no regard, but continued to use the barn as before, whereupon this action was commenced.</p> <p>The defendant contended, 1. that, as guardian of the child, he had a right to occupy, for the benefit and use of his ward, the whole of the premises set off as a homestead, in connection with the widow or the tenants who occupied under her; 2. that an action at law, commenced without the knowledge of his ward by the widow as her next friend, could not be maintained without the ward’s consent and against her wishes.</p> <p>Judgment was rendered for the defendant, and an appeal was taken to this court.</p>

<p>Writ of entry brought by the demandant as assignee in insolvency of the estate of the defendant, Daniel Charter, to recover possession of four parcels of real estate in Springfield. The tenants jointly pleaded nul disseisin. This is the same case which formerly came before this court as reported 12 Allen, 611. At the new trial in the superior court, before Wilkinson, J., it appeared in evidence that the premises were owned by Daniel Charter, who conveyed them to Henry Kennedy by deed dated August 2,1860, and recorded January 11,1861, who conveyed them to Mrs. Charter January 25, 1861; and that these were voluntary conveyances made for the purpose of vesting the property in her. The plaintiff contended that they were in fraud of existing and subsequent creditors.</p> <p>There was evidence tending to show that at the date of the first conveyance Charter owed his sons several thousand dollars, and other creditors between one and two thousand dollars; and he testified that he owned at that date personal property worth about two thousand dollars, besides this real estate. He testified also that for some time previous the project of a conveyance of this real estate to his wife had been discussed in the family, and his sons had expressed their willingness that it should be made; and that there was an agreement ” or “ a talk ” that he should convey his personal property to his sons as security, so far as it would go, for his indebtedness to them, but he could not say with certainty whether that was known to his ■wife. It was in evidence that after Charter had executed and delivered to Kennedy the deed of August 2, 1860, Kennedy intrusted it to him to place on record; and Charter further testified that the reason why he did not have it recorded until January 1861 was that in some way he got the impression that it was defective and invalid, and remained under that impression until that time, when, being advised by counsel that it was a good deed, he placed it on record; but that, meanwhile, in September 1860, he mortgaged the premises and applied the loan to his indebtedness, and paid off all his indebtedness except the amount due to his sons; so that at the time of the record of his deed to Kennedy, and at the date of Kennedy’s conveyance to Mrs. Charter, he was owing, besides the amount due to his sons, only two hundred dollars, (which was subsequently paid on demand,) and the amount of the loan he had effected in September. The proceedings in insolvency were commenced in June 1863; and it appeared that his total indebtedness was then about six thousand dollars, besides what he owed to his sons; that no debts which he owed when he conveyed to Kennedy remained unpaid, except the debts to his sons ; and that he had continued meanwhile to reside on the premises and to cony on the busi ness of dealing in wood the same as before.</p> <p>The demandant offered to prove, 1. that, after the conveyance to Kennedy and his conveyance to the wife, Charter assigned his personal property to his sons as security for his debts to them, and, when attempting to purchase property on credit, made repeated statements to various individuals that he owned the real estate in dispute; and 2. that Charter’s sons had not the means of lending such amounts of money as their notes against their father represented, which notes Charter asserted were given by him for borrowed money; but the judge excluded the evidence on both points. And the judge instructed the jury, among other things, “ that the fact that Charter afterwards paid the debts which he owed when he conveyed the premises in dispute was to be considered by them in determining whether or not he intended to defraud existing creditors when he made the conveyance ; that the fact of the payment was not conclusive on the point, for the success of the plan need not be shown, but it was a circumstance for them to consider in determining what was Charter’s purpose when he made the deed, they giving it no weight or such weight as they thought it entitled to.”</p> <p>A verdict was returned for the tenants; and the' demandant alleged exceptions.</p>

Contract on a policy of insurance for two thousand dollars upon the life of George W. C. Hodsdon, the plaintiff’s intestate.

Contract. In the superior court, on October 30,1865, being in vacation after said October term of that court, the defendants filed their written consent to be defaulted, and offer of judgment n favor of the plaintiff “to the amount of one hundred and Twenty dollars, with costs to be taxed.” The plaintiff did not elect to accept this offer, and on the trial of the action at October term 1866 he recovered ninety-four dollars and seventy-five cents, damages.

<p>An award of arbitrators, returned to the superior court on an agreement for submission under Gen. Sts. c. 147, will not be rejected for the reason that the agreement did not bear a proper United States internal revenue stamp prior to the return of the award; when it does not appear that such omission was with design to evade the law of congress, and when, since such return, it has been supplied in the manner provided by that law.</p> <p>An award of arbitrators, returned to the superior court on an agreement for submission und,er Gen. Sts. c. 147, will not be rejected for the reason that it finds that there was a breach of a contract, but awards no damages therefor; when the agreement provided that the arbitrators should determine “ whether or not there has been any breach of the contract and, if so, what damages, if any, have been caused thereby.”</p>

Bill in equity praying for an injunction on the city and the city collector of Springfield against proceeding to collect an assessment laid on real estate of the complainants, under St. 1863. c. 107.

Contract to recover the price of a bill of scythe snaths. At the trial in the superior court, before Rockwell, J., the plaintiffs offered in evidence a copy of their list of prices for 1865 and an order dated January 7,1865, and signed by the defendants, running as follows: “ Palmer, Jan. 7,1865. We hereby order of Messrs. Frost, Derby & Flint one hundred doz. scythe snaths at 20 per cent, from price list, delivered, payable August 1,1865.

Contract on an account annexed for butcher’s meat delivered by the plaintiff, a wholesale dealer, to Charles F. Hinsdale, a retail dealer. At the trial in the superior court, before Rockwell, J., it appeared that Charles F. was a nephew of the defendants, and had accounts with the plaintiff.

<p>Evidence that at the time of the mortgage of a stock of goods the mortgagee knew that the mortgagor was intemperate in his habits and neglected his business is competent in support of the allegation that the mortgage was made and received in fraud of the insolvent law.</p> <p>At the trial of an action to test the validity of a mortgage, by a tailor in the country, of his stock of goods, it appeared that he made it as security for money which he borrowed at the time from the plaintiff, alleging need of it to pay bills coming due at Boston, and that he absconded within two days afterwards. The defendant, who was a wholesale dealer at Boston, and was assignee of the tailor’s estate in insolvency, testified that the tailor’s credit was bad for several months previous to the date of the mortgage, but called no other witnesses to that point; and testified also, from his experience in trade for more than thirty years, that it was not in the usual line of business for retail dealers with unincumbered stocks to mortgage them; which was the only direct evidence on the subject of such a usage. Held, that it was properly left to the jury to determine, upon all the evidence, whether the mortgage was made in the usual and ordinary course of business, and whether the plaintiff had reasonable cause to believe that it was made in fraud of the insolvent law.</p>

Contract on covenants for rent in two leases. The writ was dated October 8t 1866, and the declaration was for rent accruing between April 1 and October 1, 1866. In the superior court the facts were agreed and judgment was entered for the plaintiff, and the defendant appealed to this court.

<p>Contract upon a promissory note, the making of which the defendant admitted in his answer.</p> <p>At the trial in the superior court, before Rockwell, J., it appeared in evidence that the note bore date of a day which was the Lord’s day, and was payable on demand; but there was testimony tending to show that it was made and given to the plaintiff on a previous secular day. The defendant thereupon asked the judge to rule that if it was delivered on such a previous day, under an agreement that it should be dated and take effect upon a subsequent Lord’s day, it was void ; but the judge 'uled to the contrary.</p> <p>It further appeared in evidence that the defendant was about to go into the business of peddling milk in Holyoke, and bought of one Cleveland, who held himself out as acting for the plaintiff, a lot of personal property and a milk route, agreeing to pay „o the plaintiff six hundred dollars therefor, and did pay three hundred dollars in cash, and gave his note for the balance, which is the note in suit; and that, at the time of paying the money and giving the note, the plaintiff gave to him a writing in the following words : “ Holyoke, June 23, 1866. Sold this day to S. B. Kemp one milk route and fixtures, consisting of one buckskin colored horse, one covered milk cart, one open milk sleigh, two harnesses, two buffalo robes, one horse-blanket, one halter, one surcingle, thirty milk cans more or less, one rack for hanging cans, for the sum of six hundred dollars. Received payment, (Signed) N. W. Stacy.”</p> <p>The defendant then offered to prove that Cleveland was the real owner of the property sold and .of the note in suit; that the use of the plaintiff’s name in the transaction was to guard it against Cleveland’s creditors; and that, at the time the bargain was made, and as part of the same, and for the same consideration of six hundred dollars, Cleveland agreed orally, with the consent and knowledge of the plaintiff, not to peddle milk in Holyoke while the defendant should continue in that business there; but that, in violation of this agreement, Cleveland had continued to peddle milk over the same route, greatly injuring the defendant’s business thereby ; but the judge ruled that evidence of this agreement was inadmissible. The defendant then offered to prove that, by the plaintiff’s act through Cleveland, the milk route described in the writing executed by the plaintiff had been rendered valueless to him, and that Cleveland, by the authority of the plaintiff, influenced the customers on the route not to buy milk of the defendant, but of himself; but the judge ruled that such evidence was incompetent.</p> <p>A verdict was found for the plaintiff; and. the defendant alleged exceptions.</p>

<p>Bounty money to which a minor apprentice becomes entitled by Ms enlistment as a soldier, belongs to himself, not to his master.</p> <p>An agreement by a minor apprentice to give to Ms master Ms military bounty money if the master would permit him to enlist as a soldier, is voidable by the apprentice by reason of his infancy.</p>

Contract on a promissory note made by the defendant payable to the plaintiff’s intestate, Charles Crotty. At the trial in the superior court, Crotty’s widow was permitted to testify, against the defendant’s objection, to conversations with the defendant before Crotty’s .death, but not to conversations with her husband; and also that it was her husband’s practice to carry the note in his pocket.

<p>On the question whether there was a warranty of quality, by the plaintiff, of a boiler sold by him to the defendant at an interview between them in the evening, adjourned from a previous interview between them in the morning of the same day, at which the defendant had examined the boiler and asked the plaintiff its price, the defendant, on cross-examination, testified that at the interview in the morning the plaintiff did not say that he would never warrant a boiler. Held, that evidence afterwards offered by the plaintiff that he then and there did say so, was admissible both as tending to contradict the defendant’s testimony on a material point, and also as tending to show affirmatively that the allegation of a warranty was unfounded.</p> <p>In an action for the price of a boiler, wherein the defence set up was a warranty of quality and agreement to remove the boiler if it should fail and to pay for all damages caused in any way by such failure, and a breach of such warranty and agreement; and wherein a verdict was returned for the full amount claimed by the plaintiff; Held, that no exception lies by the defendant to a ruling of the judge who presided at the trial that even if the juiy should find that it was part of the contract of sale that the plaintiff should pay all damages caused by stoppage of the defendant’s mill by insufficiency of the boiler, nevertheless the defendant was not entitled to damages for loss of pay to workmen or of profits of manufacture during such stoppage.</p>

Contract by the indorsee against the prior indorser of the following note: “ Springfield, Sept. 10, 1866. Two months after date I promise to paj to the order of Samuel Hubbard $700, value received, at Chicopee National Bank. (Signed) Mrs. M. L. Perry.

<p>One who takes a promissory note prior to the death of its owner and holds it afterwards as an executrix in her own wrong, and neglects to collect it, until the maker becomes insolvent, is liable to the lawful administrator for the whole amount of the note, if it was good and collectable at the time of the owner’s death.</p> <p>An executrix in her own wrong took and held for more than three years from the owner’s death a promissory note, dated nearly four years before such death, for fifty dollars, payable on demand, with interest, and secured by a mortgage, of personal property recorded, but which it did not appear that any effort had ever been made to collect, or that it was of any value except what may be inferred from two indorsements thereon of payments accepted in wood by the holder about two and three years respectively from its date, one of two dollars and fifty cents and the other of three dollars. In a suit in equity brought by the lawful administrator, Eeld, that his only right against her as to this note was to have it delivered to him.</p>

<p>Bill in equity setting forth that the respondent was seised of a parcel of land in Springfield on which he had partially built a dwelling-house, and that on April 29, 1865, he made to the complainant a proposal in writing to complete the premises himself, according to a specification set forth therein, to sell them to the complainant complete, for fourteen thousand one hundred dollars, and to “take in payment as follows: 8 shares. Am. Mach. Wks. stock, $800; D. L. Harris’ indorsement Chapin’s notes, $6000; leaves on mortgage, $6000; cash on acc’t, $1300; total, $14,100; ” “ the house to be yours [the complainant’s] as soon as this proposition is accepted; ” and that the complainant accepted it the same day by an indorsement in writing upon the same paper; that the respondent thereupon completed the premises, but with certain alterations from' the specification, which, together with their cost as affecting the original contract price, were matter of oral agreement between the parties; that the complainant took possession, with his family, and has ever since continued in occupation, has paid all taxes assessed on the premises since the date of the agreement, has expended two thousand dollars in improvements, has paid to the respondent one thousand dollars in cash, and transferred to him two notes of one N. Chapin indorsed by D. L. Harris for six thousand dollars (which cash and transfer were accepted by the respondent in partial payment "under the contract), and has always been ready and willing to complete his payment to the respondent under the contract on receiving from him a proper deed of conveyance of the premises. The bill further alleged that the complainant from time to time after the completion of the premises applied to the respondent for a settlement, and on February 20, 1866, (previous to the commencement of this suit on the same day,) tendered to him eight shares of the American Machine Works, properly assigned to him, and the complainant’s promissory note for six thousand dollars secured by mortgage, “ the payment so tendered being all there is due from the complainant to the respondent in the performance of his part of said agreement,” and demanded of the respondent a deed of the premises, which the respondent thereupon refused to give, pretending “that said agreement was procured by fraud, that the stock of the American Machine Works at the date thereof was worthless, and that the complainant was knowing thereto.” The prayer of the bill was for a decree to compel specific performance of the contract and a conveyance of the premises by the respondent.</p> <p>The answer admitted the making of the contract, the completion of the premises and the possession of them by the complainant, in pursuance thereof, and the cash payment and transfer of the Chapin notes, substantially as set forth in the bill; but it alleged that a larger amount of cash payment was due from the complainant, by reason of the alterations and the oral agreements relating to them, than he had ever tendered, and that the respondent was ready and willing to convey the premises upon receipt of such larger cash payment, and of the complainant’s note for six thousand dollars, secured by mortgage, and of the further payment, in cash, by the complainant, of eight hundred dollars with interest from the time of his first possession under the contract, in the stead of the eight shares of the American Machine Works ; for, it alleged, “ at the time said contract was made, the complainant represented that those shares were well and fully worth their par value or amount, to wit, the sum of eight hundred dollars, and that the same was just as good as and equivalent to cash ; that the respondent had no knowledge of said stock, nor of the value thereof, and made said contract in the full faith and confidence, based upon said representations, that said stock was well worth the amount named in said contract : whereas, in truth and in fact, said stock was not at that time worth its par value, nor said amount of eight hundred dollars, but said corporation was in fact insolvent, although its insolvent condition had not become known to the public, nor to the respondent, and did not so become known to the public or to the respondent until after the complainant had taken possession of said premises and made the payments hereinbefore admitted to have been made; and that, before said complainant had offered to transfer said stock to the respondent, the insolvency of said corporation did become known to the public, and said shares became and were absolutely of no value, and the shareholders of said corporation were also liable for the unpaid debts of the corporation.”</p> <p>Issue was joined on the answer; and the case was referred to a master, to state an account between the parties as to the alterations in the premises and their price, which was matter of oral agreement; and “ also to report in full the evidence relating to the representations, if any, made by the complainant at trie time of the agreement to transfer the shares of the American Machine Works, as to their value ; also the actual and market value of said shares at the date of said agreement, and their value at the date of the tender, and when, if ever, any change in the market or supposed value occurred.”</p> <p>By the evidence set forth in the master’s report it appeared that the parties had an interview in the early part of April, 1865, at which there was talk between them of a sale and purchase of the property, and the complainant' then said that he should wish to pay the eight shares of the American Machine Works as part of the price, and that he considered them worth par, but referred the respondent, if he had any doubt about their value, to Frederick S. Bailey, who was clerk and a director of the company; that the parties had no other interview until April 29, when the written proposal of the respondent was made, as recited in the bill, and was accepted by the complainant; and that the respondent then said that he had made no inquiries about the stock and would rather add eight hundred dollars to the amount to remain on mortgage than take it. The respondent testified that, at this second interview also, the complainant assured him that the stock was worth par, and referred him to Mr. Bailey to find out about it; and that he was induced solely by these representations of the complainant to agree to take it.</p> <p>By the testimony of Mr. Bailey it appeared that in April 1865 the stock had no market value, for that the last sale of it prior to that time was in June 1864, when some was sold for ninety-five dollars per share, the par being one hundred dollars; that in the spring preceding this sale fifteen thousand dollars of next stock was subscribed for and paid in, at par, increasing the capital stock from eighty-five thousand to a hundred thousand dollars ; that in April 1865 it was known in the community that the business of the company was such that it would not make so much money as it had done in former years; but that its business credit was then good; and that the directors were not aware that the company “ had lost anything of its capital” until in June 1865 the superintendent made a report to them and they found that the liabilities so far exceeded the assets that the intrinsic value of the stock was then, and for a year at least previous to April had been, not more than ten cents on the dollar, und whether or not it was anything at all depended on their collections of debts awed them in the southern states, contracted in 1860; that in July 1865 this condition of the company became notorious ; and that it was “ not much changed” in Febrnary 1866. And the respondent testified that at the time the complainant tendered him the stock in February 1866, he “ was satisfied that it was not worth anything,” but “ knew nothing about the stock except from common report, which was that it was worse than nothing.”</p> <p>The master in his report computed and stated a balance as due from the complainant, and added to this computation these words: —</p> <p>“ The above statement leaves out of the account the eight shares of stock of the American Machine Works. Upon the evidence in the case I should find that the complainant is entitled to have eight hundred dollars deducted from the balance named, because of his readiness to assign said stock to the respondent and the respondent’s contract to receive the same instead of eight hundred dollars ; whereby the true balance due the respondent this day upon an assignment of said stock to him would be,” [here followed a second computation.]</p> <p>The respondent excepted td “ so much of the master’s report as indicated a finding or opinion of the master as to the rights of the parties in relation to or growing put of the stock,” as being outside of any authority conveyed in the order of reference to the master; and the case was reserved by Chapman, J., upon the pleadings, master’s report and exception thereto, for determination by the full court.</p>

Writ of entry. This is the same case which formerly came before this court on exceptions, as reported 12 Allen, 586.

Petition for a writ of certiorari for the purpose of quashing certain proceedings of the county commissioners of Hampden concerning the re-location of a highway in Granville.

Contract on the covenant against incumbrances in a warranty deed of real estate in Springfield from the defendant to the plaintiff. The alleged incumbrance was a right of dower in Rhoda C. Hubbard, wife of Asahel Hubbard.

Petition for partition. The petitioner claimed one undi vided fourth part of the premises, as one of the four heirs of Matthew Ives, Senior. Mrs. Elizabeth Wood, the only respondent who appeared and answered, claimed to be seised of (hem as sole heir of her father, Matthew Ives, Junior.

<p>A lease of a store by a religious society was “ to hold for the term of three years ” “ with the privilege of two years in addition unless the society shall sell said store, in which case the privilege of two years in addition shall be null and void.” Reid, that the privilege was to be void in case of a sale of the store by the society either before the beginning or during the running of the two years.</p>

<p>An agreement not to engage in a certain kind of business at a particular place for a specified number of years is not within the provision of the statute of frauds, (Gen. Sts. c. 105 § 1, cl. 5,) which requires agreements not to be performed within one year from the making thereof to be in writing in order to support an action thereon.</p> <p>A. and B. made a contract that on a certain day A. should buy and B. would sell B.’s stock of goods, and B. would give and A. should take a lease of B.’s shop, and that if either party should fail to perform his part of the contract he would forfeit and pay to the other a stipulated sum. Reld, that a subsequent agreement by A. to settle and adjust all matters between himself and B. and to sign the lease ten days before he was bound to do so by the contract was a sufficient consideration for a promise by B. not to do business for five years as a grocer" in a certain town.</p> <p>No exception lies to the exercise of the discretion of the presiding judge who, upon a motion to set aside a verdict for excessive damages, gives to the plaintiff the option to remit so much of the damages as in the judge’s opinion is in excess.</p> <p>P was a grocer, and leased his shop and sold his stock of goods to A. with whom he agreed aot to do business for five years as a grocer in the town. In an action by A. against him for a breach of this agreement the only direct evidence on the question of damages was that of A.’s partner, who testified that, after the breach, the business of the firm was lessened between two hundred and three hundred dollars per month, on which their profit would have been twenty-five per cent., and that of B. himself, who testified that after he resumed business his trade amounted to eleven hundred dollars per month, mostly derived from his old customers. Four hundred dollars damages were awarded to A. for three months’ breach of the agreement. Reid, that no exception lies to the exercise of the discretion of the presiding judge in overruling B.’s motion to set aside the verdict as unwarranted by law upon the evidence, B. at the trial having asked no instruction to the jury on the limit of damages which they would be warranted upon the evidence in finding, and the injury to the plaintiff being such as was not capable of exact proof or definite computation.</p>

<p>Three indictments for being common sellers and making unlawful sales of intoxicating liquors. Each indictment purported to have been found at December term 1866 of the superior court for Hampden, the first day of which term was Monday, December 3, and to have been returned into court on Tuesday, December 11. The pleadings were the same in each case.</p> <p>In each the defendant filed a special plea in bar, averring “ that upon December 3 the criminal term of this court provided for by law was opened, the Hon. Lincoln F. Brigham, one of the justices thereof, presiding; that upon said day said justice left the courthouse, the grand jury being in session, and went out of the county and away from the court, and presided at a term of this joui't in another county, and neither said justice nor any other ^ustice of said court was present at the court-house or within the county during the examination of cases by said grand jury, nor until December 10; that during the interim and between said dates the grand jury who found this indictment did continue to meet at nine o’clock in the morning of each day, and remain in session from that hour until six o’clock in the afternoon, taking a short recess at noon, and did during all this period hear testimony and examine witnesses; that before said judge left the county witnesses were heard in the defendant’s case and sworn, and also other witnesses during the aforesaid period while no judge of said court was in attendance or within the county; that on December 10, there having been no continuance until said day, but the court remaining open, said justice undertook to proceed with said term of the court, and that on December 11, while said judge was in attendance upon court, this indictment, with others, was presented separately to the consideration of the grand jury by the district attorney, was passed upon and made a subject of vote, and on said December 11 the grand jury presented this and other indictments in said court in due form; ” and alleging “ that said grand jury had no right to hear any testimony or to find this, or any other indictment, under said circumstances, and that said "term was ended and abandoned ” by the facts averred.</p> <p>To these pleas in bar the attorney for the Commonwealth filed in each case a general demurrer, which Brigham, J., sustained and ordered the defendants to plead further; from which ruling they appealed.</p> <p>Each thereupon, entering a plea of not guilty, filed, before the impanelling of the jury, a motion to quash his indictment, verifying or offering to verify such motion by his oath, which motion varied from the pleas in bar only in averring “ that this indictment was found by said grand jury after the departure of said justice, and during said interim, and while no justice of said court was in attendance or within the county ; ” “ that no witnesses were heard in his case by the grand jury, and none sworn in his case except during the aforesaid period, and while no judge of said court was in attendance or within the county; ” and that on said December 10, there having been no continuance to said day, said justice undertook to proceed with said term of the ' court.”</p> <p>These motions were overruled; and, on trial, a verdict of guilty was returned against each defendant, whereupon each filed a motion in arrest of judgment containing precisely the same averments as the motions to quash. These being also overruled, the defendants alleged exceptions to the rulings on both motions.</p>

<p>Complaint for keeping one swine in violation of by-laws of the city of Springfield, entitled “ Ordinances for the better preservation of the public health,” which prohibited the keeping or maintaining of swine within certain districts of the city, under a penalty not exceeding twenty dollars for each offence. City Ordinances of Springfield, Nos. 77, 79.</p> <p>At the trial in the superior court, on appeal from the judgment of the police court of Springfield, the defendant admitted that he kept a swine as alleged, and asked the judge to rule that the city had no right or power to enact these by-laws, and that they were not valid. But Reed, J., declined so to rule. The defendant then offered to prove that at the time of the complaint he was keeping a livery and feeding stable, the litter from which was thrown into a yard under and adjoining the barn; that if this litter was left undisturbed in the yard it would in a few days heat and become offensive to the neighborhood, but that by the keeping of one swine there it would be stirred up so as to prevent heating or producing an offensive smell; and that the keeping of the swine was not in itself a nuisance or source of filth. But the judge ruled that these facts, if proved, would not constitute a defence.</p> <p>The jury returned a verdict of guilty; and the case was reported to this court.</p>

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

<p>Indictment for keeping a tenement used as a house of ill-fame, resorted to for prostitution and lewdness,</p> <p>At the trial in the superior court, before Reed, J., there was testimony tending to show that the defendant lived in the tenement and there exercised various acts of control and management, but that it was owned by his wife as her separate property; that she also lived there and carried on the business; that it was resorted to for prostitution and lewdness, and that the defendant did not participate in the profits.</p> <p>Thereupon' the defendant asked the judge to instruct the jury that if they should find that the tenement' was owned by the wife as her separate property, and that she was carrying on the business, and that the defendant did not participate in the profits, they should acquit him. But the judge declined so to instruct them, and ruled that if the defendant lived in the tenement with his wife, she being the owner thereof, and it was resorted to, with his knowledge, for prostitution and lewdness, he would be liable as keeper, although the profits of the business were all received by the wife.</p> <p>The defendant further asked the judge to rule that in order to constitute the offence charged it must appear that the place was kept by the defendant for lucre and gain. But the judge instructed the jury that if they should find that the defendant kept the place, and that during the time alleged it was resorted to for prostitution and lewdness, it would not be necessary for them to find that it was kept by him for lucre or gain.</p> <p>The jury returned a verdict of guilty; and to these rulings and refusals to rule the defendant alleged exceptions.</p>

<p>By aa agreement between E. and H., who was his insolvent debtor, stipulated to terminate at the end of one year, “ at which time a settlement shall be made by the parties,” hut annually renewed for four years successively, E. appointed H. to be his “attorney and agent” to buy, sell and manufacture skins and for that purpose use funds which E. agreed to furnish; and H. agreed to give his whole time and attention to the business and keep accounts of it; and both agreed “that in adjusting the profits and loss E. shall take back in cash all such sums as he may have advanced, with a profit of ten per cent, on such sums, and next, after paying all expenses and claims accrued in the prosecution of said business by said agency, the balance remaining, whether in cash or merchandise, shall belong to H., and H. shall have no right to claim any other pay for his services,” “ and what belongs to H. as above, or a sufficient amount thereof, shall go to E. towards liquidating his debt against H.” Held, that this agreement created between E. and H. the relation of principal and agent, and not a partnership, and that in skins bought under it with E.’s funds H. had no interest attachable by his creditors, unless the agreement was fraudulent on the part of both of them.</p> <p>Held also, that neither H.’s possession and control of the property in use under the agreement; nor an understanding between H. and E. that H. should have a living for himself and his family out of the business; nor the appropriation by H., without keeping any account thereof, of a sum sufficient for the support of himself and his family, out of its proceeds; nor the omission by the parties for four years to make any schedule or appraisal of the property on hand or keep accounts of receipts and expenses of the business; nor the fact that at the time of the agreement E. knew that H. was insolvent, were prima facie evidence of fraud, that is, such evidence as, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support which it was introduced.</p> <p>Held also, that to show that the agreement was in fraud of H.’s creditors, evidence of prior or contemporaneous fraudulent declarations and acts by him, since his insolvency, was competent: such as what he said to a constable, who had served a writ upon him, concerning transfers of his property to avoid attachment; and his exhibition of several thousand dollars in gold and hank notes, and his statement that he owned them, to one from whom he was trying to borrow money on a mortgage: and also evidence of any of his declarations made or acts done with E.’s permission, tending to show that he treated as his own, property' in use under the agreement.</p> <p>Held further, that to contradict testimony of H. that certain property in use under the agreement was property of E., evidence was competent of any acts or declarations of II. tending to show that either the property in question or any other property embraced in the agieement was his own: such as evidence of the style of living of himself and his family wh-le supported out of the business; and of his payment of the expenses of other people’s lawsuits, out of such property.</p> <p>Evidence that a witness on a certain occasion said that certain property belonged to a certain person, has no tendency to contradict his testimony that on a previous occasion he said that it belonged to another person.</p> <p>On the question of damages in an action against a deputy sheriff for unlawful conversion of goods attached during manufacture, evidence is competent of how much it would cost to complete them for market.</p>

<p>Bill in equity to set aside proceedings instituted under the insolvent laws of the Commonwealth March 18,1867, by Abner Woodward, George P. Carpenter and Walter W. Carpenter, three of the respondents, upon which the judge of insolvency immediately afterwards issued a warrant, and caused notice to be published, and subsequently assigned the estate of said debtors to Samuel D. Bardwell and Humphrey Stevens, who also were made respondents to this bill. The complainant, who had previously attached property of the debtors in an action still pending, alleged that the proceedings in insolvency were void because the insolvent laws of the Commonwealth and the authority of the judge of insolvency to issue warrants or make adjudications of insolvency had been wholly superseded by the bankrupt act, U. S. St. 1867, e. 176. The respondents filed a general demurrer, and the case was reserved by Ghapmcm, J., for determination by the full court.</p>

<p>A creditor of a dissolved partnership, after proving his debt against the estate in insolvency of a partner who on the dissolution had agreed to pay the partnership’s outstanding debts, and receiving a dividend under an order distributing the estate among the joint and separate creditors alike, has no right of action on the debt against the other partner although, since the dissolution, he has removed to another state, where also the creditor resides.</p>

Tort for injuries alleged to have been caused to the plaintiff and his wife and his horse and wagon by reason of a defect in a highway in Northbridge. The damages were laid in the sum of five thousand dollars.

Tort for injuries to the plaintiffs’ horse and wagon and load of ineat in a highway in Taunton.

<p>Ice or snow suffered to remain upon a sidewalk in such an uneven and rounded form that a person cannot walk over it, using due care, without danger of falling down, may be found by the jury, in an action against the town or city, to be a defect for which the defendants are liable under Gen. Sts. c. 44, § 22.</p>

Tout for injuries resulting from an alleged defect in a highway in Boston. At the new trial in this court, before Foster, J., after the decision reported 12 Allen, 571, the facts appearing substantially as hereafter stated, a verdict was returned for the defendants under a ruling of the judge that there was no evidence of a defect in the highway for which the city was liable; and the case was reported to the full court.

Tort for an injury alleged to have been sustained by the plaintiff by reason of a defect in a highway which the defendants were bound to keep in repair.

Tort for injuries to the plaintiff’s intestate, Francis H. Holman, while crossing the defendants’ railroad track.

Bill in equity, filed in August 1863, by one of the guarantors of a certain promissory note of the Boston and New York Central Railroad Company, to compel the execution by Horatio N. Slater, one of the respondents, of a trust concerning certain iron rails laid down and fastened upon the road-bed of that railroad company between Boston and Dedham, prior to January 1, 1855, and continuing so attached to the road-bed from that time to the time of bringing this bill; which trust…

<p>A policy of insurance obtained upon a building by the owner and containing a proviso that it shall be void if the building shall be occupied or used for unlawful purposes, is avoided by a tenant’s use of the building for an unlawful purpose, even if without the owner’s knowledge.</p> <p>The use of a building for storing whiskey with intent to sell the same therein, and the sale of the same there, from time to time, by retail, without license, is a use of the building for an unlawful purpose within the meaning of a proviso in a policy of insurance thereon that the policy shall be void if the building shall be used for unlawful purposes.</p>

<p>A policy of insurance against loss by fire on intoxicating liquors kept by the assured for sale in violation of Gen. Sts. c. 86, is void as to him.</p>

<p>Bill in equity filed by Caleb B. Rogers of Norwich, Connecticut, Edward Joslin of Keene, New Hampshire, and William H. Doane and William E. Loudon, both of Cincinnati, Ohio, all being copartners in the business of manufacturing woodworking machinery at Cincinnati, under the name of J. A. Fay & Co., alleging that they alone have the right to use that name in their business and as a trade-mark, and praying for an injunction to restrain the respondent from using it in his business at Worcester, or connecting it with woodworking machines sold by him unless they were made by the complainants. The case was reserved by Chapman, J., for determination by the full court, on facts which were agreed by the parties substantially as follows:</p> <p>There were at various times prior to this bill four different firms engaged in the business of manufacturing woodworking machinery, under the name of J. A. Fay & Co., as follows: I. About 1847 the business was first begun under that name by Fay and the complainant Joslin, at Keene, New Hampshire. 2. Soon afterwards it was begun at Norwich, Connecticut, under the same name, by Fay and the complainants Joslin and Rogers, 3. In 1852 it was begun at Worcester, Massachusetts, under the same name, by Fay, Joslin, Rogers, and the respondent Taintor; and afterwards one Horace Richardson also was admitted as a partner. 4. In 1853 it was begun at Cincinnati Ohio, under the same name, by Fay, Joslin, Rogers, and one John Cheney ; the complainants Doane and Loudon afterward” succeeding to Cheney’s interest.</p> <p>Fay died in 1854. The Keene firm was dissolved by his death. His interest in the Norwich firm was conveyed to others, and the name of that firm was changed to C. B. Rogers & Co. The business of the Worcester firm was continued under the name of J. A. Fay & Co., with the assent of Fay’s representatives. The business of the Cincinnati firm also was con tinned unde the same name.</p> <p>And it was agreed that the Cincinnati firm has used that name ever since it began, both as a style of the firm and as a trade-mark; that it has all the rights in respect to its use which it had at the time of its original establishment; that it carries on a very extensive manufacturing business at Cincinnati, and sends its machines to various foreign countries; that the name is of great value as a trade-mark, on account of the superior quality of the machines formerly manufactured by all the four firms and now by the complainants; and that machines bearing that mark are sought and preferred above others.</p> <p>In July 1861 the Worcester firm, being insolvent, was dissolved by mutual consent, and Rogers was appointed to settle its business. After the dissolution the partners agreed in writing that the property of the firm should be sold at public auction, one article of this agreement being in these words : “ The orders that may be received and the good will of the firm to be sold and disposed of to such of the partners as will bid the most therefor, as soon as may conveniently be done.” In pursuance of this agreement the orders, correspondence and good will of the firm were bid off by the respondent Taintor for the sum of eight hundred dollars, which he paid.</p> <p>Since that time Taintor has been engaged in buying and selling, but not in manufacturing, woodworking machinery at Worcester, his business being to solicit and procure orders, which he fills by purchasing machinery from other manufacturers ; and he has used the name of J. A. Fay & Co. in various ways, some of which are as follows: He has attached the name to machines which he has sold and sent into foreign countries. He has cireulated price lists with the name printed at the head of the first page, and the same name printed below with the addition of the words “E. C. Taintor, succeeding partner;” with an announcement printed on another page that such lists will be sent on application to J. A. Fay & Co. or E. C. Taintor, Worcester; with an announcement.on a following page that such lists will be sent on application to J. A. Fay & Co. or E. C. Taintor, succeeding partner; and with the words “ J. A. Fay & Co. builders of all kinds of woodworking machinery,” printed on the last page, surrounded by cuts of machines, the name of E. C. Taintor not appearing on that page at all, and the name of J. A. Fay & Co., wherever occurring on any of the pages, being printed more conspicuously than the name of E. C. Taintor. And he has used letter-paper in his correspondence, having in one upper corner of the page a cut of a machine over a scroll containing the name of J. A. Fay & Co., and with the words “ Builders of woodworking machinery, E. C. Taintor, successor to J. A Fay & Co.,” in the other upper corner.</p>

Contract by the indorsee of a promissory note, payable on demand, and described in the following guaranty which the declaration alleged to have been executed by the defendant, in consideration that the plaintiff, being the holder of the note, would forbear to bring suit upon it: “ Worcester, May 3, 1861.

Bill in equity setting forth that Martha Ann Barbour of Worcester, one of the respondents, a married woman whose husband was living, purchased as her sole and separate property certain real estate there, and paid for it with her promissory note signed by the complainants as sureties, which on its maturity she failed to pay, and the amount of which she owes to the complainants, who were compelled to pay it by reason of her default; that afterwards she employed the respondent…

Contract for the price of a pair of oxen alleged to have been purchased by the defendant of the plaintiffs. The defence set up was a denial of such purchase.

Tort by the owner of a mill and dam on a stream in Gardner, against the owners of another mill and dam lower on the stream, for flowing back water into the plaintiff’s wheel-pit The defendants alleged that they had used the water only as they were of right entitled to do.

<p>The levy of an execution on land is not invalid by reason merely of the failure of the officer’s return to explain why, after the seizure of the land, one month intervene»! before the appraisers were sworn.</p> <p>D., being insolvent, conveyed to C. a lot of land, which O. for a valuable consideration conveyed to M., who took it with notice that it had meanwhile been seized on an execution in favor of F. against D., but before the completion of the levy. On the trial of a writ of entiy brought by F. against M. for possession of the land, at which F. contended, and there was evidence tending to show, that the conveyance to C. by D. was “ with intent to delay and defraud D.’s creditors, and on a trust for D. express or implied, whereby D. became entitled to a present conveyance,” Held that, nevertheless, as against M., the judgment obtained by F. against D. was not conclusive evidence that F. was a creditor of D. at the time when it was rendered.</p>

Contract against the principal and sureties on a replevin bond. In the superior court, jury trial was waived, and the judge found the facts as follows : Whiting sued out a writ of replevin against Smith, returnable on Saturday, December 16, 1865, before a justice of the peace in Oxford, for two red heifers impounded.

<p>Appeal from a decree of the judge of probate disallowing a portion of the third account of George W. Ela, as executor of the will of Susan S. Edwards, deceased.</p> <p>The question was as to an item for three thousand three hundred and eighty dollars charged by the executor against the estate of his testatrix as paid to himself in his personal capacity for services rendered to her in her lifetime, a specification thereat being annexed in the schedule. Objection being made- by the appellee to the allowance of this item, the executor, who had kept no book-account of the services specified, offered his own testimony to substantiate them; but the judge excluded his tes* timony and disallowed the item. On appeal, Wells, J., affirmed the decision of the judge of probate, and an appeal was taken to the full court.</p>

<p>A town collector cannot maintain an action against the administrator of the estate of one deceased for the amount of a tax on personal property assessed to the “ estate of” the deceased after the date of the administrator’s appointment.</p>

<p>Contract on an account annexed for “ thirty dollars advanced to procure soldiers for the town quota in 1864,” and alleged to be due to the plaintiff “ in accordance with a vote of the inhabitants of Westminster passed April 9, 1866.”</p> <p>At the trial in the superior court, before Morton, J., without a jury, the plaintiff’s contribution of the amount for the purpose alleged was admitted; and it appeared in evidence that the whole amount of contributions by private citizens for the same purpose was three thousand dollars, which was paid to the chairman of the selectmen, who disbursed it; that at a town meeting on April 9,1866, called, among other things, “ to see if the town will refund the money paid by private individuals to fill the quotas of men called for by the government in 1864,” it was voted “ to refund the money; ” but that at a subsequent town meeting on April 21, 1866, called for the purpose, this vote was rescinded. No tax was ever assessed for the purpose of raising the money to refund the amount of the contributions, and the town took no further action upon the subject.</p> <p>On these facts the judge ruled that the plaintiff could not recover; and he alleged exceptions.</p>

<p>Contract for forty-three dollars contributed by the plaintiff for filling the quota of soldiers of Bedford under the calls of the President for troops in 1864.</p> <p>The case came before this court on appeal from a judgment rendered in the superior court for the defendants, on agreed facts, by which it appeared that the sum of twelve hundred and eighty-nine dollars and sixty-seven cents was contributed by individuals in 1864 towards filling the quota of soldiers of Bedford under the calls of the President for that year, and paid “ as a free and voluntary gift,” to the chairman of the selectmen, and actually expended by him for that purpose; and that the plaintiff contributed forty-three dollars of this amount; that in pursuance of an article in the warrant for the annual town meeting held March 5,1866, a vote was there passed for the town to refund the sum on or before March 1, 1867, “to the individuals subscribing the same,” and a committee was appointed “ to receive and refund the money to the subscribers; ” that the sum was duly assessed, as part of the town tax, in May 1866, and in July was collected into the town treasury; that in pursuance of an article in a warrant for a town meeting held November 6, it was there voted to reconsider the vote passed in March to pay the money; that on March 2, 1867, no part of the money.having been paid, the committee made demand, first on the selectmen, and then on the town treasurer therefor, and were refused; and that after-wards on the same day the plaintiff made a like demand for the amount of his contribution, and, being refused, brought this action.</p>

Libel for divorce from the bond of matrimony for alleged desertion ; filed in 1867. The case was reserved by Wells, J., for determination by the full court on a report of facts substantially as follows: The parties were married in 1844, and lived together at North-bridge. They had issue five children, the youngest of whom at the time of this libel tyas fifteen years old.

<p>Libel for sentence of nullity of marriage, setting forth that the libellee, being then a widow, fraudulently represented herself to the libellant as chaste and thereby induced him to marry her at Fitchburg, April 11,1866, when she was pregnant with a bastard child.</p> <p>At the hearing in this court, before Wells, J., the libellant testified that he first saw her and conversed with her in the railroad cars between Fitchburg and Bellows Falls in September 1865; that he first “became acquainted” with her on March 2, 1866, at a house on Dover - Street in Boston, where he was informed by a friend that she lived ; that something was said then about marriage, and she went to Fitchburg the next day, and stayed there eight or nine days, during which time the agreement for marriage was made; that he had sexual intercourse with her during this month of March ; that the night before their marriage she told him she thought she was in a family way, and the next morning he went into her room before she was up and said that if what she had told him the night before was true he would not marry her, as the child could not be his, but she replied it was only her nonsense and there was no truth in it; and that he married her on faith in this reply; that in about three weeks he began to suspect that “ all was not right,” and on a Sunday night not quite five weeks after their marriage he ascertained her pregnancy and turned her away, and had not seen her since that time.</p> <p>There was medical and other testimony that in August 1866 the libellee, after the full period of a nine months’ pregnancy was delivered of a dead child; and it appeared to the satisfaction of the judge that the libellant was not its father, and it was further proved that the deceased husband of the libellee could not have been its father.</p> <p>These facts were reported by the judge for determination by the full court on their sufficiency to warrant a sentence of nullity of marriage.</p>

Libel for divorce from the bond of matrimony for adultery alleged to have been committed by the libellee in July 1844 at Potten, in Canada East, with one Samuel A. Clark. At the hearing, before Wells, J., the act was proved by the testimony of a brother of the libellant, who saw it committed, and informed his parents thereof, at whose house the libellee was then visiting, and in consequence she returned to Worcester in this state where her husband was residing.

<p>An averment in a complaint and warrant for the search of a dwelling-house that “ the same is a place of common resort ” is insufficient to describe that “ a place of common resort is kept therein."</p>

Complaint under Gen. Sts. c. 86, § 42, for a warrant of search for certain intoxicating liquors, alleged in said complaint to be “kept and deposited by Joseph R. Robinson of Hardwick in Worcester County, in a certain distillery there situate about one and one half miles northeasterly from Hardwick Furnace.” The warrant issued thereon recited that whereas the complainants “on oath complain to the police court of the city of Worcester in said county,” “ that they do believe…

Indictment for being a common seller of intoxicating liquors. The case was tried in the superior court, before Wilkinson, J., and came before this court on a bill of exceptions substantially as follows: “ The government produced two witnesses who testified to certain sales of intoxicating liquors.

Indictment for larceny of three national bank bills of the denomination and value of five dollars each, from Jane Reed.

<p>Writ of entry brought by the assignee in insolvency of Daniel Bacon, to recover two parcels of land in Petersham. The tenant pleaded nul disseisin, and filed a specification of defence claiming title to the demanded premises under a conveyance from Avira Williams.</p> <p>At the trial in the superior court, before Ames, J., it appeared that the tenant owned a farm, of which these parcels were a part; and that in 1839 she conveyed it to her son Avira, who in 1857 conveyed it back to her, subject to a mortgage to Francis A. Brooks. The demandant contended that this conveyance by Avira was in fraud of his creditors, and claimed title to the two parcels of land by virtue of a levy thereon of an execution in favor of Daniel Bacon against Avira, dated December 11, 1861. It appeared that the demanded premises were seized on this execution, and appraisers were qualified, who viewed them on January 22,1862; and that then, by reason of a prior attachment in an action of Charles Hapgood against Susannah and Avira and others, (which was a general attachment of all the real estate of Susannah and Avira in the county, but not a special attachment, under Gen. Sts. c. 123, § 55, of any real estate of Avira of which the title stood in the name of Susannah,) the officer suspended further proceedings under the levy until April 15, 1863, when he completed it and returned the execution fully satisfied. By the certificate of the appraisers, and by his return, it appeared that they estimated the value of the parcels set off under the levy by first fixing a valuation on them, and a separate valuation on the rest of the farm, and then apportioning the amount due on the mortgage, which was upon the whole farfn, between these two sums proportionally, and deducting from the valuation of the parcels in dispute the amount of their proportion of the mortgage debt, thus ascertained.</p> <p>The tenant contended that this levy was invalid, because, 1. the suspension of it was unauthorized and unlawful, there being ns previous attachment of the land which the officer had any necessity or right to regard; and 2. because the deduction ot any portion of the mortgage debt in the appraisement, in the manner described, was also unauthorized and unlawful.</p> <p>The judge being of opinion that on these facts the demandant could not support his action, a verdict for the tenant was returned by agreement, and the case was reported for determination by this court.</p>

Tort for the value of goods alleged by thé plaintiffs, as assignees in insolvency of George R. Henry, to have been sold and conveyed by him to the defendant as a preference in fraud of the insolvent law.

Bill in equity to enjoin the Mechanics’ Savings Bank in Worcester from paying to Sarah M. Rawson, and said Sarah from receiving, five hundred and fifty dollars deposited therein in her name by John Taylor, a minor son of the complainant.

Contract on an alleged breach of warranty in the sale of a lot of onions.

<p>Bill in equity filed December 31, 1866, praying for an injunction on Francis M. Draper, Jasper Rawson and Henry Mowry, against hindering the complainants or the Reverend Walter Wilkie, their clergyman, in the free use of the meetinghouse of the Reformed Methodist Society of Douglas. The answer raised the only issue in the case, namely: Which was truly the Reformed Methodist Society of Douglas, the organizatian represented by the complainants who filed their bill in the society’s name, or that represented by the respondents, who alleged in their answer that they were the true prudential committee of the society, and entitled, as such, to possession of the meeting-house 1</p> <p>The case was referred to a master, and by his report the following facts appeared:</p> <p>The society was organized on July 14, 1842, when a prudential committee- of five members was duly appointed, three of whom were still living, and had always remained members of the society. From 1864 to the time of bringing this bill the Reverend Walter Wilkie preached in the meeting-house, and his salary was paid by the society. During the latter part of his ministration the society became divided in sentiment into two parties, represented by these complainants and respondents respectively ; but the open division into two separate organizations did not occur until in December after the annual meeting of the society for the year 1866, which was held on March" 10. The organization effected at that meeting was the one represented by the complainants, and it continued through the year in peaceable possession of the meeting-house until some time near the end of December.</p> <p>The master found as fact that the respondents Draper and Mowry were members of the society under the old organization, but that Rawson withdrew from membership in 1862; and it appeared that on December 10, 1866, the three respondents, together with three other persons, who were members of the society, requested in writing Adolphus F. Brown, a justice of the peace for Worcester, “ to issue a warrant calling a meeting of the members of said society according to the provisions of the General Statutes,” but alleged in their writing no cause for their application; that on the same day Brown issued his warrant for the notification of a meeting to be held on December 17, but that the warrant set forth no cause for the application on which it was issued; and that on December 17 the meeting so called was held, at which the respondent Mowry was chosen clerk and the organization was effected which is represented by the respondents, who at a subsequent meeting under the same organization, held on December 26, were chosen a committee to supply the pulpit.</p> <p>And it further appeared that on December 21, a meeting of the society under the old organization was notified to be held at the meeting-house on the afternoon of December 29, and that about twenty-one members of the society assembled at the appointed hour for the purpose of holding the same, but were met by the respondents and their associates, who forcibly resisted and successfully prevented their entrance into the meeting-house, whereupon the meeting was organized on the steps of the building, and a committee of three persons was chosen “ to ascertain and maintain the rights of the society in its meeting-house,” under whose direction this suit was begun.</p> <p>The master further found as fact that a majority of members of the society who were members thereof previously to December 1866, adhere to and act with the organization represented by the complainants, and have never acted with the organization initiated at the meeting called by Adolphus F. Brown; and also that shortly before the beginning of this suit the respondent Draper and other persons threatened to shut up the meetinghouse.</p> <p>And it appeared by the records of the society, which were introduced in evidence before the master, that there were informalities in various of the annual meetings since the original organization of the society in 1842; by force of which informalities the respondents contended that the organization represented by the complainants was wholly void, and that they themselves were justified in effecting a wholly new organization in the manner above set forth.</p> <p>The case was reserved by Foster, J., for determination by the full court.</p>

<p>Tort. The declaration contained two counts, the first for slander, the second for assault and battery. Damages were laid in the sum of one thousand dollars. The count for slander alleged “that the defendant publicly, falsely and maliciously accused the plaintiff of the crime of perjury, by words spoken of the plaintiff substantially as follows: You’ (meaning the plaintiff) swore to a God damn lie last spring in that case of Obe’s about the poor-farm-house, and I’ (meaning the defendant) ‘ can prove it; and that these words referred to the plaintiff’s testimony as a witness for the prisoner at the trial before Zadok A. Taft, esquire, a trial justice for Worcester, of a complaint against one Obadiah A. Wood for a criminal offence of which said trial justice had jurisdiction. The answer comprised a general denial of the allegations in the declaration, and set up truth in justification of the alleged slanderous words.</p> <p>At the trial in the superior court, before Wilkinson, J., the plaintiff introduced in evidence the complaint against Obadiah, by which it appeared that the offence with which he was charged was that at Mendon he “ did unlawfully, maliciously and wantonly break and destroy the glass, to wit, fifteen panes of window glass, each of the value of fifteen cents, and other injury then and there did and committed in and upon a certain building there situate, not his, the said Obadiah’s, own, and without legal right, but which building then and there belonged to and was the property of Eliza Mowry, thereby then and there by committing the trespass as aforesaid doing injury to an amount not exceeding the sum of fifteen dollars, to wit, the sum of ten dollars, against the peace of the Commonwealth and contrary to the form of the statute,” &c.</p> <p>The defendant requested the judge to rule that this complaint “ was informal and defective and set forth no criminal charge whatever, and that therefore no perjury could be committed upon the trial thereof, there being no charge in said complaint upon which the magistrate had a right to try the defendant named therein; ” which ruling the judge declined to give.</p> <p>The defendant further requested the judge to instruct the jury that if they were satisfied upon the evidence that the plaintiff did lie upon the trial before said justice, that would be a sufficient justification in this case, although that false swearing related to a matter immaterial and therefore could not support an indictment for perjury;” which instruction the judge declined to give, but he did instruct the jury “ that all the testimony of the plaintiff claimed by the defendant to be false was material to the issue then on trial.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions. In his bill of exceptions, as allowed, it was set forth that the verdict was returned upon the count for dander; but the form of the verdict, as appeared by the papers certified to this court, was as follows: “ In the option Perry Wood against Rufus Southwiek (for slander) the jury find for '.he plaintiff and assess damages in the sum of fifty dollars.”</p>

<p>Upon a policy of life insurance made payable to the assured, his executors, administrators and assigns, and assigned by him for valuable consideration with the assent of the insurers, the assignee may maintain an action at law against them after the death of the assured, although the policy is expressed to be for the use of his wife and children, and he leaves a surviving child, and notwithstanding the St. of 1844, c. 82, § 1, — Gen. Sts. o. 58, § 62.</p>

<p>Tout for injuries sustained by the plaintiff while a passenger on board the defendants’ steamboat.</p> <p>At the trial in the superior court, before Putnam, J., the " • rial facts appeared as follows: The plaintiff paid for his and took passage on the defendants’ steamboat, August 12,1865, for a trip from. New Bedford to Martha’s Vineyard to attend a Methodist camp-meeting. The steamboat, which was managed and navigated by the defendants’ servants, was crowded, the whole number of passengers being estimated variously from one thousand to two thousand. Shortly after it left New Bedford, the plaintiff took his position on the main deck, at a place where, it was not denied, it was proper f6r passengers to be, and over which was hung, on davits, the larboard, small boat, about fifteen feet long, weighing two hundred and twenty-five pounds, suspended by tackle and falls, which were made fast at each end of this boat by a hook to a ring attached to a bolt about three quarters of an inch in diameter driven into the woodwork. This boat was hung on this part of the steamboat for convenience of lowering in case a passenger should fall overboard, and was so placed by direction of the United States steamboat inspector, whose testimony, confirmed by that of an experienced steamboat captain, tended to show that the bolts were strong enough to sustain the weight of the boat and the Weight of ten or twelve persons besides; and there was evidence in behalf of the defendants that the bolts were of suitable composite metal incapable of rusting, and that the stern bolt was without flaw or blemish; but two of the plaintiff’s witnesses testified that the metal of this bolt was corroded, one of them saying that he thought it was iron and rusted. The plaintiff testified that when he moved to his position, above mentioned, he saw two persons in the small boat, and that after-wards, while he was standing under it, he saw two or three other persons enter it. About fifteen minutes after the voyage began, the stern bolt broke, and the boat fell, as another person was getting into it; and in falling it struck the plaintiff on the head and injured him seriously. There was testimony tending to show that before it fell it had been swung and rocked by the persons in it; and one witness testified that be moved from under it for that reason, and saw several other persons also moving from under it.</p> <p>The defendants asked the judge to rule that the plaintiff, knowing that the boat was hanging over his head and that persons were in it, must be held to have known also that there was danger in his position, and was guilty of negligence in omitting to remove or attempt to remove himself from the peril; but the judge declined so to rule, and submitted the question whether the plaintiff was in the exercise of due care, to the jury, under instructions to which no exception was taken.</p> <p>It was conceded that the small boat was not “ primarily intended for passengers to sit in or get into; ” and it appeared that the manner in which they got into it was by taking hold of the davits and stepping up from the platform of the wheelhouse, from which to the small boat’s gunwale the distance was three feet and a half. The defendants proposed to ask a witness whether in his judgment the small boat was not manifestly to the discernment of passengers of common understanding an inappropriate place for passengers to be in; but, on the plaintiff’s objection, the judge excluded this question, but permitted evidence of the situation of the small boat and the difficulties of getting into or out of it.</p> <p>It appeared that another boat, somewhat larger in size, was hung on the starboard side of the steamboat, substantially corresponding in position with the boat which fell, except that its place was further towards the stern of the steamboat, and that it was lashed to the railing of the promenade deck and held up by “ bearers ” (so called); and it appeared by the testimony of the captain that it was one of the rules of the steamboat that passengers should not “ride” in either of the small boats or outside the rails or on the hurricane deck, and that the officers were directed to enforce this rule. “ The plaintiff offered evidence to show that it was not enforced, and that passengers, before the day of the accident, had been allowed to ride on the hurricane deck, outside the rails, and in the starboard boat, with the knowledge and permission of the officers; and also stated he proposed to offer evidence of a habit of passengers, before the accident, to ride in the larboard boat. This was objected to by the defendants, but the judge admitted the evidence; and the plaintiff then called witnesses, some of whom testified that they had seen passengers riding in this larboard boat frequently, as well as in the starboard boat, during that summer; and one of the officers testified that he himself permitted, on one occasion, some ladies to remain sitting in the starboard boat after he saw them there. The officers denied, however, ever having known of passengers riding in the larboard boat, except that the first mate testified that he had seen passengers in the larboard boat once or twice, but could not say whether before or after the accident, and that he ordered them out. The judge instructed the jury that they were to consider this evidence and say whether it satisfied them of a habit of passengers to ride in the larboard boat, so constant, repeated and well known as that the jury might fairly believe that the officers must have known it; and also instructed the jury, at the request of the plaintiff, to disregard any testimony as to what was seen by witnesses after the accident.” The defendants afterwards asked the judge to strike out all the testimony concerning the presence of passengers in the starboard boat, or outside the rails, or on the hurricane deck; or, if he should not strike it out, to instruct the jury that the fact that passengers had disregarded the rules of the steamboat in respect to the starboard boat, the rails, or the hurricane deck, had no tendency to show either license, permission or custom affecting the larboard boat, or that there was danger of its being abusively or otherwise irregularly used by passengers; but the judge declined to comply with this request.</p> <p>The defendants also submitted to the judge a prayer to instruct the jury, among other things, “ that the larboard boat was plainly an improper place for passengers to enter into, and that, if they did so enter without the defendants’ knowledge or permission, it was misconduct on their part, for which, and for its consequences, the defendants were not liable; that the defendants were not bound to foresee and provide against abuse of it, but to make it perfectly fit, so far as possible, for its appropriate uses; that, admitting that there was nothing in the manner or place in which it was hung to indicate that it was not a place for passengers, and admitting that it was the custom for passengers to sit in it, yet if it was broken down by being filled beyond its reasonable capacity, or by the improper conduct of persons in it, and before the officers knew or could reasonably be supposed to know thereof, and there was room for the passengers in proper places elsewhere, the defendants were not liable; that if it was hung as it should have been, and in conformity with the law, and with sufficient security for the purpose for which it was placed there, as matter of law the defendants were not guilty of negligence in not posting up a prohibition against passengers’ climbing into it; and that if the persons who broke it down were improperly in it, or if it was broken down by the improper conduct of the persons in it while they were there, the defendants were not liable.”</p> <p>The judge declined to give the instructions above quoted, but instructed the jury “that as passenger-carriers the defendants were bound to use the utmost care and diligence in conveying the plaintiff in safety, and to do all that human foresight and sagacity could reasonably do to protect him from injury, and if by the exercise of such care and judgment this accident could have been guarded against, it was their duty to have done it; that the jury might say on the evidence, whether the boat was so situated that passengers, in the ordinary course of things would be likely to enter it, and that the officers must have so known, or whether there was a habit on the part of passengers in entering it, so constant, repeated and well known as that the jury might fairly believe that the officers must have known it; and that if they so found, and further found that the safety of passengers who were below, and in a proper place, and exercising proper care of themselves, was imperilled by passengers thus getting into the boat, or being likely to get into it, the defendants should have prevented their getting into it, if the exercise of the requisite care and judgment could have prevented it, or if that could not have been done, they should have done all in their power so effectually to have secured the fastenings of the boat, as to have prevented its falling should passengers enter it, or if that could not be done, by giving proper warning to passengers below.” And the judge further instructed the jury “ that in considering the question as to whether the defendants exercised the requisite care and judgment, they might consider the fact that the small boat was hung in that vicinity by order of the government inspector, and the purpose for which it was hung, and say whether or not, consistently with such order and such purpose, it could not at the same time have been so hung and protected as not to have imperilled the safety of passengers, if in their judgment it did so imperil it.” And then, at the request of the plaintiff’s counsel, the judge added the following instructions:</p> <p>“ 1. The defendants were bound to use reasonable prudence so to arrange the different parts of their steamboat, its equipments and the articles on board used by them in navigating it, that they should not endanger passengers by getting out of place in consequence of acts of carelessness on the part of other passengers, which in the ordinary course of things the defendants had reason to expect would happen, and against which reasonable prudence on their part would have provided.</p> <p>“ 2. If the place where the plaintiff was standing at the time of the accident, was used by and appropriated to the occupation of passengers, and the plaintiff was in all respects rising due care, and such place was in fact insecure by reason of danger from the falling of the boat from above by passengers getting into it, and the defendants were negligent either in assigning such place for passengers to stand below, or in not warning them of danger, or in not sufficiently securing the fastenings of the boat, or in not preventing the entrance of passengers into it by suitable means, such as giving notice not to enter it, or placing it differently, or more effectually railing off the access to it, they having reason to believe that such entrance was likely to take place, and so to endanger passengers below, and the injury to the plaintiff happened in consequence of such negligence, the plaintiff might recover.</p> <p>“ 3. The fact that the defendants complied with the requisition of the government inspector as to the means provided for rendering assistance to passengers overboard, did not excuse them from such precautions as were needful for the safety of those on board.”</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>To support a libel for divorce for cruel and abusive treatment, or cruelty in neglecting or refusing to provide suitable maintenance for the wife, it must appear that the cruelty was such as to cause injury to the life, limb or health of the libellant, or a danger of such injury, or a reasonable apprehension of such danger if the parties should continue to live together.</p> <p>When, on a trial, several witnesses have rendered contradictory testimony, no exception lies to the refusal of the presiding judge to instruct the jury what their verdict should be, if they should believe the testimony of one particular witness to be true.</p>

<p>Contract for expenses incurred in supporting the widow and five minor children of Homer Bryant. The question at issue was whether the first section of the St. of 1865, c. 230,* operated to give them a settlement with the defendants.</p> <p>At the trial in the superior court, before Rockwell, J., it was agreed that Bryant had no settlement in Massachusetts, and that the settlement of his widow was with the plaintiffs unless it was changed by force of that statute; that he was an inhabitant of Plymouth, where he had resided more than six months next previous to September 21; 1861, and was of full age, when on that day he enlisted as a soldier and went into camp at Lynnfield, where, on September 28, he was mustered as a private in the twenty-third regiment of Massachusetts volunteer infantry, with which he served until he was discharged in North Carolina, September 20, 1862, for physical disability; and it appeared that he afterwards died, whereupon his widow and children fell into distress in Bridgewater, and were supported in the almshouse of that town, and notice thereof was duly given to the defendants.</p> <p>At the time when Bryant enlisted and was mustered into the service, there was no law either of the Commonwealth or of the United States, fixing or assigning to Massachusetts any quota of the whole number of soldiers and sailors called by the President into the military and naval service, or fixing or assigning to any city or town in the Commonwealth any quota of the whole number of soldiers and sailors contributed to the military and naval service from Massachusetts ; and “ it was contended by the defendants that at the time of his enlistment and service no specific number of men had been or was required of cities and towns; but it was admitted that in ascertaining and fixing the quotas required of cities and towns under subsequent calls of the President, reference was had to the number of men already furnished by each city or town, and that in such apportionment said Bryant was credited as furnished by Plymouth. The defendants, however, further contended that if he could be considered as forming a part of any subsequent or aggregate quota, he was not so enlisted and mustered, and thus not within the operation of the statute in question in the case.”</p> <p>There was also evidence tending to show that at the time vf his enlistment and muster there was no call of the President on Massachusetts for troops, which had not been filled.</p> <p>And there was further evidence on the question whethei oí not he died or was disabled from disease contracted in the Irvine.</p> <p>The defendants presented to the judge several prayers for instructions to the jury, including these:</p> <p>“ 1. That if Bryant enlisted when no requisition or call upon Massachusetts for troops existed, except such call or calls as had been filled and fully answered, he was not enlisted and mustered within the meaning of the statute ;</p> <p>“ 2. That if he enlisted and was mustered into the service of the United States, and was discharged before any requisition or call was made upon towns and cities, and before there was any federal law providing for quotas to be supplied by towns or cities as such, his enlistment, muster and service cannot be said to be within the meaning of the statute;</p> <p>“ 3. That the enlistment and muster as one of the quota of a town or city, within the meaning of the statute, must be an enlistment and muster with the understanding or legal knowledge on the part of the United States that he was so enlisted and mustered to serve as part of the quota of a city or town ;</p> <p>“ 4. That such enlistment and muster into service must have been with such understanding in fact, or implied as matter of law, on the part of Bryant;</p> <p>“ 5. That such enlistment and muster must have been with such understanding in fact, or implied as matter of law, on the part of the town or city of which he was an inhabitant for six months before his enlistment;</p> <p>“6. That if Bryant enlisted before there was any quota upon any city or town, and before it was known that there was or would be any quota of any town or city, and he was not furnished by said town at the time, and said town had no power or motive to have him enlisted or to restrain his enlistment other than was common to all loyal citizens, and if he served and was discharged before any quotas of any town or city were authorized or provided for by law, then his enlistment, muster and service were not within the statute;</p> <p>“ 7. That the statute is unconstitutional, ex post facto¡ and one affecting the obligation of contracts; and</p> <p>“ 8. That in all its provisions it should be construed strictly in favor of the town sought to be charged.”</p> <p>The defendants also prayed for an instruction to the jury that, upon the facts, it did not appear that Bryant continued in the service for a term not less than one year; and also for certain instructions as to the effect of the testimony concerning his disease and disability upon the question of their liability under the statute.</p> <p>The judge declined to give these instructions in the form requested, but instructed the jury in substance as follows : that in order to support a verdict for the plaintiffs it was necessary for them to be satisfied,</p> <p>1. That Bryant was enlisted and mustered into the service; and as a part of the quota of Plymouth; and under some call of the President; and, if either one of these three conditions was not proved to their satisfaction, that the plaintiffs could not recover; and</p> <p>2. That he continued in the service for a term not less than one year; and, if they were satisfied on the evidence that he enlisted on September 21,1861, and was discharged on September 20, 1862, and received clothing, rations, and pay for a term of service including both those days, that they were authorized to find that he continued in the service for a term not less than one year: or,</p> <p>3. That he died or became disabled from disease contracted while he was engaged in the service; and, if they should find that the disease of which he died was contracted before his enlistment, that would not be sufficient, although it might have been aggravated by his exposure while in the service; that the burden was on the plaintiffs throughout to prove that he died or was disabled by a disease which had its origin while he was in the service.</p> <p>The jury, after remaining out fifteen hours, reported that they were unable to agree, and, on being brought into court and interrogated, stated that they had agreed upon the first two points submitted to them in the charge of the judge, but had not agreed upon the third point, whether Bryant died or was disabled from disease contracted in the service. The judge then directed them, “ that if they agreed on the first two questions affirmatively, their verdict must be generally for the plaintiffs, though they might disagree on the third point; ” and they retired to their room, and after a half hour returned the following verdict: “ The jury find for the plaintiffs, and assess the dam* ages in the sum of three hundred dollars.” The judge then read to them the question: “ Did the jury agree upon the finding that Bryant was engaged in the service a period not less than one year, or did they not ? ” To which the foreman said, “ Yes.” And the judge then read the question : “ Did the jury agree upon the finding that Bryant died or was disabled from disease received or contracted while he was engaged in the service, or did they not?” To which the foreman answered, “ Yes, we have agreed this morning.”</p> <p>The defendants’ counsel then remarked that perhaps the jury misapprehended the direction of the judge, and thought that they must find for the plaintiffs on the last point if they found for them on the other points. The judge then asked the jury if they found for the plaintiffs on the last point, as to his disability, because they found for the plaintiffs on the other points; and the foreman answered that they did not. The defendants’ counsel then said that perhaps some of the jury did. The judge then said to the jury that if any of the jurors dissented from the answer of tfie foreman, or thought he must find for the plaintiffs on the last point if he found for the plaintiffs on the other points, he might rise or otherwise manifest it; and no one rose or manifested any dissent. The foreman then came to the desk and wrote in answer to each question, “ They did,” and signed his name thereto, and then the verdict and the questions were read by the clerk, and affirmed by the jury in the usual manner.</p> <p>On the next day the defendants filed a motion for a new trial, alleging, as reasons therefor, that the verdict was against the weight of evidence, that the jury never in reality agreed upon ■the issue of fact whether Bryant died or was disabled from disease contracted in the service, and that they or some of them, in rendering their verdict, acted under a mistake of fact and also under a mistake of the judge’s instructions, resulting in injustice to the defendants; and in support of this motion they offered the affidavits and the testimony of two of the jurors, to show “that they had understood the judge to instruct them that they must find that Bryant died or was disabled from disease contracted in the service if they found for the plaintiffs upon the other points, and they had not otherwise agreed to said finding, and were not satisfied from the evidence that he died or was disabled from disease contracted in the service ; ” and also to show “ that when the jury were interrogated before the affirmation of the verdict, whether they had understood the judge to instruct them that they must find that Bryant died or was disabled from disease received or contracted in the service if they answered the other questions submitted to them in the affirmative, the said jurors understood the foreman to answer that they had so understood the judge, and that the said jurors assented to the affirmation of the verdict, supposing that the judge was informed how the instruction was understood by the jury.” But the judge excluded the affidavits and testimony of the jurors, as inadmissible for either of the purposes named, and overruled the motion for a new trial.</p> <p>The defendants then filed a motion in arrest of judgment, alleging, as reasons, that “ it does not appear from the findings of the jury whether Bryant was duly enlisted and mustered into the military service of the United States, and continued in such service for a term not less than one year,” and that “ it does not appear from the findings of the jury whether he died or was disabled from disease received or contracted in the military service of the United States;” which motion also was overruled.</p> <p>Judgment being then entered for the plaintiffs, the defendants alleged exceptions.*</p>

<p>Petition for partition of a lot of real estate in Hanover, alleging that Thomas M. Bates was seised in fee and in mortgage of the premises, subject to the homestead estate of the petitioner as widow of George Bates, and praying for the estate of homestead to be set off to her.</p> <p>At the trial in the superior court, before Rockwell, J., the facts appeared substantially as follows:</p> <p>In April 1855 George Bates was seised of the land in dispute, comprising about two acres and a half, on which was a small house where he resided with his family, consisting of the petitioner and two minor children. Beginning in the spring of 1857, on a part of the land which was open and unfenced, he built a house worth more than eight hundred dollars, and moved into it with his family in October of that year, where they continued to live until after his death, which occurred in June 1859.</p> <p>On May 19,1859, he had mortgaged the entire premises to Thomas M. Bates, the respondent, to secure a note for money borrowed to build the new house; but the petitioner did not join in the mortgage deed. After her husband’s death, the petitioner continued to occupy the premises with her children, one of whom meanwhile had become of age, and the other enlisted as a soldier and left the state in June 1861, and became of age before the filing of this petition. On January 23,1862, Thomas M. Bates made an entry on the premises for foreclosure of the mortgage, its condition being broken.</p> <p>On March 28, 1862, upon the report of commissioners appointed on her petition therefor, the probate court assigned to the present petitioner, with her consent, as her dower, one third of the rents, issues, and profits of the premises, “ to be received by her as a tenant in common with Thomas M. Bates, the mortgagee in possession of said estate, and the other owners of the estate; ” and on the same day she sold and conveyed to Thomas M. Bates all her “ right of dower and power of thirds in the lot of land and buildings thereon,” and “ all the interest assigned in the rents and profits of said estate by the assignment of dower in said estate as set forth in the return of the commissioners,” with a covenant of special warranty that “ the premises ” were free from all incumbrances made or suffered by her.</p> <p>On April 5, 1862, the elder of the petitioner’s sons leased of the respondent half of the new house, stipulating for the payment of rent therefor, and the petitioner lived with him there until, in August 1862, he also enlisted as a soldier and left the state, when she hired a room elsewhere and removed to it, taking with her all her furniture except a few chairs, a pine toilet-table, a piece of zinc which had been used under a stove, a meat-tub, and some jugs and oil cans. The other half of the new house, and the old house, were let by the respondent in April 1862, to other tenants, and occupied by them; and ever since the removal of the petitioner in August, the half of the new house where she had lived with her son was also occupied by tenants of the respondent.</p> <p>There was conflicting testimony as to what was the petitioner’s intention during her residence on the premises, and at the time of her removal, concerning claiming an estate of homestead. The respondent and his brother testified that in February 1861 she told them that she did not intend to make such a claim. The petitioner herself testified, however, that Defore her removal she knew there was such an estate as homestead ; and that, when she removed, she intended to claim such estate, if she was entitled to it; and that, soon afterwards, she took legal advice on the subject, and, being advised that she had title thereto, directed process to be instituted therefor; and it appeared that on January 12,1863, she did file in the probate court a petition for assignment of homestead in the premises. But, on cross-examination, the petitioner' testified that, at the time of her removal, “ she had n’t much intention about it.”</p> <p>It was agreed by the parties, that, on her petition to the probate court, a decree was entered appointing commissioners to set off an estate of homestead to her, but that the respondent, who in that proceeding also contested her petition, appealed to this court, by which the petition was dismissed in December 1864, for the reason that the probate court had no jurisdiction to assign an estate of homestead in a contested case. The present petition was filed in February 1865, at the term of the superior court next after that decision.</p> <p>The respondent asked the judge to rule that the deed of the petitioner to the respondent was a bar to her petition, and also that the facts in evidence constituted such a waiver or abandonment of all right of homestead as precluded her from maintaining her petition ; but the judge refused both these prayers.</p> <p>The jury found for the petitioner, and the respondent alleged exceptions.</p>

<p>An executor who has not settled a final account in the probate court is not liable to be charged by suit in equity, by the residuary legatees, for property sold by him in violation of his trust, although all the dispositions of the will prior to the residuary clause have been satisfied.</p>

Contract for money had and received by Ellis Barnes, the defendants’ testator, to the plaintiff’s use. The defendants pleaded in bar the special statute of limitations of actions against executors and administrators.

<p>The owners of a mill-dam and water privilege, who have a right, which they have not exceeded, to maintain their dam at a certain height, are not liable to an owner of land bordering on the stream at a point above a highway which crosses the mill-pond above their dam, for flowing caused by the act of a lessee of their grantor, several years before the conveyance to them, in changing the location of the highway, and stopping up the sluiceway which conducted the water of the stream under it, and substituting another sluiceway of smaller capacity in a different place, although a vote of the town accepting the highway as changed provided that their grantor should keep the new sluiceway in good repair.</p>

Indictment for adultery with one Mary F. Spruce. At the trial in the superior court, before Reed, J., she was a witness for the government, and there was evidence tending to show that several matters asserted as facts in her testimony were not true, and that she had at other times made other and contrary statements ; and the defendant introduced evidence tending to show that her reputation for truth was and long had been bad.

Complaint under the Gen. Sts. c. 84, § 1, alleging that the defendants, at Scituate, on the Lord’s day, “ did and performed certain labor, business and work, to wit, by pitching kelp or sea-manure into a cart and hauling the same up the beach, the said -abor, business and work not being then and there work of necessity or charity.” The case was tried in the superior court, before Vose, J., on appeal from the judgment of a trial justice; and, before the jury were impanelled,…

Complaint under the Gen. Sts. c. 84, § 1, for doing work not of necessity or charity on the Lord’s day.

<p>In the first clause of a will the testatrix directed that her debts should be paid out of hei “ ical estate given to F. and S. during his life; ” in the second clause she devised, without words of inheritance, certain real estate “ to F. and S., to have and to hold equally; ” in the fourth clause she gave certain legacies, to be “paid out of” the real estate thus devised; and finally she made F. her residuary devisee. Held, that F. and S. took a life estate in the real estate devised in the second clause; and that the debts of the testatrix and the said legacies were chargeable thereon.</p>

<p>For the purpose of defining the boundary of a lot of land described in a record one hundred and fifty years old as “ ranging about a rod to the north of Elisha Taylor’s house,” evidence of a tradition among Elisha Taylor’s descendants residing upon the land, and of a statement on the land to one of them by his great uncle sixty years ago, concerning the position of the house, is inadmissible.</p> <p>In an action of tort of the nature of trespass guare clausum, if the plaintiff by his declaration substantially informs the defendant of the close in which the trespass is alleged to have been committed, and satisfies the jury that the defendant did commit a trespass therein, his inability to prove with substantial accuracy how far beyond the place of the trespass his title extended does not defeat his right to recover damages for the trespass proved.</p>

<p>Contract for money had and received by the defendants to the plaintiff’s use, being the amount of a school-district tax alleged to have been illegally assessed upon the plaintiff by the assessors of the town of Barnstable in behalf of the defendants, and collected by the town collector, and paid to the town treasurer, and by him paid to the defendants.</p> <p>The case came before this court on appeal from a judgment for the plaintiff entered in the superior court on agreed facts, which were substantially as follows :</p> <p>In the year 1858, and ever since, the plaintiff, who was not a resident of the town of Barnstable, owned certain real estate there which was then duly assigned for taxation to the then nineteenth school-district. At the annual town meeting in March 1865, upon an article in the warrant “ to see if the town will unite the thirteenth and nineteenth contiguous school-districts,” it was voted “that school-district number thirteen be enlarged by adding to it the whole territory now contained in district nineteen, the latter district being extinguished.”</p> <p>At a meeting of district thirteen, which had been held in January, a committee reported that they had conferred with a committee of district nineteen and had agreed with them to select a joint committee “to prize the property of the thirteenth district, and the nineteenth to pay their part of the same according to the town tax; ” and at another meeting, in February, the report of the appraisers had been made, appraising “ the schoolhouse and surroundings of the thirteenth district at the sum of sixteen hundred and seventy-five dollars.”</p> <p>At another meeting of district thirteen, held on March 16, (after the annual town meeting,) it was voted “ to raise fourteen hundred and fifty dollars, to meet all necessary expenses in altering and. enlarging the school-house; ” and a building committee xvas appointed, and it was further voted “ that the above committee assess only the amount necessary to be expended ; ” and an additional vote was passed “ to authorize the building committee to have the sixteen hundred and seventy-five dollars assessed and properly collected.” At a further meeting, in June, it was voted, “ to reconsider the votes whereby the district voted to raise the sum of thirty-one hundred and twenty-five dollars;” and then it was voted “ for the old nineteenth district now connected with the thirteenth, to raise a sum of money according to the town taxes equal to the appraisal of the school-house belonging to the old thirteenth district, the same to be expended, if necessary, in enlarging the school-house;” and it was resolved “ that the vote last passed means for the assessors to ascertain what per centage sixteen hundred and seventy-five dollars is in the taxable property of the old thirteenth district, and assess a like per centage on the old nineteenth district.” And at still another meeting, held in July, it was voted “ to reconsider the votes of the last meeting respecting raising and assessing money and to adopt the plan previously adopted by the district at a meeting held on March 16.”</p> <p>Thereupon the eYerk of the defendant corporation duly certified to the assessors of the town the votes of the school-district to raise thirty-one hundred and twenty-five dollars, which sum they assessed in the usual manner; and their warrant to the collector directed him to pay the amount to the town treasurer on or before December 1,1865. The defendant corporation received from the town treasurer on December 3,1865, the whole sum; and, at a meeting, on December 6, it was voted “ that the district retain what money now remains, or may accumulate, to be ‘disposed of in the future as the district shall determine.”</p> <p>One hundred and three dollars and fifty-six cents of the whole amount was assessed upon the real estate of the plaintiff; and was paid by him, under written protest, to the collector, on January 28, 1866. It was agreed that no other assignment of the plaintiff or of his property was ever made to the thirteenth school-district, except as above stated ; and the plaintiff alleged no error affecting the legality of the tax except such as may exist in such assignment and in the votes of the district relating to the tax.</p>

Contract for building a section of a public highway in Truro. The declaration contained two counts, the first on a written contract, in which it was provided that the work should be done “ to the acceptance of the county commissioners,” and the price of six hundred and thirty dollars should be paid therefor; the second the common count for work and labor done for the defendants.

<p>The obligation of a railroad company, under the Rev. Sts. c. 39, § 72, to maintain and keep in repair any bridge with its abutments constructed by such company over or under a turnpike road, canal, highway, or other way, applies to the whole structure which it has built under the authority of its charter for the purpose of the crossing, although a portion of such structure lies outside of the boundaries of the location of the railroad.</p>

<p>A father, not being the legal guardian of his minor daughter, nor having authority to act in her behalf in reference to a legacy to which she was entitled under a will, received from the executor, who wa« insolvent, a deed of a lot of land, running from the executor to the legatee and intended in part payment of the legacy, and as an unlawful preference. This deed the executor “delivered to him for the legatee;" and he, after reading it, handed it back, with the understanding that the executor should cause it to be recorded; who did so; and the legatee assented to such conveyance, but without knowledge or reasonable cause to believe that the executor was insolvent or in contemplation of insolvency. On the trial of a writ of entry brought by the assignee in insolvency of the executor to recover possession of the land, Reid, that the fact that the father, at the time of such delivery to him for the legatee, had reasonable cause to believe that the executor was insolvent, did not charge her with his knowledge, or invalidate the conveyance.</p>

<p>Ií a testator provides in his will for one of his children by the bequest to her of an annuity for her life, and she then dies during his lifetime, her issue, born before the making of the will, do not take, under the Rev. Sts. c. 62, § 21, (Gen. Sts. c. 92, § 25,) any share of the testator’s estate, although the will contains no specific provision for such issue.</p>

<p>On the trial of a claim against the estate of a deceased person on his witnessed promissory note for more than eighty-six hundred dollars, payable on demand with interest, dated eighteen years previously and held during all that time by the claimant; for the purpose of showing that during the period from five to twelve years after the date of the note the claimant’s pecuniary condition was such as to make probable that, if the note had been valid, he would have disclosed its possession, or attempted to collect something on it from the maker, who was then in business, possessed of attachable property, and for at least a part of the time in the habit of paying his debts; the testimonyof a witness ia admissible that during that whole period the claimant owed him a debt of three hundred dollars which he was unable to collect and the claimant professed to be unable to pay, and which was finally released on payment of fifty per cent, thereof; also the testimony of a deputy sheriff that during the same period he had at times made efforts in vain to find attachable property of the claimant; and also testimony that the claimant did not communicate to either of them the fact that he held the note.</p>

Contract on a promissory note. The defendant filed a declaration in set-off founded on an alleged breach of the following written agreement signed by the plaintiff. “ October 2d, 1865.

<p>Tort. The declaration alleged that the plaintiff was the owner of certain premises in West Roxbury, bounded upon one side on a private way known as Union Street, of which street he was entitled to convenient use and enjoyment for passing and repassing with his teams and otherwise, but that the defendant had obstructed the street, whereby the plaintiff had lost the benefit and use thereof. The answer was a general denial, with an averment that the defendant was also an owner of certain premises upon the street, and that whatever acts he had done were in the nature of reasonable repairs and improvements on that part of the street which lay in front of his own premises, and did not constitute an obstruction of any right of way which the plaintiff might have.</p> <p>At the trial in the superior court, before Lord, J., it appeared that the plaintiff and the defendant owned adjoining lots on said street, deriving title, through certain mesne conveyances, from deeds of the original owners, of the same date, at the time when a large tract of land, which included both lots and also the street, was laid out into building lots, which deeds described the respective lots of the plaintiff and the defendant as “ situate on a new street recently laid out,” and as “ commencing at a point on said new street,” and “ thence running on said new street,” etc., and referred for more particular description of them to a plan of the whole tract, recorded in the Norfolk registry of deeds, on which the lots and the street as laid out were designated. And it further appeared that, as the street sloped, the plaintiff’s lot was the upper and the defendant’s the lower one; that, at some time prior to this action, the board of health of the town notified the defendant to remove a nuisance created by water standing in front of his premises ; that, for the purpose of doing so, he put gravel and stones upon the sidewalk, gutter and carriage-way in front of his premises, extending four or five feet into the carriage-way, to a depth, at the “ inside of the sidewalk,” of from twelve inches to two feet, according to the varying testimony of witnesses, and making a gradual slope from the “ inside of the sidewalk” to the centre of the street, and also sloping with the length of the street; and that he then, for the purpose of preventing the gravel from falling upon that portion of the sidewalk, gutter and roadway which lay in front of the plaintiff’s premises, put down a plank which was, at the “ inside of the sidewalk,” from two-and-a-half to six inches in height, according to the varying testimony of witnesses, and extended across the sidewalk and gutter, and five or six feet into the road, but diminished in height as it approached the road; that the sidewalk, gutter and roadway above the defendant’s premises remained as before; that the gutter was closed by the plank and gravel, and the water made its way across the street to the gutter upon the other side; and that by these acts the nuisance was abated.</p> <p>There was conflicting testimony as to the depth of the gravel laid on by the defendant, and the extent of its interference with the general grade of the street, and also as to the height of the plank, and the actual inconvenience sustained in walking upon the sidewalk and driving upon the street and up to the plaintiff’s gate; but, upon the uncontroverted facts, the judge ruled pro forma that the plaintiff was entitled to maintain the action, and directed the jury to return a verdict for the plaintiff for nominal damages; which being done, the defendant alleged exceptions.</p>

<p>Replevin by the assignees in insolvency of the estate of George W. Pettes. Writ dated November 21,1866. Trial in the superior court before Devens, J., who made a report thereof substantially as follows:</p> <p>The notice of the insolvency of Pettes was first published on November 8, 1866, and the assignment of his estate to the plaintiffs was made on November 19. He was the owner of the property replevied except as against such title as the defendant may have acquired by virtue of certain papers, all dated and executed on August 16, 1866, and the transactions under and relating to them. They were: 1. A bill of parcels, signed by Pettes, containing a schedule of the property in dispute, and running as follows: “Howard Snelling, Bought of G. W. Pettes, [here followed the schedule of the property, with an estimate of values of the items, t'ne total being forty-seven thousand two hundred and fifty dollars.] Value received for above.” 2. A paper, entitled a “ storage receipt,” signed by Pettes, as folloxvs: “ Received as storage from Howard Snelling certain pictures, engravings. bronzes, statuary, etc., as designated in a schedule given him by me, and such goods subject to his order.” 3. A paper, signed by the defendant, as follows: “ Whereas I have this day purchased for the sum of fifteen thousand dollars certain pictures, engravings, horses, carriages, bronzes, etc., enumerated in a schedule or bill of the same, I do hereby agree at any time to convey said goods, one and all, back to the party of whom such purchase was made, upon the payment of a note of fifteen thousand dollars, of this date, at thirty days, said note signed by said party and made payable to my order. The two parties to this transaction are Geo. W. Pettes of Jamaica Plain, and Howard Snelling of Boston.” 4. A promissory note signed by Pettes for fifteen thousand dollars payable thirty days after date to the order of the defendant.</p> <p>The first and second of these papers each bore an internal revenue stamp of the denomination of two cents; the third, one of five cents; and the fourth, one of seven dollars and a half.</p> <p>The note was given for money lent by the defendant to Pettes. No part of the debt secured by these papers was ever paid. It was not contended that Pettes was insolvent at the time of their execution and delivery, or that there was any fraud between him and the defendant.</p> <p>At the time the papers were delivered, the property was in use by Pettes and his family, in his house and stable in West Roxbury, and so continued until the service of the writ. None of the papers were ever recorded; nor was any possession of the property taker by the defendant until November 5; and then only as follows: On that day his attorney, with one John B. Neale, went to the house of Pettes with the bill of parcels above described; and Pettes then and there pointed out the property therein enumerated, and said that he gave possession of it to Neale in behalf of the defendant; but none of it was moved, nor was the use of it by Pettes or his family changed, and it was arranged between him and Neale that the purpose for which Neale was there should be concealed from the family and the servants. Neale remained in and about the premises until November 8, having been absent on one occasion for several hours, but finding all the property unmoved on his return.</p> <p>It was the defendant’s intention to remove the property immediately upon taking possession, but he delayed to do so at the request of Pettes, who promised to “ arrange the matter.” On November 8, teams were sent by the defendant to remove it, but, the proceedings in insolvency having meanwhile been instituted, the messenger claimed it and refused to consent to its removal. On that day, with the assent of Pettes, Alonzo F. Neale took the place of John B. Neale, and remained until after the service of the writ, which was on November 22, in the same manner as John B. Neale had done; and, when he came, John B. Neale and Pettes went with him about the premises and pointed out to him the property. During the stay of the Neales, they had with them the bill of parcels; and, when the writ was served, Alonzo F. Neale showed to the officer the property as enumerated in the bill, and that it was all on the premises at the time. The use of the property by Pettes. and his family, including the driving of the horses and carriages as usual, while the Neales continued there, was with their consént and permission.</p> <p>The plaintiffs contended that the papers which passed between Pettes and the defendant constituted a mortgage; that they were not so stamped with internal revenue stamps of the United States as to authorize the defendant to introduce them in evidence to show title to the property; and that no such possession of the property was taken and retained by the defendant as to enable him to withhold it from the assignees in insolvency.</p> <p>On these facts, the judge directed a verdict for the defendant.</p>

<p>Writ op entry. Plea, nul disseisin. The case came before this court on appeal from a judgment for the tenant rendered in the superior court on an agreed statement of facts the material parts of which were as follows:</p> <p>On June 1, 1864, the tenant, being seised and possessed of the demanded premises, situated in Dedham, executed a deed of mortgage with power of sale of them, for five thousand dollars, payable in five years, with interest payable-semi-annually, to Irene G. Cranston, wife of Barzillai Cranston of Providence in Rhode Island. His deed provided that “ if default shall be made in the payment of said money and interest, or either of them, or any part thereof respectively,” “it shall be lawful for the said grantee, her executors, administrators and assigns, to enter into and upon said premises, and to sell and dispose of the same, and all benefit and equity of redemption of the said Edward Crane, his heirs, executors, administrators or assigns therein, at public auction, such sale to be upon the premises hereby granted, first giving notice of the time and place of sale,” “ and to make, execute and deliver to the purchaser or purchasers thereof all necessary conveyances for the purpose of vesting in such purchaser or purchasers the premises so sold in fee simple absolute, and out of the purchase money to pay, satisfy and discharge all the expenses of and incident to said sale, and also the principal and interest money hereby secured,” “and to pay the residue of said purchase money unto the said grantor, his heirs, executors, administrators or assigns,” “ which sale so to be made shall forever be a perpetual bar, both in law and equity, against the said grantor, his heirs and assigns; ” and “ that, until default as aforesaid contrary to the true intent and meaning of these presents, it shall be lawful for the said grantor, his heirs and assigns, quietly to hold and enjoy said premises, and receive and take the rents and profits thereof for his and their own use and benefit, without any interruption by the said grantee, her heirs or assigns.”</p> <p>Default was made by the mortgagor in the payment of the interest which was due and payable on June 1,1866; and the condition of the mortgage so was broken. The mortgagee thereupon caused notice to be duly given that the premises would be sold at public auction on July 31,1866, at two o’clock after noon, on the premises. On that day, between ten and eleven o’clock before noon, an agent of the mortgagor went to Dedham and there found Barzillai Cranston, the husband of the mortgagee, whom she had authorized orally, but not in writing to represent her at the sale, and who was there acting in her behalf. To him the agent, in behalf of the mortgagor, offered to pay the interest which was in default, with interest upon such interest from the time it became due, and to pay for all expenses and trouble in relation to the sale ; but he refused to accept this offer and claimed the entire mortgage debt, and contended that the breach could not be remedied. The agent finally tendered to him in money the amount of interest which was overdue, and offered to pay also for all expenses and trouble, if he would tell what was the amount required therefor; and, upon his saying that he could not tell the amount, the agent offered to enter into an agreement in writing to pay it as soon as it could be ascertained. But he declined to do anything then, and said that he wished to see his son, Henry Cranston, before deciding; that he understood the offer to be of full payment of the interest due and cost and trouble, but he did not think he was under any obligation to accept it; that a breach had occurred, and he thought it was at the option of the mortgagee whether it should be cured.</p> <p>At two o’clock after noon the agent, in behalf of the mortgagor, went to the place, of sale, and there found Barzillai Cranston and his son Henry, and the auctioneer and three or four other persons assembled. The sale not having commenced, the agent stated to Mr. Cranston and his son and the rest of the company, that he stood ready to pay all interest due, and for all cost and trouble; and that when, in behalf of the mortgagor, he stood ready then and there to do so, he considered that there was no breach and that they had no authority to sell the premises. But the son said, “ Put them up; I will bid on them.” And then, after consultation with his son, Mr. Cranston stated to the company that there seemed to be some question about the matter; that he contended that there was a breach and he had a right to sell the premises; that the agent contended that such a tender as he had made cured the breach; but that, as they had gone so far, they would go on and make the sale, with the understanding that it should go for nothing if, under the circumstances, they had not a right to sell. The premises were •accordingly put up at auction, and Henry Cranston bid fifty-three hundred dollars for them, and no other bid was made until Barzillai Cranston induced one of the company to bid fifty-three hundred and twenty-five dollars, and then the son bid fifty-three hundred and fifty dollars, and the premises were sold on this bid, he stating that the sale was made to George K. Cranston, the demandant in this action, who resided at Providence.</p> <p>No other entry was made on the premises by the mortgagee except by the entry of her husband thereon at the time and for the purpose of the sale. On August 28, the mortgagee received from George K. Cranston the full amount of the purchase money; and on receipt thereof she executed and delivered to him in her own name and by her own signature and seal, and without the written consent of her husband or his joining therein, the deed of the premises by virtue of which he claimed title thereto in this action; and on the same day she executed an affidavit setting forth her acts in reference to the sale, which, together with a copy of the notice of the sale, was, on the day following, filed in the office of the Norfolk registry of deeds. Her deed to the demandant set forth substantially the provisions of the mortgage, and particularly of the power of sale therein contained, and alleged a sale in compliance with the terms of such power, and purported to be made “ pursuant to and by force and virtue and in exercise and execution of the power or authority to me, the said Irene G. Cranston, for this purpose given or limited by the hereinbefore in part recited mortgage, and of every or any other power or authority in any wise enabling me in this behalf.”</p> <p>The tenant continued in possession of the premises, claiming an estate of freehold therein, notwithstanding the sale and the subsequent proceedings; and it was agreed that in event of a final judgment against him, the case should be sent to an auditor to determine the amount of rents and profits received by him since his disseisin of the demandant.</p>

<p>fhe limitation in the Gen. Sts. c. 33, § 9, of the sum which a town might appropriate for the foundation of a public library, does not apply to the money which by the same section it might appropriate for suitable buildings or rooms.</p>

<p>A, conveyed to W. a lot of land “ situate on the northerly side ” of a certain street and “ bounded and described as follows: beginning at a point on the line of land of B.; thence by said street north fifty-eight and three quarters degrees west, about one hundred feet, to a stake and stones at the comer of land of G.; thence north thirty-one and a quarter degrees east, to the river; thence by said B.’s land to the first mentioned bound.” Held, that the fee of the land to the centre of the street passed to W., it appearing that A. was seised thereof at the time of this conveyance.</p> <p>The Gen. Sts. c. 46, § 6, protect ail shade trees which were standing within the limits of public ways in any city or town when the Gen. Sts. took effect, (June 1, I860,} from mutilation, destruction, or removal, except by adjudication of the mayor and aldermen, or the selectmen, upon a complaint on which the owner of the tree is entitled to notice and an opportunity to be heard.</p>

<p>Contract for the balance of an account annexed. Writ dated February 26,1867. The account contained numerous items of debit and credit, all more than six years before the date of the writ, except the last, which was of credit of twenty-six dollars and fourteen cents cash, on March 8,1861. Answer, the statute of limitations.</p> <p>At the trial in the superior court, Morton, J., ruled that the plaintiffs’ claim was not taken out of the statute by the evidence concerning this item, which is stated in the opinion. A verdict was found for the defendant; and the plaintiffs alleged exceptions,</p>

<p>If the judge presiding at a trial submite the case to the jury under instructions which permit them to find a verdict which the evidence is not sufficient to sustain, the other parly is entitled to a new trial, although the instructions, as an abstract proposition were accurate.</p> <p>The master of a schooner, immediately on landing at Matamoras in Mexico late in De cember 1864, was informed by the consignee of the cargo that he had information that there was a rebel plot to seize and destroy the schooner, and that the only way to save it was by transferring it to a British subject. There were other vessels in port belonging to citizens of the United States, and there was a United States’ gunboat only ten ot twelve miles distant, but he took no measures for protection other than such transfer In an action against him for unlawful conversion of the vessel, it not appearing that the information of the consignee was true or the peril was in fact threatened, Held, that the facts were not sufficient to justify the master in taking steps, by advice of the consignee, at the time of the information, to cause the vessel to be so transferred, and in completing the transfer sixteen days afterwards, although he was himself a part owner, and although it appeared that a vessel belonging to citizens of the United States had been destroyed at that port in September previous, and there was evidence tending to show that another had been destroyed there during the same month of December.</p>

<p>Bill in equity filed by the master, who was also part owner, of the whale ship Lydia, against the other owners, alleging that he rendered service as master of the ship during a voyage from and to Fairhaven, from May 1860, to May 1864, under an agreement with Messrs. Jenney & Tripp, as the agents of the owners, that he should receive as compensation certain lays or gross shares in the proceeds of the voyage, and be indemnified for all expenses which he might incur growing out of the maintenance of discipline on board; that the respondent Terry, as agent of the owners, took possession of the ship and cargo at the end of the voyage, and disposed of them ; that, after deducting various sums which the complainant had received at various times, in money and its value in oil, from the agent and owners, there remained due to him a balance of upwards of seventeen thousand dollars ; and that he had been unable to obtain any adjustment of his accounts with the owners, who, through their agent Terry, refused to pay this balance. The prayer of the bill was for an account to be rendered by Terry of the proceeds of the voyage and the sale of the ship ; also for an account to be taken under the direction of the court of all the dealings and transactions between the parties in relation to the voyage; and for a decree to compel payment to the complainant of such balance as thereupon might be found due to him.</p> <p>The answer admitted the voyage and the sale of the ship and cargo at the end thereof, and that the complainant was appointed and served as master under an agreement with the agents of the owners, as set forth in the bill, except that it alleged that the agreement on the part of the agents concerning expenses relating to discipline was in these words, “ We also agree to pay all legal expenses which may arise from his chastisement of the crew of said vessel,” and that there was this further provision in the agreement, viz.: “ It is understood that should Captain Babcock want to have his oil set off, we shall do so.” And it alleged that the complainant, unless by virtue of this last provision, had no authority to take or sell the cargo except to meet necessary disbursements of the ship, but that at Hobart Town in Van "Dieman’s Land, the last port before the end of the voyage, he took from the cargo, for his own objects, nineteen hundred and forty-five gallons of oil more than was necessary for the disbursements of the ship ; which extra quantity the owners, in making up their accounts, charged to. him as if he had received it on a final division of shares at the end of the voyage; and it further alleged that Messrs. Jenney & Tripp could not bind the owners to compensate the complainant for any losses which he incurred by reason of his own illegal conduct, and that some of his alleged expenses growing out of the maintenance of discipline were of that nature and so were not allowable; and further, that the respondents had always been ready to settle with the complainant upon these bases, but that he had refused to assent thereto; and the respondents annexed to the answer accounts as prayed for in the bill, by which it appeared that the cargo landed at Fairhaven at the end of the voyage included about forty thousand gallons of oil.</p> <p>Issue being joined on the answer, the parties submitted the case for decision by the court upon the pleadings, and the depositions of the complainant and of the respondent Terry.</p> <p>The complainant’s deposition set'forth the agreement between himself and Jenney & Tripp, containing the provisions quoted in the answer; and he testified with regard to the expenses arising from his chastisement of the crew during the voyage, that, on arriving home, one Williams, a boat-steerer, sued him for an alleged assault, which suit he defended successfully; that one Peterson, also a boat-steerer, made a claim for an alleged assault, which he settled without suit; and that in the United States district court he was indicted for an alleged assault on George Blank, the cook, who also brought an action against him for damages, that he was found guilty on the indictment and fined, and thereafter settled the action for damages by paying Blank a certain sum of money; that in these cases he incurred certain expenses for travel and counsel fees, as well as the amounts of the fine and damages in the Blank cases; and that in respect to the Williams’ case and Blank’s action for damages he acted under the advice of the respondent Terry. But Terry testified, on the contrary, that he had nothing to do, and did nothing, with these various cases, gave no advice or assistance in the management of them, and exercised no direction or control over them.</p> <p>With regard to the matter of the oil at Hobart Town, the complainant testified that the ship was there twice during the voyage, and each time he had occasion to make disbursements on the ship’s account; that, the first time, which was in November 1861, he raised funds for the purpose by selling oil and bone there; and, the second time, he shipped thirty-six hundred and thirty-six gallons of oil from there to London, and drew £600 on it; that his intention was to draw about two thirds of the net proceeds of the quantity of oil shipped; that he thought this proceeding would be for the benefit of all concerned, and his idea was that it would be as well to ship even half his cargo, for he thought it probable that when the oil should reach home it would be shipped to London, and on account of the state of the markets and exchange it was better to ship from Hobart Town; that other American masters were doing the same thing, some of them shipping all they had on board, and he thought seriously of shipping five hundred barrels; that the pirates were around at the time, which was another consideration for him in making the shipment; that he made it in the Percy, a British vessel, but unarmed, which was the only vessel in port when he arrived that could take it, and was at the time taking in wool, and therefore he had to ship it at once or not at all; that, after making his disbursements, which were for provisions, general recruits, discharging men, paying them off and giving liberty money, he had remaining out of the £600 about three hundred dollars in gold, which he kept when he arrived home, as the ship was indebted to him; that while at Hobart Town he expended money for private purposes, such as clothing for his family, and did not keep his private money and the ship’s money separate, but “ had goods of his own on board the ship which realized to him more than he spent for his private purposes; ’’ that his disbursement account as, rendered to the respondent Terry, was true; and that, while he was at Hobart Town this second time, he “ turned out oil to the officers for them to dispose of themselves, to be deducted from their proportion of the cargo, getting so much less oil when they got home,” and “ told them there would be so much oil to be deducted and it would not make any difference about the price either way.”</p> <p>The respondent Terry testified that after the ship arrived home he had conversation concerning the shipment of oil from Hobart Town, with the complainant, who told him that the amount of it was thirty-six hundred and thirty-six gallons, against which he had drawn for ¿6600, and, on the respondent’s asking why he drew so large an amount, his answer was that he did so “ on account of having his wife and family with him, that he knew at the time that he was drawing for two thousand dollars more than the ship was indebted to him;” and he further testified that the complainant had rendered his disbursement account, (which the witness produced,) by which it appeared that the total of his disbursements for the ship at Hobart Town was eight hundred and ten dollars and twenty-nine cents, that at that port within a few days prior to his draft against the oil shipped he had realized four hundred and eighty-eight dollars and seven cents from sales of merchandise from the ship, and that when he sailed from Hobart Town there was due from him to the owners, on the disbursement account, a balance of seventeen hundred and seventy-seven dollars and sixty-six cents. And the witness further testified that he had been an importer and seller of oil for twenty years; that in January 1864 the best market for oil was not London, but New Bedford ; and, in reply to the question, “Ha captain' should for any reason ship oil to London from abroad, what is the usual way it is done?” he answered that, so far as he knew, “it is shipped for owners’ account; the consignee is instructed to correspond with the owners in regard to it, and in such cases they get advices from the consignee on the receipt of the oil or bills of lading, and then all business is done between the owners and the consignee; when the net proceeds are ascertained the owner draws for the amount.” By the London account rendered to the owners, which the witness produced, of the complainant’s shipment from Hobart Town, it appeared that the net proceeds of it after satisfying the complainant’s draft for ¿6600, were less than ¿64.</p> <p>The questions whether or not the complainant shipped more oil from Hobart Town than was justifiable, and in what manner he should account for that shipment or its proceeds, and to what extent, if any, the respondents were bound to reimburse to him the expenses of his litigation, were reserved by Gray, J., for determination by the full court, the parties agreeing that thereafter the case should be sent to an assessor.</p>

<p>A bill of sale of personal property given by A. to B. as security for B.’s promissory note lent to A., and an instrument of defeasance executed by B. as part of the same transaction, by the terms of which “ the bill of sale is to be surrendered to A. in case said note is provided for by A. at maturity," constitute a mortgage, which, in the absence of any agreement of the parties to the contrary, is a continuing security for the amount for which B. continues to be responsible as maker of that and other successive promissory notes with the proceeds of each one of which the former note is provided for at maturity, and which are procured by A. from B. for that purpose.</p> <p>When, under Gen. Sts. c. 151, a mortgage of personal property is valid without being recorded, the notice of intention to foreclose it is valid also without registration.</p>

Contract with a count in tort, on two promissory notes dated in August 1860, each for nine hundred and ninety-five dollars and fifty cents, payable to the order of Charles R. Duxbury in six months with interest, signed “ Daggett Manufacturing Company, H. N. Daggett, Agent.” At the trial in the superior court, before Wilkinson, J., the making of the notes by the defendant, and the indorsement of them before maturity by Duxbury to the plaintiff, were admitted ; and it appeared…

<p>In an action on a promissory note, by the indorsee, against one who, after the plaintiff took the note, but before it was due, so represented that what purported to be his signature as indorser was genuine, as to be estopped from denying the truth of his representation, no exception lies to the ruling of the presiding judge that the plaintiff is entitled to recover the whole amount due upon the note, and that it is immaterial whether his actual damage in relying upon the representation was more or less.</p>

<p>Under the Gen. Sts. o. 129, § 24, a demurrer may be made to a distinct allegation in an answer, as well as to the whole answer, or to a distinct allegation in a count, as well as to the whole count.</p> <p>Under the Gen. Sts. c. 129, § 23, it is no objection to a demurrer to part of an answer, that no replication is made to the other parts, if there is no order of the court for such a replication.</p> <p>Under the Gen. Sts. c. 130, § 7, a plaintiff’s demand for unliquidated damages is not the subject of set off.</p>

Petition of the children of Phebe Allen, deceased, for partition of certain real estate in Westport, alleging that they were seised of one fourth part thereof. The answer of Elizabeth White, one of the respondents, denied the seisin of the petitioners in more than one eighth part. Char es White, the other respondent, made no answer.

Writ of entry in behalf of Samuel Chandler and John E. Chandler, as tenants in common, by their guardian, Weston Earle, to recover a tract of land in Dighton. Plea, mil disseisin, with an averment of title in the tenant.

<p>The superior court has no authority, upon a defendant’s motion, to cause an entry of “ neither party” to be made, for the reason that the plaintiff since the case was pending has ascertained his damages by arbitration, and received payment and acknowledged satisfaction thereof, and discharged the claim in suit.</p>

<p>Contract, with a count in tort annexed. The declaration alleged that the defendant, in consideration that the plaintiff would give him an assignment of all the plaintiff’s rights of action on account of trespasses on a certain piece of land conveyed by the plaintiff to one William Morse and by him to the defendant, and a power of attorney to bring suit thereon in the plaintiff’s name, agreed to indemnify the plaintiff for any costs, damage or expense to which he might become subject by reason of the acts of the defendant under such assignment and power; and that the defendant had, under the same, commenced an action in the plaintiff’s name against one Calvin Marshall in the superior court for Bristol, in which, at September term 1864, Marshall recovered judgment for costs, for which execution issued against the plaintiff, and which the plaintiff was compelled to pay; and that, after such payment, the defendant refused, on demand, to indemnify the plaintiff for the amount thereof. The count in tort alleged that the action against Marshall was commenced by the defendant in the plaintiff’s name without authority, whereby the plaintiff had suffered the injury alleged in the count in contract.</p> <p>The answer alleged that, prior to the making and delivery of the assignment and power of attorney set forth in the declaration, the plaintiff, in consideration of the purchase of the land by Morse, had made and delivered to Morse a similar power and assignment, irrevocable by its terms, and Morse had substituted the defendant under it; that it was under and by virtue of this prior assignment and power and substitution that he did the acts alleged in the declaration; and that, as regards the subsequent-assignment and power, it was null and void, and the defendant’s promise to indemnify was without consideration.</p> <p>At the trial in the superior court, before Wilkinson, J., it appeared that the defendant, after being substituted by Morse under the prior power, procured the second instrument to be drawn and took it to the plaintiff, who signed it at his request; and that soon afterwards, and without any notice to the plaintiff, the defendant brought the action against Marshall in the plaintiff’s name.</p> <p>The defendant, contending that he began the action against Marshall under the prior assignment and power set forth in his answer, asked the judge to rule that that power was coupled with an interest and was irrevocable by the plaintiff; that the subsequent assignment and power conferred no authority or right upon the defendant, and had no other effect than to ratify the prior power; and that the defendant was not liable in any form of action ; which rulings the judge declined to give.</p> <p>The judge instructed the jury to answer the question, whether the defendant began the action against Marshall under the assignment and power alleged in the declaration. The jury answering that he did, the judge directed a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Tort for cutting and carrying away wood and hay from the plaintiff’s close, the bed of an old mill pond in Easton.

Tort ; against Ingalls, as a deputy sheriff for Bristol, for an alleged illegal arrest of the plaintiff; and against Carrier, as keeper of the county jail, for alleged illegal imprisonment of the plaintiff therein.

Libel for divorce from the bond of matrimony for desertion and adultery.

<p>An agent of a town, disbursing its funds to fill its quota of soldiers in 1864, paid two thousand dollars for procuring the enlistment of sixteen recruits, which the town accepted upon its quota. Held, that, in settlement of his accounts with the town, this amount was allowable to his credit, although no part thereof was paid to seven of the recruits.</p> <p>The obligors upon the bond of a town treasurer executed after the beginning of his official term, which, after reciting the period of such term, is on condition that he shall faithfully account for and pay over all moneys by him received, are liable thereon for moneys received by him during such term prior to as well as after the execution and acceptance of the bond.</p> <p>A town treasurer, who, as member of a recruiting committee chosen by vote of the town, receives and disburses money voluntarily contributed by citizens to be expended by the committee to fill the town’s quota of soldiers and protect the subscribers from draft, is not responsible, as town treasurer, for such money, nor concluded as to his responsibility by having, as town treasurer, included such receipts and disbursements in his official accounts.</p> <p>On a hearing to ascertain for what amount execution shall issue, after judgment for the penalty of a bond, nc defect or admission in previous pleadings in the action can deprive either party of the right to an equitable adjustment of all claims secured by the bond.</p>

<p>Indictment for adultery. At the trial in the superior court, before Morton, J., the defendant admitted that he was formerly married to one Mary Warner who was still living at Hartford in Connecticut and had never been to California; and also his act of cohabitation with another woman at Fall River, since the date of his marriage to Mary Warner and during the time charged in the indictment.</p> <p>The government rested its case on these admissions; and the defendant, for the purpose of proving that in California he had obtained a divorce from Mary Warner, offered in evidence a document purporting to be a certificate, dated July 22, 1867, signed by William Loery, “ county clerk of the city and county of San Francisco and ex officio clerk of the district court of the fourth judicial district of the State of California,” and sealed with the seal of that court, that the following was a “ record of true judgment and decree of divorce as entered in judgment-book B ” in said court, in the cause of “ Ivory M. Blood, plaintiff, v. Mary Blood, defendant, No. ,” viz: “ In judgment-book B, 24th day of May, a. d. 1856, a judgment for a decree of divorce is recorded dissolving the bonds of matrimony between Ivory M. Blood of San Francisco, State of California, and Mary Blood of Hartford, State of Connecticut; ” to all which was annexed another paper purporting to be a certificate, of the same date, by E. D. Sawyer, “ sole judge of the district court of the fourth judicial district of the State of California, in and for the county of San Francisco,” “ that said court is a court of record, having a clerk and seal,” “that William Loery is the duly elected and qualified county clerk of the city and county of San Francisco, and was at the time of signing the annexed attestation ex officio clerk of said district court,” “ that said signature is his genuine handwriting,” and “ that said attestation is in due form of law.”</p> <p>The judge ruled that this document was inadmissible in evidence. The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Complaint for being a common seller of intoxicating liquor. At the trial in the superior court, before Morton, J., on appeal from the police court of Fall River, the defendant moved to dismiss the complaint for the following among other reasons: 1.

Indictment for being a common seller of intoxicating liquor. At the trial in the superior court, before Rockwell, J., a state deputy constable testified that he saw the defendant make three separate and distinct sales of intoxicating liquor ; that there was a glass in a door which led from the room where the sales were made to the entry where he stood, and he saw the sales through this glass.

<p>Indictment for being a common seller of intoxicating liquor. Trial in the superior court, before Morton, J., who signed the following bill of exceptions:</p> <p>“ At the trial there was but one witness, who testified substantially as follows: ‘ I knew Thomas Gannon ; he lives at North Attleboro ; he is a polisher, and works for Ira Richards & Co. who are manufacturers of jewelry; and that has been his employment during the present year, so far as I know. I have had no whiskey of ’him, no time, the present year. I had some whiskey of his wife in April and May last, four different times, and paid her ten cents for it on each occasion. The defendant was present on all these occasions.’ On cross-examination he also stated that, so far as he knew, the whiskey belonged to the wife, and, so far as he knew, she was in the business of selling intoxicating liquors ; but that he knew nothing about it. This was all the material evidence in the case. The defendant thereupon requested the judge to instruct the jury that the evidence was not sufficient to warrant a verdict of guilty; but this request was refused. The defendant then asked the judge to instruct the jury that, upon the facts proved, they would not be warranted in finding that the acts of the wife were by the presumed coercion of the husband, or that he so directed or controlled her action in the sales as to make him criminally responsible for the acts of the wife growing out of the marital relation. This the judge declined to do, but instructed them that the government must prove that the wife, in making the sales testified to, was acting as the agent or servant of the husband, and that, if the wife made the sales in the presence and with the knowledge of the husband, the presumption is, if there is no. evidence to the contrary, that she was acting under his control, and as his agent or servant, and he would be liable therefor. The jury returned a verdict of guilty; and the defendant alleged exceptions.”</p>

Indictment for being a common seller of intoxicating liquor.

<p>On the trial of an issue whether certain beer sold at Fall River was intoxicating, a witness having testified that on a certain day he seized a quantity of the same kind of beer in barrels, and several weeks afterwards took a sample of beer out of one of these barrels and put it into a bottle, which he then corked and sealed, and on which he pasted a certain label, and then put this bottle into a box with other bottles containing similar samples, and delivered the box at an express office in Fall River, addressed to a certain state assayer at Boston, and prepaid the express charge thereon; and it appearing that the assayer’s assistant received at Boston the next day a box full of bottles of samples of liquor, and among them a bottle corked and sealed, containing beer, and bearing that identical label; Held, that no exception lies to the ruling of the presiding judge admitting the testimony of the assayer’s assistant to the result of his analysis of the contents of the bottle so received by him.</p> <p>And, it appearing that the beer sold and the beer seized were made of a combination of materials which yielded more or less alcohol according to the stage of fermentation, Held, further, that the result of the analysis was material to the issue on trial, although it did not appear at precisely what stage of fermentation the beer sold was at the time of sale, or the beer seized was at the time of seizure.</p>

Indictment for suffering Broad Street in Boston to be obstructed by wooden posts, it being a highway which the city was bound to keep in repair. Trial, in the superior court, before Morton, J., who after a verdict of guilty, made a report of the case for determination by this court, the material part of which is as follows: “ The posts referred to are telegraph posts, and render the way inconvenient for travellers.

<p>Complaint against the defendant as owner of a building on the corner of Beach Street and Harrison Avenue in Boston, for neglecting to remove snow from the adjoining sidewalk, on February 22, 1867, and violating thereby an ordinance of the city which provides that the “ tenant, occupant, and, in case there shall be no tenant, the owner or any person having the care of any building or lot of land bordering on any street,” shall within a certain time remove snow from the sidewalk in front of the lot or building.</p> <p>At the trial in the superior court, before Ames, J., on appeal from the municipal court, facts were agreed as follows:</p> <p>“ A part of the building, on the ground floor, and fronting both on said street and said avenue, was under lease to one tenant, who occupied it for a store. The remainder of the building, including the back yard, was under lease to another tenant, who occupied it for a boarding-house. The front entrance to the part used for a boarding-house was on Harrison Avenue, and the back yard was on Beach Street. There was no connection between the tenants, nor was there any connection between the store and the part used for a boarding-house, except that they were within the same walls.</p> <p>“ The said Watson, the owner, was a boarder with the tenant who kept said boarding-house, but had not reserved from the lease the rooms he occupied, and in no way occupied any part of said building except as a boarder. He was a physician, and had his office in a room in the same building, which room he hired from his tenant.”</p> <p>The defendant asked the judge to instruct the jury that these facts constituted a good defence. But the judge declined so to instruct them, and ruled, pro formd, that on the foregoing facts they had a right to find a verdict against the defendant; under which ruling they returned a verdict of guilty; and the defend ant alleged exceptions.</p>

Indictment for burning on January 25, 1867, in the nighttime, a dwelling-house, alleged to be the property of one Aaron H. Allen, but occupied by the defendant himself. Trial, in the superior court, before Russell, J., who signed the following bill of exceptions: “ The defendant kept a provision store in a room in same building, adjoining the tenement occupied by him and his family as a tenant at will of said Allen.

Indictment under the St. of 1866, c. 253, § 1* charging that the defendant, at Groton, on April 10, 1867, “ knowingly, wilfully and maliciously did ■ kill a certain calf, the said calf being then and there less than four weeks old, with intent then and there the meat of said calf to sell,” the defendant “ then and there well knowing that said calf he as aforesaid killed was then and there less than four weeks old.” At the trial in the superior court, before Ames, C. J., the…

Indictment charging the defendant with having in his possession, on March 21, 1867, with intent to utter, knowing the same to be false, “ eleven counterfeit bank bills purporting to be issued by the president, directors and company of the People’s National Bank of Jackson, then being an incorporated banking company duly established in the State of Michigan, and each one of the said eleven similar, false, forged, and counterfeit bank bills being of the tenor following, to…

Indictment, presented January 1, 1867, for adultery with one Susan Edgerly at Haverhill on August 1,1866.

Indictment for burning a barn in Brighton, occupied by-David P. Merrill. Trial, in the superior court, before Ames, C. J., who signed the following bill of exceptions : “ At the tria], the burning of the barn was proved to have taken place in the night-time in October 1866; and evidence was offered tending to prove animosity towards Merrill on the part of the defendant, and the use of threatening language to and about him in the afternoon of the day of the fire.

Indictment under the Gen. Sts. c. 167, § 6, containing two counts, the first charging that the defendant had in possession, with intent to sell, “ a certain false and fictitious lottery ticket,” “ well knowing the same to be false and fictitious; ” and the second charging that he had in possession, with intent to sell, “ a ticket in a certain fictitious and pretended lottery,” “ well knowing the same to be fictitious and pretended.” Both counts were alleged to be different…

Indictment for embezzling seven bank-bills, of the denomination and value, respectively, two of ten dollars, three of five dollars, and one each of two dollars and one dollar.

<p>[n an indictment for attempt to commit larceny from the person of an individual, an allegation that the defendant, “ with intent to steal the personal property ” of said individual, “being in her pocket, and on her person,” did “ thrust, insert, put and place his hand upon the dress near and into the pocket” of the said individual, is not equivocal, nor insufficient in precision.</p> <p>A defendant in a criminal proceeding who testifies as a witness at the trial, may be asked on cross-examination, for the purpose of affecting his credibility as a witness, “ if he has been in the house of correction for any crime,” provided objection is waived that the record is the best evidence thereof.</p>

Complaint for making an unlawful sale of intoxicating liquor.

Indictment under the St. of 1866, c. 262, § 5, charging that the defendant at Boston on March 24,1867, “ did falsely assume and pretend to be ” “ a deputy of the constable of the Commonwealth,” “ and did then and there unlawfully take upon himself to act as such officer, by declaring himself to one Bridget Durand to be such officer, and by then and there searching in the dwelling-house of one Bartley Durand, the husband of the said Bridget, for intoxicating liquors kept for…

<p>Complaint for being a common seller of intoxicating liquor. At the trial in the superior court, on appeal, before Ames, C. J., it appeared in evidence that the defendant was at the time of the alleged offence, and ever since, the wife of one Michael Welch, and lived with him; and that he provided the liquors which were sold. There was also evidence tending to show that she made frequent sales of intoxicating liquor and received pay therefor, at their house; that at the time of some of these sales her husband was present in the room or about the premises, and that at the time of others he was absent from the premises.</p> <p>The defendant offered in evidence a record of the superior court to prove that her husband had been indicted, convicted, and fined under the Gen. Sts. c. 87, for keeping the place for the illegal sale of intoxicating liquors during the same period as that charged in this complaint, and had paid his fine; but the judge refused to admit the evidence, and ruled that the conviction of the husband, if proved, would be no bar to this prosecution, and also rejected evidence offered by the defendant to show that the conviction of her husband was on testimony of the same witnesses and proof of the same sales as those on which the government relied in this trial.</p> <p>The defendant also requested the judge to rule “ that if her husband were in the same or an adjoining room, or in the same house, yard, or immediate vicinity, when the sales were made, she would not, under the circumstances of this case, be liable criminally for such sales; ” but the judge declined so to rule, but instructed the jury “ that if the defendant made sales in her husband’s presence, or while he was on the premises, or near at hand, she was to be presumed to be acting under his influence and coercion, but that there was no such presumption as to any sale when he was not present or about the premises, and if she made three or more separate sales when he was absent from home, she would be responsible criminally therefor.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Indictment under the Gen. Sts. c. 87, for maintaining a certain tenement used for the illegal keeping and sale of intoxicating liquors on September 1,1867, and for the six months next preceding. Trial, in the superior court, before Brigham, J., who signed a bill of exceptions, the material part of which was as follows:</p> <p>“ The government offered evidence tending to show that the defendant from and after April 26, 1867, kept an eating-house in Boston, at No. 166 Merrimack Street, and delivered, for the first three or four weeks, ale to his regular customers, and after-wards ale to his customers in his stalls, as a part of their meals for which no charge was made; and also put in evidence a record of conviction of the defendant, in July, 1867, by a plea of guilty, in the municipal court, on a complaint for keeping intoxicating liquors with intent to sell, in violation of the Gen. Sts. e. 86, § 34. But there was no allegation, in the complaint, of the place where the same were kept; and no other proof that the complaint had any reference to the eating-house on Merrimack Street.</p> <p>“ The defendant testified, and also called other witnesses whose testimony tended to prove, that no intoxicating liquors were ever sold in the place or kept for sale there, and that he furnished ale *0 such of his customers as wished it with their meals in the stalls, but in no instance made any charge for the ale, charging in all instances the same price for meals, whether his customers had water or ale. Upon cross-examination, the defendant was asked by the attorney for the government whether he had a United States’ license to sell intoxicating liquors at this place; and having answered in the affirmative, the defendant’s counsel offered to show, by reexamination of the defendant, that he was told by the United States ’ assessor, at the time of applying for the license, that if he kept ale and furnished it to his customers to drink with their meals, although he made no charge for the ale, yet he must apply for and take out a United States’ license to retail liquors; and that he applied for and took out the license upon this instruction and order of the assessor, and never at any time intended to sell ale or other intoxicating liquors under it. But the judge excluded this evidence.</p> <p>“ The defendant asked the judge to instruct the jury that although it might be competent for the government to put in evidence his conviction of keeping intoxicating liquors with intent to sell them, as it might his conviction of any other offence, for the purpose of affecting his credibility as a witness, yet it could be used for no other purpose, as it did not appear that the liquors, which he was convicted of illegally keeping, were ever kept in the place on Merrimack Street. The judge declined to instruct the jury as thus requested; but did instruct them that if they were satisfied that the defendant did not keep the liquors complained of, in this place, then they should disregard it otherwise than as affecting his credibility as a witness.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.”</p>

<p>Indictment for being a common seller of intoxicating liquors. At the trial-in the superior court, before Brigham, J., certain witnesses testified, for the government, to seeing a large number of sales of ale and whiskey at the defendant’s place of business. The defendant himself testified that he sold no liquors there but “ nectar and mineral water,” and called witnesses, who testified that they had frequented the place, and had seen him sell these beverages, but no others, and that these resembled ale and whiskey. The defendant then proposed to show, by these witnesses, that, on several occasions, in his place of business, they had heard persons call for intoxicating drinks, and that these calls were invariably refused; but the judge excluded this testimony as incompetent. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Indictment in the form usual under the Gen. Sts. c. 87, foi keeping a liquor nuisance. In the superior court a verdict of guilty was returned against the defendant, who at the time of the motion of the attorney for the government for sentence, objected, and filed a motion in arrest of judgment, for the alleged reason that since the trial the indictment had been so mutilated that sentence could not be pronounced thereupon.

Complaint under the Gen. Sts. c. 86, § 42, to the police court of Salem, for a warrant of search for certain intoxicating liquors. It appearing to that court that the liquors seized on the warrant exceeded twenty dollars in value, a notice to the claimant was duly issued and served, returnable to the superior court, to which certified copies of the complaint, warrant, and other papers in the case, were transmitted.

<p>Complaint under the Gen. Sts. c. 86, § 42, addressed “ to the justices of the municipal court of the city of Boston holden at said Boston for the transaction of criminal business,” for a warrant of search for certain intoxicating liquors, and complaining against Frederick Johnson and Alonzo Johnson as keepers thereof. This was received and sworn to on Saturday, January 12, 1867, and the warrant was issued and the liquors were seized on the same day, the court being described in the warrant in the words quoted from the complaint. On Monday, January 14, (the value of the liquors being, in the opinion of the court, more than twenty dollars,) notice was issued to the alleged keepers, in the form usual under the Gen. Sts. c. 86, § 54, returnable to the superior court. The warrant for the search and seizure, and also the warrant for the service of this notice, were both addressed “ to the constable of the Commonwealth or either of his deputies,” among other officers, and were served by a deputy of the constable of the Commonwealth.</p> <p>In the superior court G. Sennott, entering a special appearance for the claimants for the purpose, filed a motion to dismiss the complaint, alleging, for reasons, 1. that under the provisions of the Gen. Sts. c 86, §§ 46, 54, the notice should have been issued within tlie twenty-four hours next after the seizure, and citing, to that point, Pearce v. Atwood, 13 Mass. 347 ; 2. that neither warrant was served by an officer having authority therefor; and 3. that the warrant of search was made returnable to a pretended court, there being no court established by law as the “ municipal court of the city of Boston for the transaction of criminal business.” The motion also made certain allegations in behalf of one Patrick Welsh.</p> <p>This motion was overruled by the presiding judge ; and, the case proceeding to trial, a judgment of forfeiture was entered against the liquors seized; and thereupon the claimants appealed from the ruling of the judge upon the above recited motion.</p> <p>In the papers transmitted to this court there was no mention whatever of Patrick Welsh, except in the motion to dismiss the complaint.</p> <p>At the hearing in this court no counsel appeared for the claimants.</p>