Volume 98 — Massachusetts Reports

Complaint that the defendant, having charge of a hackney carriage used for transporting passengers, demanded and received, on May 18, 1865, of Sarah L. Lougee, a passenger therein, one dollar for carrying her from South Russell Street to Prescott Place in Boston, between seven o’clock in the forenoon and eleven o’clock in the evening, being a rate of fare greater than that established by an ordinance of the city, the material part of which is as follows: “ The prices or…

<p>Indictment for assault and battery on Stillman A. Biathrow.</p> <p>At the trial in the superior court, before Ames, C. J., it appeared that in March 1867 Biathrow was regularly appointed a police officer under the following by-law of Stoneham: “ There shall be annually appointed, in the month of March, by the selectmen, three or more suitable persons police officers, who shall hold their offices for one year and until others are appointed in their stead, unless sooner removed, whose duties shall be to superintend the police of the town, and to notice all offences against the by-laws of the town, and to cause prosecutions to be commenced against all offenders against the same.”</p> <p>And it further appeared that Biathrow, on April 23, 1867, at Melrose, having in his possession, as he asserted, a warrant for the arrest of the defendant, issued on a complaint for firing a gun on the Lord’s day, notified him to go before a certain magistrate who was waiting to hear the case, and, upon his refusa. to comply with the notice, attempted to take him before the magistrate by force, and was resisted and injured by him in the attempt.</p> <p>The complaint and warrant, which were introduced in evidence, alleged the commission of the offence in Stoneham, and bore date on said “twenty-third day of April,” but the word “third” was written on a level above a word obliterated by drawing a line of ink across it horizontally, which appeared to be the word “ second.” Otherwise, fhey were in the usual form.</p> <p>The defendant contended that Biathrow, under the by-law of Stoneham above quoted, had not the power of a constable ox police officer generally, but only a limited authority to enforce the by-laws of that town ; and further, that, not being an officer of Melrose, he had no right to serve a warrant there; but the judge overruled the objection to the competency of Biathrow as a police officer generally, and further ruled that by virtue of the Gen. Sts. c. 18, § 69, he had a lawful right to apprehend the defendant in Melrose. And, notwithstanding the obliteration apparent on the face of the warrant, and testimony by the defendant that it was dated originally on April 21, (which was the Lord’s day on which the offence therein set forth was alleged to have been committed,) and was subsequently altered, the judge ruled that the warrant was competent, and the arrest was legal, and the defendant had no right to resist it.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Two complaints alleging that the defendant was “ keeper of a billiard room or table,” and “ did admit thereto ” Austin S. Lynde and Henry P. McDonald, minors, without the consent of their parents or guardians.

<p>The omission in an indictment for uttering a forged order for money to set forth or allege that it bore a United States internal revenue stamp is not a variance of which the defendant can take advantage at the trial, since the St. of 1864, c. 250, § 1.</p>

Indictment for subornation of peijury. At the trial in the superior court, the jury returned a verdict of guilty, which was set aside on the defendant’s motion, as against the evidence, and for newly discovered evidence.

<p>The alteration of the number of one of a series of negotiable bonds of the Commonwealth, not required by law to he numbered, which does not change the tenor of the bond so as to affect either in substance or in form the written contract or the proof thereof, is not material.</p> <p>An immaterial alteration of a negotiable bond payable to the bearer, although made with fraudulent intent, does not avoid it against a holder who took it afterwards in good faith, for value, without notice of or reason to suspect the alteration.</p>

<p>Contract for the amount of a tax assessed by the Commonwealth under the St. of 1864, c. 208, against a land company chartered by the St. of 1852, c. 59. The case was reserved for determination by the full court on facts agreed as follows ; such judgment to be entered thereon as the law might require.</p> <p>The corporation owned certain lands in Chelsea; and also personal property valued at about eighty thousand dollars. Its capital stock was divided into sixty thousand shares of the par value of five dollars each, or three hundred thousand dollars in all. In determining the amount of tax, the tax commissioners proceeded first to ascertain the value of shares in the company, being governed in this respect partly by sales of shares and prices obtained therefor in the market by shareholders, and partly by the treasurer’s return, which stated eleven dollars to be the market value of shares; and they fixed the value of the entire share capital at this rate, that is, at the sum of six hundred and sixty thousand dollars. They then found the value of the real estate of the corporation to be two hundred and forty-six thousand seven hundred dollars. And upon the difference, namely, four hundred and thirteen thousand three hundred dollars, they computed the tax, at the rate of one and one sixth pei centum prescribed by the act; and they duly notified the corporation of these proceedings.</p> <p>If competent for the defendant corporation, after such valuation and notice by the commissioners, to prove that all its property, rights and assets were very much less in amount and value than the sum fixed by the commissioners as the aggregate value of all the shares issued by the company, then it was agreed to be taken to have been so proved for the purposes of this case: but in fact no such proof was produced before the commissioners, and there was no formal hearing before the commissioners upon the subject.</p> <p>No considerable portion of all the shares in the company was ever offered for sale or sold at one time; and the shares were dealt in by brokers and others for purposes of speculation merely, and at prices varying widely at different times, and not always depending on the intrinsic value of the property and rights represented by them.</p>

<p>Contract for the amount of taxes assessed by the Commonwealth in 1864 under the St. of 1864, c. 208, and in 1865 and 1866 under the St. of 1865, c. 283, against the defendant corporation, a mutual life insurance company, chartered by the St. of 1851, c. 140, §§ 2, 4, 6 of which are as follows :</p> <p>§ 2. “ There shall be an original guarantee capital stock subscribed to the said corporation, which shall be one hundred thousand dollars, to be divided into shares by the corporation, half of which shall be paid in, in money, before the said corporation shall go into operation for the purpose of making insurance; the other half of the said stock may be called for by the directors from time to time, when they deem it necessary or expedient, and shall be paid in by the holders of the stock, which shall always stand pledged to the corporation for all such assessments so called for.</p> <p>§ 4. “ Whenever the net surplus receipts of the said corporation over the losses and expenses, and after providing for risks, shall be sufficient for the purpose, the stockholders shall be entitled to an annual dividend of seven per cent, or to such less dividend as may be agreed on at the time of subscribing for the stock ; and in case of such dividend not being made in any one year it shall be made good at a subsequent period, when the net resources of the company shall be sufficient for paying the same.</p> <p>§ 6. “ After providing for risks, losses, incidental expenses and dividends as aforesaid, the directors shall set apart one quarter of the estimated surplus funds and receipts as a reserved fund, to be applied to the redemption of the guarantee stock; and whenever, after the expiration of ten years from the time of organizing the company, the amount of such fund shall be sufficient for the purpose, and the assured shall vote to redeem the said guarantee stock, the same shall be redeemed.”</p> <p>In the superior court it was agreed that the company was duly organized under this charter, and an original guarantee capital stock was subscribed and paid in to the amount of one hundred thousand dollars, divided into one thousand shares of the par value of one hundred dollars each, according to the provisions of § 2, which subsequently was in part redeemed by payments to the holders thereof, out of the surplus funds and receipts, according to the provisions of § 6; the number of shares unredeemed on the first day of May in the years 1864, 1865, and 1866, being respectively six hundred and forty, five hundred and eighty, and five hundred and thirty, and the market value of such shares on those dates being the par value thereof; and that the company never otherwise had any capital stock divided into shares, nor was ever otherwise conducted for business or profit.</p> <p>And it was further agreed that the tax commissioners determined the excess of the market value of the capital stock of the company over the value of its real estate, (it having no machinery,) at the sums of sixty-four thousand dollars, fifty-eight thousand dollars, and forty thousand dollars, for the years 1864, 1865, and 1866, respectively, and that the taxes for which this action was brought were assessed by the tax commissioners on a valuation of the franchise accordingly, the corporation being allowed for real estate to the amount of thirteen thousand dollars in 1866.</p> <p>On these facts judgment was ordered for the Commonwealth; and the defendants appealed.</p>

Contract, brought under the Gen. Sts. c. 124, § 46, on an alleged recognizance, taken under § 10, and annexed by copy to the declaration, as follows : “ Commonwealth of Massachusetts.

<p>Contract for the price of a cargo of coal. In the superior court, Ames, C. J., allowed a bill of exceptions substantially as follows:</p> <p>“ At the trial before Allen, C. J., at October term 1865, a verdict was rendered for the plaintiffs on October 27 ; and a bill of exceptions was duly filed and tendered the next day to the presiding judge for allowance. In the course of the term, the counsel of the respective parties appeared before the judge to be heard on the subject of the exceptions; and, there being no material disagreement between the counsel, the result was that the judge took the bill into his own hands, in order more particularly to examine it and make any corrections as to his rulings which he should find that the truth of the case required. It was the expectation of both parties that he would return the bill to the files in season for entry and prosecution in the supreme judicial court at its next law term; but it was not so returned, and. neither party succeeded in getting any reply to letters to the judge concerning it.</p> <p>“ The case stood continued from term to term, the docket entry being ' Proposed exceptions in the hands of the court,’ until January term 1867; when, on January 26, the plaintiffs filed and argued a motion for judgment on the verdict, and the decision of the court thereon was reserved.</p> <p>“ On February 28,1867, the defendants filed, and subsequently argued, a motion for a new trial, setting forth, as reasons therefor, that ‘ exceptions having been duly alleged and taken at the trial to sundry rulings and instructions of the presiding judge, und reduced to writing and filed with the clerk, notified to the plaintiffs and presented to the court for allowance, the presiding judge did not either allow or disallow the same, as prescribed by law, nor adjudge the same to be immaterial, frivolous or intended for delay, or otherwise act upon the same in any way, but has hitherto omitted and still omits to take any action thereon, so far as the defendants are informed; and, by reason of the delay of said judge in acting upon said exceptions in any way and his omission to return them to the files of the court as prescribed by law, the defendants have lost the benefit of such exceptions in this court, and have also been deprived of the means of proving the existence and truth of such exceptions by application to the supreme judicial court for that purpose, had such course been considered proper, and can now avail thereof only by this motion; and because these defendants believe that the rulings so excepted to were erroneous and material, and that the verdict was wrong in consequence thereof.’</p> <p>“ The case stood for further hearing until October term 1867, when final hearing was had, the original bill of exceptions having been found meanwhile, since the resignation of said Allen, C. J.</p> <p>“ At the final hearing upon said motions, it appeared that the defendants had not entered their exceptions, nor any petition for leave to prove them ; and the plaintiffs insisted that under these circumstances the court had not the power to set aside the verdict. But the court, being of the opinion that the exceptions tendered were not frivolous, and that the defendants had lost the opportunity to prosecute them, by accident and misadventure, and not by their own fault, overruled the motion for judgment on the verdict, and ordered that the verdict be set aside and a new trial had; to which rulings the plaintiffs alleged exceptions.”</p>

<p>Tort for obstructing the plaintiff’s dock and depriving him of the use of his wharf. Writ dated December 20,1865.</p> <p>The ease was submitted to the full court upon a report of Foster, J., before whom the trial was had, and a supplemental statement of facts agreed by the parties, the substance of all which appears in the opinion.</p> <p>It was agreed that, if the plaintiff was entitled to recover, judgment should be entered for him, with damages at the rate of one hundred and fifty dollars per month for such time as the defendant was liable; otherwise, judgment for the defendant.</p>

<p>If land subject to a recorded mortgage is sold for payment of taxes assessed to one who was not the lawful owner, and the mortgagee, without knowledge of the sale, assigns his title, the assignee may, under the Gen. Sts. c. 12, § 36, redeem the premises at any time within two years after he has actual notice of the sale, and, under § 42, may maintain a bill in equity for such redemption, if filed within five years from the sale,</p> <p>if real estate sold for payment of taxes has ever since been held in possession by one claiming title adversely to the purchaser, the tender or payment which the Gen. Sts. c. 12, § 36, provide to be made for the purpose of redeeming the premises, should be made to such purchaser, and not to one to whom he, while thus disseised, has made a deed thereof.</p>

Tort for obstructing the plaintiff’s alleged right of way by building a fence across Foster Place in Boston. The defendant, among other defences, justified under his deed.

Contract, brought September 17, 1866 for breach by the defendant’s testator, Robert W. Traip, of his agreement in the last paragraph of the following indenture between him and the plaintiffs, signed and sealed on the date thereof: “ Memorandum of an agreement made this 12th day of May, 1845, by and between Robert W. Traip of Boston, merchant, of the first part, and Bradley N. Cumings of said Boston, merchant, of the second part. “ The said Traip on his part agrees to lease…

<p>The owner of land cannot sever and convey any interest therein as personal property merely by treating it as such in the instrument of conveyance.</p> <p>The right of a lessee of land to remove a house therefrom, as a-tenant’s fixture, at the end of the lease, is forfeited by his neglect to make any attempt to avail himself of it for six weeks after the lease expires.</p>

<p>Contract by the surviving partner of the firm of Oakman & Eldridge, on a policy of insurance, made November 20, 1866, against loss by fire on “ their frame church building ” in Somerville. Answer, denial of any insurable interest of Oakman & Eldridge in the property, either at the date of the policy or the time of the fire.</p> <p>At the trial, Wells, J., directed a verdict for the plaintiff on facts which are stated in the opinion, and reported the case for revision by the full court.</p>

<p>The assignees of an insolvent debtor, who are in possession of personal property belonging to his estate, upon which he has given a mortgage the validity of which they deny, may maintain a bill in equity against the mortgagee to obtain a decree that the mortgage be given up and cancelled. *</p> <p>An instrument purporting throughout the body théreof to be a mortgage of personal property by a corporation, is not invalid as such because signed by the president only with his own name and title and sealed with his individual seal.</p> <p>If the president, who is general manager of the business of a corporation, executes a mortgage of its personal property, without special authority therefor, but with the knowledge of all the members of the board of directors except one who is absent from the country, the concurrence, at the time, of those who remain here, or their long continued acquiescence afterwards, may make it valid as the act of the corporation.</p> <p>Registration of a vote of the stockholders of a corporation ratifying a recorded mortgage of its personal property is not necessary to make the ratification effective.</p>

<p>A. testatrix bequeathed annuities to her husband and her son, and, on the death of the husband, gave the whole income to the son, and, on his death, to his widow and children, if any, during their lives; and then, “ at the decease of said husband and son, and the widow and children of said son, if any survive him,” gave all the estate to a religious society; and appointed her executors “trustees to hold the property and pay the annuities as herein provided.” The son died unmarried; after which the testatrix executed a codicil, expressly confirming the will, and died, her husband surviving. Held, that the gift to the society was not void for remoteness; and that the society was entitled to the income accruing from the estate during the husband’s life, beyond his annuity.</p> <p>The Methodist Religious Society in Charlestown, having been duly organized, with nine trustees, under the St. of 1819, c. Ill, and become popularly known as the First Methodist Episcopal Church, in 1862 chose a committee to procure a bond for a deed of a new meeting-house, and accepted their report that it could be bought for a certain sum, but the bond had not been taken because it was best for the deed to be given to another board of trustees, and afterwards sold the old meeting-house and applied the proceeds to pay debts, and its trustees held no property thereafter, but kept up a formal organization, and in 1865 their secretary wrote to the secretary of the Commonwealth in relation to the returns required by the St. of 1864, c. 239, that “the Methodist Religious Society has no property or income whatever, and, so far as active operations are concerned, is defunct.” About the same time with the committee’s report, sixteen members of the society, describing themselves as such, and including all the trustees, represented to the minister that they had organized a new one under the name of Trinity Society, and asked him to nominate trustees for it, and he declared them to be a new society, to remain under the pastoral charge of the old one till they should provide a separate place of worship, and appointed five of them, including four trustees of the old society, to be trustees, who immediately organized a corporation under the Gen. Sts. c. 30, §§ 43-46, and afterwards bought the meeting-house about which the committee reported, and ever since continued to act as a corporation. On April 4, 1863, at the local annual conference, by suggestion of the presiding bishop, the minister who had been stationed over the old society for two years made a certificate that twenty-eight persons, named therein, including eleven of the above described sixteen, and among them the four trustees of the old society who had been made trustees of the new one, and four others of the old trustees, had been acceptable members of the old society and were thereby discharged to form a new one to be known as the Trinity Society; and the bishop then stationed him over the society of that name, for the ensuing year, leaving the old society unsupplied; but in the statistical minutes of the conference the old society was recorded as having two hundred and ten members, and no mention was made of the new one. In February 1864 the “ society or societies ” which had formerly worshipped in the old meeting-house moved into the new one; and at the local annual conference in that year the name of the old society was omitted from the list of churches, and a preacher was stationed over Trinity Society, which was recorded as having a hundred and ninety-three members. But ever since 1854 the only record of baptisms, marriages and church members in either society was kept in one book, with no distinction between the two, and all the entries of church members were made in one column, headed, “ List of members of the First Methodist Episcopal Church, 1854,” with no mention of Trinity ¿Society except that against the names of some of thoss enumerated in the minister’s certificate to the bishop, but of only one of the old trustees was written by the minister, “ Removed by letter, April 5,1863, to Trinity Church.” And, at the general conference of the Methodist Episcopal Church in 1864 it was resolved that the rule of discipline requiring a superintendent not to continue a preacher in the same appointment more than two years in six appeared to have been infringed in 1863 by stationing a preacher a thud year over an appointment in Charlestown, which, having changed its name and location, was substantially the same charge he had served the two years preceding. A testatrix, who in 3822 became a member of the First Methodist Episcopal Church in Charlestown, and appeared by the church records to have remained so until she died in June 1864, and who worshipped with the society in the old meetinghouse and also in the new one, made a will in 1857, containing a gift to the society of that name, and by a codicil expressly ratified and confirmed the will on the day she died. Held, that at the time of her death a corporate body remained in existence competent to take the gift.</p>

Writ of entry by the widow of Joseph Willcut for possession of a house and land in South Boston.

<p>Tort by the lessees of a warehouse on Fulton Street in Boston against the defendant Thompson as owner of another warehouse on the same street, and Asa Mitchell, the other defendant, as Thompson’s servant, by occupation a carpenter, for so negligently connecting a drain from Thompson’s premises with a common sewer running through a passage way in the rear of both warehouses as to cause water to run into the plaintiffs’ cellar and wet and rust a stock of steel bars and sheets there on May 18,1866, and do other damage on subsequent days.</p> <p>In the superior court the case was referred to an auditor whose report was made part of the agreed facts. The evidence reported concerning the relation of the defendant Mitchell to the construction of the drain showed that he did not contract to lay it, or to do any specific work in connection with it, but that the laborers who did the work were in his employment at the time thereof, and he was to be reimbursed by Thompson for the amount of their wages, and that he superintended their labor, having been requested by an agent of Thompson to give directions to them. It also showed that part, if not the whole, of the water which ran into the plaintiffs’ cellar, and did the damage, flowed first through the cellar of Thompson, and trickled through the intervening walls. The other facts are stated in the opinion. Judgment for the plaintiffs was ordered on the report; and the defendants appealed.</p>

<p>If the horse of a traveller becomes frightened at an object in the highway which is an obstruction and defect therein, and with which, but for his fright, he would have come in contact, and, by reason of such fright, without coming in contact with it, runs away and overturns the carriage at a place where there is no defect, the city or town is not liable for injuiy so sustained by the traveller.</p>

Contract, with a count in tort, for the value of a valise and samples of merchandise contained in it, all of the property of the plaintiffs, who were wholesale dealers in fancy goods at Boston.

<p>Tort for damages by reason of the death of the plaintiff’s intestate, through the alleged negligence of the defendants while he was a passenger on their railroad in New York, on December 31,1865. Writ dated December 11,1866. The declaration alleged that the deceased was an inhabitant of Charlestown in Massachusetts; that letters of administration on his estate were duly issued to the plaintiff on January 9, 1866, by the judge of probate, for Middlesex; and that the plaintiff’s right of action accrued by virtue of the act of the legislature of New York, passed December 13, 1847, and amended April 7,1849, which is printed in the margin.* See N. Y. Sts. 1847, c. 450; 1849, c. 256; 4 N. Y. Sts. at Large, (Edmonds’s ed.) 526, 527.</p> <p>The defendants demurred, for the reason, among others, that “ no action can be maintained in this state, by the plaintiff, under or by reason of any statute law of the state of New York) ” and the case was reserved for determination by the full court.</p>

<p>Under a statute requiring the owners of a railroad to run a certain number of trains daily “ so as to furnish reasonable accommodation to the public generally and the business along the line of said road,” and declaring that this court “ upon application of any person interested in the transportation of freight or passengers ” may appoint commissioners to settle any disagreement as to what may be considered such reasonable accommodation, and that “ said court is hereby invested with full equity powers to enforce the provisions of this act,” the court has no jurisdiction in equity, upon the petition of such persons, to compel the running of such trains.</p>

Contract, brought in the county of Suffolk where the plaintiff did not reside nor have his usual place of business. Held: and which is used by their superintendent, who resides in Salem.

<p>Contract, with two counts; the first on an account annexed for labor and materials ; the second alleging that the defendants (Jeffrey R. Brackett and George Snell) represented themselves to be agents of a corporation called the Boston Mechanical Bakery Company, and so induced the plaintiffs to perform the labor and ‘urnish the materials on the credit of said supposed corporation, when in fact it had no legal existence, whereby the defendants became themselves liable to the plaintiffs. The defendants answered severally, denying the plaintiffs’ allegations except concerning the legal existence of the corporation, as to which they declared themselves ignorant.</p> <p>Trial in the superior court before Brigham, J., who made a report thereof, the material parts of which were as follows :</p> <p>“ By the St. of 1859, c. 141, Joseph G. Russell, William B. Phelps, and Augustus O. Brewster, their associates and successors, were made a corporation under the above-mentioned name for the purpose of manufacturing bread. The first meeting was called by a notice which did not purport to be signed by either of the persons named in the act except Brewster, but was signed by him as ‘ one of the incorporators ’ and requested ‘ the subscribers to the capital stock ’ of the company to meet on January 3, 1860, ‘ for the purpose of organizing and electing the necessary officers.’ Under that notice a meeting was held and votes were passed accepting the act and assuming to organize the corporation ; and officers were chosen, by-laws adopted, the amount of capital determined, and the number and par value of the shares established; and the capital so established has been paid in, and certificates of shares issued accordingly. The defendants were declared to have been elected as officers of the company; said Brackett treasurer, and said Snell a director. The persons chosen as officers, supposing themselves legally chosen and the organization of the company to be legal and unquestionable, proceeded to act in their respective supposed capacities, and contracted with the plaintiffs for the labor and materials described in their declaration, all of which they furnished and delivered on the credit of said corporation and not to the defendants personally or on their personal credit.</p> <p>“ The plaintiffs also offered to prove that there were no subscribers to stock prior to the date of the act of incorporation; and that Russell and Phelps, who were named in the act, did not consent to the call of the first meeting, but, upon being requested, refused to join therein, and did not attend said meeting nor participate in the organization of the company, and that none of the persons acting became associated therein at the request or by the authority of said Russell or Phelps ; but it did not appear, and was not contended by the plaintiffs, that Russell or Phelps took any measures or gave any public notice for the purpose of preventing the proposed organization, or made any attempt to have any separate or other organization.</p> <p>“ The plaintiffs contended that, as the notice under which the first meeting was called was not, and did not purport to be, subscribed by a majority of the persons named in the act of incorporation, and as there were no subscribers to stock prior to the date of the act, and, as two of the persons named in the act did not participate in the organization of the company, but refused to do so, the meeting was illegally held, the proceedings at the same were without legal effect, and, therefore, the organization was void, and the corporation had no legal existence, and the defendants were not its officers or agents.</p> <p>“ But the judge' ruled that the organization of the company was not fatally defective, or invalid ; that said corporation has a legal existence; and that the evidence proposed to be offered by the plaintiffs was immaterial or inadmissible; and therefore directed the jury to find a verdict for the defendants. If, on the foregoing facts, including those which the plaintiffs offered to prove, the plaintiffs, upon any amendment of their declaration, or in any form of action at law, are entitled to recover of the defendants, then the verdict is to be set aside and a new trial ordered, otherwise judgment on the verdict.”</p>

<p>Contract against David Fairoanks & Co as drawers of the follow'ng bill of exchange : “ Boston, March 23,1866. §4,469.76. Two months after date pay to the order of Messrs. Hiram Tucker & Co. four thousand four hundred and sixty-nine dollars, value received, and charge the same to account of “ David Fairbanks & Co.,</p> <p>“ Agts. Piscataqua F. & M. Ins. Co.</p> <p>“ To Piscataqua F. & M. Ins. Co., So. Berwick, Me.”</p> <p>Across the face of the draft was written, “ Accepted for the Treasurer, David Fairbanks, President; ” and on the back, “ Payable in Boston, Hiram Tucker & Co.”</p> <p>Trial by jury was waived, and the case heard by Foster, J., who found the following facts: The signatures of all the parties to the bill were proved or admitted. It was actually made and delivered to the officers of the plaintiff corporation, and accepted by them on the 3d of April 1866, in payment and satisfaction of the amount of a loss by fire, due on a policy of insurance effected by Hiram Tucker & Co. in the Piscataqua Fire and Marine Insurance Company, which had been ascertained on the 23d of March, and was payable sixty days afterwards, and had been assigned by Hiram Tucker & Co. to the plaintiffs on the 26th of March. The plaintiffs had full knowledge of all the circumstances under which the bill was made. The insurance company, at the time of delivering it, took from the plaintiffs’ treasurer this receipt: “ Piscataqua Fire and Marine Ins. Co., Treasurer’s Office, So. Berwick, Me., April 3, 1866. $4,469.76. Received of the Piscataqua Fire and Marine Insurance Company forty-four hundred and sixty-nine and dollars, in full for loss and damage to my property by fire on the 19th of March 1866, insured by policy No. 16,907 in said company. Tucker Manufacturing Co. R. S. Fay, Treas.”</p> <p>No evidence was offered of any fraud attending the making of the bill. The defendants offered parol evidence tending to show that it was not expected or intended that they should be liable on the bill, that it was given only to settle the loss, and was supposed and expected by both parties to create a debt against no one but the insurance company. But the judge excluded such evidence, and held that' the question of the defend ants’ liability must be determined by the instrument itself.</p> <p>The insurance company were a corporation established by the laws of Maine, having their office at South Berwick in that state. The bill was never presented to them there for acceptance, and no regular notice of its nonpayment was given to the defendants. The defendants had no funds in the hands of the insurance company when the bill was made or ever afterwards. It was proved that the draft was made and delivered in Boston at the office of the defendants, who were the general agents of the insurance company, and one of them, David Fairbanks, its president, and the agent appointed to receive service of process in Massachusetts, under the Gen. Sts. c. 58, § 68; that at the time of its execution one of the defendants was asked where it would be paid, and replied “in Boston,” and requested the plaintiff to keep it there and not send it to Maine for collection ; that before it came due one of the defendants told the plaintiff that it would not be paid at maturity, but he hoped it would be paid eventually; that on the last day of grace the defendants were informed by the plaintiff that it was in the Union Bank in Boston, and one of them answered that it would not be paid.</p> <p>Upon these facts the presiding judge found that due presentment and notice had been waived by the defendants; and reserved the questions, whether the facts warranted this finding, whether the defendants were liable personally as drawers on the face of the bill, and whether the parol evidence offered by them should have been received, for the consideration of the full court, according to whose opinion judgment was to be entered for the plaintiff, or for the defendant, or a new trial ordered.</p>

<p>[n settling the affairs of a partnership dissolved by death of one of the firm, its real estate is to be converted into personalty only when and so far as necessary to pay claims against the partnership which are in the nature of debt, including balances due to individual partners for advances to the firm or payments made in its behalf, and capital furnished by a partner when it is to be repaid in specific sums; and the surviving partners may apply partnership funds to release its real estate from incumbrances which existed at the time of the purchase thereof in the lifetime of the deceased, and also to fulfil bonds or contracts then entered into by the firm for the purchase of real estate: and equity will not interfere to counteract or modify the operation of the statutes of descent or distribution on the estate of the deceased partner, by converting into personalty, and dividing as such, any real estate or interest therein, which, after adjustment of the partnership affairs on the foregoing principles, remains to be divided between his representatives and the surviving partners; nor will interfere at all, except so far as may be needful to secure to the estate of the deceased, and to the surviving partners respectively, their actual beneficial interests in such real estate when those interests do not correspond with the legal title.</p>

<p>A contract, whether executed or executory, for the conveyance of either real or personal property to conceal it from attachment by the grantor’s creditors, although voidable by them, is good between the parties, even if the grantee shared in the fraudulent intent.</p> <p>The fraudulent character of the purpose of a partnership as to creditors is no defence to a bill in equity by one of its members against the others for a settlement of the affairs of the firm.</p>

<p>Contract for money received by the defendant, as master, to the use of the plaintiff, as owner, of the ship Southern Eagle.</p> <p>At the trial in the superior court, before Rockwell, J., a verdict was returned for the defendant; and the plaintiff alleged exceptions. The material facts are stated in the opinion.</p>

<p>The St. of 1864, e. 120, which empowered towns and cities to raise and apply money for the purpose of procuring their quotas of volunteers for the military service under certain calls of the President, was permissive merely, and authorized each town or city to use full discretion whether to apply it by way of bounties or otherwise, and on what conditions, and to what amount, subject only to the limitation in the proviso of the statute, that the amount should not exceed one hundred and twenty-five dollars for each such volunteer.</p> <p>In an action against a city by a volunteer in the military service, credited on its quota under the call of the President of July 18,1864, for the amount of a bounty which at the time of his enlistment was offered by the city, under the St. of 1864, c. 120, to each volunteer who should enlist as a part of its quota under that call, except in “ the companies being raised ” there “ for coast defence,” without specifying such companies, the fact that the order of the governor for raising the company in which the plaintiff enlisted did not mention that it was to be raised for coast defence, while there was such mention in the orders for raising two other companies which were recruiting there at the time, is not conclusive evidence that the plaintiff’s company was not raised for coast defence, and evidence is admissible of all the facts which tend to show what companies were embraced in the terms of the exception.</p>

<p>Contract on the following agreement signed and sealed bv the defendant on December 2,1853: “ In consideration of one dollar received, I hereby agree to pay to George W. Welch.for deed of estate on Eastern Railroad Wharf, now belonging to heirs of John Welch, upon the presentation of the deed, five thousand dollars in cash, and five thousand five hundred dollars in satisfactory mortgages on property in the city of Boston, satisfactory to said Welch; said five thousand five hundred dollars payable with interest in one year.” Writ dated September 15, 1866.</p> <p>At the trial in the superior court, before Brigham, J., it appeared in evidence that John Welch, the plaintiff’s father, owned the land prior to November 3, 1847, when he conveyed it to Thomas J. Welch, taking a mortgage of it back on the same day, and two subsequent mortgages of it in 1849 and 1850; that, on December 26, 1853, John Welch having died prior to the agreement with the defendant, there was a partition of his real estate, setting off to the plaintiff the land in question; and that on January 5, 1854, the plaintiff tendered to the defendant a deed purporting to convey it, and demanded payment according to the terms of the agreement, but the defendant refused to accept the deed or make the payment.</p> <p>And it further appeared that this partition, having been recorded May 22, 1854, was confirmed by mutual conveyances of the heirs of John Welch, on February 28, 1859; and that, on June 14,1856, the executor of John Welch’s will assigned to the plaintiff the first mortgage named, and, on August 7,1858, Thomas J. Welch, in whom the record title to the land had stood ever since November 3,1847, conveyed it to the plaintiff; and finally that, on July 8, 1859, the two other mortgages were assigned to the plaintiff.</p> <p>And it was also in evidence that at the time the defendant made the agreement in question he knew that John Welch’s estate had not been divided among the heirs.</p> <p>To control this evidence the plaintiff offered to prove that the conveyance of the land by John Welch to Thomas J. Welch, on November 3,1847, and the mortgage of it back on the same day, were both without consideration; and that John Welch, until his death, was in possession of the land, and took all its rents and profits, which, after his death, were taken by his executor, until the partition, and, after that, by the plaintiff, who on the day of the partition entered into possession of the land. And the plaintiff further offered to prove that, after the release of title by Thomas J. Welch, and the confirmation of the partition by the heirs, he again tendered to the defendant the same deed of the land which the defendant had refused in 1854.</p> <p>But the judge excluded the evidence thus offered by the plaintiff, and directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Contract to recover a sum of money alleged to be due from the defendant to the estate of the plaintiff’s testator. Writ dated September 14,1866. At the trial in this court, before Foster, J., the defendant admitted his liability for the debt, unless the following facts, which appeared in evidence, constituted payment thereof.

Contract on the defendants’ covenant to pay wages to the plaintiff’s minor son, contained in an indenture of apprenticeship executed by and between the plaintiff and the defendants, on January 13,1864, which was appended to the declaration and set forth that, in consideration of the plaintiff’s covenant, binding his son to the defendants, who were printers, “ to well and faithfully serve them and give and devote to them his whole time and labor,” as an apprentice, from the…

Contract to recover one hundred dollars of a reward offered by the defendant in an advertisement as follows: “ One hundred and ten dollars reward. Lost, a pocket-book containing papers valuable only to the owner. The finder can have the above reward by returning book and contents to the Transcript office,” being the office of a newspaper in Boston in which the advertisement was published.

<p>Trustee process. In the superior court the principal defendant was defaulted, and on the question of charging the city of Boston summoned as trustee the facts were agreed as follows :</p> <p>“ At the time of the service of the writ upon the trustee, Saturday, October 20, 1866, at half an hour after noon, it had in its possession the sum of thirty-eight dollars and twenty-five cents due to the defendant for work done by him at the Mount Hope Cemetery, in Dorchester, which belongs to the said city The defendant was engaged to work there by its superintendent of said cemetery, by whom all payments of wages there are made upon the receipt of funds and order from the city. The pay-roll is made up by him to the 20th of each month, and sent to the city treasurer, who returns it with the money to pay the wages according to it, before the first of the following month, when the superintendent pays the laborers up to the 20th of the preceding month. The principal defendant was discharged on the 20th of October, and the superintendent paid him, before the usual time and before the receipt of the pay-roll, but after the pay-roll was made up and sent to the city, at about five o’clock in the afternoon of Monday, October 22, out of moneys of the city in his hands, and before he was notified of the service of said trustee process. The superintendent had previously advised the plaintiff to attach said funds, but at the time of payment had not heard of a suit or process. Before November 1, and after payment, the pay-roll was sent to the superintendent with notice of the trustee process.”</p> <p>Judgment being ordered for the discharge of the trustee, the plaintiff appealed.</p> <p>The papers certified from the superior court comprised only the agreement of facts and an agreement of the counsel of the plaintiff and of the trustee “ that no papers shall be printed or copied in said action except the agreed statement of facts upon which the questions of law therein raised are to be determined.” The case coming on for argument upon the appeal, the Court said that by reason of this agreement of the counsel it was not presented in a manner which entitled it to hearing; but after-wards granted the request of the counsel to withdraw their agreement and cause copies to be prepared and transmitted in accordance with the statute (Gen. Sts. c. 114, § 14), and allowed the hearing to proceed.</p>

<p>Tort for conversion of certain machinery. In the superior court a verdict was found for the plaintiffs ; and the defendant alleged exceptions. The case is stated in the opinion.</p>

Contract against the copartnership of Clogston, Parker & Gordon, for a balance of money alleged to remain due to the plaintiff, after demand, in the hands of the defendants, out of the proceeds of the sales of five of six sole-cutting machines built by them under a written contract signed by the parties and running as follows: “ We, Clogston, Parker & Gordon, hereby agree to build for Samuel S. Weed, six sole-cutting machines from patterns fur» nished by him, for the sum of…

Replevin of seventy thousand cigars. The plaintiffs were tobacco dealers in New York; the defendants, the same in Boston.

Contract for money had and received to the plaintiffs’ use, being the price of a billiard table.

Libel for divorce from the bond of matrimony, alleging that, on October 31,1861, at Boston, the libellee deserted the libellant without just cause, and continued such desertion more than five years consecutively, and until the time of the filing of thi3 libel, March 15,1867.

Libel for divorce from bed and board for extreme cruelty of the husband. The libellee was defaulted; and, at the hearing before Wells, J., the allegations of the libel were proved to the satisfaction of the judge, who reserved the case for determina tion by the full court of the question of jurisdiction arising on the following facts: The parties were married April 12, 1866, at Rockport, and came immediately to Boston, where they resided together until about September 1.

<p>Contract for money paid and work done; with a count on an account stated. At the trial in the superior court, before Brigham, J., the facts appeared as follows :</p> <p>The defendant, who was a stock broker in Boston, but not a member of the Boston Stock Exchange Board, requested the plaintiffs, who also were stock brokers in Boston, to “ buy ” for him a hundred shares of stock of the Hancock Mining Company, a corporation, “ to be delivered at buyer’s option within ten days.” The plaintiff Durant, being a member of the Board, on August 29, 1866, acting in behalf of the plaintiffs, at a meeting of the Board, “ contracted ” with one Gilley, also a member thereof, for the stock, the secretary of the Board making, at the time, the following memorandum of the contract, “ Aug. 29, 1866. 100 shares of Hancock, Gilley to Durant at $34, buyer 10 days,” and Gilley “selling” the stock “on his own account and not as a broker acting for any other person as owner.” On the same day or the day following the plaintiffs notified the defendant that they had “ bought ” a hundred shares of the stock for him on those terms, and he signified his assent. Before the end of the ten days the market price of the stock fell to twenty-four dollars and a half per share; and the plaintiffs called on the defendant to pay “them ” a sum of money, as a “ margin,” to secure “ them ” against loss from the decline in the price. He failed to furnish any such “ margin,” but said it would be “ all right.” Gilley then, at the plaintiffs’ request, “ carried ” the stock until September 29, when he gave them notice that he should sell it if not paid for; and, on the same day, the plaintiffs having meanwhile informed the defendant of such notice, he and they had an interview with Gilley, in which the latter stated that he “ looked to th” plaintiffs ” for his pay, and that he “ should sell the stock, if not paid for.” But the defendant said that he “ could do nothing about it.” On that same day Gilley received from Spencer, Vila & Co. (another firm of brokers) a power of attorney signed by them for the transfer of a hundred shares of the stock in question, and delivered it to the plaintiffs, who paid him thirty-four hundred dollars and then gave the defendant notice that they had received and paid for the shares on his account and requested him to take the shares and to reimburse them for their payment. But he never did so, then or afterwards, although repeatedly requested. And finally, on October 3, after giving him notice of their purpose, the plaintiffs sold said one hundred shares of stock for twenty-one hundred dollars and demanded of the defendant payment of the amount of the diffei-ence between that sum and thirty-four hundred dollars, with charges for interest and brokerage; and, upon hi® neglect to comply with the demand, brought this action for such amount.</p> <p>There was no evidence otherwise than by inference “ from the relations of the parties and their previous transactions with each other of a similar description, and the fact of the transaction at the brokers’ board, and the fact attending the delivery of the power,” as to whether or not either Gilley or Spencer, Vila & Co. were on August 29 or September 29 owners or assignees of any stock in the Hancock Mining Company, or agents to sell and transfer a certificate or other evidence of any shares or interest therein ; nor as to “ whether or not any shares in said company were ever transferred to Gilley, or to Spencer, Vila & Co., or to the plaintiffs ; ” nor “ that the defendant, up to the time of the sale of said stock by the plaintiffs, knew who was the owner, or whether or not Gilley had, or could give, any valid title to the stock.” And, except the memorandum made by the secretary of the brokers’ board, which was not signed by anybody, there was no evidence “ of any memorandum within the statute of frauds, between said Gilley and the plaintiffs, in the matter of the sale of said stock to the plaintiffs ; or that any payment was made by the plaintiffs to Gilley on account of the stock, or delivery of the stock, or any part of it, by Gilley to the plaintiffs on August 29.”</p> <p>The defendant requested the following instructions to the jury:</p> <p>1. “A sale of shares in a corporation is a contract for the sale of goods within the statute of frauds.</p> <p>2. “ If the jury should find that the plaintiffs entered into any contract with any party in behalf of the defendant for the purchase of shares of the corporation to the value of fifty dollars or more, to be delivered at a future day, the plaintiffs cannot recover, unless they show affirmatively that they, before the defendant refused to take said shares, accepted and received said shares so sold, or some part thereof, or gave something in earnest to bind the bargain, or in part payment, or that they, or some person by them thereunto lawfully authorized, made and signed some memorandum in writing of the bargain.</p> <p>3. “ The burden is on the plaintiffs throughout the case to prove that they paid the money upon a contract made by them for the defendant with some one who was at the time of making the contract the owner or assignee of such stock, or the agent of such to sell or transfer the certificate or other evidence of the shares or interest so contracted for, and that such assignee or agent held the same free from all other contracts to sell.</p> <p>4. “ If the jury find that no evidence has been offered by the plaintiffs to show that they made a contract for the purchase of the stock, in behalf of the defendant, with one who was at that time the owner or assignee of such stock, or the agent of such to sell or transfer the certificate or other evidence of the shares or interest so contracted for, such contract made by them is to be held illegal and void in law.</p> <p>5. “ To entitle the plaintiffs to maintain this action for money paid and services rendered for the defendant, they must show affirmatively that they paid the money upon a legal contract so entered into by them for the defendant’s benefit that the law would compel them to perform it; or that they paid the money upon the express request of the defendant, either upon a legal contract, or with the defendant’s full knowledge of all the facts which rendered the contract illegal.</p> <p>6. “ If the plaintiffs made an illegal contract on the defendant’s behalf, and suffered loss thereby, they cannot recover damages from the defendant upon the ground of his acceptance or ratification of such contract, unless they show that he accepted or ratified it with full knowledge of all the material facts which rendered such contract illegal.</p> <p>7. “ The defendant is not to be presumed to have given the plaintiffs any authority to make an illegal contract for the purchase of this stock ; and, if the plaintiffs made such contract on the defendant’s behalf, they must show affirmatively that the defendant gave them authority so to do, or they will be presumed to have acted without authority.</p> <p>8. “ If the defendant is liable at all in this action, the measure of damages is the difference between the price of the stock on August 29, the alleged day of purchase, and its price ten days afterwards on September 8, the latest agreed day for delivery and the day on which the defendant refused to receive it.”</p> <p>The judge declined to give any of these instructions, and “ instructed ” the jury “ that the fact that both parties were brokers, and might be presumed to know the usages of their business, was entitled to great weight in considering whether the defendant had knowledge of the material facts as to ownership of this stock by Gilley and the purchase of it by the plaintiffs ; ” and also gave the following instruction: “ that if the jury shall be satisfied that the plaintiffs purchased this stock as they allege, at the request, upon the terms requested, and for the account, of the defendant, notified him that they had done so and the terms, and the defendant assented thereto, afterwards earned the stock, at the defendant’s request, until the defendant had notice from the vendor that it must be sold, and then, at the defendant’s request, express or implied, took and paid for the stock, they should render a verdict for the amount paid, with interest, less the net proceeds of a sale which was made without any unreasonable delay after the refusal of the defendant.”</p> <p>The jury returned a verdict for the plaintiffs, and assessed damages conformably with this instruction; and they also returned the following answers to these, among other questions specially submitted for their determination: “ Was Gilley on August 29, 1866, the owner or assignee, or authorized by the owner or assignee, or his agent, to sell or transfer the certificate or other evidence of shares contracted for by the plaintiffs with him on that day ? ” Answer, “ Yes.” “ Did the defendant expressly request the plaintiffs to pay Gilley for this stock ? ” Answer, “ He implied it.” The defendant alleged exceptions.</p>

<p>Contract for money received to the plaintiff’s use, alleged to have been paid to the defendant, in consequence of false and fraudulent representations made by him, for certain pretended shares in a corporation fraudulently organized, which shares the plaintiff afterwards tendered back; said false and fraudulent representations being “ that said corporation was all right and would immediately prosecute the development of its property in Colorado and the business for which it was organized, and that said shares were of great value.”</p> <p>At the trial in the superior court, before Ames, J., the plaintiff, who lived in Portland, testified that he had previous stock transactions with the defendant, and one day, in November 1864, at the defendant’s office in Boston, “ made some inquiries of him about the Stewart Gold Mining Company, saying at the same time that he would like to invest some money; ” and the defendant answered : “ Would you like to buy some stock in that company 1 I think I can let you have some,” or “ can buy you some.” “ It is one of the best properties in Colorado. It is very valuable. They are going right to work on it. It is all right. You had better buy some of the stock, and get your friends to do so; ” and that the defendant said that the price of shares was one dollar and fifty cents each, and that “ he ” “ would probably get it” at that rate, but did not say anything about the capital not having been paid in, nor about the organization of the company, nor about any injunction prohibiting it from doing business. And the plaintiff testified that he answered that he would take two thousand shares; and that soon after-wards he received the certificate thereof from the defendant, and paid him three thousand dollars; that, although he “ heard that there was some trouble,” yet it was not until in December, 1865, that he “ knew anything definite about the company,” when he heard that there was an injunction against its prosecuting business, and, on examining the records at the offire of the clerk of this court, found that such was the fact; and that on the same day he tendered back to the defendant an assignment of the shares, duly executed, and demanded repayment of his money, saying: “ When I bought, you said it was all right. You said nothing of the injunction. I consider you had no right to issue any stock. You represented it as very valuable, and all right, and that they were going to work on it immediately ; ” but that the defendant refused to pay back the money. It appeared also by the plaintiff’s testimony that “ some months before ” November, 1864, he had some conversation with the defendant about this company, the details of which did not appear.</p> <p>The plaintiff introduced in evidence record copies of a complaint to this court by the treasurer of the Commonwealth against the Stewart Gold Mining Company for nonpayment of a tax of three hundred dollars, and the decree thereon ordering an injunction to issue restraining the company from prosecution of business, and the writ of injunction, dated September 3, 1864, and the officer’s return thereon showing that it was served three days afterwards on Charles Durham, the treasurer of the company ; and it appeared that this injunction had never been removed.</p> <p>The plaintiff also called Durham as a witness, who testified that the projectors of the company were himself and the defendant, with Gustavus F. Sargent and some others, who together, on February 12, 1864, signed articles of association under the general corporation act, and organized the company on that day; and the certificate deposited by officers of the company, under the act, with the secretary of the Commonwealth, dated March 15, 1864, and filed the next day, was also put in evidence by the plaintiff, signed and sworn to by John Merrill as president, Durham as treasurer, and Merrill and Sargent with the defendant as a majority of the directors, certifying that “ the amount of capital stock is five hundred thousand dollars, the par value of the shares is five dollars per share, the amount paid in is four hundred thousand dollars, the place of business is Boston,” and “ its purposes are to acquire mineral lands and mining rights in Colorado Territory, to mine on said lands and rights for gold and other ores, and to sell said ores, or to reduce the same to metals and sell the metals, as may be most for the advantage of the corporation.” But the plaintiff, by his counsel, stated “ that he did not rely on the fact chat the company delayed going on with mining operations, independent of concealments by the defendant.”</p> <p>And Durham testified further as follows: “ We had arranged to buy the property of a Mr. Coffin from Colorado, at a hundred and twenty thousand dollars. The capital of the company was fixed at five hundred thousand dollars, of which one hundred thousand was to be working capital; that is, twenty thousand shares, at five dollars, were to remain in the treasurer’s hands. Checks to the amount of a hundred and twenty thousand dollars were left with me to pay Coffin for the property, which was put into the company at five hundred thousand dollars, the owner of the mine accepting thirty thousand shares instead of the hundred and twenty thousand dollars agreed on, and the checks were destroyed. The shares left with the treasurer were to be sold to raise a working capital. A lien on the property of about sixty-five hundred dollars was paid off, and about five thousand dollars paid to Coffin in cash. This money Poole furnished. I don’t know where or how he obtained it. The land was considered as five hundred thousand dollars. The individual subscribers paid nothing on their shares. I had three thousand shares personally, and held the twenty thousand as treasurer in trust. Poole had three thousand in his own right, six thousand as agent, and twenty thousand as agent or trustee. He paid nothing into the treasury of the company. Coffin received shares as bis profit. So far as I know, Poole has not been repaid the money he advanced. He has been one of the directors the whole time. On November 29, 1864, I transferred to the plaintiff two thousand shares from Poole’s account as agent, signing ‘ Benjamin Poole, by Charles Durham, attorney.’ Poole had previously given up his certificates to the company, and, on disposing of any of the'shares, a new certificate was to issue. When he proposed to assign to the plaintiff, I inquired about the injunction, but he said that it did not amount to anything, that he would see the attorney general and get it fixed.’ On cross-examination the witness said that the transfer to the plaintiff was in Poole’s name as agent, and that he believed that Poole did not return the certificate standing in his name previously ; and further testified that he then and ever since believed the property to be of great value.</p> <p>At this stage of the case, the plaintiff having rested, the defendant asked the judge to rule that the plaintiff was not entitled to recover, assuming all the facts offered in evidence by him to be fully proved ; but the judge declined so to rule.</p> <p>The cross-examination of Durham was therefore resumed, when he testified that in March or April 1864 he had a conversation with the plaintiff at Portland, in the course of which the plaintiff introduced the subject of this mining company and made inquiries concerning it, and in which the witness showed a prospectus and said that he thought it was valuable, that there was money in it, that the stock was divided into a hundred thousand shares at five dollars per share, and twenty thousand shares were reserved for working capital, and eighty thousand shares at a dollar and a half per share would pay for the property put into the company; and the witness testified that he offered at that time to sell his own stock to the plaintiff. And it appeared further, by the testimony of this witness, that thirteen certificates of stock in the company were issued together on March 18, 1864, and Poole was appointed “ a committee to regulate the sale of the stock ” and “ none was to be issued till July except by his authority; ” that “ the company did not want the stock to be put in the market until the incumbrances were paid off, and Poole was to retain the stock to meet the incumbrances, and to let Coffin dispose of or distribute the balance of the twenty thousand shares in his hands as agent or trustee that should come to him after enough of his proportion had been sold to pay off the incumbrances; ” and the witness repeated that “ so far as he knew, none of the stockholders paid anything to the company for their shares.”</p> <p>The defendant testified and offered much other testimony, including that of Sargent, tending to show “ that after the project was suggested to him by Coffin he expended much time and labor in getting authentic information about the value of the property, seeing, for that purpose, many persons from Col* orado familiar with such property and acquainted with this, ali of them men of character and entitled to confidence; that he then and ever since believed that it was and is of very great value ; that Coffin had expended his means, and offered it at the price of a hundred and twenty thousand dollars, but preferred to be paid in stock if a company could be got up to operate it; that the defendant took three thousand shares in payment for his own services and expenses in making the arrangements; that he paid off the incumbrances from the proceeds of twenty thousand shares left in his hands, as agent, to be sold for Coffin, acting under Coffin’s orders in so doing; that, being applied to by the plaintiff, who wanted to buy in, he told him expressly that he did not intend to sell any of his own stock, and also that the capital stock was half a million, but he thought he could get some at a dollar and a half per share ; that the plaintiff said that he would like some as a ‘ flyer; ’ and that, after some time, the defendant succeeded in getting two thousand shares transferred to the plaintiff, half by Sargent and half by one Pierce, and the money paid by the plaintiff was immediately paid over to them ; that no part of the stock so sold belonged to the defendant, and none of the money received was his, but that he acted merely as agent, not receiving one cent as commission or in any other way; and that, in a conversation in the spring of 1864, he expressly told the plaintiff the amount of the capital stock of the company and that the whole was paid for in property, and also told him the original price of the property as offered by Mr. Coffin.”</p> <p>The defendant further testified “ that the delay in obtaining a working capital was for the purpose of ascertaining the best machinery and mode of working; that he fully believed that all the proceedings of the company had been legal and regular • that the injunction was only for the tax, and the company had intended to test the question as to its constitutionality; that officers were chosen before the purchase from Coffin was made, that the defendant and Sargent were a committee to buy; that the stock set apart for Coffin was distributed as he directed, after the sale of a portion to raise money for the incumbrances; that efforts had been made to sell stock to raise a working capital, but without success; that of the shares sold to the plaintiff one thousand stood in name of the defendant, as agent, but really belonged to one Pierce; and that in March the incumbrances had been paid, and there was no reason for restraining, the sale of the shares.”</p> <p>The defendant also contended, and offered evidence tending to show, that the representations to the plaintiff were not such as the plaintiff testified, but were mere general expressions of confidence and favorable expectations; and evidence was introduced tending to show that the mine was and is very rich in gold, but difficult of successful operation on account of the gold being in combination with sulphurets of other metals ; and the plaintiff, being recalled, admitted “ that he did not suppose that the property actually cost the company five hundred thousand dollars, or was put into the company at the par value of the shares, but did suppose that it actually cost a large sum of money.”</p> <p>The defendant then renewed his request for a ruling that there was no sufficient evidence of false and fraudulent representations on his part; which the judge again refused.</p> <p>In his closing argument to the jury the defendant contended “ that he did not personally sell the stock, nor receive the money paid therefor, but was acting only as agent of third persons, and so was not responsible to the plaintiff for money had and received ; that he made no fraudulent or false representation, but, if he had, would not be liable in this action, because he was not the seller; that any representation that the property was valuable and all right, and that they expected to develop it, was too indefinite in its nature to mislead the plaintiff; and also that the plaintiff was not misled but fully understood the general state of the facts and bought upon his own judgment.”</p> <p>The plaintiff, in closing, contended on the contrary “ that the stock, being issued for less than its par value, was fraudulent and void, and no title or value was conveyed to the plaintiff by the sale ; that the defendant was bound to disclose the existence of the injunction, and the manner in which the company had or ganized and the stock had been issued ; and also that the alleged organization was a fraud, and the shares were intended to be distributed among buyers at a fictitious price greatly beyond the cost and value of the entire property.”</p> <p>During the closing argument for the plaintiff the attention of the court was called to the fact that the records of the company (which had been introduced in evidence) did not indicate that the articles of association under which it was claimed to have been organized, were signed by any person ; and the treasurer, on search, failed to find any original agreement signed by any of the persons described in his testimony as the projectors. The plaintiff contended that in this condition of the record the company was not organized and the alleged shares had no legal existence ; but the judge ruled pro formd that evidence that the company had acted as if organized would be primd facie evidence that it had been organized; and that the non-production of the original agreement duly signed, and the failure to record the same with the signatures, were not conclusive proof of a fatal defect in the organization.</p> <p>The judge instructed the jury “ that although it appeared in evidence that the organization of the company was irregular, and perhaps improper, it did not necessarily follow that it was fraudulent; that if three or more persons, owning real estate on which they intended to carry on mining operations, should, for the sake of convenience, organize themselves as a corporation, putting in their joint property at what they honestly, under the influence of sanguine or even somewhat extravagant impressions as to the prospects of the intended business, believe to be the value of the property, it would not be fraud, even though they should prove to be greatly mistaken in their estimate; but would be wholly a question of good faith and honest intent, and that they might be substantially in the same position as if they had paid in the amount of their shares in cash, and the company had distributed the same cash among the owners of the real estate, as payment therefor; that the rule caveat emptoi applies to the purchase of stock, as well as ol other property and the purchaser has to consider how much and what property the corporation owns, what proportion of the whole is represented by a single share, and whether the corporation owes any debts, and to what amount, and, if he is not misinformed on either of these points, has no right to complain if he should be disappointed in the result.”</p> <p>And he further instructed them “ that if no money at all, or only a small amount to take off incumbrances, was actually paid in, if the seller and the buyers became joint owners as co-corporators, the questions for them would be: Was it a scheme to deceive or mislead anybody ? Was it a device to sell the property by causing unsuspecting persons to buy in, in such a manner that such buyers were to pay the full value or more, leaving the projectors to hold their shares free of cost or at a low price ? Was it put in at a nominal and excessive price, with the intent by deeds or words to convey to buyers the idea that the original projectors had really invested the nominal amount, or a very large amount, in the purchase and preparation for business? Was it a mere ‘bogus’corporation, not having any real capital, or only a small and nominal one, got up to run off the property at an excessive price, by intentionally impressing buyers with the idea that the projectors had themselves invested according to the nominal price ? and that, if the answer to these questions should be in the affirmative, any person buying stock of one of the projectors under such influences might have a right to recover back the money paid to him on such purchase.”</p> <p>The judge instructed the jury also, “ that they were next to consider the question whether the defendant sold the property in question personally, or was merely employed to procure it for the plaintiff; that if he acted merely as the agent for some third person, to whom he was accountable for the money that should be obtained, he would not be responsible in this action; but if, on being applied to, he disclosed no agency for anybody else, but undertook as between himself and the plaintiff to procure and supply himself with two thousand shares to sell to him, and did so, that would be a sale by the defendant to the plaintiff that the plaintiff claimed that at least a thousand of the shares stood in the name of Poole, and although the word ‘ agent ’ was written after his name yet he really had full control of them and was not in fact agent for anybody, and that he and Sargent were one in interest and feeling, merely sharing the proceeds of the sale; but that the testimony of the defendant and Sargent wholly denied this claim.”</p> <p>And he instructed them further “ that, if the company was honestly organized, and Poole sold the stock to the plaintiff, the latter, in order to recover, must show that Poole made representations about the property which were material, which were of a nature to influence, and did in fact influence, his judgment in deciding to make the purchase; that those representations were untrue, and that Poole knew them to be untrue; that the representations that the company was all right, had a very valuable property, and was about to go to work in developing it, would be immaterial, if they were merely expressive generally of sanguine expectations and commendation of the enterprise as likely in his belief to be profitable; but if, however, they were spoken on such an occasion, and in such a connection, and with such attending circumstances, as reasonably to give the plaintiff to understand them to mean that the company was well organized, had ample means and paid-up cash capital, they would be material; that, if the plaintiff knew the true state of the facts already, and that the land was put in at a nominal price, and, above all, if he knew that the land constituted all the actual capital of the company, and the working capital was yet to be obtained by selling the reserved stock at the best price they could get, the plaintiff was not in a condition to say that the alleged misrepresentations affected or influenced his judgment • that the plaintiff must also prove that the representations were not true in the sense in which they were material, and also that defendant knew they were not true.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Contract on a policy of insurance against the usual marine risks, made by the defendants June 26,1866, for one year from June 14, 1866, on the barque Dreadnaught, for seven thousand eight hundred dollars, payable to the plaintiffs.

<p>Tort for injuries by a fall alleged to have been caused by negligence of the defendant corporation.</p> <p>The declaration alleged that on July 28, 1865, the plaintiff bought a ticket at Wellesley station, on the defendants’ railroad, for transportation of herself from there to Boston; and while she was waiting, as a passenger, under the defendants’ direction and control, upon a platform provided by them for the use of passengers waiting to.be conveyed from Wellesley to Boston, a switch was so carelessly managed by their servants, that the approaching train left its usual and safe track for a side track immediately connected with the platform, by reason whereof she, being all the time in the exercise of due care, suddenly left the platform, on account of apprehension of imminent danger to her life and limb from the train, and in so doing fell-and received the injuries in question.</p> <p>The answer denied that the plaintiff, while standing on the platform, was under the defendants’ direction and control, and alleged that, being there in a position perfectly safe, she carelessly left it, and in running off fell, and that any injuries caused thereby were the result of her own negligence; and they denied negligence in the management of their switch.</p> <p>Trial in this court, before Foster, J., who allowed a bill of exceptions containing a recital of the testimony, by which the facts appeared substantially as follows:</p> <p>The Wellesley station was situated on the south side of the defendants’ railroad, and a platform was built out from the north side of the station-house. The track adjoining this platform was a side track, separated by what was called at the trial “ the middle platform ” from the double track over which the passenger trains ran to and from Boston ; so that the direct and convenient course for passengers, in order to go from the station-house to the Boston trains, was to cross this side track to the middle platform and step from that upon the train. There was no usage on the part of the company to give any notice to passengers of the approach of the train for Boston, nor any regulations or directions of the company concerning when and how passengers should enter it, or where they should remain while waiting for it; but, some distance west of the station-house, there was a curve in the railroad, in coming around which the engineer of the train was accustomed to blow his whistle, and it was the usage for the passengers on hearing it to cross from the station-house and its platform over to the middle platform, and there await the arrival of the train. The defendants’ servants at the station were Edward Perry, the station master; and Rufus Campbell, who received the luggage, sawed wood, man aged the lanterns, and did chores.</p> <p>About ten minutes before eight o’clock on the morning of the day alleged in the declaration, the plaintiff, who was a widow seventy-four years old, in company with her son, Asa Caswell and his wife and two children, reached the station, where Mr Caswell bought for the party, from the station master, three tickets for Boston, intending to taire the train which would be due from the west at eight o’clock. Then the ladies waited in the station-house, and Mr. Caswell on the platform projecting from it, until the whistle was blown at the curve, when the whole party crossed over to the middle platform, numerous other passengers crossing at the same time, so that from twenty-five to thirty persons were assembled there, and among them Perry and Campbell.</p> <p>The plaintiff testified : “ I had a small basket and a parasol. On the platform I saw cars and heard a strange whistle, and in a moment some one said, ‘ Take care, I think we’re in danger,’ so loud that I heard it. I started and tried to cross the track. I ran, I think, I was so excited and frightened. I think I fell down I don’t know how I fell. My arm was right out straight.”</p> <p>By the testimony of other witnesses the manner of the plaintiff’s alarm and flight and fall appeared substantially as follows:</p> <p>At seven o’clock on the same morning a freight train, on its way from Boston to Worcester, had stopped at Wellesley to leave a coal car. For this purpose the switch between the side track and the main road was reversed; and it was not restored to its former position after the car was left and the freight train moved on. By the testimony of the president of the railroad, it appeared that it was the duty of “ whoever took the train over ” the switch, to close it afterwards, “ unless some one was there who, he would have reason to believe, would do his duty, to facilitate business,” and that “ no man could open and leave a switch without some one to take care of it, if they both did their duty.” And by the testimony of the conductor of the freight train it appeared that he unlocked and shifted the switch in order to leave the car, and, as Campbell was there present and helping, supposed that he would shift it back again, as he had done “usually” before, and so went off without seeing to it himself.</p> <p>When the eight o’clock passenger train was turning the curve west of the station, the engineer, after giving the “ station whistle” indicating his approach, first saw that the target of this switch was m a wrong position, and at once gave the signal (a short whistle) to apply the brakes, and reversed his engine There was conflicting testimony as to the rate of speed at which his train was then moving, and also as to the rapidity with which it slackened speed. He himself declined to swear that it was not moving at that time as fast as twenty miles per hour, but thought that the rate was very much less, and as it neared the station-house was “ not much over four miles an hour.”</p> <p>About the time this whistle to break was heard by the persons assembled on the middle platform, the fact was recognized among them that there was some mistake about the switch. Campbell, who was holding the mail-bag, cried out, “ Engine is on the wrong track; switch is wrong; look out for yourselves.” Others also cried out, “ Take care of yourselves. Danger! Engine has gone off a switch.” And there was testimony that Perry exclaimed in a loud and excited voice, “ Switch is wrong; take care of yourselves;” but he denied this, and testified that he told the passengers on the middle platform “ to stay there, as it was safe,” though it appeared that he left it himself, and went across the side track to the platform adjoining the station. The passengers generally ran off in various directions in great excitement and confusion. Mr. Caswell took hold of his wife’s dress, and the children of her hands; and they jumped down from the north side of the middle platform, and crossed the double track to a third platform beyond it. The plaintiff, however, jumped down from the south side of the middle platform, and ran diagonally across the side track. The engine of the passenger train, which by the misplacement of the switch was diverted to the side track, struck, and broke in, with a loud crash, the end of a baggage car which was standing there, and drove it against another baggage car beyond, and threw it partly off the track, scraping and splintering the platform in front of the station-house, and tearing up the planking between it and the middle platform. Just at this moment, one of the passengers, observing the plaintiff running on the side track in front of these cars, which the advancing train was forcing along, called to her to step off from it; and she did so, and immediately fell, dislocating her shoulder; and the cars, forced along by the engine, passed the place where she stumbled. There was testimony tending to show that the immediate occasion of her fall was the hitching of her foot against, or her tripping over, the rail or one of the sleepers of the side track. After the train had passed by, she was helped to get upon her feet by one of the witnesses of her fall.</p> <p>The defendants requested the judge to rule that the evidence was not sufficient to support the plaintiff’s action ; but he declined to do so. They then presented certain prayers for instructions to the jury, the first of which was:</p> <p>“ 1. That the plaintiff before entering the cars was not under the defendants’ charge, so as to render them responsible for any injury she might suffer from the position in which she voluntarily and unnecessarily placed herself; that it was her duty to remain in the room or building where the defendants received passengers for transportation, until the proper time came for her to take her seat; and that, if she left such room or building before the train was ready for her reception, and thus placed herself in a dangerous position which she would otherwise have avoided, the defendants were not responsible, although the misplacing of the switch might have led to such danger; that the fact that passengers, without request or direction from the defendants, did then, or had previously frequently gone upon the platform, on which she was, before the arrival of the train, and before it was ready to receive passengers, did not vary the liability of the defendants; that if the position in which she stood on the platform was in fact reasonably safe and secure, and the injury she received was occasioned by her leaving such position, she could not recover.”</p> <p>This instruction the judge refused to give; but he did give the three other instructions prayed for, which were as follows :</p> <p>“ 2. That if the plaintiff went upon the track unnecessarily into a more dangerous position than that she occupied before, and in escaping from that position stumbled and fell, through her hurry and confusion, occasioned wholly or in part by her being in that position, she could not recover; that, even if the defendants were guilty of negligence in regard to the switch, if such negligence was not so far conducive to the injury the plaintiff sustained as to create such a reasonable degree of alarm ano apprehension in her mind as rendered it necessary for her to leave the platform in order to avoid immediate danger, the action was not maintainable; that it was necessary, in order to sustain thif action, for the plaintiff to show that she was placed, by the misconduct of the defendants, in such a situation as obliged her to adopt the alternative of a dangerous departure therefrom, or to remain at certain peril; that the question is whether she was placed in such a situation as to render what she actually did a prudent precaution for the purpose of self-preservation; whether her act in passing upon and down the track on which the train was coming, and in front of the cars, was the measure of an unreasonably alarmed mind, or such as a reasonable and prudent mind would have adopted ; whether the misplacing of the switch created a necessity for what the plaintiff actually did, and whether she used proper caution and prudence in' taking the course she did to extricate herself from an apparently impending and real peril, creating a reasonable cause for alarm in the position in which she was.</p> <p>“ 3. That if the plaintiff was of such an age and condition as to require the care and assistance of her son, and was under his care and charge, and there was any want of ordinary care on his part in directing her movements, or in omitting to assist or direct her, this would have the same effect as any want of ordinary care on her part; but if otherwise, and if her right to maintain this action is not affected by any act or omission of her son, then the measure of care and prudence required of her would be no less than that required of persons of ordinary sense, competence, prudence, and physical and mental capacity.</p> <p>“ 4. That if the injury occasioned through the plaintiff’s falling (after she had passed the track, and was on the level ground beyond, and in a safe position) was from her being incumbered with articles that she was carrying, entangled in her dress, or by being helped up by another person, or other similar cause not connected with the defendants, they would not be liable in this action.”</p> <p>And the judge further instructed the jury “ that the burden si proof was upon the plaintiff to establish to their reasonable satisfaction all the facts necessary to enable her to maintain the action; that the first question was, whether the omission to replace the switch was culpable negligence on the part of the agents of the railroad company; that the defendants, as common carriers, were bound to use towards their passengers the utmost care to provide them with reasonably safe and convenient ways of access to their trains; that, after the plaintiff’s son had purchased for her a ticket for a particular train which she was on the premises of the company waiting to take, and while • she was passing from the depot where the ticket was bought to enter the cars, she was entitled to the rights and protection of a passenger ; that the question whether she was bound to wait in the depot until the train arrived, or was, as a passenger, at liberty to go to and stand on the platform while it was approaching, in the absence of any regulations or directions on the subject by the company or its agents, must depend upon what was a reasonably safe and prudent course for her to adopt; that the jury might consider whether it was the usual custom of passengers to place themselves on the platform before the train arrived and stopped; and whether this custom was well known to and permitted without objection by the agents of the company, in determining whether it was actually safe and prudent for the plaintiff to do so; that there was no rule of law that passengers must wait in the station and not go upon the platform till the train had stopped, or that they must be ready and waiting there upon its arrival; and, in the absence of any rule or direction by the company, due care and reasonable prudence were the measure of the plaintiff’s duty; that the jury must inquire whether the plaintiff, when upon the middle platform, was in a place where she had a right to be at the time, and whether her position there could have been one of reasonable safety and security but foi the fault of defendants’ agents in leaving the switch misp aced ; and that, if these facts should be found in favor of the plaintiff, the next inquiries of the jury should be, whether the place which the plaintiff occupied, and which would- otherwise have been safe and proper, was made dangerous by the fault of the company in leaving the switch misplaced, and whether the plaintiff, while using due care, was placed in a position of actual and not fancied peril by the fault of the defendants; that this would not necessarily depend upon the fact that if she had re* mained on the platform she would not have been injured, as the event showed, but that, to entitle her to recover, it must appeaT that she was in real, actual and imminent danger where she stood on the platform.”</p> <p>And the judge further instructed them “ that, if ‘these facts should be satisfactorily established, they were next to inquire whether, in endeavoring to escape, the plaintiff conducted herself with ordinary and reasonable prudence and discretion : whether her course in running away instead of remaining, and in the direction she took, was a reasonable precaution to avoid actual danger, such as persons of common prudence and discretion would naturally take or be likely to take under the same cir cumstances; and that, if there was any want of common or ordinary care, prudence or discretion in her own conduct, which contributed to the injury, she could not recover, however great th( defendants’ fault; that, if she became frightened and confused tc a greater degree than a person of ordinary and reasonable pru dence, self-control and intelligence would have been, and in consequence of her alarm and confusion took a more dangerous course, when one of greater safety was open to her, then she could not recover; that it must appear that, under all the circumstances in which she was placed, her conduct and the course she pursued was a natural, proper and prudent precaution for the preservation of her life.”</p> <p>And finally he instructed them “ that, if these facts were established, and the plaintiff met with an injury while trying to escape from a real and not imaginary danger, and using due care in the mode by which she attempted to escape, and if the injury would not have happened but for the defendants’ fault, and did happen by reason of it, without want of care on her part while she was on the track or directly after she left it, and before she was out of actual danger, then she might recover, although the immediate cause of the injury might have been the striking of hei foot on the rail or sleeper while running, and although she would not have been hurt if she had stayed on the platform.”</p> <p>The defendants also requested the judge to direct the jury to find specially where the plaintiff fell, upon or outside of the track; but he refused to do so.</p> <p>The jury returned a verdict for the plaintiff, assessing damages in the sum of $2187.50; and the defendants alleged exceptions.</p>

<p>Contract for part of the price of a lot of eight bags of wool. Answer, that the plaintiff warranted the lot as combing pulled wool, but the contents of one of the bags were not of that kind, and so were sent back to the plaintiff in another bag, the original bag having been destroyed in opening it.</p> <p>At the trial in the superior court, before Lord, J., the facts appeared substantially as follows :</p> <p>The plaintiff was a wool-factor, and had in store a separate lot of eight bags supposed by him to contain combing pulled wool, each of them marked “ Parsons,” with a black line drawn about the word so as to inclose it within a parallelogram. The defendant, who was a manufacturer of worsted, inquired there for wool of that description, and the plaintiff's salesman showed him this lot; and then, and at another time, the defendant made some examination of it, opening four of the bags in the salesman’s presence, and afterwards called at the store again, accompanied by a wool-dealer, and went with him into the loft where these bags were piled, but it did not appear what examination, if any, they then made. After this third visit, the defendant said that he would take the whole lot; and the eight bags were sent to him with a bill in which he was charged with “ eight bales combing pulled wool,” with specifications of the weights of the several bales, and an aggregate charge for the whole net weight at the rate of a dollar per pound, and also an aggregate charge for “ eight bags ” at a certain rate per bag, and a charge also for tracking, and a total charge for the whole lot. But when he opened the bags, after thus receiving them, he found that one of them contained only a very small quantity (less than one quarter of its contents) of combing pulled wool, being filled in great part with wool of shorter staple and inferior value. He thereupon sent back to the plaintiff the whole contents of this bag, but not the bag itself, another being substituted therefor; and at the same time he sent the proportional amount of the price for the rest of the lot. The plaintiff refused to receive the wool thus sent back, and brought this action for the balance of the purchase money. It also appeared at the trial that the seven bags which the defendant retained contained some wool of the shorter staple, and that what was sold in the market under the name of combing pulled wool contained some proportion of it; but there was evidence tending to show that the contents of the bag sent back were not such as is called combing pulled wool among wool-dealers.</p> <p>The plaintiff asked the judge to instruct the jury, “ that the contract was an entire contract, and the defendant had no right to rescind it as to one bag and affirm it as to the others, but, if he wished to avail himself of the defence set up, should have returned or offered to return the entire lot.”</p> <p>The judge declined to give this instruction, but ruled “ that, if the purchase was made of the eight specific bags of wool irrespective of quality or kind, or if at the time of the purchase the defendant knew the general character of the wool in the rejected bale, or if a* the time he made such an examination as would have informed a person of ordinary skill of its character, or if the article contained in the rejected bale, either when considered by itself or as a part of the eight bales, would be regarded by those dealing in wool as combing pulled wool, the plaintiff was entitled to recover; but if the purchase was made of combing pulled wool and the defendant did not know the general character of the article at the time of the purchase, or did not make such examination as would have informed a person of ordinary skill, and if the article contained in the rejected bale, when considered by itself or as a part of the eight bales, would not be regarded by those dealing in wool as combing pulled wool, the plaintiff was not entitled to recover.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort for the destruction of a pair of hoisting shears. Trial in the superior court, before Lord, J., without a jury, when these facts appeared:</p> <p>The plaintiff, who was a stevedore, had been discharging the cargo of a vessel at Fisher’s Wharf in Boston, on Saturday, June 5,1865, and, by permission of the wharfinger, had left his shears standing in the same position in which he had used them for that purpose, as he expected the arrival within a few hours of another vessel which also he was to discharge. In this position they were inclined from the perpendicular about two feet towards the dock, (their height being fifty-four feet,) and secured, in the rear, by a guy extending from their top to a point ninety feet distant, and, in front, by a similar guy extending from their top to the capsill of the pier, to which it was fastened by a hook. The expected vessel not arriving, the berth was taken by another vessel, which the defendants, also stevedores, were employed to discharge. The front guy of the plaintiff’s shears interfering with their work, they cast it loose from the pier and wound it around one of the shears, and, when they finished their work, did not refasten it. The next day, some boys caught bold of the rear guy, and swung upon it, causing the shears to fall “ inwards ” and break in pieces; and it appeared that “the shears would not have been overturned, except by the swinging of the boys,” and that “ the swinging of the boys would not have overturned the shears, if the front guy had been refastened.”</p> <p>The judge found for the defendants; and the plaintiff alleged exceptions.</p>

Tort alleging that the defendants as common carriers transported a quantity of assorted coal from Boston to Needham to be there delivered to the plaintiff as consignee and owner thereof, and, at Needham, without giving him due notice, or waiting a reasonable time for him to receive the coal and remove it, “negligently unloaded said coal immediately upon the arrival of the same, greatly injuring said coal and mixing the same with the soil and different kinds, thereby…

<p>One who indorses a draft for the accommodation of the drawer and at the requestof another who also indorses it at the same time and for the same purpose does not thereby become a joint indorser with him.</p> <p>An accommodation indorser of a draft who has been obliged to pay it to a holder for value may maintain an action thereon against a prior indorser.</p>

<p>Contract for the value of three bales of cotton alleged to have been lost through negligence of the defendants, who were consignees thereof at Savannah in Georgia. °</p> <p>At the trial in the superior court, before Brigham, J., it appeared that the plaintiffs shipped nine bales of cotton from Lady’s Island to Savannah on a sloop, but only six of them were received at the defendants’ warehouse; and the issue was whether there had been a delivery of the whole number by the master of the vessel to the defendants. It was agreed that no receipt was taken for them by the master; and the defendants offered evidence of a usage of the port of Savannah that in order to constitute a delivery of water-borne goods by the carrier, il was necessary for a receipt to be given by the consignee or his agent, and that until then the liability of the carrier continued.</p> <p>The judge excluded this evidence; the jury found for the plaintiffs; and the defendants alleged exceptions.</p>

<p>Tort for injury sustained by the plaintiff’s intestate by the negligent firing of a rocket by the defendants’ servant.</p> <p>At the trial, before Wells, J., there was evidence that on the evening of July 4, 1866, on the common in Lawrence, a rocket, fired by the city marshal or by a policeman detailed by him, hit the plaintiff’s intestate and inflicted a wound from which after some days he died ; and that it was fired as part of a display of fireworks in celebration of the holiday, which were procured and fired under the direction of the mayor, who testified that he acted throughout in his official capacity.</p> <p>By the official records of the city clerk, which were introduced in evidence, it appeared that on June 18,1866, an order was adopted by both branches of the city council for the appointment of a joint committee “ to cause the approaching Fourth of July to be observed in the city with salutes, ringing of bells, music upon the common, and such other manner as they shall deem expedient, and that the expense thereof be charged to the incidental department,” and that “the committee have full power;” and in pursuance thereof such committee were appointed with the mayor as their chairman; that their total expenditure for the celebration, including a bill of three hundred and seventy-six dollars for fireworks, was six hundred and forty-six dollars and twenty-four cents, which was less than one fiftieth of one per centum of the valuation of the city for the same year; and that the bills were approved by the mayor, the auditor and the committee of accounts, and paid out of an incidental fund of up wards of five thousand dollars appropriated by the city council before June 18, “ to which expenses generally were charged foi which no other appropriation had been made.”</p> <p>But it did not appear by the records that the order of June 18 was passed by a yea and nay vote, nor how many members of the two branches of the city council, present when it was passed, voted for it; and the city clerk testified that he was also clerk of the board of aldermen at the time of its passage, and as matter of recollection knew that it was not passed by a yea and nay vote, and further testified that if it had been so passed the fact would appear of record. The plaintiff offered to show by ora» testimony, that two thirds of each branch did in fact vote for it; and it was agreed that if such testimony was competent it should be taken to have been so proved.</p> <p>In behalf of the defendants it was contended, among other things, that these facts showed no lawful authority for the city to celebrate the holiday by discharging these fireworks, and sc that the plaintiff could not recover against the city; and the judge reported the case for determination by the full court of this with other questions which are now immaterial, the parties agreeing that if on the facts reported the plaintiff could not maintain her action judgment should be entered for the defendants, but if otherwise the case should stand for trial.</p>

Contract on a promissory note against Edward P. Travis and Albert Mead, copartners under the firm of Travis & Mead, as makers, and Alonzo F. Travis as indorser. The declaration contained no express allegation that the note was made or indorsed for value.

<p>If the declaration in an action of tort sets forth certain transactions, and alleges that at the time thereof the plaintiff was doing business alone under the style of O. & Co., and the defendant, with intent to cause It to be believed that the plaintiff conducted fraudulently in these transactions, published a false and malicious libel concerning him, in which, as set forth, reference is made to the connection of C. & Co. with these transactions, but no reference to him by his individual name, it sufficiently alleges that the libel was intended to refer to the plaintiff, and states the cause of action in substantial conformity with thf Gen. Sts. c. 129, §§ 2, 87.</p> <p>The declaration in an action for libel alleged that the plaintiff entered a cargo at a custom house and delivered it to the storekeeper the next day for warehousing, paid the duties on some of the goods the day following, taking an order for them, and received them on this order two days later; that by law and usage the act of importing any part of the cargo was not complete till this last day, but by mistake the storekeeper gave him a receipt for the goods left in warehouse which stated that they were imported three days earlier; that, on his apptying three months afterwards to withdraw them, a claim being set up that they were subject to double dutier by reason of having been warehoused more than three months, he made a full and true oresentation of the facts to the storekeeper whe corrected his receipt; that 13 then paid tb \ ordinary duties on the goods and received a permit to withdraw them; but that the collector of customs some time later revoked this permit, and demanded the additional duties, which the plaintiff paid under protest; and that the libel was published to cause it to be believed that the plaintiff fraudulently induced the storekeeper to alter the receipt, and to bring the plaintiff into hatred, ridicule and contempt. Held, that these allegations did not set forth or imply any unlawful intent or act of the plaintiff himself, or any participation by him in the illegal purpose or doings of another.</p> <p>Although a publication which holds a person up to contempt as culpable in his general conduct or character relates also to his acts in connection with an illegal transaction, it is nevertheless actionable, unless such acts necessarily involve moral turpitude or may fairly be held to affect his general character.</p>

Tort for neglect to deliver a telegraphic message seasonably. At the trial in the superior court these facts appeared: The defendants were a corporation established under the laws of New York, having a line of electric telegraph to Buffalo from Albany, where it connected with a line of the American Telegraph Company, (a distinct corporation,) which ran from Albany to Boston. The plaintiffs were pork dealers at Boston.

<p>Contract by John P. Squire and two others, copartners under the firm of John P. Squire & Co., for the value of forty hogs smothered by crowding and fumes of manure while being carried by the defendants in their cars from Suspension Bridge to Albany in New York. The answer denied negligence of the defendants, and alleged negligence of the plaintiffs as the cause of the injury and that the hogs were at the time of their death being carried under the following special contract, (indorsed “ stock release on the back thereof,) whereby the defendants were exempt from liability for injury resulting from crowding or suffocation:</p> <p>“ New York Central Railroad, Suspension Bridge Station, April 4, 1866. Memorandum of an agreement, made and concluded this day, by and between the New York Central Railroad Company, of the first part, by their station agent at the above named station, and J. P. Squire of New York of the second part, witnesseth: That whereas the said New York Central Railroad Company transports cattle, horses, hogs, pigs, sheep, lambs, calves or other live stock, only at first class rates, as per tariff, excepting in the following cases, viz., where they transport them at a reduced rate, in consideration of the owner ■>r shipper assuming certain risks, as specified below; now, in consideration that the said railroad company will transport for the party of the second part such live stock at the reduced rate of dollars per car load, or fifty cents per 100 lbs., which is less than the tariff rates above referred to, the said party of the second part does hereby agree that the party of the first part shall not under any circumstances nor for any cause be held liable beyond the sum of $200 for injury to or loss of any single animal carried pursuant to this agreement, although the actual value of such animal may exceed that amount; and the said party of the second part also agrees to take the risk of injuries which the animals, or either of them, may receive in consequence of any of them being wild, vicious, unruly, weak, escaping or maiming themselves or each other, or from delays, or in consequence of heat, suffocation, or of being crowded, or on account of being injured, whether such injury shall be caused by the burning of hay, straw, or any other material used for feeding said animals, or otherwise, and for any damage occasioned therebj7; and also all risk of any loss or damage which may be sustained by reason of any delay in such transportation. And said party of the second part also agrees to examine the cars in which said animals are to be carried, and to take all risk against accidents, injuries or damages that may happen in consequence of insecurity or defect (if any there may be) in the floor, frame or doors of the cars. And it is further agreed that the said party of the second part is to load, tranship and unload said stock at his own risk, the said New York Central Railroad Company furnishing the necessary laborers to assist. And it is further agreed between the parties hereto, that the parties of the second part shall go or send some person or persons in the same train with said stock, to take charge of the same, who shall be carried free of charge, and that such person or persons so riding free shall take all the risk of personal injury, from whatever cause, whether of negligence of the said parties of the first part, or of their agents, or otherwise. And this agreement further witnesseth, that the said party of the second part has this day delivered to said railroad company four car loads of hogs to be transported to Albany on the conditions above expressed, i. M. L. Feggard, station agent. J. P. Squire.”</p> <p>At the trial in the superior court, before Lord, J., there was evidence that these were part of a lot of four hundred and one hogs which the plaintiffs bought in Chicago, where they sent one Sullivan, a drover, “ for the purpose of attending them to Boston,” whom they called as a witness, and who testified as follows:</p> <p>On the afternoon of April 3, 1866, the whole lot arrived with Sullivan at Suspension Bridge, having come over the Great Western Railroad which there connected with the road of the defendants; and were unloaded and placed in the defendants’ yards, and taken care of by Sullivan during the night. The next morning, four of the defendants’ double-decked cars, two of them closed box cars, the other two open slatted cars, were run down to the stock yard, and one Quirk, who was “ superintendent of the yard ” and “ superintendent of shipping,” informed Sullivan that it was “ time, or his turn, for his, the said hogs, to be loaded,” and asked and was told by Sullivan how many hogs he had. Men in the employment of the defendants came with the cars, to load them; and Sullivan, who had a lame hog at some distance from the place, told these men that he would go and attend to it, and that they could proceed to load ; whereupon, without asking him for further directions, they loaded the cars by putting one hundred hogs into each, and dividing the hundred about equally between the two decks, using their own discretion in thus distributing them. When Sullivan returned from attending to the lame hog, the cars were loaded, and ready to run out upon the main track to form part of a train which in ten or fifteen minutes was to start for Albany. Quirk was not present at this time at the place of loading, but was at a place near by, where he had been attending to the weighing of the hogs. Sullivan now observed that two of the four cars were box cars, and said to the men who had been loading them, that he did not think they were proper or suitable cars; and they replied to the contrary, and said that they had used them all along, and that there had been no trouble or complaint from or about them. Then, without further mentioning his objections to the cars, Sullivan went to the ticket office to get his pass or ticket, and get upon the train, to which, immediately after this conversation with the men, the cars containing the hogs were run out and attached. The ticket agent gave him his pass, and at the same time handed to him the special contract set forth in the defendants’ answer, and told him that he must sign it, and asked him to sign Squire’s name to it, directing him where to do so. Not knowing nor ascertaining the contents, but supposing it to be some contract required about the hogs, he thereupon signed it with the name of J. P. Squire. Then he took his seat in the train in a car designed for the drovers, and the train started. On the way, he discovered, upon looking into the box cars, that there was manure on the lower deck of each of them ; and that in the floors of the upper decks there were cracks which admitted the passage of the fumes which arose by the stirring of this manure by the hogs below; that there were not sufficient facilities for ventilation in these cars; and that the hogs on the upper decks were close under the roofs, on which the sun was shining. Before reaching Rochester, finding that the hogs in these cars were suffering, he spoke to the conductor about their condition, and they succeeded in getting an axe on the train, and Be cut some holes into the cars, but was unable to relieve the difficulty. At Rochester the conductor pointed out to him the yard-master there, and he spoke to him about the condition of the hogs and asked him to have the cars switched off and the hogs unloaded into other cars, but the yard-master replied that they had no other cars there, and that he did not think the hogs were suffering so badly as was represented or supposed; and the cars accordingly went on to Albany, where forty of the hogs on the upper decks of the two box cars were found to be dead. On the way from Rochester to Albany Sullivan watered the hogs when he could.</p> <p>Sullivan also testified that, from his experience as a drover, in his opinion they died from the want of sufficient air, owing to the nature and condition of the cars as before stated ; that there were too many hogs in the box cars, considering their size and condition; that he never knew that such a special contract as the one in question in this case was required or usual, but that he had never before driven live stock over the defendants’ road; that he had nothing to do with the purchasing of the hogs, or making any contract in relation to them or for the carriage of them ; that he was merely sent to attend the hogs to Boston, to feed them, and take care of them; that he had no authority from the plaintiffs to make any contract in relation to them or to sign any papers, and none to sign said paper; that he had nothing to do with bargaining for the carriage of the hogs, at Chicago or elsewhere; that the cars of the Great Western Railroad ran to the yard of the defendants at Suspension Bridge; that he did not apply or arrange for the transportation of the hogs over the defendants’ road, or have anything to say about it, or the rate of freight, but that the cars were run down and the hogs loaded by the defendants without any application by or to him, except what was said to him as above recited. The plaintiff John P. Squire gave testimony similar to Sullivan’s as to how and for what purposes the latter was sent to Chicago, and that he had no authority given him to make any contracts or to sign or make the contract in question ; that the plaintiffs had shipped hogs over the road before, but never knew or heard of the contract in question until after the commencement of this action, nor ever knew that any such contracts were ever required or used by the defendants.</p> <p>The defendants introduced in evidence the special contract signed and identified by Sullivan; and also testimony that it was the form of contract used by them in such cases for some years prior to the transaction in question. But there was no competent proof of any contract of the kind being signed by the plaintiffs, or any one for them, in any other instance.</p> <p>The judge ruled on all the evidence that the special contract signed by Sullivan constituted a sufficient defence to the action, and directed a verdict for the defendants. The plaintiffs alleged exceptions.</p>

Contract against-the proprietors of Hamden’s Express for the value of a case of blue cassimeres delivered to them by the plaintiffs at Boston for transportation to the plaintiffs’ consignees at New York. At the trial in the superior court, before Lord, J., these facts appeared : The defendants were common carriers of merchandise between Boston and New York, having offices, teams and servants in both cities for the collection and delivery of goods.

<p>A testatrix, in her -will, after directing her estate to be divided into as many equal portions as there should be children of her, or issue of deceased children, living at the time of her death, devised the same to trastees, with directions to set apart as many of these portions as there should be children of her who survived her, and hold each of the same during the life of the child for whom it had been set apart, and that of any husband or wife such child might have, in trust, to pay the net income thereof to such child during life; and, upon the death of any child leaving a husband or wife, then to pay the net income thereof to such husband or wife during life; and upon the death of any child without leaving a husband or wife, or upon the subsequent death of such husband or wife, then to hold the portion of such child to the use of his or her children, their heirs, &c., or, if there should be no issue of such child living, or any issue of such issue, then to such persons as such child should appoint by will; or, in default of appointment, to such persons as would have been heirs at law of the testatrix, if she had then died intestate. Held, that this disposition was not void as being too remote and tending to create a perpetuity.</p> <p>A testator, the husband of the testatrix above referred to, in his will, devised his estate to trustees, in trust, to pay the net income thereof to his widow during her widowhood, with a different provision in case of her marrying again; and during her life to pay to any of his children, or the issue of them, such sums as his widow should in writing direct, or to pay the same to trustees for the benefit of any such child and issue, upon such trusts and conditions, and for such purposes, as she should in writing direct; and, upon her decease, to convey all his estate, which should remain, to his children, and the issue of any, who should be living at the time of her death, or to such of them as she should direct, or t« trustees for their benefit as aforesaid, in such proportions as she should by will direct; or, in default of such direction, then to the use of all his children who might be living at the time of her death, and the issue of any deceased child. His widow died, leaving several children by him, and a will directing the residue of her husband’s estate to be divided into as many equal portions as there should be children of him, or issue of deceased children living at the time of her death, and these portions to he severally set apart for the benefit of each of them respectively; and the share of each child to be held in trust for its benefit, and the benefit of the husband or wife of such child, upon the same trusts and for the same purposes as are above declared concerning her estate, with this exception only, that, in the ultimate contingency provided for, the portion of such child should go to such persons as would have been heirs at law of the testator. EeZd, that the widow had no power to include, in her appointment, the issue of children who might be bom after her death, but that her will was a valid appointment to children of the testator, and issue then living of deceased children, to take in equal shares, which shares were to be placed in trust for their benefit; and that such appointees would upon her death take the entire interest and title to their respective shares.</p>

Petition originally presented to the judge' of probate, representing that Annie S. Newton of the city of New York died on the 1st of August 1863, leaving real and personal estate in Boston; that on or about the 2d of October 1861, being then temporarily in London, in Great Britain, she duly executed her last will, wherein she devised and bequeathed said estate to the petitioner; that said will at the time of her decease was, and still is, in the possession of the respondent,…

Bill in equity to obtain instructions as to the disposition of property held in trust by the complainant.

<p>Bill in equity filed September 4, 1865, by a son of Sarah I. Bates, deceased, seeking for a decree to enforce performance by the respondent, his step-father, of a trust created by her will.</p> <p>The bill alleged that on December 12, 1833, the deceased, being a widow, having a daughter and two sons, of whom the complainant was one, and owning property to the amount of more than a hundred thousand dollars, was married to the respondent, and her property secured by a settlement from any marital right or claim which otherwise he might have thereto ; that thereafter, until her death on May 17, 1859, she and the respondent, with these children, and with another daughter, the issue of this marriage, lived together as one family in her house, where she and her children had formerly resided; that the expenses of maintaining the family in a liberal style suitable to their circumstances v¡ ere defrayed chiefly from the income of her property, the respondent having but little property of his own, but acting as the head of the family, having the general care thereof, and managing the funds for its maintenance; and that she left a will of which she named the respondent sole executor, and an estate of which there was a large residue after paying her debts.</p> <p>This will was set forth in the bill; bore date of December 30, 1857; was indorsed with the approval of the respondent under date of October 1,1858; was amended by a codicil dated April 14,1859, in particulars not needful to be recited; and disposed of the estate during the respondent’s life as follows :</p> <p>“ I give and bequeath unto my husband, George Bates aforesaid, the use, income and improvement of all the estate, real, personal and mixed, of which 1 shall die seised and possessed, for and during the term of his natural life, in the full confidence that upon my decease he will, as he has heretofore done, continue to give and afford my children,” [enumerating them] “ such protection, comfort and support as they or either of them may stand in need of.”</p> <p>Upon the death of the respondent, it gave one half of the estate to the complainant and his brother; and the other half to three persons designated by name, “ and to the survivors or survivor of them, their or his executors, administrators or assigns, to have and to hold the same upon and for the uses, trusts and purposes mentioned and expressed of and concerning the same,” and then set forth minutely certain trusts for the benefit of the two daughters.</p> <p>The bill further alleged that, after the death of the testatrix, the respondent, under the clause of the will first above quoted, took possession of the estate remaining after payment of the debts ; that the complainant with his brother and unmarried sister continued to resitie in the house as before, and to receive from the respondent, without payment or charge therefor, the benefits and privileges which children of their condition usually receive in their own families, until, on or about April 1,1863, the respondent, in the complainant’s absence, removed the complainant’s effects from the house, and ever since forbade and prevented him from coming into it, and neglected and refused to give him the said benefits and privileges which he had before enjoyed, or make him any reasonable compensation instead thereof; that in 1850 the complainant became and ever afterwards was a clerk in a counting-room in Boston; that up to the time of his mother’s death his salary had never exceeded four hundred dollars per annum, which fact she well knew; that in 1858, 1859 and 1860, it was at that rate, but from 1860 to 1864 did not in any year exceed two hundred dollars; that from 1864 until the filing of this bill it was at the rate of six hundred dollars per annum; that at the time of his exclusion from the house in 1863 he had saved from his salary of previous years only two hundred and fifty dollars; that afterwards, during that year, in order to obtain means for his support, he sold for seven hundred dollars his reversion of some land belonging to his mother’s estate ; that these two sums, together with his salary, included all his means of support, except such provision as was made for him in the will, and were and are wholly inadequate thereto; that he stood in need of such support as he had been accustomed to receive in his mother’s lifetime; and that the respondent, though well aware thereof, and often requested therefor, efused to give it.</p> <p>The respondent filed a general demurrer; and the case was reserved by Chapman, J., for the consideration of the full court.</p>

<p>A testator gave estate, real and personal, to trustees, directing surplus income to be equally divided among his children, authorizing advancements to be made to them under certain circumstances, and providing, when the trust should end, “ and the trustees convey the estate to said children, it being my will that said estate shall then be equally divided amongst my children, regard being had to the abovementioned provisions, and the prior advancement of any of said children being considered, said estate it is my will shall go to my children as abovementioned, their heirs and assigns forever.” Held, that the trustees at the termination of the trust might convey the real estate to the children as tenants in common.</p>

<p>A creditor of the estate of a deceased person lived in a county other than that in which the debtor had lived and his will was proved and notice of the appointment of the executors was by order of court given by publication in a newspaper there published. Held, that the creditor was not relieved from the imputation of culpable neglect, within the meaning of St. 1861, c. 174, § 2, in omitting to bring an action against the executors within the time limited by the statute, by reason of his ignorance of their appointment.</p>

<p>Appeal from a decree of the judge of probate allowing two accounts of the appellee as executor of the will of Elizabeth Roberts, which was admitted to probate in January 1856. The appellants resided in California.</p> <p>At the hearing, before Gray, J., it appeared that these accounts consisted of a first account and a final account, rendered together in December 1865; by the former of which the executor charged himself with the fund, received in 1856, part in stock and part in money, amounting in April 1862 (down to which time this account extended) to thirty-two thousand and fifty-five dollars and four cents, after deducting legacies and expenses and adding interest and dividends and gain on sale of the stock; that by a decree of this court in Jackson v. Roberts, 14 Gray, 546, at February term 1860 for Norfolk, the title of Mrs. Chase to one third of this balance of the fund had been determined, and the title of other distributees to the other two thirds, with the payment of which other two thirds to said other distributees the executor claimed to be credited in said first account; that in the second and final account he charged himself with the remaining third as of April 1862, and with interest thereon to December 1865, and claimed to be credited with sundry payments, among others one to Mrs. Chase of ten thousand four hundred and sixty dollars and ninety-six cents on November 6, 1863; that this payment was made in treasury notes of the United States; that the market value of gold and silver coin of like denominations was at the time much greater than the market value of such notes; and that Mrs. Chase did not receive and receipt for the notes as full payment of ten thousand four hundred and sixty dollars and ninety-six cents, but only pro tanto.</p> <p>The question whether this payment was rightly allowed as a payment in full of that sum was reserved for determination by the full court.</p>

<p>A promise to accept a bill of exchange, contained in a letter from the drawee to the drawer, written after the bill has been negotiated, will not enable the holder to sue the drawee as acceptor, even if the bill is expressed to be drawn “ against twelve bales of cotton,” and has been discounted on the credit thereof.</p>

Contract on the defendants’ check, dated January 2, 1865, on a bank in Boston, for seven hundred dollars, payable “ to J. L. Babson or bearer,” and indorsed “John L. Babson, Vm.

<p>Contract on a promise by the defendant to pay the amount of a promissory note due to the plaintiffs from Charles Bedding.</p> <p>At the trial in the superior court, before Russell, J., the plaintiffs relied upon the case stated in their declaration, namely, that Bedding was indebted to them on a promissory note which they continued to hold ; and that, by an agreed arrangement between the defendant, Bedding and the plaintiffs, Bedding conveyed certain real estate to the defendant, and, as a part of the consideration therefor, the defendant promised to pay the plaintiffs the amount of the note. The plaintiffs admitted that they had no written evidence of any promise by the defendant, whereupon the judge, on motion of the defendant, ruled that without such written evidence, and without evidence that Redding was to be discharged from his obligation to pay the plaintiffs, th_ action could not be maintained; and a verdict was accordingly taken for the defendant. The plaintiffs alleged exceptions.</p>

<p>The recovery of judgment, without satisfaction thereof, upon a simple contract debt, will not discharge a pledge given as collateral security for the debt.</p> <p>If a negotiable promissory note, which is without consideration as between the original parties thereto, is delivered without consideration to another person, who pledges it, before its maturity, as collateral security for a debt of his own of less amount than the face of the note, the pledgees, if they take it without notice, are to he deemed holders for value, and may maintain an action thereon for the amount due to them upon the debt which it was pledged to secure.</p>

<p>Ibe assignee of a firm of insolvent debtors conveyed by a deed all the right, title and interest which he had as assignee “ in and to all that machinery and property of every name and nature, lately belonging to said firm, and which is subject to two mortgages,” which were described; “ said property is all contained in the premises lately occupied by” said firm, “ and has been this day purchased by the said ” grantee, “ subject to said mortgages,” “ and is released without warranty or assurance of any kind; meaning to con- • vey all the right, title and interest which the assignee has in and to the machinery and property in said premises, in any form.” Held, that the deed covered all the property upon the premises, whether included in the mortgages or not; and that it only conveyed the title of the assignee, subject to the mortgages, and did not authorize the grantee to ' contest the validity of the mortgages.</p> <p>A purchaser in good faith from an assignee in insolvency is not bound, in vindicating his title, to show that the assignee complied with the provisions of St. 1861, c. 104, § 2, in making the sale.</p>

Action on the Gen. Sts. c. 137, to recover possession of a shop on Winter Street in Boston, of which the plaintiff was lessee for years, holding under a written lease which expired October 1,1866. The complaint was dated February 8,1866.

Petition for an assessment of damages for land taken in extending La Grange Place, in Boston, to Tremont Street. At the trial in the superior court, before Morton, J., the following facts appeared: La Grange Place ran from Washington Street towards Tremont Street, and at right angles therewith, and had dwelling-houses on each side, for its whole length.

Contract for the cost of half of a division wall. In the superior court the following facts were agreed : On May 16,1859, the city of Boston, in consideration of a bond of William E. Blanchard for payment of a certain sum of money, executed a written agreement to convey to him, his heirs or assigns, a lot of land on Worcester Square, numbered 37 on a plan of similar (including the adjoining) lots owned by the city and not built upon, which agreement contained the following…

Petition for the enforcement of a lien upon the schooner Joy, under Gen. Sts. c. 151, for labor performed upon her.

<p>Tort .by a stevedore against the wharfinger of Constitution Wharf in Boston, to recover damages upon the following case:</p> <p>At the trial in the superior court, before Vose, J., the plaintiff introduced evidence tending to show that on October 10,1865, he made a bargain with the master of the barque Mary A. Troup, then by authority of the defendant lying at Constitution Wharf, which was a plank wharf, for the purpose of discharging her cargo of iron, to discharge the same for forty cents per ton ; and the next morning laid down upon the wharf, by the vessel, a wooden platform for his horse to travel upon in hoisting the cargo, and arranged his apparatus and proceeded with the work. Shortly afterwards the defendant appeared and ordered the plaintiff to desist from discharging the cargo in the manner he was then -doing, and to take up his platform and remove his horse; saying that he did not allow horses to be used in discharging cargoes, but only steam-engines. The plaintiff refused to desist, and claimed the right to discharge the cargo in that manner; whereupon the defendant forcibly took up the platform, and removed it and the horse, and prevented the plaintiff from completing the work.</p> <p>The plaintiff offered to prove that the mode in which he was discharging this cargo was a reasonable and proper mode, and according to the custom prevailing universally in Boston at wharves of similar construction, and doing similar business; but the evidence was excluded.</p> <p>The plaintiff also put in the charter of the Constitution Wharf Company, St. 1847, c. 135; and it appeared that the company owned this wharf, and had carried on a general wharf-age business under their charter. The defendant testified that he was wharfinger, and had the sole superintendence and management of the wharf, and had established a rule that no horse should be used in discharging cargoes from vessels lying there. It was in controversy whether either the plaintiff or the master of the barque had notice of this rule, prior to the time when the plaintiff began to discharge this cargo.</p> <p>The plaintiff asked for these instructions to the jury :</p> <p>“ 1. That, as the defendant set up a special rule, as to the mode in which cargoes should be discharged at this wharf, which was not in conformity with that prevailing in the port, it was incumbent on him to prove that the master of the vessel and the plaintiff had seasonable notice thereof; that if, when the master engaged his berth at this wharf, he had no notice of it, and if neither he nor the plaintiff had any notice of it until after the vessel had commenced to discharge her cargo, any subsequent notice of the rule could not affect the legal rights of the parties, and the vessel was entitled to be discharged, and the plaintiff had a right to discharge her in any proper and reasonable mode.</p> <p>“ 2. That, if the master had no notice of said rule until after he had occupied his berth at the wharf as aforesaid, nor until after he had made a contract with the plaintiff to discharge her in the manner stated, the vessel had a right to be discharged in ?tny proper and usual mode, without interruption by the defendant, and the plaintiff, being thus employed by the master had the right thus to discharge her, although the plaintiff had notice of said rule before the actual discharge of the cargo was begun.</p> <p>“ 3. That, although the defendant, as wharfinger, might have authority to prescribe reasonable rules and regulations for the control of business at this wharf, yet the wharf company was a quasi public corporation, and its business, duties and obligations were of a quasi public character; and therefore, in reference to the rule set up in this case, the jury must be satisfied that it was a reasonable and proper rule, under all the circumstances of the case, taking into consideration the character of the property, the nature of the business, the usages of the port, the rights and reasonable convenience of vessels properly occupying berths for the purpose of discharging their cargoes at said wharf, as well as the convenience or interests of the proprietors of said wharf; and must also be satisfied that the master had notice of it before the discharge of the cargo was begun, and before he occupied his berth at the wharf; and that, unless the jury were satisfied as to both points, the existence or any subsequent notice of said rule would not furnish any defence.”</p> <p>But the judge refused the plaintiff’s prayer for instructions, and instructed the jury as follows:</p> <p>“ 1. That the defendant, as wharfinger, had the right to prescribe any rules he saw fit as to the mode of discharging cargoes at said wharf; and that such rules would be binding on all persons and vessels there discharging.</p> <p>“ 2. That it was wholly immaterial whether or not the master of this vessel ever had notice of said rule or not, or whether the plaintiff had such notice before beginning to discharge said cargo; but that the defendant, after the discharge had been commenced, might inform the plaintiff of the rule and require him to comply with it, and that, upon the plaintiff’s refusal so to do, he was justified in removing the plaintiff and his horse and tackle from the wharf, and in preventing him from completing the discharge of the cargo in the mode in which he was discharging using reasonable and proper force.”</p> <p>It being conceded by the plaintiff that the defendant did so inform and order him after he had begun the discharge of the cargo, anql that the plaintiff refused to comply with said request, and that the force and mode of removal were not improper in degree or kind, the judge directed a verdict for the defendant; which being returned, the plaintiff alleged exceptions.</p>

<p>Contract against a town to recover seven dollars a month for thirty-six months’ service as a soldier. The following facts were agreed in the superior court:</p> <p>On May 2,1861, the town of Warren voted to pay to all volunteers of their citizens who might be received into the military service of the United States seven dollars a month while in actual service. On September 24, 1861, the plaintiff, a citizen of Warren, volunteered, enlisted, and was received into the military service, as a part of the quota of the town, and continued in actual service for three years, when he was honorably discharged. On April 10, 1865, the town voted to pay him and others seven dollars a month for their time in actual service. The plaintiff demanded this bounty, which was refused.</p> <p>Judgment was ordered for the plaintiff; and the defendants appealed.</p>

Contract. The original declaration alleged that the defendant owed the plaintiff seven hundred and fifty dollars for money received by the defendant to the plaintiff’s use, and the bill of particulars charged the defendant with an item of three hundred and seventy-five dollars, money received by the defendant because he falsely represented that he had procured Andrew Sledge to enlist in behalf of the town of Brookfield in the United States’ military service, and contained a…

Contract. The declaration alleged in substance that by the defendant’s request the plaintiff procured thirty men for the defendant, to be enlisted into the military service of the United States, for whom the defendant agreed to pay him one hundred and twenty-five dollars each; and the defendant received said men, and enlisted them upon the quota of Brookline, but refused to pay for them.

Contract against the collector of customs of the port of Boston to recover a share, claimed by the plaintiff as informer, of money received by the defendant for fines and penalties on account of certain vessels, under the revenue lawn of the United States. At the trial in the superior court, before Putnam,,.J., without a jury, the following facts appeared: The plaintiff was coastwise clerk at the custom-house in Boston, while the defendant was collector.

Contract upon a written agreement between the parties, dated May 16,1864, the material portion of which is as follows: “ Whereas said Locke has this day assigned and transferred to said Thorndike the interest in certain gold mining property in Colorado, which he, the said Locke, purchased of L. L. Tower, being one undivided one-thirtieth part of the property to be owned by the following companies, namely, Caledonia, Washington, Wallace and Suffolk, when organized; now,…

Replevin of seventeen barrels of whiskey. At the trial in the superior court, before Lord, J., without a jury, it appeared that one Smith and one Willis, partners under the firm of Smith & Willis, went to New York, and there, by fraud .of which this plaintiff was cognizant, procured the replevied goods from one Selden, and transferred them to the plaintiff; that afterwards, on a writ by Selden against Smith & Willis for the price of the goods, the defendant, a deputy sheriff…

<p>Contract by John M. Scott and Robert Wright, partners under the firm of Scott & Co., cotton brokers at Boston, to recover part of the price of certain cotton sold to the defendant.</p> <p>At the trial in the superior court, before Russell, J., the plain tiffs introduced evidence tending to show that John M. Scott and Terence Flynn, at an auction room in New York, agreed to purchase on joint account a lot of cotton which was advertised to be sold there on that day by the United States, and in pursuance of this agreement Flynn in Scott’s presence bid off one hundred and nineteen bales of the cotton, giving to the auctioneer his own name as purchaser. To this evidence the defendant objected; but it was admitted de bene. The plaintiffs’ evidence tended further to show that by the terms of the sale three days were allowed within which to pay for the cotton; that, with an understanding that it should be at once disposed of, so as to raise the money necessary to pay for it, Scott, taking samples of it, on the day of the sale, left New York for Boston where he offered it in the market; that, “ soon after ” this, Flynn advised the plaintiffs that he had disposed of it in New York, and asked them to bring on their share of the money to pay to the United States; that, the next day, the plaintiffs went to New York and there paid to Flynn one half of the price for which the cotton was bid off at the auction, he signing and delivering to them the following receipt, “ New York, Oct. 25, 1865. Received from Scott & Co. ten thousand seven hundred and fifty-five fiftr as half payment for 119 bales cotton bo’t at Government sale Oct. 1865, lot x, Terence Flynn, and sold to Wm. McKinney at fifty-four c.; ” that then Flynn informed them that he had sold the cotton to the defendant, who lived at Boston, and they returned to Boston, where, after the cotton had been delivered to the defendant, they gave him notice orally of their interest in it, and that they should require him to pay to them one half of the price of it, and soon afterwards served on him a written notice and demand to that effect. The defendant objected to the admission of this written notice and demand; but the judge overruled the objection. And the plaintiffs’ evidence tended further to show that, a few days after this demand, Flynn came to Boston, and held an interview with the defendant and the plaintiffs, at which it was “ agreed by all said parties ” that the defendant should then pay to the plaintiffs a sum equal to the amount paid by the plaintiffs towards the purchase of the cotton at the auction, and should pay to them the balance of their share of the price at which he bad bought the cotton as soon as he should settle with certain parties to whom he had sold it; that the defendant thereupon paid to the plaintiffs ten thousand seven hundred and fifty-five dollars ; and that shortly afterwards the plaintiffs demanded of the defendant the remainder of their share of the price due from him, but he declined to pay it, giving as his reason that in New York, a few days before, he had paid to Flynn the whole of the balance of the price due from him, under a threat by Flynn that he would cause him to be arrested if he should not do so.</p> <p>John M. Scott was a witness, and, on cross-examination, tes tilled that at the auction “ the terms of sale were read by the auctioneer before the sale commenced; that he did not see Flynn sign any agreement at the time the cotton was knocked off to him, and did not know of his taking or having a bill of sale of the cotton; that the parties were each to pay one half the purchase money for the cotton, and were to conform to the terms of sale stated in the printed advertisement.” The defendant thereupon asked the judge to rule that the evidence admitted de bene should be excluded; but he declined so to rule.</p> <p>There was further evidence which the plaintiffs contended had a tendency to show that, at the time when the plaintiffs paid to Flynn their share of the purchase money, nothing had been paid to the United States; and that, after that time, Flynn paid the purchase money and received the cotton.</p> <p>The defendant introduced evidence tending to show that there was never any agreement between the plaintiffs and Flynn for a joint interest in the cotton; and that, if ever there was such ar agreement, the plaintiffs had forfeited their rights under it by failing to furnish seasonably their share of the purchase money.</p> <p>The defendant asked the judge to instruct the jury that, if they should believe that the sale by the United States was made to Flynn, and the contract, if any, between Flynn and Scott was that Scott should have a joint interest in the cotton on payment of half of the purchase money, and Flynn sold the cotton to the defendant before he received such payment from Scott, there was no such joint ownership at the time of the sale as would enable the plaintiffs to maintain their action. But the judge, in giving this instruction, qualified it by adding the words, “ unless Flynn waived the objection; but, if Flynn waived the objection that the plaintiffs had not complied with the terms of the sale, then it would become joint property ; and so it would' be if they paid it before property passed from the United States.”</p> <p>The defendant asked the judge further to instruct the jury that they must be satisfied that the agreement, if any, between Scott and Flynn at the auction, was made by Scott on account of his partner as well as himself; and that Flynn entered into it with the understanding that he was dealing with Scott & Co. and not with Scott alone. The judge adopted and gave the first part of this instruction; but declined to give the second part, and instructed them, instead, that, if Scott was acting foi the firm, and made the agreement in their behalf, that would be sufficient, though he did not at the time disclose the name of Wright as his partner.</p> <p>Another instruction requested by the defendant was, that, if the jury should believe that by the terms of the contract, if any, between Flynn and Scott, it was understood that “ the payment ” was to be made within three days, and Scott did not furnish the money within three days, Flynn had a right to sell the cotton as his own, and, if he did so sell it, the defendant was not indebted to the plaintiffs or either of them on account of his purchase. But the judge, in giving this instruction, qualified it by adding that, if Flynn waived this objection and his right, by receiving payment from Scott & Co. later than three days after the auction, and then sold the cotton to the defendant on joint account, there was a joint indebtedness on the part of the defendant.</p> <p>The defendant further asked the judge for an instruction to the jury, “ that, in order to prove a sufficient consideration for the alleged promise of the defendant to pay Scott & Co. one half the profits, the plaintiffs must prove that Flynn absolutely and unconditionally released the defendant from all obligation to pay that sum to him, and that Flynn and Scott & Co. similarly released all obligation on the part of the defendant to pay them jointly; ” which instruction the judge gave, but added to it, “ that, if the defendant owed the plaintiffs one half and Flynn one half, and the plaintiffs released the defendant from one half, and Flynn released the defendant from one half, and Flynn and the plaintiffs released the defendant from his obligation to pay them jointly, that would be a consideration sufficient for the agreement declared upon.”</p> <p>The jury returned a verdict for the plaintiffs ; and the defend ant alleged exceptions.</p>

<p>Contract by a real estate broker to recover two hundred dollars for services rendered under the following promise in writing signed by the defendant and appended to a description of ',er> tain real estate in Roxbury : “ If you send or cause to be sent to me by advertisement or otherwise any party with whom I may see fit and proper to effect a sale or exchange of my real estate above described, I will pay you the sum of two hundred dollars.”</p> <p>At the trial in the superior court, before Ames, J., it appeared that the plaintiff was a real estate broker in Boston; that the defendant went to the plaintiff’s office, and employed him to sell or exchange the real estate in question, leaving with him a description of it in writing, at the foot of which was the written promise recited, signed by the defendant; and that the plaintiff advertised the place accordingly. The plaintiff then testified thus: " About March 19, Newell E. Gates came to my office, and said he had a farm in Stowe, which he would like to sell, or to exchange for property near Boston. I told him, if I did it for him I should charge him two hundred dollars. He asked, * Have not you got something on hand ? ’ I then told him of the defendant’s place, and gave him a description of it, and directions where to find the defendant. He said, ' I’ll go and see him, and trade if I can ; but, if I trade with him, you must only charge one hundred dollars.’ To this I agreed. The defendant and Gates did afterwards make a bargain. I have brought a suit against Gates for my commission, and the suit is now pending in this court.” It was agreed that the defendant conveyed the real estate in question to Gates, and that Gates in return, at the same time, conveyed a portion of his farm to the defendant. It was also agreed that the defendant refused to pay the plaintiff’s bill for the two hundred dollars.</p> <p>There was conflicting evidence on the question whether Gates was induced to call upon Osgood by any information received from the plaintiff, the defendant contending, and offering evidence tending to show, that he had employed other brokers before he saw Gates, by one of whom Gates was introduced to him.</p> <p>The defendant requested the judge to instruct the jury that, as it appeared by the plaintiff's own testimony that he was acting as the agent both of the defendant and of Gates, and had charged commissions to each for so acting, and had not informed the defendant, and the defendant did not know that the plaintiff was so acting, the verdict must be for the defendant. The judge did not so rule, but ruled that, under this contract, and as the plaintiff was not employed to negotiate the bargain or to settle the price or terms of the sale or exchange, but merely to “ send or cause to be sent to the defendant a party with whom he should see fit to effect a sale or exchange” of the property, thex fact that he was also employed by Gates, and had charged him a commission for the exchange of his property, would not of itself be a bar to the plaintiff’s claim in this action ; that the burden of proof was upon the plaintiff to show that he had fulfilled the condition on which alone the money claimed was payable to him; that the questions for the jury were, did he send Gates or cause him to be sent to the defendant, and did the information which he gave (if the jury were satisfied that he gave any) have the effect of inducing Gates to call upon the defendant, and to enter upon negotiations with him ending in the exchange of property; that it was immaterial whether the defendant employed other brokers; that, if the plaintiff first gave to Gates such information as caused him to enter into communication with the defendant on the subject, and with the result above set forth, it would make no difference that, after obtaining that information from the plaintiff, Gates called on other brokers and got further information of the same kind from them, or got somebodv else to introduce him to the defendant; and that the true question was, did the plaintiff procure the customer for the defendant within the terms of the contract.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract. The declaration alleged that the plaintiffs and defendants referred certain matters in relation to a contract for work on the Continental Theatre to arbitrators; and afterwards entered into another agreement, as follows : “ Boston, January 30,1866. In consequence of a lantern not being completed for the Continental Theatre, which is hardly ready for delivering, it is agreed by the parties to the arbitration in the contract for work that said Morris Brothers & Trowbridge [the defendants] shall pay to said West & Patrick [the plaintiffs] the sum which said reference shall decide to be due the said lantern in connection with said contract as soon as said reference shall find- the work and placed upon the building and order such payment to be made; ” that the arbitrators referred to were the same to whom the former matters had been submitted; and that they afterwards made an award, (the amount of which the defendants owed to the plaintiffs,) as follows : “ We the undersigned, arbitrators on the annexed contract, have duly met the several parties and heard them and their evidence, and report that the lantern has been placed on the Continental Theatre according to contract, and approved by us, and we find that the price of the lantern due from Morris Brothers & Trowbridge to West & Patrick is three hundred dollars, which should be allowed. Said three hundred dollars is now due to West & Patrick. Boston, May 16, 1866.”</p> <p>There was also a count on an account annexed, for three hundred dollars, for one large lantern put on the outside of the Continental Theatre.</p> <p>The defendants in their answer alleged that on the 19th of February 1866 the plaintiffs and defendants met and made an accord and satisfaction of all claims and demands growing out of the contract for work on the Continental Theatre, and the work done thereon, and the plaintiffs executed and delivered to the defendants a written and sealed release, a copy of which was annexed, dated that day, in which the plaintiffs acknowledged to rave received “ the balance due on an award of referees, for all ilaims arising under said contract and work on said building, and we do hereby release and discharge the said Morris Brothers & Trowbridge from all claims and demands which we or either of us have against them, and all suits, costs, &c., are hereby settled and discharged.” And the defendants alleged that any claim which could arise under the agreement declared upon, dated January 30, 1866, was thereby released and discharged They further alleged that it-was an implied condition of the agreement declared upon that the lantern should be completed and put upon the building without delay, and that this was not done until after the execution of the release, and not within a reasonable time ; and also that the award was not valid because the arbitrators did not meet the parties nor hear their evidence.</p> <p>At the trial in the superior court, before Lord, J., the plaintiffs introduced evidence tending to show that in 1865 they agreed in writing with the defendants to furnish the materials and build for them the Continental Theatre; that before the building was completed it was orally agreed between the parties to change the manner of lighting the outside of the building, by putting one large lantern thereon, instead of a large number of jet lights, as provided in the specifications ; that the plaintiffs thereupon ordered said lantern to be made; that after the building was completed, the original submission, dated January 26, was made, and the parties were fully heard before the arbitrators and an award made on January 30; that at the time of the hearing the lantern was in the hands of the manufacturers, nearly completed; that the arbitrators, at the suggestion of the defendants’ counsel, did not include the price of the lantern in the amount awarded, because the lantern had not been completed and put up; and that the agreement declared upon was made and executed in the presence of the arbitrators, and it was then understood and agreed that the lantern should be put upon the building as soon as completed, and that it should be completed without delay; that on the 19th of February following the defendants paid to the plaintiffs the sum awarded, which did not include the price of the lantern; that said sum was paid before the time fixed by the award, and the plaintiffs executed and delivered to the defendants the release referred to in the defendants’ answer; and that at the time nothing was said about the lantern.</p> <p>The plaintiffs’ evidence tended further to show that they never received any notice that they would not be required to complete and put up the lantern as first agreed; that on or about the last of March following the lantern was completed, and by the plaintiffs’ direction put upon the building, and finished some time in the middle of April, and immediately afterwards lighted and used by the defendants or their tenants ; that within a few weeks after the lantern was put up the plaintiffs notified the arbitrators thereof, and they, after finding by personal observation and examination that the lantern had been put up, signed the award declared upon, dated May 16; that no notice was given to the plaintiffs or defendants of any hearing at that time before said arbitrators, and no hearing was had before them. And one of the arbitrators, called by the defendants, testified that both parties were fully heard in relation to said lantern, under the first submission, and he understood that they were to have no further hearing in relation to the lantern, but were merely to approve the bill therefor, as soon as they should find it had been put upon the building.</p> <p>The defendants introduced evidence tending to show that they saw the staging erected for the .purpose of putting up the lantern, and knew that the plaintiffs were putting it up; and that they requested some of the persons employed by the tenants of the building to inform the plaintiffs that they should not pay for the lantern if it was put up.</p> <p>The plaintiffs asked the judge to rule that if, at the time of the execution of the agreement declared upon, it was understood and agreed by the parties thereto that the arbitrators were to pass upon the matter therein submitted to them without any further hearing, then they could recover upon the award; that it was a question for the jury whether the parties had so agreed or waived a hearing; that on the account annexed it was a question of fact for the jury to find when the contract was made, and what it was, and whether the plaintiffs had any claim against the defendants on account of said lantern at the time of the execution of the release, and whether the plaintiffs had performed their contract in relation thereto, and whether the lantern had been put upon the building with the knowledge and consent of the defendants and without their objection; that if the lantern was put upon the building with the knowledge and consent of the defendants, and without their objection, then there would be an implied promise to pay tha value, thereof.</p> <p>The judge instructed the jury that the plaintiffs could not recover upon the award ; that the legal effect of the release put in by the defendants was to bar the plaintiffs’ claim; that if, after the release was executed, it was mutually agreed and understood that the lantern was to be put up and paid for, and it was afterwards put up, the plaintiffs could recover; that it was not necessary that a new and independent agreement should be entered into between the parties, but if, subsequently to the release, it was mutually understood that the lantern was to be completed and put up by the plaintiffs and paid for by the defendants, that would entitle the plaintiffs to recover, but not otherwise ; and the judge directed the jury, if they found for the defendants, to answer the following questions: 1. Was the lantern put up in a reasonable time? 2. Did the defendants give notice before the lantern was put upon the building that they should not pay for it?</p> <p>The jury found a verdict for the defendants, and answered the first question in the affirmative and the second in the negative; and the plaintiffs alleged exceptions.</p>

<p>A. signed a bond to d s&olve an attachment, as one of two sureties, but, upon his answers as to his estate to 'h 5 magistrate who was to pass upon the sufficiency of the bond, the same was not apprwbd, and h& wer.fc away. Afterwards an additional surety was obtained, and the bond was then approved. Held^ that A. was liable thereon.</p> <p>A bond to dissolve an attachment requires no internal revenue stamp.</p>

Tort against a street railway company for injury done to the plaintiff’s horses, harnesses and wagon, under the following circumstances, which the plaintiff’s evidence tended to prove at the trial before Russell, J., in the superior court: In the afternoon of November 2,1865, the plaintiff was going to East Boston in a covered wagon, driving two horses, and went on board of the East Boston ferry boat. The tide was very low, and the day was rainy.

<p>If a factor agrees to receive consignments of merchandise, make sales thereof, collect the proceeds, hold them, whether in the shape of money or evidences of debts, as property of his principal, and deliver them up to him on demand at the termination of the agency, his duty so to deliver them up is not affected by his further agreement to guarantee such debts if not paid by the debtors within a fixed time; although at the date of the demand such time has not expired.</p> <p>In an action here by a principal against his factor in a foreign country for the defendant’s breach of contract in refusing to deliver up there certain moneys and evidences of debt, the measure of damages is such sum in the currency of the United States as most nearly approximates to that which the plaintiff would be entitled to recover in such foreign country.</p>

<p>Tort for the value of a valise and its contents lost from the custody of the defendants as common carriers. These actions were tried together in the superior court, before Ames, J., when the material facts appeared substantially as follows:</p> <p>The defendants were a corporation running a line of steamboats between St. Johns in New Brunswick and Boston, by way of Eastport. Early in the morning of May 31,1865, the plaintiffs took passage on one of their boats at St. Johns. Dunlap testified that, having engaged passage for Boston, he came to the wharf in St. Johns in company with Stewart, who had en* gaged passage for Eastport; that, on ascertaining that he could not then obtain a state-room, he sent a telegram to Eastport to secure one there, and gave his valise to the defendants’ baggage-master on the wharf, to be checked for Eastport only; that the baggage-master received it, remarking that no checks were given for luggage for Eastport, but he would take it, marking it with chalk “ For Eastport; ” that it contained wearing apparel, and eighty-six sovereigns in British coin, and three hundred and ninety-three dollars in gold coin of the United States, all which Delonged to himself, and also forty-eight sovereigns in British coin and two hundred and twenty-three dollars in gold coin of the United States, which belonged to Stewart; that, after thus delivering it to the baggage-master, the plaintiffs went on board, and the boat immediately left the wharf; that soon afterwards, and before reaching Eastport, the passengers were called to show their luggage to the officer of customs, and then, on search for the valise, it could not be found, and never has been found since; that on starting from St. Johns it was his purpose to travel as far as to New York, and be absent from six to eight weeks, and he took no other money than that contained in the valise, except two or three dollars in his pocket-book.</p> <p>This testimony was confirmed by that of Stewart and one other witness; but it did not appear that any notice was given to the defendants or any of their agents or servants that the valise contained gold or any article of peculiar value. The defendants thereüpon contended “that, for want of such notice, the plaintiffs, by the provisions of the U. S. St. of 1851, c. 43, § 2* were expressly prohibited and barred from maintaining any action against them for the alleged loss of any of the gold not required and in good faith intended for the reasonable travelling expenses of said Dunlap ; ” but the judge ruled “ that said statute was not a bar to the plaintiffs’ actions, and did not apply to the present cases.”</p> <p>By the evidence introduced by the defendants, it appeared “ that a tariff or list of prices of freight was posted at their ticket office, setting forth among other things that coin could be sent by their boats as freight at one quarter of one per cent, on the amount.”</p> <p>On the whole evidence, they conceded that, if the jury should be satisfied that they received the valise, they were liable to Dunlap for the value of it and the wearing apparel contained in it according to a schedule annexed to the declaration, in which such value was set at the sum of $133; and also for so much of the money as was necessary “for his reasonable travelling expenses and personal use; ” but they contended that he was entitled to recover no more, and that Stewart was not entitled to recover anything; and they asked the judge to instruct the jury as follows:</p> <p>“ Unless the jury are satisfied that the loss occurred through the gross negligence of the defendants, the plaintiffs cannot re cover; and proof that the defendants received the goods, and have never delivered them to the plaintiffs, is not sufficient to charge the defendants, if they are shown to have used ordinary care in regard to them. The burden of proof is on the plaintiffs to show not only the loss, but that it occurred by reason of the defendants’ gross neglect. If the jury are satisfied that the plaintiff Dunlap did not use such care with regard to his gold as men usually take, he cannot recover. The defendants are not liable for the felonious or fraudulent acts of their servants, unless it appears that they were negligent in their selection or retention in their service. And the plaintiff Stewart is not entitled to recover, for no contract of carriage has been shown to have been made with him.”</p> <p>The judge “did not instruct the jury in the terms of either of the propositions suggested, but did instruct them that it had become material for them to find what amount of money the plaintiff Dunlap might reasonably and properly carry in his valise for his travelling expenses and personal use, taking into view the length of time to be occupied and the circumstances generally of his proposed journey; that, in order to recover anything more than the value of the valise, and the articles in the schedule, and the sum which the jury should find reasonable and proper for his expected travelling expenses, and also in order for the plaintiff Stewart to recover anything whatever, it was not sufficient to proye that such additional property was intrusted to the defendants and had been lost, but the plaintiffs were bound also to prove that they had been guilty of no want of ordinary care and prudence themselves, and also that on the part of the defendants there had been gross negligence or fraud, and that the loss of the property was owing to such gross negligence or fraud; that the burden of proof, in this part of the case, was on the plaintiffs; that the disappearance of the property was not of itself sufficient to make out the plaintiffs’ case in that respect; that the fact that the valuable character of the valise was not disclosed was to be taken into consideration, and that the defendants were only bound to take that degree and kind of care which the apparent or presumptive value of the valise appeared under the circumstances to require; that the plaintiffs were not, on the other hand, bound to prove the exact circumstances or mode in which the loss occurred; that the defendants would be liable if the property were lost by their gross negligence, or if it were fraudulently appropriated by any person in their regular employment, while on duty in or about the baggage, or if any person so in their employment fraudulently or by gross negligence permitted any other person to take it; and finally, that it was sufficient if the plaintiffs proved that it was intrusted to the defendants and had disappeared under such circumstances as to justify and compel the inference of gross neglect or fraud on the part of the defendants or their servants, acting under their authority, express or implied.”</p> <p>It was agreed that at the time of the loss of the valise “ the premium on gold was thirty-six per cent.,” and the jury were instructed, if they should find for the plaintiffs, or either of them, “ to add to the nominal value of the gold in that proportion.” They returned verdicts for the plaintiffs, with damages in the sum of $1335.12 in the case of Dunlap, and $671.13 in the case of Stewart; and in the case of Dunlap they found specially “ that the sum of three hundred dollars was a reasonable and proper amount for said Dunlap to have taken with him for travelling expenses and personal use.” The defendants alleged exceptions ; and the judge reported the cases for revision by this court, “ the verdicts to be set aside, affirmed, or amended, as law or justice may require.”</p>

<p>Contract against a mutual insurance company on a policy of insurance made by them to Andrew Campbell upon his life, payable to him, his executors, administrators and assigns, for the benefit of the plaintiff, “ upon the following conditions,” (among others,) that “ if the statements made by, or in behalf of, or with the knowledge of, the said assured, to said company, as the basis of, or in the negotiations for, this contract, shall be found in any respect untrue,” then the policy should be null and void.</p> <p>The declaration alleged the making of the policy (a copy of which was annexed thereto); that the plaintiff was the wife of a brother of.the assured; the promise of the defendants to pay the sum insured to the assured, his executors, administrators and assigns, for her benefit; his death from a natural cause or sickness; due notice and proof thereof; the subsequent lapse of sixty days-; a request to pay the sum insured to the plaintiff, and the defendants’ refusal; and that they owed her that sum and interest thereon.</p> <p>The answer admitted the making of the policy, the death of the assured, the notice of death and demand of payment; declared the defendants’ ignorance whether the plaintiff was his brother’s wife or the person to whom the policy was made payable ; and averred that she had not an insurable interest in his life; and also that the policy was made upon the faith of an application therefor, signed by Andrew Campbell, by the terms of which the statements therein were declared to be the basis of the insurance; set forth the above condition of the policy; and alleged that such statements were untrue in that at the time of making the same he had had spitting of blood, prolonged coughs and consumption, and had also long been subject to sudden and frequent attacks of illness of a serious and alarming character, not enumerated in the sixth question in the application, and which he ought to have disclosed in answer to the seventh question therein, and that by reason of such untrue statements the policy was null and void.</p> <p>In the application (a copy of which was annexed to the answer) Andrew Campbell “ proposes to insure ” his life with the defendants, “ and thereby to become a member of the company ; am with that view, and as the basis of such insurance, makes the following statements:</p> <p>* ig" If the applicant writes his answers himself, he will please to answer directly, fully and explicitly. If the agent or examining physician writes down the answers given to him by the applicant, he will please to make explanations where the applicant is in doubt about the meaning and purpose of the question; and also to put such inquiries as will draw direct and specific answers.”</p> <p>“6. Whether now, or heretofore, and when, and how long, and to what degree, subject to, or at all affected by, any of the following diseases and infirmities, viz: ” “ Bronchitis, consumption, coughs prolonged,” “ disease of the lungs,” “ spitting of blood.” Answer. “ No.” “ 7. Has the person had any serious illness, local disease, or personal injury; and if so, of what nature, and when ? ” Answer. “ No.” “ 22. Have you carefully read the above questions and the answers thereto?” Answer. “ Yes.” “ 23. Are you aware that any fraudulent or untrue answers, or any concealment of fact, or noncompliance with the terms and conditions of the policy, will vitiate the insurance ? ” Answer. “ Yes.”</p> <p>The application concluded with the statement, “ The foregoing are full, fair and true answers to the questions proposed,” and was signed by the applicant.</p> <p>A trial was had in this court at April term 1867, and resulted in a verdict for the plaintiff, which was set aside as against evidence.</p> <p>At the second trial, at October term 1867, before Wells, J., the plaintiff proved that she was the person named in the policy and for whose benefit it was made; and rested her case; whereupon the defendants asked the judge to rule that in order to maintain her action she must prove an insurable interest in the life of her brother-in-law • but he declined so to rule.</p> <p>The defendants then put in evidence the application, and offered testimony to show that whether or not an applicant had ever spit blood, and his statements in relation thereto, were mat' ters materially affecting the inducement of insurance companies to take the risk, but the judge excluded this testimony as immaterial.</p> <p>The defendants then called witnesses who testified that the assured, for several years previous to his application, had suffered from a severe cough, which was particularly observable early in the morning and at night, and while coughing had spit blood in their presence, and had called attention to it, and had told them of particular instances of coughing and spitting blood, and had said that his lungs were diseased.</p> <p>The plaintiff, in rebuttal, called witnesses who testified that the assured was always a healthy man, vigorous in looks and habits, and that they never saw him spit blood or heard him cough or complain of spitting blood, before the date of the application ; and also introduced evidence tending to show bias on the part of some of the defendants’ witnesses.</p> <p>The defendants asked the judge to instruct the jury “ that the policy is issued upon the basis of the truth of the statements in the application, and the assured takes the risk of the truth of these statements; that if they are in any respect untrue the policy is void, and it makes no difference whether he knew them to be untrue or not.” But the judge declined to give the instruction as requested; and modified it by inserting the word “ materially ” after the word “ respect,” and by striking out the words “ and it makes no difference whether he knew them to be untrue or not; ” and also instructed the jury, in this connection, “ that repeated instances of spitting of blood, accompanied by a cough of the character testified to by the defendants’ witnesses, were, if true, material facts which the applicant was bound to state; but that an untrue statement, innocently made, in regard to a latent disease of which the applicant was unconscious, would not avoid the policy.”</p> <p>The defendants also asked an instruction “ that the truth of the statements in the application, and which were in express ' terms made the basis of the policy, was a condition precedent to the validity of the policy ; and that the burden of proof was upon the plaintiff to show their truth.” The judge declined to give this instruction; and, instead of it, instructed the jury “ tha the plaintiff, upon the production of the policy and proof of the death, had established a primd facie case, and was entitled to recover, unless the defendants defeated her claim by proof of some of the grounds of defence set up in their answer; and that upon this issue the burden of proof was upon the defendants.”</p> <p>The defendants also asked an instruction “ that the spitting of blood, accompanied by a cough, was so far an indication of a diseased condition of the respiratory organs, that, if the applicant had suffered from them, he was bound to have so stated to the company in his answers to questions six and seven.” The judge declined to give this as prayed for; and modified it by inserting the word “ repeated ” before the words “ spitting of blood; ” and instructed the jury, in this connection, “that repeated instances of spitting of blood, of the kind testified to by the defendants’ witnesses, would be indications of disease, which the assured was bound to have stated ; that it was not necessary that the defendants should prove the existence of any positive organic disease, or that the spitting of blood was of a character to shorten life; that the inquiries were not only as to diseases, but as to infirmities and certain specified symptoms of disease; and that the company were entitled to have them answered fairly and truly.” The defendants also asked an instruction “ that, if the jury are satisfied that the assured had spit blood before obtaining the policy, under circumstances which excited apprehension in his own mind that it was the result of disease, he was bound to have stated that fact to the company, that they might make inquiry in regard to it.” The judge modified this by inserting the word “ recently ” after the words “ spit blood; ” and further instructed the jury, upon the defendants’ request, that, “ if the assured was subject to occasional spitting of blood, accompanied with a cough, he was bound to have stated that fact to the company.”</p> <p>The judge further stated to the jury, “ that, as the plaintiff did not attempt to explain or account for the instances of spitting of blood testified to by the defendants’ witnesses, but denied the truth of the facts so testified to, it would seem that the only question for them to determine was whether they were satisfied of the truth of that testimony; and that, if they were satisfied, from all the evidence in the case, that the assured did spit blood at different times, in connection with a cough, as testified to by the defendants’ witnesses, their verdict must be for the defendants.”</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>Tort by the plaintiff as treasurer of the Salem Turnpike and Chelsea Bridge Corporation for a fine alleged to have been incurred by the defendant, under § 10 of the charter of that company, St. of 1801, c. 63, for forcibly passing a toll-gate. Answer, that the defendant was travelling on his own land5 and had a right to pass the gate toll-free.</p> <p>At the trial in the superior court, before Ames, C. J., it appeared that the turnpike was laid out and constructed across a farm in Salem, which extended both above and below a toll-gate and at the time the turnpike was built belonged to persons from whom the defendant derived a freehold title ; that on December 19,1866, the defendant demanded passage through this gate, and the toll-gatherer replied that if he was not going out of town he might pass through, but if otherwise, must pay toll; that he answered that when he came back he would let the toll-gatherer know; who replied that that would not do, that he must know at once ; and that the defendant proceeded to open the gate by force, and succeeded in doing so, and passed through with his wagon, and, on returning to the gate several hours afterwards, said that he had been out of Salem.</p> <p>The defendant offered to prove that when he came to the gate he had not determined whether to go beyond Salem, and, although he did in fact go beyond the limits of the city, yet in doing so he turned off from the turnpike upon a county road; and that, when he came back, he said to the toll-gatherer that he had come to report. He further offered to prove that “ for more than twenty years before December 19 he and bis predecessors in the ownership and occupation of this farm had always passed over the turnpike, and by this gate, without paying toll, and had done this under a claim of right, and had always refused to pay toll; ” and proposed to argue that he “ thus ” had acquired a right by prescription “ to pass over the turnpike, and especially to pass this gate, toll-free.” And he contended further that, as owner of the soil over which the turnpike ran at the gate, he had a right to pass the gate without paying toll; and that, even if he was liable in any event to pay toll, the burden was on the plaintiff to prove that at the time in question he intended to go beyond the city when he passed the gate, and also to prove that he did not fall at that time within the proviso of § 10 of the statute, which is quoted in the opinion.</p> <p>But the judge ruled “ that the fact that the defendant owned the soil over which the turnpike ran gave him no right to pass the gate other than, or different from, the rights of travellers generally, except that of going toll-free from one part of his farm to another; that going out of town, in the act of incorporation, does not mean, and is not to be restricted to, going on the turnpike all the way beyond the limits of the town ; that, on being asked if he was going out of town, he was bound, under the circumstances, to answer in the affirmative, or to state some ground on which he claimed a free passage, before he could rightfully pass without paying toll; that he had no right to defer his answer to the question until his return, or to any future period; and that the evidence offered as to the failure of the corporation for twenty years or more to enforce or attempt to enforce the payment of tolls from him and his predecessors in the ownership of the farm would not of itself be a bar to this action, or give to this defendant a right by prescription to pass the gate toll-free.”</p> <p>A question being raised whether the plaintiff could maintain the action in this form, the judge ruled thereon pro formd in favor of his right, it appearing that this action was brought to test the rights of the defendant relative to the corporation, and it being understood that if, on the facts in evidence, the plaintiff, in any form of civil action or by. any amendment of his declaration, could enforce his demand against the defendant, he should be allowed to amend accordingly. And then the judge directed a general verdict for the plaintiff, the amount of damages being agreed by the parties if this verdict should be sustained; and the defendant alleged exceptions.</p>

<p>Tort, on the Gen. Sts. c. 63, § 101,* for injury to the plaintiff’s woodland, alleged to have been caused by fire communicated by the defendants’ locomotive engine.</p> <p>At the trial in the superior court, before Eevens, J., it appeared in evidence that the plaintiff owned a lot of woodland, comprising thirty-five acres, lying substantially parallel with the defendants’ branch railroad in Middleton, about half a mile distant from the track, from which it was separated by intervening lots of various proprietors, and by an old road; that on September 30,1865, just after a train had passed over the defendants’ track, fire was discovered among the grass and stubble at a short distance therefrom, and spread rapidly in the direction of the plaintiff’s land, which it reached and devastated between the succeeding midnight and morning, having crossed, in its course, the lots of the intervening proprietors and spread out to a considerable distance and burned large quantities of wood ; that before it reached the plaintiff’s land persons who were endeavoring to stay its progress lighted back-fires in its path; “that this was done by kindling a fire at some distance ahead, and driving it against the wind, towards the main body of flame, stamping it out as they proceeded; but that in one or two cases the body of the main conflagration came upon them so furiously and rapidly that they were obliged to retreat, when their back-fire was swallowed up in the advancing wave of fire; ” and that it was impossible to stop the conflagration until the evening of October Í.</p> <p>The defendants contended that, admitting the fire to have been first communicated from their engine to the grass and stubble, the statute did not apply to the injury of property so situated and consumed as was that in question; but the judge ruled otherwise, and instructed the jury that, if the fire which did the injury to the plaintiff’s property came in a direct line, and without any break, from that which was ignited by a cinder from the defendants’ locomotive, it was a sufficient communication within the meaning of the statute, and the defendants would be liable.</p> <p>With regard to the back-fires, the defendants, admitting the kindling of them to have been done in good faith and proper exercise of discretion, contended that nevertheless, artificial fire having so been added to the general conflagration, it was impossible to determine whether that fire which burned the plaintiff’s property was communicated from their engine, and therefore they could not be held responsible; but the judge ruled otherwise, and instructed the jury that, “if back-fires were kindled, in the manner stated, in good faith, and were judicious, though ineffectual, means, under the circumstances, of staying the progress of the fire, and such back-fires, while burning, were swallowed up in the wave of advancing flame, Which went on thence and destroyed the plaintiff’s property, it could in no way affect his right to recover.” The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>A railroad corporation was insured against loss or damage by fire, by a policy, the written clause in which described the subject insured as “ their liability for loss and damage by fire occasioned by sparks from locomotives to properly of others situate on lands not owned or occupied by assured; ” and by the printed clauses of which it was agreed to make good to them “ all such loss or damage, not exceeding in amount the sum insured, as shall happen by fire to the property as above specified during one year ” from its date, “ the said loss or damage to be estimated according to the actual cash value of the said property at the time the same shall happen, and to be paid within sixty days after due notice and proof thereof made by the insured in conformity to the conditions annexed to this policy, unless the property be replaced or the company have given notice of their intention to rebuild or repair the damaged premises.”</p> <p>One of these conditions annexed required persons sustaining loss or damage by fire forthwith to give written notice thereof to the company, and within sixty days deliver as particular an account thereof as the nature of the case would admit, verified in a certain manner. Held, that the railroad corporation must, within sixty days after a fire, give notice and proof of loss in accordance with this condition.</p> <p>Under the St. of 1864, c. 196, requiring that “ in all insurance against loss by fire made by companies chartered or doing business in this Commonwealth the conditions of the insurance shall be stated in the body of the policy,” a statement that “ this policy is made and accepted in reference to the terms and conditions herein contained and hereto annexed, . which are hereby declared to be a part of this contract,” does not import into the contract any condition not set forth on the face of the policy. But if, on the face of the policy the amount of the loss is stated to be payable “ within sixty days after due notice and proof thereof made by the insured in conformity to the conditions annexed to this policy,” such notice and proof must be made in accordance with the details of a condition printed on a subsequent page of the policy and after the signatures of the insurers.</p>

Tort for discharging water upon the plaintiff’s land. At the new trial in the superior court, before Devens, J., after the decision reported 14 Allen, 55, the plaintiff’s evidence tended to show that he owned a lot of land in Gloucester, outside of the defendants’ location and bounded southerly on their railroad for several hundred yards, sloping so that while at the western end of this boundary the road bed was upon an embankment forty feet high, it was at the eastern end…

<p>An action to recover money expended from the treasury of a city or town by its board of health to remove a nuisance may be maintained in the name of the city or town.</p> <p>A statute which “ ratifies and confirms ” the location of a railroad and “ the railroad,” “ as actually laid out and constructed,” does not exempt the railroad company from liability for injuries caused to public or private rights by the manner in which they have constructed or are maintaining part of the road at the time of the enactment.</p> <p>An order of a board of health, under the Gen. Sts. c. 26, § 8, for the removal of a nuisance, is valid without previous notice to the parties interested and opportunity for them to appear and be heard.</p> <p>If an order of a board of health, under the Gen. Sts. c. 26, § 8, to a railroad company for the removal of a nuisance, recites that the company, by filling up parts of a certain pond without supplying suitable culverts or other means of drainage, have created and are maintaining a nuisance at said pond, it sufficiently informs the company of the nature and locality of the nuisance to be removed.</p> <p>An order of a board of health, under the Gen. Sts. c. 26, § 8, for removing a nuisance, need not prescribe a mode for the removal, and, if it does prescribe a mode, the owner or occupant of the property on which th6 nuisance is found is not restricted thereto.</p> <p>If an order of a board of health, under the Gen. Sts. c. 26, § 8, for removing a nuisance, prescribes a mode for the removal, and the owner or occupant of the property on which tn# nuisance is found neglects to remove it, the board, in proceeding to remove it under § 10/ Is not restricted to that mode, but may adopt any which is suitable, even if, in so doing it is necessary to subvert soil adjoining that on which the nuisance exists,</p> <p>in an action by a city, on the Gen. Sts. c. 26, § 10, against the party alleged to have caused a nuisance, to recover money expended by the board of health for removing it, if such party had no opportunity to be heard before the board, none of the findings or adjudications of the board preliminary to the incurring of such expenses are conclusive upon him, and all the facts on which the recovery is sought are open to be controverted and must be established by the proofs.</p>

<p>Bill in equity, filed January 5, 1867, by Francis Peabody the testator of the present plaintiffs, against John R. Norfolk only; and subsequently amended by a supplemental bill so as to include James P. Cook as a defendant.</p> <p>The bill set forth that, for many years prior to the filing of the same, Peabody was secretly engaged in making experiments, inventing and adapting machinery, and originating and perfecting a process, to manufacture gunny cloth from jute butts, and at last succeeded in perfecting machinery and a process to do so profitably, such a manufacture having never before been attempted, so far as he knew; that thereupon he built a large factory on Bridge Street in Salem to carry on such manufacture with such machinery and process, and filled it with such machinery, and invested a large sum in the building, and the machines, material and business; that, both in all his experiments, and in the construction of the machines for the factory and the setting up and running of the same, he employed Norfolk, who was a machinist, to give his whole time and skill for a salary; that, in the course of this employment, Norfolk became confidentially possessed of knowledge of the machinery and process, well understanding that such knowledge was to be kept wholly secret; and that, at'the solicitation of Norfolk while so employed, Peabody made a written agreement with him, dated June 24, 1865, which was annexed in full to the bill, and the material carts whereof were as follows :</p> <p>“ Said Norfolk agrees to serve the said Peabody as the engineer of his jute factory in Bridge Street so far as he is required to do so by said Peabody, and particularly for that part which relates to the running and construction of the engines and boilers, and of the machinery used in the manufacture of the goods, also in the construction and repairs of the buildings that are required; ” and “ agrees that he will not give any parties information, directly or indirectly, in regard to the machinery, or any portions of it,” which had been used in the experiments, or should be used in the factory, but “ will consider all of said machinery as sacred to be used only for the benefit of said Peabody or his assigns, and that by all the means in his power he will prevent other persons from obtaining any information in regard to it such as would enable them to use it.”</p> <p>“ Said Peabody on his part agrees to pay the said Norfolk the sum of one thousand dollars annually in monthly instalments of eighty-three dollars and thirty-three cents each, to be received in full compensation for above described services, provided the said Norfolk shall render his services acceptable to said Peabody as he has heretofore done, and that said Peabody or his assigns or agents shall continue the business of manufacturing jute goods in said mill in Bridge Street or elsewhere.”</p> <p>The bill further alleged that, on January 1, 1867, Norfolk left his said employment, and had made arrangements with persons unknown to Peabody to build another factory for the manufacture of gunny cloth from jute butts, and to furnish these persons with machinery to be built on the models of the machinery of Peabody, and impart to them Peabody’s secret process of manufacturing, and aid and assist them in manufacturing by that process; and that he had taken from the possession of Peabody the original drawings, or copies thereof, of said machinery, and intended to use them in carrying out his said arrangements.</p> <p>The prayer of the bill was for an injunction to restrain Norfolk from carrying out any such arrangements, or communicating to any person any knowledge of said machinery and process derived by him in the course of his said confidential employment ; and to oblige him to return to Peabody said drawings or copies. Upon this bill an injunction was issued in conformity with its prayer.</p> <p>On June 8, 1867, Peabody filed a supplemental bill, reciting said prayer and the issue of the injunction, and alleging that be had learned for the first time, since the service of the injunction on Norfolk, that James P. Cook was one of the persons with whom Norfolk had made his said arrangements; and further, that Cook and his associates, knowing the relations between Peabody and Norfolk, and knowing the fact of the injunction, were nevertheless proceeding to build machinery to manufacture gunny cloth from jute butts by Peabody’s secret process; that Cook was pretending to build the machinery in his own name, upon information, models and drawings obtained from Norfolk before or about the time of the service of the in junction, but that, in fact, long before he ever made any arrangements with Norfolk on the subject, he had notice of all Peabody’s relations with and claims on Norfolk; and that, although Norfolk was falsely pretending to obey the injunction, yet in fact he was one of Cook’s present associates in the building of such machinery.</p> <p>The prayer was for an injunction on Cook similar to that issued against Norfolk.</p> <p>To this supplemental bill Cook filed a general demurrer; and the questions arising thereon were reserved by Foster, J., for determination by the full court.</p>

<p>[n a hearing on a probate appeal before a single justice, no exception lies to his refusal of the request of a party for the appointment of some person to take the evidence of witnesses to be examined orally, if he reports to the full court such evidence himself.</p> <p>Under the Gen. Sts. c. 98, § 12, the right to open former accounts in probate upon the settlement of any account by an executor or administrator is limited to accounts in the course of settlement of the same estate.</p> <p>In a hearing on a probate appeal from a decree accepting the account of an executor, he is a competent witness to prove payment to the deceased of money due to her from him in her lifetime.</p> <p>A statute which provides that income of any property, real or personal, given by will until the happening of a contingent event, shall be apportioned upon the happening of such event at any time before the end of a year from the time when the whole of the annual amount for the preceding year had become due, (Gen. Sts. c. 97, §§ 23,24,) does not make apportionable dividends from the profits of business of incorporated companies not declared at the time when such event happens.</p> <p>Distributive payments by an executor, to residuary legatees, of the residue shown by his account, are not allowable therein.</p>

Tort against the assessors and collector of taxes of the town of Haverhill, and a deputy of the sheriff of Essex, for arrest and imprisonment of the plaintiff by the deputy on a warrant issued by the collector for a tax contained on a list committed to him by the assessors with their warrant for its collection.

Tort against the town agent appointed under the Gen. Sts. c. 86, § 17, for the purchase and sale of intoxicating liquors in Georgetown.

<p>Bills of parcels of intoxicating liquors bought by a town agent, containing in substance tbs particulars required by the Gen. Sts. c. 86, § 20, to be specified concerning such purchases, are a sufficient account thereof to be kept by him within the meaning of the statute.</p> <p>If, at a trial, there is evidence that a town agent bought and kept his intoxicating liquors in small quantities; that there is a deficiency of one third, in greatest proportion of whiskey, between his accounts of liquors bought and liquors sold; that on being questioned he fails to give any explanation of the deficiency; and that in his record of sales there is in several instances no memorandum of the quantity sold; the question whether he has made sales which he has not recorded is for the jury.</p> <p>The negligent, even if not wilful or fraudulent, omission of a town agent to enter on his record of sales of intoxicating liquors the quantity sold to any person, or to give any name whatever of a purchaser, is a violation of the Gen. Sts. c. 86, § 20.</p> <p>The Gen. Sts. c. 86, § 20, do not require the book of sales of intoxicating liquors by a town agent to be kept in the tabular form therein set forth.</p> <p>On the issue whether the record of sales of intoxicating liquors by a town agent appointed under the Gen. Sts. c. 86, § 17, failed to conform to the provisions of § 20, so as to constitute a breach of the condition of his bond to “in all respects conform to tbe provisions of law relating to the business,” there was evidence that he kept small books of original entry of all his sales, and at intervals of from one to three months compiled in a large book a tabular record of his sales in the form set forth in the statute. Held, that there was no ground of exception to a ruling of the judge “ that, if the small books were kept as books of original entries of sales, with date of sale, kind, quantity and price of liquor sold, and were at all times open to the inspection of the selectmen, overseers of the poor, sheriffs, constables and justices of the peace, in the town, they would be a compliance with the law; that, if the contents of the small books were from time to time copied into the large book, and it contained a true statement of the statute requirements, kept in conformity thereto, that book would be a compliance with the law; and that, if the entries on the small books were copied substantially into the large book in good faith, slight and unintentional mistakes in copying would not be a breach of the bond, if all the books were kept as aforesaid, and taking them together the entries conformed to the statute.”</p>

<p>Contract to recover compensation under the St. of 1867, c. 295, for the services of the plaintiff as assistant clerk of the courts in this county, from January 1,1867, to the date of his appointment and qualification under the statute.</p> <p>In the superior court, judgment was ordered for the defendants on agreed facts which appear in the opinion ; and the plaintiff appealed.</p>

<p>■ If a town directs its selectmen to contract for the building of a sewer of certain dimensions, “the proposals to be advertised, and the contract given to the lowest bidder,” and they advertise for proposals to build a sewer according to specifications which prescribe different dimensions and which reserve to the selectmen “ the right to reject all bids if none are satisfactory,” one who makes the lowest bid in answer to this advertisement and under these specifications has no right of action against the town thereon, if the selectmen reject his bid; nor any right of action against the town for time and money spent in making estimates for it; nor does he acquire any such right by the fact that, at a subsequent town meeting, the selectmen report that the bids so far exceeded the amount anticipated that they were unwilling to take further action without direction of the town, and his bid is read, and a vote is passed referring “the whole subject matter” to the selectmen, and directing them" to build the sewer at the earliest possible moment.”</p>

<p>A. acquired title to land in a city while a petition was pending before the mayor and aldermen for the laying out of a way over it. B., who was A.’s “ full agent in respect to ” the land, was fully informed concerning the petition and the proceedings thereon, and, as owner in his own right of another lot of land on the same street, was served with a written notice under the Gen. Sts. c. 43, § 61, in respect to the same. The mayor and aldermen, no one of them knowing that A. had become owner of the land, adopted an order for the laying out of the way. Held, that the fact that A. had neither formal nor actual notice of the proceedings of the mayor and aldermen was no ground for the issue of a writ of certiorari to quash the same.</p> <p>Under a statute which provides that the mayor and aldermen of a city,“ with the concurrent vote of the common council, shall have exclusive authority and power to lay out any street,” if, in concurring with an order of the mayor and aldermen for the laying out of a street, the common council propose amendments of the order in matters incidental to and not modifying the location, with which amendments the mayor and aldermen agree, it is no ground for the issue of a writ of certiorari to quash the proceedings.</p> <p>The St. of 1862, c. 203, gives no right to avoid the laying out of a way to any person except owners of land over which it is located whose damages remain not paid nor tendered two years after the date of such location.</p>

<p>Writ of entry to recover a parcel of land in Middleton. The only plea filed by the tenant was a special disclaimer of all right in the demanded premises, except that he owned the barn, (formerly a cider-house and mill,) part of which stood thereon, and had an easement in so much of the land as such part of said building stood upon, so long as it should stand thereon, with the privileges and appurtenances necessary to the free and convenient use of said building and the land under the same. The demandant replied that the tenant was a tenant of so much of the demanded premises as was covered by the building.</p> <p>The parties submitted the case for decision by the superior court on an agreed statement of facts, in which the pleadings were referred to, and the material part of which was as follows :</p> <p>The demanded premises were formerly parcel of the estate of Timothy Fuller, by the division of whose estate by commissioners in 1825 there was set off to one of his heirs (the demandant’s grantor) a parcel numbered 1, being the demanded premises “ excluding from said No. 1 and reserving to No. 2 the whole of the cider-house and mill standing on land set to No. 1, together with the necessary privilege about said cider-house, so long as the same shall stand thereon and no longer;” and to another (the tenant’s grantor) an adjoining parcel numbered 2, “ also the whole of the cider-house and cider-mill standing on land set to No. 1, so long as the said cider-house shall stand thereon and no longer; with necessary privileges about the same.” At the time of that division the building called therein a cider-house and cider-mill was standing upon the boundary line between the two lots. Since 1839 it has not been used as a cider-house or cider-mill, but has been used continually as a barn and shoemaker’s shop, and occupied by the tenant in this action. “ The tenant claims that he has the right to keep the building on the premises so long as it shall stand, and no longer. This is the only title or claim which he or his grantors have ever made to any part of the demanded premises.”</p> <p>The superior court gave judgment for the tenant; and the demandant appealed.</p>

Two actions on the Gen. Sts. c. 137, to recover possession of a shop on Front Street in Gloucester, tried, on appeal, in the superior court, before Ames, C. J. At the trial of the first action it appeared that the plaintiff and the defendants were in joint occupation of the premises, each claiming the right of exclusive possession as tenant at will of the owner, and denying the other’s right, when the plaintiff procured from the owner a written lease of the premises for the…

<p>A mortgagee of land, who on a writ of entry against the mortgagor has obtained judgment for possession and afterwards conveyed his whole title to a third person, cannot maintain a scire facias on such judgment; nor cana scire facias be maintained thereon in his name by his grantee after accepting the mortgagor as tenant of the land.</p> <p>If, on trial of a scire facias upon a judgment for possession of land, the defendant asks if it is prosecuted for the benefit of a person other than the nominal plaintiff, and the judge rules that if it is so the plaintiff’s counsel must state the fact, who replies that he has no objection to make the statement, and that it is so prosecuted; and in the further course of the trial it is agreed that the plaintiff did, before the suing out of the scire facias, convey to such person his whole title to the land; there is no ground of exception to such ruling of the judge, nor to his permission to the defendant to amend his answer without terms so as to set up in defence that such grantee had accepted him as tenant of the land.</p> <p>On trial of a scire facias upon a judgment for possession of land which the parties agree that since such judgment the plaintiff has conveyed to A., for whose benefit the scire facias is prosecuted, the record of an action for possession of the land brought by B. against the same defendant since the date of said conveyance to A., which record the plaintiff offers in evidence as a basis for proving that B. in such action claimed under a lease from A., and that the defendant prevailed therein on the ground that B. did not prove that A. had title to the premises, is immaterial and inadmissible.</p>

Tort against a deputy sheriff for conversion of a stock of millinery. The original plaintiff was Francis D. Horne, who died while the action was pending. In the superior court, Putnam,, J., ruled pro formd that the action was maintainable, directed a verdict for the plaintiff, and reported the case for determination by this court. The material facts appear in the opinion.

<p>Replevin of a yoke of oxen. At the trial in the superior court, before Ames, C. J., the plaintiff introduced evidence that in May 1865 he hired of his father, James T. Scott, a farm and farming stock, for a term to end April 1, 1866, agreeing “ to leave the stock at the end of the term; ” and that he bought of his father a certain yoke o. oxen, which were among the stock, md agreed to pay for them “ either in money, one hundred and ufty dollars, or by leaving another yoke of that value at the end of the term,” and afterwards traded off this yoke for the yoke replevied, paying forty-five dollars as “boot-money;” that in February 1866 his father died, and Benjamin H. Smith was appointed administrator of the estate of the deceased, and, as such, laid claim to the new yoke, as belonging thereto, which claim, being disputed by the plaintiff, was referred by him and the administrator, together with various other matters in dispute between them, to three referees for decision, who, on April 12 awarded in writing “ that the said Ph'ineas D. Scott shall pay over to Benjamin H. Smith, administrator, as follows, viz: for the claim of the estate in one yoke of oxen, one hundred and fifty dollars,” and, for various other things, one hundred and nine dollars; and that afterwards the administrator sold the yoke, at auction, to the defendant, and the plaintiff then replevied them.</p> <p>For the defendant, the administrator testified that he did not include in his inventory the yoke in question, but afterwards, being incited by some of the heirs of the deceased, made demand of the plaintiff for it and certain other things which they contended belonged to the administrator under the terms of the lease; and that he then proposed a reference; that “ everything in dispute was to be referred,” and “these oxen were in dispute;” and that accordingly the reference was had, and the award was made as above stated, and the plaintiff paid seventy-five dollars on April 13 on account of the award, the administrator saying to him at the time that he “ might pay what was convenient for him, with the understanding that the administrator did not relinquish his claim on the oxen till the award was paid,” and the plaintiff replying that “ he did not like that, because he could not sell them, but he would pay very shortly ; ” that nevertheless he neglected to pay the balance, notwithstanding repeated demands therefor, and finally presented against the estate a claim of several hundred dollars, and demanded payment thereof to himself, after deducting the said balance. And the administrator further testified that he refused to allow this claim and afterwards, in August; 1866, took the oxen and sold them ta pay the amount due on the award, and offered to pay the plaintiff the balance of the proceeds of the sale after deducting fins amount due on the award. The defendant also introduced evidence tending to show that the cattle were in fact the property of the deceased at the time of his death, and offered to prove that the plaintiff “ had claimed to hold the oxen only for the forty-five dollars paid as ‘ boot-money,’ and to the extent of that sum,” and also that the “ boot-money ” was paid from funds of the deceased.</p> <p>But the judge ruled that the plaintiff, “ by virtue of the oral submission to reference and the award of the referees, had become the owner of the property, and was entitled to recover,” and directed a verdict in his favor; and the defendant alleged exceptions.</p>

<p>In an action of replevin the case was submitted by rule of court to a referee, who rendered an award for a return of the property with damages for its detention and costs of the reference and of court, on which award judgment was entered, but the plaintiff then refused to return the property on demand. In an action on the replevin bond, Held, that judgment should be entered for the penal sum and interest thereon from the time of such demand and refusal; and execution issue for the value of the property at that time, and interest thereon since, and also for the amount of the judgment for damages and costs awarded by the referee, with interest thereon from the date thereof, if the same had not been paid; provided that the sum thus computed should not exceed the amount of the judgment on the bond, in which event execution should issue for the exact amount thereof.</p>

Replevin of certain barrels of mackerel and certain barrels of salt.

Replevin of a trunk and its contents, alleged to belong to the Trustees of the Ministerial Fund of the North Parish in Haverhill, a corporation.

Trustee process. In the superior court, Charles C. Hunkins obtained leave to appear as claimant of a sum which was disclosed in the trustees’ answer as due from them on account of certain lumber which they bought from the principal defendant. At the trial, before Lord.

<p>Three members of a committee of eleven appointed by a society of fifty to manage a fair and take charge of its proceeds cannot maintain an action for money had and received, to recover such proceeds from a person to whom one of the three paid them 1( to be disposed of by vote of the society,” and who was treasurer of the society at the time of ouch payment.</p>

<p>In an action of contract tried in a police court on issue joined, as provided in the Gen. Sts. c. 120, § 16, upon the defendant’s oral denial of the plaintiff’s right to maintain his action, and removed by appeal to the superior court, where the defendant filed only a plea of tender of a certain sum before the plaintiff sued out his writ, without alleging that such tender was pleaded in the police court or that any profert was there made, the plea is bad, although it alleges that the defendant had “ held himself in readiness at all times since said tender to pay said sum to the plaintiff, and now brings said sum into court for the plaintiff.”</p>

<p>Contract on a recognizance taken under the Gen. Sts. c. 124, | 10. In the superior court these facts were agreed : This plaintiff, having recovered judgment and obtained execution against the defendant Crane in an action in the superior court, made the affidavit and procured the certificate of a master in chancery, under the Gen. Sts. c. 124, § 5, to authorize the arrest )f the judgment debtor on the execution, who, being arrested thereon, entered with a surety into this recognizance, which he afterwards forfeited. But the master in chancery who took the plaintiff’s affidavit and made the certificate that he was satisfied that there was reasonable cause to believe that the charges therein contained were true, preliminary to the arrest, “ had been attorney of said plaintiff in prosecuting said action ; and at the same time was his attorney in several actions then pending in which said plaintiff was a party; and further, expected to act as the attorney of said plaintiff upon the examination of said Crane, if any examination should have been had; and further, filled up the blank form of affidavit, acting in behalf of the plaintiff, who employed no other attorney.” Judgment was ordered for the defendants; and the plaintiff appealed.</p>

<p>Contract for money paid to the defendant’s use at his request, and for the value of services rendered to him by the plain tiff.</p> <p>In the superior court, after the decision reported 11 Allen, 588, the case was referred to an auditor to state an account, who reported that nothing was due to the plaintiff. At the trial, before Putnam, J., after this report, the plaintiff abandoned her claim for compensation for services, and offered herself as a witness in support of her claim for money paid. The defendant contended that she was not a competent witness to prove his Dromises of repayment in conversations with herself, and introluced testimony to show that she had been married to him, and at the time of the alleged payments and promises was living with him as his wife ; but the plaintiff proved by the same witness, and by other evidence, that at the time of her marriage to him she had a husband living. The judge admitted her to testify ; and at the same time gave leave to the defendant to file an amended answer setting up the fact of his marriage to the plaintiff and alleging that at the time thereof “ she claimed that she was a widow and could lawfully contract such marriage,” and that from then until after the time of said payments and promises “ they lived together as husband and wife.” The plaintiff proved by her own and by other testimony her payments of money for groceries and other household stores, and the defendant’s general promises of repayment, and also promises of the defendant to repay her “ when the house was paid for; ” and further testified that there was never any agreement that they should continue to live together, and that the defendant at the time of the performance of the ceremony of marriage between them knew that she was already married to another. The defendant introduced evidence contradicting the evidence of the plaintiff, and asked the judge to instruct the jury that, if he promised to repay the plaintiff from time to time money paid by her for groceries consumed in the family while they were living together as husband and wife, and afterwards they continued their cohabitation as before, such promises alone would not be sufficient to sustain this action, although nothing was said about future cohabitation at the time; that the plaintiff could not set up her own turpitude in avoidance of the action; that her primd facie case was controlled by the auditor’s report; and that on the evidence she could not recover. But the judge instructed them that, in order for her to recover, her primd facie case must outweigh the primd facie case made for the defendant by the report of the auditor; and that, on an express agreement of the defendant to repay the sums she had advanced, she could recover, notwithstanding her cohabitation with him, if no illegal consideration entered into the agreement and the defendant was not deceived as to the nature of their matrimonial connection.</p> <p>The jury found for the plaintiff; and the defendant alleged exceptions.</p>

Contract on an account annexed for board of the defendant’s wife from April 15, 1862, to May 11,1867. The answer alleged that on or about the first named date she deserted him, and committed adultery with John Page, and since then with others unknown.

Contract on an account annexed for board and lodging furnished to the defendant’s wife, and money paid for her funeral expenses. In the superior court these facts were agreed : At the time of her death, in September 1864, the defendant’s wife had been lodged and boarded in the plaintiff’s house ever since June 1864, when she was brought there ill with consumption immediately after being compelled to leave the defendant by his cruelty.

<p>Contract on the defendants’ policy of insurance on the life of the plaintiff’s husband, James W. Hoyt, for three thousand dollars, payable on his death to the plaintiff. The answer denied the completion of any contract of insurance.</p> <p>At the trial in the superior court, before Lord, J., these facts appeared: William H. S. Jordan was in 1865 the general agent in Massachusetts of the defendants, a mutual life insurance company established under the laws of New Jersey, whose directors had made certain “ instructions and rules,” subject to which Jordan accepted his agency, with power to appoint sub-agents, among which “instructions and rules” were the following: “ The agent is not authorized to deliver a policy unless he is satisfied that the applicant is in good health, except in cases when the premium was paid to him at the time of making the application; in which latter case, and the risk being approved of at the home office, the company will be liable from the date of the application. If the application is not accepted, the premium will be returned. The agent is prohibited, in all cases, except when the premium has been paid in advance, from delivering a policy after thirty days from the date thereof, but will return the same to this office. After the expiration of said thirty days, a medical examination being had at the expense of the applicant, and found satisfactory, a new policy will be issued.” “ No risks are binding until assumed by the home office.” “ Agents are not authorized in any case to make, alter or discharge contracts, or consent to assignments.”</p> <p>By the solicitation of Charles F. Wells, a sub-agent of Jordan, on September 21, 1865, at Ballardvale, James W. Hoyt made an application to the defendants for such a policy as was described in the declaration, which application was forwarded oft that day to the defendants’ home-office at Newark, New Jersey, Wells agreeing that “if, when the policy came on, he did not choose to take it, he need not do so.” In response to this application a policy was made out at the home-office and sent to Boston to Jordan, who received it before the end of September, but did not deliver it to Wells until some time between November 1 and November 4. Wells, on the day he received it went to Ballardvale, where he found Hoyt ill with typhoid fever (with which he had been attacked the week previous,) but sup* posed to be convalescing. What appeared at the trial concern ing this interview was stated in the bill of exceptions as follows u Wells testified that he offered the policy to Hoyt; that Hoyt was discouraged, and said he could not pay for the policy, and refused to take it Mrs. Hoyt, the plaintiff, the only other person present, testified that Wells said that he had brought his policy; and Hoyt said if he would go to Mr. Banks that he would pay him, and that he had made arrangements with him to do so; and that Wells agreed to do so. There was other evidence on both sides bearing upon what took place at that interview, and the evidence here stated is not either all the evidence, or admitted to be the substance of all the evidence, but all the evidence was of the same general nature.”</p> <p>Wells did not ask Mr. Banks to pay Hoyt’s premium, but returned the policy to Jordan at Boston, and was then first informed of the existence of the rule of the company, above quoted, prohibiting agents from delivering policies to applicants not in good health, except in cases where payment of the premium had accompanied the application.</p> <p>A few days after this, Hoyt, ascertaining that Wells had not called upon Banks for the premium, sent the amount of it to Boston to Jordan, who refused to receive it and deliver the policy, on the ground of Hoyt’s illness. Hoyt was in fact much more ill at this time than when Wells called on him with the policy; but it did not appear that the increase of his illness was known to the defendants or their agents. He died of the fever on November 23.</p> <p>There was testimony of Banks tending to show “ that Hoyt had arranged with him for the payment' of the premium ; and that, if he had been asked for it, he should have arranged it.”</p> <p>There was no evidence that Hoyt had any knowledge of the by-laws of the company; and the plaintiff “ objected to the competency of the private rules, regulations and instructions of the defendants to their agents, which were not referred to in any way in the application and policy, were no part of the contract, were not communicated to Hoyt, and which even the agent Wells was ignorant of.”</p> <p>But the judge said that he would receive them in evidence " and give such direction to the case and to the jury as the whole case demanded; ” and, refusing a prayer of the defendants foi an instruction that there was no evidence sufficient to warrant a verdict for the plaintiff, he instructed the jury “that, inasmuch as the by-laws or regulations of the defendants in relation to the delivery of the policy after thirty days from its date, or when the insured was sick, were not referred to within the application or policy, and no knowledge was had of them before delivery of the policy, if it ever was delivered, (of which the jury could judge upon instructions to be given,) in the usual mode by the proper officer, such by-laws or regulations after such delivery could not be set up in defence of the policy; that it would be a fraud thus to set up secret instruction to an agent; that the real question for the jury was, whether there had been a delivery of the policy; that delivery of the policy was necessary to the completion of the contract; and that to constitute a delivery it was not necessary that the policy should be passed from the actual manual custody of any party to the actual manual custody of the other, but something must take place which the parties themselves understood to be equivalent to actual manual transfer.” And then he instructed them further as follows: “ In the sale of personal property for some purposes a delivery is necessary, but there are chattels from their nature incapable of being transferred from the hand of one person to that of another, and in such a case a manual transfer is not necessary, but when the parties understand that all has been done that is to be done between the parties, and that thenceforth the article is to be under the control of the vendee, with no further act to be done by the vendor, the delivery is complete. This is not the case with regard to a policy of insurance. That is capable of a manual transfer from one to the other; but the same principle governs If both parties understand that all has been done that is to be done by the insured in order to have the full benefit, control and management of the policy, and no other act remains for him to do, this is sufficient to warrant the jury in finding a delivery of the policy. To apply this principle to the present case, if the jury are satisfied that Hoyt had made an arrangement with Banks to pay the premium upon this policy, and Banks was prepared to pay it upon call and would have paid it upon call, and it was agreed between Hoyt and Wells that Wells would «all upon Banks for it, and both parties understood that nothing more was to be done by Hoyt, and nothing remained except for Wells to call for the premium from Banks, and Wells neglected thus to call for the premium, these facts would be sufficient to warrant the jury in finding such a delivery of the policy as would evidence a valid and complete contract of insurance between the parties; but nothing short of this would be sufficient'; that if, as claimed by the defendants, Hoyt declined to take the policy, of course there was no contract, and the plaintiff could riot recover; if the arrangement1 in relation to Banks was a new arrangement between Hoyt and Wells to procure the assistance of Banks in paying the premium, or if in any respect it fell short of what has been previously stated as necessary, it was insufficient, the contract was incomplete, and the plaintiff could not recover upon it.”</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>In a written contract to convey real estate, the words used to describe the estate agreed to be conveyed are presumed to relate to estate owned at the time of the contract by the party agreeing to make the conveyance; and if the agreement is to convey “a” house and lot of land on a certain street, and,- in a suit in equity to compel specific performance thereof, it appears that there are several lots of land, with houses, on that street, oral evidence is admissible to apply this description to a particular house and lot of land so situated, and so owned.</p>

<p>ín an action against a common carrier for failing to deliver on demand ninety double eagies of the coinage of the United States, received in a bag from the plaintiff’s agent in Mex« ico, since the passage of the act of congress making treasury notes a legal tender for the payment of debts, to carry to the plaintiff in this state, the measure of damages is the value, computed in such treasury notes, of the coin considered as a commodity, at the time when and place where it should have been delivered, with interest on such amount from the date of demand. Hoak, J., dissenting.</p>

<p>Mandamus on the petition of John A. Conlin. The first writ, issued April 24,1867, was addressed to Samuel N. Aldrich and William A. Start, as members of the school committee of the town of Marlborough, and to William A. Burditt, and required the two former to permit the petitioner to act as a member of the committee, and the latter to refrain from acting as such ; or to show cause to the contrary. To this the respondents made return; and at the hearing before Chapman, J., these facts appeared :</p> <p>At the annual town meeting in Marlborough held on April 1, 1867, Conlin was chosen a member of the school committee of the town for the term of three years; but the polls were opened and the election was made after sunset. The meeting was adjourned to April 8, when this election was treated as invalid, and Burditt was elected to the same office as if it were vacant. In the return of Burditt to the writ it was alleged that at this adjourned meeting “ 845 legal voters were present out of the 1075 voters of said town,” and that “ he received every vote cast but one.” The town clerk gave to Conlin a certificate of his election ; but Aldrich and Start, who were the two other members of the committee, refused to recognize him as their associate or permit him to act as such, and permitted Burditt so to act.</p> <p>The question whether the election of the petitioner, made after sunset, was valid, was reserved for the consideration of the full court.</p>

Tort for the killing of sheep on the defendants’ railroad by their locomotive engine. At the trial in the superior court, before Reed, J., without a jury, these facts were found: The defendants were incorporated by the St. of 1848, c. 223, and built a railroad from Salem to Lowell.

Tort. The declaration alleged that “ the defendants carelessly and unlawfully sold and delivered to the plaintiff two pounds of gunpowder, the plaintiff then being a minor of the age of eight years, and having neither experience nor knowledge in the use of gunpowder, and being an unfit person to be intrusted with the same, all which the defendants knew;” and that “ the plaintiff, in ignorance of its effects, and using that care of which he was capable, exploded said…

<p>A city is not liable for an injury caused by negligence of a teamster employed in transporting stone to repair a highway by the superintendent of streets who is charged by a by-law passed under authority of the city charter with the duty of keeping the streets in repair and making contracts for the supply of ordinary labor and materials therefor.</p>

<p>without authority from their common master, in whose warehouse they are engaged in the same work, one of two servants directs the other to use in the work an elevator in a dangerous and improper manner, for which it was not intended or provided and the mas ter had no reason to believe that it would be used, and such other, in complying with this direction, is injured by a fall caused by a defect in the elevator, the master is not liable in damages for the injury.</p>

Tokt for an injury alleged to have been sustained by Mrs. Flynn through negligence of the defendant or his agents or servants. At the trial in the superior court, before Vose, J., the following were all the facts in evidence concerning the cause and manner of the injury: Mrs. Flynn was employed at the defendant’s house to do chores on February 20, 1866, when the defendant’s wife directed her to wash a skirt.

Toet for an injury sustained by the plaintiff by negligence of the defendants’ servant.

<p>Two actions of tort ; for personal injuries sustained by the plaintiff Fogg, and for injury of a carriage owned by the plaintiff May, alleged to have been caused by a defect in a highway in the town of Nahant which the defendants were bound to keep in repair.</p> <p>These actions were tried together in the superior court, before Putnam, J., who refused a request of the defendants for a ruling that the evidence was not sufficient to support them, and, after verdicts for the plaintiffs, reported the cases, with all the evidence, to this court, new trials to be granted if the ruling requested should have been given. Those portions of the evidence which are material to the decision are stated in the opinion.</p>

Tort against the city marshal of Lowell for taking down a wooden awning in front of the plaintiff’s shop on Merrimack Street in that city.

<p>Under a statute (St. 1864, c. 160, § 1,) which provides that, if any owner of land abutting on a street in a city shall neglect to build against his lot, to the acceptance of the mayor and aldermen, u a sidewalk,” with brick or flat stone, supported on its outer edge with edgestone, within thirty days after notice from the city so to do, the city may construct “ the same ” at his expense, such an abutter is not liable for the expense of such a sidewalk built against Ins lot by the city, if the notice with which he neglected to comply did not indicate the dimensions of the sidewalk which the city required him to build; and it is immaterial that the city council had given to a committee authority to set the edge* stones at the expense of the city, if the notice to the abutter did not inform him who would set them, nor when nor where they would be set.</p>

Bill in equity filed December 19, 3 867, in the name of the city against the school committee of Charlestown, by the mayor under authority of an order of the common council, adopted December 16, that “ the mayor be authorized in behalf of the city to take such action and to institute such proceedings, at law, or in equity, or otherwise, as he may deem proper, in order to prevent the school committee of said city from expending or causing to be expended for the public…

<p>Under the St. of 1864, c. 120, a city agreed to pay a person one hundred and twenty-five dollars per man for each recruit procured by him to be mustered on its quota of volunteers in the military service. A recruit whom he procured, and upon whose muster he received from the city the stipulated sum, brought an action against him for the money as received to the plaintiff’s use. Held, that the plaintiff had no title to the money sued for.</p> <p>It seems, that the provision of art. 1325 of the Civil Code of Belgium, concerning written instruments under private signature which contain reciprocal stipulations, that each original should recite the number of originals which have been made, is directory only; and that, even were this not so, the further provision, that the omission of such recital cannot be set up by one who has executed on his paTt the stipulations of the instrument, is a bar to an action brought here, by a party to such an instrument made in Belgium, to impeach its validity on the ground of such omission, after the execution of its stipulations by the plaintiff.</p> <p>An action for money had and received will not lie on the ground of the nullity of an instrument which sets forth the terms of a contract of which there is proof in the action independently of the instrument, to recover money of the plaintiff received by the defendant to his own use by virtue of the contract, upon an adequate consideration, and with the consent and by the order of the plaintiff.</p>

<p>Contract for one hundred and thirty-five dollars, alleged to be due on a written promise of the defendant concerning the sale of real estate in North Chelmsford; with a count in quantum meruit.</p> <p>In the superior court these facts were agreed: On October 6 1866, the defendant signed the following writing : “ I, Samue A. Waters, of Chelmsford, in consideration that Zephaniah and Francis Goward, [the plaintiffs,] both of Lowell, shall purchase or shall procure a purchaser for a certain piece of land with the buildings thereon, situated in North Chelmsford, at the price of $4500, at which sum I value said premises, hereby agree that I will give to said Zephaniah and Francis Goward, or to such purchaser as they shall procure for said premises at said price, a good and sufficient deed of said premises, and I further agree that I will pay to said Zephaniah and Francis Goward all such money exceeding the said stipulated price of said premises as such purchaser procured by them shall pay me for said premises. And, in case I shall myself sell said premises at said price of $4500, or at a greater or less price, then I further agree to pay said Zephaniah and Francis Goward three per cent, of such price paid to me for said premises.”</p> <p>The real estate referred to was a farm, of which, at that time, the fee was in the defendant and his wife; but the condition of the title was not made known to the plaintiffs, who believed that it was in the defendant alone.</p> <p>The plaintiffs, by advertising and other means customary in the business of land brokers, tried to procure a purchaser, but had not succeeded, nor had offered to buy it themselves, nor had the defendant given them any deed of it, when, on December 7, the defendant and his wife, without the plaintiffs’ knowledge, and without knowledge by the purchaser of any agreement between the plaintiffs and the defendant, “ made a bargain with Samuel T. Wright to sell to him said piece of land at a sum called $4500, and take their pay, in cash, $3300, and another parcel of land, called $1200 ; and said Waters and his wife accordingly conveyed said piece of land to said Wright in fee.”</p> <p>On these facts Brigham, J., ruled that the plaintiffs could recover on the count in quantum meruit, but not on the count upon the agreement; and both parties appealed.</p>