Volume 99 — Massachusetts Reports

<p>Under the Gen. Sts. c. 86, § 61, a purchaser of intoxicating liqnors sold in violation of law who, in settling mutual accounts with the seller, has credited him with the price thereof, may recover the amount of such credit as a balance due on the account upon which he allowed it.</p> <p>If a purchaser of intoxicating liquors sold in violation of law, in settling mutual accounts with the seller, credits him with the price thereof, and, receiving from him payment of the balance found due after such an allowance, gives him a receipt in full settlement of the accounts, such payment and receipt do not have the effect of an accord and satisfaction to bar an action to recover the amount so credited.</p>

Writ of entry by the heir of a mortgagor of land against the mortgagee in possession after foreclosure. In the superior court, on agreed facts which are stated in the opinion, Reed, J., directed a verdict for the tenant, and reported the case.

Tort for making false and fraudulent representations as an inducement to the plaintiffs to buy the implements, rights and good will of the defendant’s business as an expressman between Boston and Framingham. Trial in the superior court, before Reed, J., when it appeared that the sale was made June 2, 1865. The other evidence is stated in the opinion.

<p>A sheriff’s sale on execution of the judgment debtor’s right in equity to redeem mortgaged real estate, which the debtor claims to be exempt from levy as a homestead, is not invalid, under the Gen. Sts. c. 104, § 11, because not made expressly subject to the homestead estate.</p> <p>On trial of a writ of entry for possession of property of which the demandant is general owner subject to a homestead estate of the tenant which has not been set off to him, the burden is on the tenant to prove that the value of the property is such that his homestead right covers the whole of it.</p> <p>Under plea of nul disseisin to a writ of entry, the tenant is estopped from denying that he holds the freehold against the demandant.</p> <p>In a mortgage of real estate, the only effect of a release by the mortgagor and his wife of all right of homestead in the mortgaged premises is, to subject the homestead, together with the residue of the estate, to payment of the mortgage debt.</p> <p>Under plea of nul disseisin, without further specification, the tenant may set up a right of homestead in defence against a writ of entry.</p>

<p>A tenant claiming under an oral lease from a tenant at will is not estopped from maintaining an action of tort in the nature of trespass guare clausum, fregit for his eviction from the tenement by one claiming under a subsequent written lease from such tenant at will.</p>

Action on the Gen. Sts. c. 137, for possession of a house and land in Reading. Trial in the superior court, before Brigham, J., without a jury, when it appeared that the defendant took from the plaintiff a written lease of the premises for a year from April 30,1865, and occupied them during the term, cohabiting with his wife, but at the end of the term refused to deliver them to the plaintiff.

<p>Action on the Gen. Sts. c. 137, for possession of a dwelling-house and land in Cambridgeport. Writ dated May 24,1866. At the trial in the superior court, before Vose, J., without a jury, on appeal from the police court of Cambridge, the judge found these facts:</p> <p>The plaintiff claimed under a written lease of the premises to him from John Leishman, their owner, dated May 1, 1866, for one year from that date. For the four years preceding, Francia B. Kern had hired the premises from Leishman by an oral agreement ; had paid rent to May 1, 1866; and at some time during the four years had underlet the premises, by an oral agreement, to the defendant, who on May 1 was in occupation of them. After that date neither Kern nor the defendant paid to the plaintiff any rent. On May 12 the plaintiff served on the defendant a written notice of his lease from Leishman, and to quit the premises forthwith; but no notice in any form was given tc Kern.</p> <p>On these facts the judge ordered judgment for the plaintiff and the defendant alleged exceptions.</p>

<p>Contract. At the trial in the superior court, before Brigham, J., without a jury, the judge ruled that the plaintiff could not recover on facts which are stated in the opinion; and found for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort for the eviction of the plaintiff from a lot of land fronting upon Charlestown Square in Charlestown, and for the value of certain buildings situated thereon. The case was submitted to the full court on agreed facts, by which it appeared that the defendant, claiming under deeds of Ebenezer Twycross and John Twycross, grantees of Martha Twycross, dated April 7 1866, gave to the plaintiff on April 10 written notice of these deeds, and to quit the premises in seven days, and afterwards, “ in the latter part of April and early in May,” forcibly dispossessed him, and tore down the buildings and erected on the site thereof part of a large public house. The plaintiff, who had been in occupation of the premises ever since September 11 1857, when he entered thereon as assignee of the firm of S. T & G. T. Fowler, who were holding under a lease from Martha Twycross dated June 1,1852, contended that these acts of the defendant were in violation of his rights as such assignee. All the facts which are material are stated in the opinion. It was agreed that, if the plaintiff was entitled to recover, the defendant should be defaulted and the case sent to an assessor to assess damages under the direction of the court; otherwise, judgment should be entered for the defendant.</p>

<p>Tort, in the nature of trespass guare clausum fregü. The case was submitted in the superior court, and, on appeal, in this court, upon facts agreed, by which it appeared that on March 15,1851, Patrick Holland, being owner of the locus in quo, gave to Horace E. Lindsay a bond to convey it to him or his assigns whenever he or they should convey to the obligor or his assigns, as an equivalent, another lot of land then owned by the obligee; that on June 1,1853, Holland, being still owner of the locus and of other land also, conveyed all of the same to Benjamin F. Lindsay, taking back a mortgage of the whole with power of sale, and on the same day “ conveyed the equity of redemption of said mortgage to said Horace E. Lindsay ” by a deed set forth in full; and that the land stipulated in the bond between Holland and Horace E. Lindsay to be conveyed as an equivalent for the locus in quo had never been so conveyed. The other facts which are material appear in the opinion.</p>

<p>Tort for obstructing the plaintiff’s right of way over the defendant’s land by maintaining a building thereon. Writ dated November 27, 1865.</p> <p>At the trial in the superior court, before Ames, C. J., it appeared that the plaintiff and the defendant were respectively owners of adjoining lots of land in Hopkinton, the plaintiff being the grantee of Benjamin F. Herrick, and the defendant of Orame! Martin and said Herrick; that on the plaintiff’s lot Herrick, before conveying it to the plaintiff, had erected a building, which, by an error in ascertaining the dividing line, extended across said line and upon the defendant’s lot, then owned by Martin and Herrick, eighteen inches at the ground and twenty-nine inches at the eaves; that in the subsequent conveyances by Martin and Herrick to the defendant there was a reservation of a right of way to repair this building, in the following terms • “ And the said Herrick, his heirs and assigns, is to have the right and privilege to pass and repass over the above granted prem ises for the purpose of repairing his building at all times when necessary, the said passway to be only a foot passage for said purpose; ” that, after this, Herrick made his conveyance to the plaintiff; and that the defendant then erected on his lot a building which, there was evidence tending to show, “ was so near to the plaintiff’s building as to make it inconvenient to make the desired repairs and in part almost impracticable.” But “ it did not appear that the plaintiff gave the defendant notice that there was any necessity to make repairs before this action was brought, or that he complained of any encroachment on the alleged right of way, except that the defendant’s building stood too near the dividing line.”</p> <p>It further appeared that in February 1863 the plaintiff brought an action against the defendant in the superior court in which it was agreed by the parties that, inasmuch as it “involved a question of the boundary line between the land of the plaintiff and the land of the defendant,” “ the said action and all questions involved therein” should be referred to three arbitrators, whose award was returned into court in December 1864, when judgment was entered thereon; and that by this award and judgment it was determined that the plaintiff’s building extended over the boundary line as above set forth, but also that the defendant’s building was “ placed so near said line that a space of suitable width is not left open for the use of the plaintiff” to repair his building, and nominal damages were awarded to the plaintiff for “ said encroachment ” on his right of way. And the declaration in the present action expressly alleged that the obstruction complained of was the maintenance by the defendant of his building in the same position in which it was at the time of said award and judgment.</p> <p>The plaintiff asked the judge to instruct the jury to find specially “ the width of the passage way to which he was entitled,” and also to rule that “ by virtue of the aforesaid award, the position of the buildings being the same now as before, he was entitled to a verdict at least for nominal damages.” But the judge refused this request, and instructed the jury “that the reservation under which the plaintiff claimed did not give him the right to erect or maintain a building extending beyond the limits of his own land and encroaching upon that of the defendant, but only gave him a right to pass and repass over the defendant’s land to have such access to his own building for the purpose of making repairs as would be reasonably convenient supposing his building were standing wholly on his own side of the dividing line; and that the defendant had not made himself liable in this action by placing his building as it now stands, provided he left sufficient space for the plainti.'T after setting back his building so that it should stand wholly on his own land, to make his repairs without great or heavy increase of expense, time or difficulty, as compared with the usual mode of making such repairs.” And the judge also ruled “ that, notwithstanding the former judgment, it was competent for the defendant to claim and to show that the position of his building was no1 of itself a disturbance of any right of way which the plain-' tiff could hold under said reservation.”</p> <p>A verdict was returned for the defendant; and the plaintiff alleged exceptions.</p>

<p>Writ of entry by the guardian of the minor heirs of Francis M. Jennings, in their behalf, to recover two lots of land in Arlington.</p> <p>In the superior court it was agreed that the demanded premises, numbered lots 64 and 66, were formerly part of a large tract of land owned by Nahum Packard, which, prior to July 2, 1855, he divided into house lots numbered from 1 to 100, and, with five other of these lots, were conveyed by Packard to Jennings by warranty deed on that day; and that, prior to 1862, the latter died seised of the same. It was also agreed that in 1862 the five other lots were assessed, for taxes, to the estate of Jennings, but the two demanded lots, together with two additional lots, were assessed in one joint valuation to Packard as follows: “ Nahum Packard, West Bridgewater. Number of lots, 1, 2, 64, 66. 36,260 feet. 1 house, $1700. Land, $940. Total valuation, $2650. Tax, $21.20; ” that Packard represented to the assessors that he did not own lots numbered 64 and 66, and did not know who did own them ; “ that the assessors thereupon apportioned the taxes due on lots 64 and 66, and deducted the same from the tax bill of said Packard, but made no record of such apportionment, and gave the amount so apportioned to the collector, directing him to receive the same as being the amount of the tax due on the said two lots, and, if no one appeared to pay said tax, to advertise and sell the same according to law;” that the collector “ without further demand sold the demanded premises on March 30,1863, for the nonpayment of said taxes so apportioned, to George W. Lane,” through whom by mesne conveyances the tenant claimed title; and that no demand was ever made on the demandant or her wards, nor any notice ever given to her or them of the sale, other than the collector’s advertisement thereof, in which the demanded premises were described as follows: “ Nahum Packard. Lots numbered 64 and 66 on the Packard land, so called, on a plan of 100 house lots surveyed by W. A. Mason, containing 15,000 square feet. Plan recorded. State, county, and town taxes for 1862, $3.50.” And it was further agreed that “ the assessor’s list and books do not show the demanded premises to have been taxed separately for the amount mentioned in said collector’s notice,” but only “ that they were taxed in connection with other lots, and then at a gross valuation;” that neither Jennings nor Packard, nor the demandant, nor any of the wards of the demandant, were ever residents of Arlington; that the demanded premises were never occupied by any one before the tenant; and that from 1855 to 1862 there were the following assessments relating to the premises: During all those years the five other lots bought from Packard by Jennings were assessed as lots, or by the aggregate number of square feet contained in them, to Jennings, or, after his death, to his estate or his heirs. In 1856 lot 64 was assessed to Packard, with certain other lots, at a gross valuation ; but it did not appear to whom lot 66 was assessed. In 1857, 1858 and 1859, there was no designation of lots on the assessors’ lists, and land was assessed to Jennings and Packard respectively “ in the aggregate of feet.” In 1860, lots 64 and 66, together with lots 1 and 2, were assessed to Packard in a gross valuation, ae in 1862. How they were assessed in 1861 did not appear.</p> <p>Judgment was ordered for the demandant, and the tenant appealed.</p>

<p>Writ of entry, dated November 28,1865. Plea, nul disseisin. At the trial, before Chapman, J., after the introduction of evidence the material parts of which are stated in the opinion, the case was withdrawn from the jury by consent of the parties, and reported for the determination of the full court.</p>

Contract on a poor debtor’s recognizance. The case was submitted to the superior court, and, on appeal, to this court, on these facts agreed: On October 4, 1864, Sampson, under arrest on an execution, entered, with the other defendant as surety, into a recognizance under the Gen. Sts. c. 124, § 10, to deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided in the statute, “ and appear at…

<p>If a decree dismissing a libel for divorce for the desertion of the libellee does not set forth that the dismissal is without prejudice, it is a bar to a subsequent libel of the same libellant for a divorce from the bonds of matrimony for a desertion of the same libellee which began not less than five years before the filing of the former libel.</p>

Contract for expenses incurred in supporting Mary Gilson, an insane pauper. The issue was, whether her settlement was with the defendants or with the plaintiffs.

Contract for expenses of supporting William H. Maynard and his family. At the trial in the superior court, before Brigham, J., it was admitted that Maynard had a settlement in Marlborough formerly ; and the question was, whether the St. of 1865, c. 230, § 1, transferred it to Ashland.

Tort for conversion of an anchor, a jib-sheet, some trucks, fishing lines and leads, and some iron dross used as ballast of a sailboat, all as enumerated in a schedule annexed to the declaration.

<p>Contract. In the superior court facts were agreed as fol lows: The defendants, who were partners, doing business as machinists, entered into a written contract with the plaintiff on November 10,1863, which recited that, whereas the plaintiff had obtained letters patent for an improvement in sole-cutting machines, and the defendants desired to build and sell such improved machines, the defendants agreed to build six such machines without any expense to the plaintiff, except that he should furnish a set of patterns for the same, and “to finish, ready for immediate use, at least three of said six machines within two months from the day the patterns are furnished,” “and all within three months from the day the patterns are so furnished; ” and continued as follows :</p> <p>“ It is further agreed that, when said firm, or either of them, sells a machine out of said six or other machines they may build under said patent, said Weed shall have $140 out of the proeeeds of sale of each and every machine so sold, as soon as the sale is made, the proceeds of sale in all such cases to be paid over and into the hands of said firm by the person or persons who purchase a machine or machines; but when said Weed sells a machine, either out of said six, or any other machines said firm may build, then said Weed is to have out of the proceeds of sale of each and every machine so sold $160, the proceeds of sale in all such cases to be paid over and into the hands of said firm by the person or persons who purchase a machine or machines, except as hereinafter stated, and the proceeds of sale over and above said $140 and $160, as aforesaid, are to be and belong to said firm.</p> <p>“ And it is further agreed that said firm is to build any number of said machines more than said six that said Weed may order, if said Weed does not order more than twelve at any one time; and said firm is to have the right to build any number of machines, over and above what said Weed may order, as they may see fit to build, provided that said Weed shall have out of the proceeds of sale of each and every machine $140, if said firm or either of them sells, and $160 if said Weed sells, and that too as soon as said sale or sales are made.</p> <p>“ And it is further agreed that, if said Weed shall order any number of machines, not more than twelve, said firm is to build two of them in a complete and workmanlike manner, and ready for immediate use, each month thereafter, until the whole order is filled.</p> <p>“And said Weed is to have the right to sell of all machines built by said firm as many as he can; and said firm is to have the same right.”</p> <p>"And said Weed is to have the right to take a machine at any time by paying said firm $140.</p> <p>“ And said firm is to have the right to build and vend any number of said machines, provided for each and every machine quilt and sold said Weed receives the amounts above stated, and at the time above stated, from said firm. '</p> <p>“ And it is further agreed that, if said firm, or either of them, ehali sell a machine to any person or persons on credit, then said Weed is to receive $140 immediately, the same as though said sale had been for cash.</p> <p>“ It is also further agreed that either party to this contract may terminate it by giving the other four months’ notice; but, when notice is given, all orders up to the end of that time which have been given are to be filled as above stated, and all machines not completed to be completed in the manner above stated; and all machines which said Weed orders, together with any others which said firm may have built or may be building at the time notice is given, to the number of six, are to be taken by said Weed, and paid for at the rate of $140 apiece within one year after the termination of the contract, provided said notice is given by said Weed; but if notice is given by said firm, then for all machines ordered or built or being built at the time the contract terminates, said firm is to take the same and pay said Weed therefor $140 apiece, or deliver the same to said Weed built in' a complete and workmanlike manner, and ready for immediate use, within one month after the termination of the contract, by said Weed’s paying said firm therefor for each machine $140 within six months after the termination of the contract, the same to be at the option of said Weed, which shall be done ; if said firm takes the machines as above, said Weed is to have the right to sell as man) of them as he can, and for every machine so sold said Weed is to receive the sum of twenty dollars as soon as the same is sold.</p> <p>“ And it is further agreed that, if said Weed is not paid the sums above stipulated by said firm, at once, on the sale of each and every machine, then said Weed shall have the right to terminate this contract at once, without notice and without injury to any damages that may have accrued to him by reason of any breach of this contract by said firm. And it is agreed that no machine is to be sold for less than $300.”</p> <p>Under this contract the defendants proceeded to build six machines, the plaintiff furnishing the patterns; but during the work the defendants, on May 12,1864, wrote to the plaintiff: “ Stock and labor have advanced so much that we shall be under the necessity of making a new arrangement after completing the first six machines. If you can possibly spare the time, would like to have you call on us.”</p> <p>The plaintiff replied on May 18: “ You requested me tc go to your place. It is not convenient for me to go now ur.less there is something urgent, but I will go in a short time.” “ While in Canada I got a number of orders for machines, and have agents there who will do all that can be done in selling them for me. I shall now pay my whole attention to selling and setting up machinery. Please finish off those now begun as soon as possible; also be getting the castings for more, I shall want twelve more before you will be able to finish them. Please hurry them as fast as possible.” “ Please let me know if it will be convenient for you to make the patterns and machines for me. Write soon.”</p> <p>The defendants answered on May 24. After receiving their answer, four of the six machines having then been finished, the plaintiff had an interview with them, at which they said to him that they did not regard his letter of May 18 as an order for additional machines under the contract, and asked him if he did ; and he replied that he did, “ and stated that he wanted them to build twelve additional machines at any rate, and wished them to consider him as then giving an order for twelve more machines, if his letter were not such an order.”</p> <p>The defendants afterwards wrote to the plaintiff on June 22: “ We can finish the six machines without a pulley pattern, but shall need one before making any more machines. You will recollect that we wrote you May 12, and again on May 24, to the effect that we could make no more machines after the first six without a new arrangement, on account of the advance in price of stock and labor. We intended that as a notice of termination of contract; but if it was not a legal notice, then we hereby give notice that we shall terminate the contract dated November 10, 1863, according to the terms therein specified, viz.: in four months from this date.”</p> <p>The defendants then finished the other two of the six machines ; but did not make the twelve ordered by the plaintiff, nor any of them, and refused to do so.</p> <p>Four of the six machines were sold and the proceeds divided pursuant to the contract; the two others remained unsold.</p> <p>The plaintiff, before commencing this action, gave notice to the defendants “ that he should look to them to pay him $140 on each and all machines either made, being made or ordered, sold or not sold, claiming these sums as payable to him in cor> sequence of the defendants’ having terminated the contract, and of the provisions of said contract giving him a certain option in such case.”</p> <p>At the trial, before Putnam, J., without a jury, there was no evidence that any of the additional machines, if built as requested by the plaintiff, could have been sold at any price; nor any evidence as to the value of the two machines remaining on hand; nor of any opportunities to sell them at the price named in the contract, or at any price.</p> <p>As to the claim of the plaintiff that the defendants were liable for not building additional machines, the defendants denied any breach of contract on their part, or any liability to the plaintiff. And, as to so much of the claim as referred to the two machines built and not sold, they contended that none of the six machines were embraced or referred to in that clause which provided for a termination of the contract by notice given by either party; that, if so embraced, the sum payable in respect thereof was payable only after the machines should be sold ; and that, before such sale, there would be no consideration to support a promise by the defendants to pay the plaintiff $140 in respect to either of them.</p> <p>Upon these facts the judge ruled, pro formd, that the plaintiff was not entitled to recover, and found for the defendants The plaintiff alleged exceptions.</p>

Tort for conversion of the cloth coverings of two billiard tables.

<p>A right of action of an insolvent debtor, on the Gen. Sts. c. 53, § 5, whether absolute or contingent, to recover threefold the amount of usurious interest paid by him, passes bj an assignment of his estate in insolvency.</p>

<p>The courts of insolvency, being cl arts of record, have authority to amend errors in their records.</p> <p>If the record of a court of insolvency shows that a decree was entered in due form for the issue of a certificate of discharge to an insolvent debtor, the judge cannot pass an order annulling such discharge, without notice to the parties interested, if the decree was actually made and truly recorded, or without formal amendment of such record, if it is erroneous.</p>

Contract against a stockholder of the Reading Agricultural and Mechanic Association for the amount of a balance due on a promissory note of the association made by its treasurer. The declaration alleged the individual liability of the defendant on the note by reason of his subscription of the following by-law of the association : “ Article 10.

<p>Three sons took from their father a conveyance of all his estate, real and personal, consisting of a farm, farm-house, farming stock and household furniture, and promised, in consideration thereof, to pay his debts then existing and support him and his wife during their lives. One of them took from the others a power of attorney to hold and manage the property and fulfil their joint promise, and by virtue of this power paid his father’s debts, supported his father and mother till they died, and carried on the farm, supposing that if it should yield a profit over these expenditures they should share it equally, but if otherwise, that they should equally share the loss. Reid, that, if any partnership was created between them, it was, at most, in the profits and losses of carrying on the farm.</p>

<p>In this Commonwealth, a tenant in common who makes necessary repairs upon the common property without the consent of his cotenant cannot maintain an action at law against him to recover contribution for the cost thereof.</p>

<p>Appeal by Artemas Parker, Stephen Taylor and his wife Emmeline, and the minor children of Frederick Parker, from a decree of the judge of probate, allowing as the last will of Jonas Parker, of Carlisle, who died June 2, 1866, an instrument executed May 17, 1866, which disposed of the bulk of the testator’s estate to his second wife and her children.</p> <p>At the hearing, before Gray, J., the formal execution and attestation of this instrument were proved; and a trial by jury was had upon two issues : 1. Whether the testator at the time of the execution was of sound and disposing mind. 2. Whether the execution was procured by the undue influence of Anna Parker, John Gleason, Joanna Gleason and John F. Baldwin, or some of them. It appeared in evidence that Jonas Parker was twice married, the first time in 1809 and the second in 1818; that the appellants Artemas and Emmeline, together with Frederick and Jonas, who died before him, were his children by his first wife, who died in 1817; and that Joanna, wife of John Gleason, and l'anny, wife of John F. Baldwin, were his children by his second wife, Anna Parker, who survived him.</p> <p>The appellants contended that the burden of proof was upon the executors on both issues; the judge ruled that the burden of proving the sanity of the testator was upon the executors, but the burden of proving undue influence was upon the appellants and to this ruling the appellants alleged exceptions.</p> <p>The appellants were allowed, against the objection of the aj» pellees, to introduce evidence to show that the second wife, fiom the time of her marriage, treated the children of the first wife harshly, and overworked them to the injury of their health, and influenced and controlled her husband in the management of his affairs. Evidence was also introduced by them, without objection, as to the amount of the testator’s property at the times of his second marriage and of his last sickness. The appellees were afterwards allowed, against the objection of the appellants, to give in evidence the following interrogatories and answers in the deposition of the second wife, although these interrogatories had been objected to by the appellants before answer at the taking of the deposition.</p> <p>Int. “ About what amount of property had Mr. Parker at the time of your marriage ? State as nearly as you can. Was Mr. Parker much in debt at the time of your marriage ? If so, state about how much he owed ? ” Ans. “ I could not tell exactly. I don’t think it would amount to five hundred dollars, or half of it. If his debts were paid, I don’t think it would. He was much in debt. I could not tell how much, so many debts came in.”</p> <p>Int. “ How did you treat Emmeline, Frederick and Artemas, whether kindly or otherwise ? State if you failed in your duty to them as a mother in any respect. State wherein and in what manner.” Ans. “ I treated them as kindly as if they had been my own children, and had nothing else in my heart but to bring them up the best way they could be. I don’t think of any way in which I failed, except it was in doing too much for them.”</p> <p>To the admission of this portion of the deposition the appellants alleged exceptions.</p> <p>It appeared in evidence that the testator’s family at the time of his last sickness consisted of his wife, John Gleason, and Mrs. Gleason; that John Gleason went to New Hampshire on May 11; returned on May 18; and on May 14 went with John F. Baldwin to Chelmsford with an order written in the testator’s name by Mrs. Gleason, to obtain a former will of the testator from a person with whom fie had deposited it; but it was in controversy whether or not they went for the will, or she wrote the order, by direction of the testator. Upon cross-examination of John Gleason, the appellants proposed to ask him, “ Had you heard, before you went up country on the 11th of May anything in the family upon the subject of the testator’s having made a former will, or upon the subject of his making a new will ? ” And the’ said at the same time that they did not wish the witness to state the conversation in which, nor the name of the person from whom, he received the information. The appellees objected to this question, so far as it related to information derived by the witness from private conversations with his wife, unless he should be allowed also to state the details of the conversation. The judge ruled that the witness could not testify to private conversations between himself and his wife; and that-either the question should be so modified as to exclude information received in such conversations, or else so as to ask the witness whether he had heard anything, before the time specified, upon the subject, without confining it to what he had heard in the family. The appellants declined to modify the question; dnd excepted to its exclusion in the form in which they had put it.</p> <p>The jury returned a verdict for the appellees upon both issues; and the judge reported the case for the determination of the full court, such order and decree to be rpade therein as law and justice might require.</p>

<p>Petition for partition of a farm comprising seventy-five acres of land in Marlborough, of one fifth part whereof the petitioner claimed to be seised in fee simple as tenant in common with the respondents.</p> <p>At the trial, before Chapman, J., it appeared that Stephen Howe, who died March 20, 1865, had four sons and a daughter, viz : Alfred, who was a soldier in the army of the United States, had been missing ever since the second battle of Manassas on August 30, 1862, and left the petitioner as his only child, then less than two years old; and Elbridge, Nahum B., Benjamin S., and Mary L., wife of Abraham Holman, who were the respondents, and all of whom, except Benjamin, contested the plaintiff’s claim, and contended that Stephen Howe had divested himself of all title to the land by deeds dated respectively September 1, 1863, and March 29, 1864, in the first of which he granted part of the land to Mary, and in the others all the residue of his real estate to Elbridge, Nahum and Benjamin.</p> <p>The petitioner contended that these deeds were procured by fraud and undue influence, and that Stephen Howe’s mind was not sound when he made them; introduced evidence that, in May and June 1863, said Stephen, being then eighty-three years old, and seised of the land, was sick with a fever; and argued that he was unsound in mind and incapable of transacting business from that time to the time of his death.</p> <p>In the language of the report of the presiding justice, “ among other circumstances tending to prove unsoundness of mind, undue influence and fraud, the petitioner offered evidence of the previous declarations of said Stephen, made before said sickness, that the petitioner was going to have Alfred’s share if Alfred did not return; but the court excluded evidence of such declarations made prior to the sickness when it was admitted that his mind was sound.”</p> <p>The judge, against the petitioner’s objection, admitted Abraham Holman, the husband of the respondent Mary, to testily as a witness in the respondents’ behalf.</p> <p>The jury found a verdict for the respondents, and the judge reported the case for revision by the full court.</p>

<p>Bill in equity, filed December 3,1867, by the trustee under the will of Hannah F. Lee, to obtain the direction of the court concerning the application of certain shares in the stock of the Chicago, Burlington and Quincy Railroad Company, a corporation under the law of Illinois, and the Western Railroad Corporation, a corporation under the law of Massachusetts, distributed by said companies respectively to the trustee, by way of dividend on certain other shares of their respective corporate stocks belonging to the capital of the trust fund.</p> <p>The bill set forth that the will of Mrs. Lee was duly proved and allowed in the probate court for Suffolk on January 22, 1866, and declared a trust in the plaintiff, which he duly assumed, to hold and manage the estate of the testatrix as to him might seem prudent and judicious, with “fall powers of sale and conveyance and change of investment in the management of the trust estate,” and pay the net income thereof, as often as convenient, to her granddaughter Julia Bryant (since become by marriage Mrs. Paine) during her life, to her sole and separate use; and, on the death of said Julia, to convey the same in fee to such persons and on such terms as by her last will and testament, executed after her majority, she might appoint; and, in default of such appointment, or in event of her death during her minority, then to her issue, if any; and, in default of such issue, or of such appointment, then to the grandnieces of the testatrix, children of George L. Schuyler; and it set forth that the said Julia was still a minor.</p> <p>It further set forth that on June 11, 1866, the trustee purchased, as an investment of part of the capital of the trust fund, two hundred shares in the stock of the Chicago, Burlington and Quincy Railroad Corporation, for $23,150, being at the rate of about sixteen per cent, premium on their par value, which was $100 each; that thereafter on said shares he received from said company semi-annually, in May and November, cash dividends of five per cent, on their par value, until on September 17,1867, he received another cash dividend of like amount, and at the same time a stock dividend of twenty per cent., to wit, forty shares of additional stock of the same par value, which two last dividends were declared by the directors of the company on August 21,1867, by the following votes:</p> <p>“ Voted, to make a dividend of five dollars per share, the company to assume the United States’ tax, payable September 15 to stockholders of record the 24th inst., after which date the transfer books will be closed until September 18.</p> <p>« Voted, also, to distribute to stockholders of the 24th inst. one new share for every five held, to represent improvements on the road, construction of the Burlington Bridge, &c.; each holder of a fraction to receive a full share on paying up the balance to par.”</p> <p>It alleged that the plaintiff was informed and believed that said dividend of stock was made in part out of the earnings of the road accumulated before his purchase of the two hundred shares ; but that he was ignorant what proportion of the expenditure represented by the stock dividend was made from earnings of the road accumulated before said purchase, and what from earnings accumulated afterwards; that he sold the forty shares distributed to him for $125 each, being at the rate of twenty-five per cent, premium on their par value, and was holding in his hands the proceeds of the sale, $5000; and that at the time of the filing of this bill the market value of said shares was about thirty-five per cent, above their par value.</p> <p>The bill also set forth that, from the time of the probate of the will, the plaintiff held, as part of the capital of the trust fund, ten shares in the stock of the Western Railroad Corporation, which shares were charged to him in the inventory at the sum of $1400, or at a premium of forty per cent, on their par value, which was $100 each; and that, on July 12, 1867, he received from said corporation three additional shares of stock therein, as a dividend, pursuant to the following vote of its directors passed in June 1867 :</p> <p>“ Voted, that the capital stock of this corporation be increased by the issue of 20,000 new shares, and that the treasurer be directed to distribute, on and after July 10, to the stockholders of record at the close of business on Saturday, the 8th inst., the number of full shares to which they may be respectively entitled, in the proportion of three new to ten old shares.”</p> <p>It recited that another vote, passed by the directors at the same time, made provision for fractional rights to stock in cases in which numbers of shares were held not evenly divisible by 10; and that both votes were passed in conformity with the recommendations of the report of a committee of directors to the full board on June 4, which set forth that “ the large contingent fund of the corporation, which to a great extent has already gone into the construction of the road, the virtual ex* tinguishment of the debt of $1,000,000 to the city of Albany by the sinking fund provided for its payment, releasing the income of the road from the payment of interest on these bonds and contribution to the fund, aside from other considerations which might well be urged, but which it is not necessary now to present, fully require, as in justice to the stockholders, that 20,000 new shares of stock shall be issued and distributed according to the provisions of the votes ” above named.</p> <p>It alleged also that the plaintiff was holding “ said three shares as a part of said trust fund; ” and that at the time of the filing of the bill the market value of said shares was forty-five per cent, above their par value.</p> <p>The bill further alleged that the cestui que trust, Mrs. Paine, claimed to be entitled to receive said stock dividends, or the proceeds thereof, as income of the trust fund, but that the trustee was “in doubt whether said dividends of said shares in said two corporations are income of the trust fund to be paid to the cestui que trust, or are capital to be retained by him and accounted for in the settlement of his trust.”</p> <p>The prayer was for the direction of the court “ as to the true nature of said dividends of stock, and whether they are capital or income of the said trust fund, and as to the manner in which said trust in the particulars aforesaid may be safely and properly executed.”</p> <p>Mrs. Paine and the children of George L. Schuyler were made parties to the bill; and the former, by her guardian appointed ad litem, filed an answer admitting the truth of the allegations of the bill, and further setting forth “ that said Western Railroad Corporation had, prior to June 8,1867, expended from its net earnings, for purposes of permanent improvement of the road, namely, for the purposes indicated in .the report of” the committee of the directors, as recited in the bill, “ an amount equal to or exceeding the par value of the stock dividend made by said corporation ; and that the said Chicago, Burlington and Quincy Railroad Company had, prior to August 24,1867, expended from its net earnings for the permanent improvement of the road, additions to the road, and the purchase, of property now held by said company, and which yields an income to it, an amount equal to or exceeding the par value of all the stock dividends made by said corporation;” and finally alleging that, “ as between herself and the other defendants who are contingently entitled in remainder, the shares divided by the said two corporations, representing the sums taken from the income or dividend fund for the relief of the capital of said corporations, and for the permanent improvement of their roads, are, in justice and in law, income, and not capital, of the trust fund.”</p> <p>The answer of the latter corresponded with this answer, except that it alleged that “ the shares in the capital stock of the said two corporations issued as aforesaid are, in justice and in law, not income, but capital, of the trust fund.”</p> <p>It was also admitted by all the defendants “that the corporations mentioned in the plaintiff’s bill were, at the time of making the distributions of stock therein set forth, authorized by law to increase their capitals by issuing shares to an amount exceeding the shares so distributed by them, such authority being given in general terms, without special provisions or limitation as to the time, method or object of such increase.”</p> <p>The case was reserved by Chapman, C. J., on the bill and answers, and the aforesaid admission of the defendants, for the determination of the full court.</p>

<p>Appeals by Julius S. Shailer, executor, the Massachusetts Baptist State Convention, and certain heirs at law of Miss Sarah Bumstead, from a decree of the judge of probate, allowing a a will, dated April 7, 1853, and a codicil thereto, dated September 30, 1857, as the last will of Miss Bumstead, who died on March 21,1865, at the age of ninety-one years.</p> <p>Trial at October term 1867, before Wells, J., who reported the case for the revision of the full court in substance as follows : The testatrix made a will on July 3, 1851, disposing of part of her estate, giving the same to the Massachusetts Baptist State Convention, and naming no executors. The will of April 7, 1853, revoked the former one, made less valuable provision for th; Baptist Convention, and named Michael Hayden and Julius S. Shailer executors. The codicil thereto, of September 30, 1857, gave the residue of her estate to Hayden, revoked the appointment of Shailer as executor, and named Hayden to be “ sole executor of my said will, and with the consultation of said Julius S. Shailer to have the settlement of my estate.”</p> <p>“ Issues were framed as to each of these three instruments, in accordance with the allegations of the heirs at law, as follows: 1. That the testatrix was of unsound mind. 2. That the execution of the instrument was procured by the fraud and undue influence of Hayden and Shailer. 3. That the instrument was signed by the testatrix in ignorance of its contents. 4. That the will of 1853 had been fraudulently altered by Hayden or Shailer.</p> <p>“ At the hearing to frame issues, the Baptist State Convention and the heirs at law insisted that all the issues in all the cases should be tided together. But it being alleged that the testatrix had suffered from a severe illness between 1853 and 1857, by which both her bodily and mental powers were seriously affected, it was ordered that the issues relating to the several instruments be tried separately, unless the judge who should preside at the trial should otherwise direct.</p> <p>“ At April term 1867 the issues relating to the will of 1853 were submitted to a jury, and a verdict rendered in support of the will upon the 1st and 4th issues, and against it upon the 2d and 3d issues; but the verdict was set aside as to the 2d and 3d issues, on the ground that it was contrary to the evidence, or without sufficient evidence. At October term 1867 the counsel for the contestants again applied to have the issues in all the cases tried together, and offered to waive the question of sanity of the testatrix in the other cases. But this request was denied, and the case directed to be submitted to the jury upon the two remaining issues relating to the will of 1853 alone.”</p> <p>At the present trial, it appeared that the testatrix, at the date of this will, was in her seventy-ninth year and had never been married ; that in former years she had been very active, attending to her own business affairs; was of a decided character, not inclined to familiarity with those who approached her, but insisting upon deference from every one; and was a Baptist, and very strong in her religious belief; that in 1843 she owned a parcel of laud upon Washington Street in Boston, on which were some wooden buildings of little value, in one of which she lived alone, and during that year Michael Hayden married one of her nieces, from which time until several years later than 1853 she with Hayden and his wife lived together as one family; that there was no issue of this marriage, and Mrs. Hayden died before the testatrix; that Julius S. Shailer was a Baptist minister, and from 1845 to 1854 was pastor of the society to which the testatrix belonged; and that in 1847 three shops were built on the front part of the land on Washington Street, and in 1852 four dwelling-houses on the back part.</p> <p>“ The contestants relied upon evidence of declarations of Miss Bumstead, made at the time of executing the will of 1851, and also both before and after that time, to the effect that she intended to devote the front lot as a sacred offering to the Lord, through the Baptist State Convention, and that she intended the back lot to be kept for the use of her needy relatives; from which they contended that it appeared that she had had a long cherished, settled and unvarying purpose ” which was inconsistent with the provisions of the will of 1853; and they relied on the character and effect of these provisions to show that the will of 1853 could not have been the product of a free exercise of her mind.</p> <p>“ To prove that the testatrix was weak in body and mind at the time of executing the will, evidence was produced tending to show that she had ceased to attend to her business affairs, except to look over plans and accounts with Hayden or Shailer; that she did not attempt to write, and did little or no work of any kind; that when attempting to read she would very soon fall asleep; and that sne walked, when going to church or elsewhere, with a shuffling of her feet, and leaning generally upon the arm of Mr. or Mrs. Hayden. There was evidence that she would sometimes laugh and cry or whine at trifling causes; but the time when this occurred was not very definitely fixed. One witness testified that upon the occasion of a visit at the house in 1851 Miss Bumstead complained of a feeling of numbness. The contestants then offered to show by the same witness that at another visit, in July 1854, she found the testatrix affected with paralysis; and also tó prove facts showing her mental and moral condition at that time. This evidence was excluded, as being too long after the date of the will on trial. The contestants then proposed to show that several of her family had been in advanced age affected with paralysis, accompanied by an enfeebling of the mental and moral powers, and that it was a family tendency; and claimed to connect the fact of her condition in 1854 with the numbness complained of in 1851, and the family tendency, as bearing upon the question of the condition of her mental and bodily powers in 1853;” but this testimony also was excluded.</p> <p>“ Evidence of her bodily and mental condition, at various periods subsequent to July 1854, and until her death in 1865, was also offered and rejected.</p> <p>“ To show undue influence by Hayden, various witnesses, mostly relatives, were called to testify to visits at various periods, whose testimony tended to show that Hayden had charge of all the property and business of Miss Bumstead; that.she relied upon and demanded his constant attentions; that there was great familiarity between them, and tokens of affection, and that he or Mrs. Hayden always attended her to church or elsewhere when she went out. The witnesses generally testified that when visiting at the house they did not remember to have been ever left alone with Miss Bumstead; but there was no evidence that any of her relatives or friends were prevented from seeing her as they wished, nor that they might not have seen her alone if they had sought to do so, except as to two or three persons against whom Hayden made some objection on persona, grounds.</p> <p>“ It also appeared that the testatrix was accustomed to com suit Shailer in regard to her business affairs and plans, and was attached to and confided in him; and he testified, on cross-examination, that he was her confidential adviser.” And it appeared “ that Hayden and Shailer went to the office of John J. Clarke, a counsellor at law, with a draft or memorandum which Shailer had written out, as he afterwards testified, under her direction, and employed him to prepare her will; that Mr. Clarke prepared the will, consulting with Hayden and Shailer only, and not seeing the testatrix at all, although it was testified that she was able to go abroad from her home; and Mr. Clarke testified that he should have gone to see her at her house, if he had been requested so to do. Hayden testified that he took the will so prepared to Miss Bumstead. It appeared that Hayden and Shailer were both present when it was executed, some days after it was so placed in her hands, and that after execution it was placed in Shailer’s hands to be kept. Hayden testified that when he handed the will to Miss Bumstead, she took it and appeared to be reading it when he left the room. Shailer testified that on the day of execution of the will, and before its execution, he read it over to Miss Bumstead at her request.</p> <p>“ The attesting witnesses were a brother, sister, and brother-in-law of Hayden, who were not informed of the contents of the will. No persons were present except the testatrix, the attesting witnesses, and Hayden and Shailer; and it did not appear that the testatrix ever saw the will afterwards.</p> <p>“ As further evidence that the will so made was contrary to the real intentions of the testatrix, or that she was i<morant of its contents, and that it was procured by fraud and undue influence of Hayden and Shailer, the contestants offered to prove declarations of the testatrix, and of Hayden and Shailer, subsequent to the date of the will; and conduct of Hayden and Shailer in relation to the property and business of Miss Bumstead. The evidence of such subsequent declarations and conduct was excluded, so far as offered for that purpose; but the contestants were allowed to put in any evidence tending to show that relatives and friends were prevented or deterred in any way from free access to and communication with the testatrix, or that she was in any way prevented from revoking or making any change in her will, if she had desired to do so.” The evidence thus ex eluded, aside from declarations, comprised, among other things, deeds of real estate from the testatrix to Hayden, dated respectively March 21, 1854, and April 24, 1857; a mortgage to T. P. Cushing of both lots of the real estate on Washington Street, and an offer of proof, in connection with this mortgage, that it was made' at the suggestion of Hayden and Shailer, and that Hayden received the proceeds of it; the codicil, dated September 30, 1857 ; the appointment of Shailer, in December 1859, to be guardian of the testatrix as non compos mentis, and some of his proceedings as guardian; the writ and other papers in an action brought by Hayden in 1863 against the testatrix on two promissory notes, dated respectively in 1850 and 1852; the petitions of Hayden and Shailer, severally, to be appointed special administrator of the estate of the deceased, and the appointment of them jointly in June 1865; the inventory, and appraisal of the estate in December 1865; the amount of personal estate found by a special administrator appointed in the place of Hayden and Shailer; and evidence that no final account had been rendered by Shailer as guardian, nor any by Shailer and Hayden as special administrators.</p> <p>"In reply, both Hayden and Shailer were examined as witnesses in support of the will. The contestants objected to their competency, but the objection was overruled.</p> <p>“ Hayden having denied, on cross-examination, that he had ever received any compensation for his services rendered to Miss Bumstead in taking the care and oversight of her property and business affairs, was allowed to be interrogated in further cross-examination as t) the consideration for her deed to him in 1857. The contestants then offered again to put the deed in evidence, to rebut any inference that such services were an inducement to the devise to him; but, as it did not tend in any manner to contradict the witness, the judge ruled that it was not competent for any other purpose, and excluded it.</p> <p>“ In cross-examination of Shailer, the contestants proposed to prove by him, that in 1855, at the request of Miss Bumstead, he audited Hayden’s accounts relative to her business, in consequence of her being dissatisfied with them; and that, although dissatisfied, she still continued Hayden in charge of the property. This evidence was excluded.”</p> <p>The jury returned a verdict answering both issues in the negative.</p>

<p>A testator gave to trustees property variously invested,“ to be disposed of for the benefit of the poor in the manner hereinafter provided;” and directed the trustees and their successors to appoint a committee of three or more gentlemen who should “determine how, by the payments to permanently established and incorporated charitable institutions, my wish to benefit the poor will be best carried into effect,” and to dispose of and pay over the trust fund “ in accordance with the determination of the said gentlemen certified by them to the trustees.” The trustees selected the committee, who determined that certain sums expressed in money should be paid to various corporations of the kind described, and that if the trust fund should exceed the aggregate of these sums “ the residue is to be subject of future disposal by us.” Some years afterwards elapsed before the trustee's became able to reduce the fund to money and pay it over ; the residue of the fund at the time of the determination of the committee was more than the aggregate sum which they apportioned; and during the interval the income of the fund accumulated at a rate greater than the legal rate of interest, and one of the committee died. Held, that the corporations designated were not entitled to take the income of any specific part of the fund, nor shares of the whole income proportioned to the sums designated to be paid to them: but to receive the amount of legal interest on such sums from the time of the report of the committee; and that any surplus of the income, after payment of such interest, should be added to the fund for further distribution. Held, also, that the vacancy on the committee could be filled by appointment by the trustees; and that no further distribution of the fund could be made until after the filling of such vacancy. Held, further, that in such further distribution the committee might designate payments to institutions of the kind described in the will incorporated since the creation of the trust.</p>

<p>A will proved in Massachusetts, where the testator had his domicil, directed trustees of his estate “ to raise the sum of one hundred and fifty thousand francs, money of France, and to apply the same to the fulfilment of a certain marriage contract,” made at Geneva in Switzerland, in which the testator, the father of the future wife, agreed to pay to her an annuity of six thousand francs, money of France, to cease at his death and be then converted into a capital of one hundred and fifty thousand francs, which should “ only be handed over to the future wife or to her children against a sufficient mortgage, or any other equivalent guaranty, to be given by the future husband.” After the death of the testator, the husband executed an instrument at Vienna in Austria, renouncing all right in this fund, and declaring it unnecessary for him to give security for a sura which he never received. Subsequently, at Cracow in Austria, where the husband and wife had their domicil at the time, an ecclesiastical court granted to her a decree of divorce from bed and board for life, for his criminal conduct, reserving to her and to their son “ all the rights of property which according to the law of the land belong to an innocent wife and the children,” and declaring that, “ notwithstanding the decree of divorce for life, she remains at liberty to consent to live together with her husband in case he should bring sincere proofs ” of reformation. By the law of Geneva and of Austria, a payment of the fond to her, without due security for its proper investment according to the marriage contract, would not discharge the trustees from responsibility, notwithstanding the release of the husband and the divorce. Held, that the amount to be raised from the estate fbr the fund was such a sum, computed in treasury notes of the United States, as would purchase a hundred and fifty thousand francs deliverable here; and that the trustees should continue to hold the fond in trust for the benefit of the wife, until the further order of the court, with liberty to apply for further instructions ir vent of the death of her, or of her husband, or other change of circumstances.</p> <p>The costs of a bill in equity brought by executors and trustees to obtain the instruction of the court as to the construction of a bequest are to be borne by the residuary assets.</p>

Petition for a writ of certiorari to the aldermen of Boston to reverse their refusal, on appeal from the assessors of Boston to abate a tax assessed in 1867, under the laws of the Commonwealth, St. 1865, c. 242, on forty shares owned by the petitioner, who resided in Boston, in the capital stock of the American Exchange National Bank, a national banking association organized under the U. S. St. of 1864, c. 106, and located in the city and state of New York; the amount of…

Petition on the St. of 1867, c. 52, § 2, for abatement of a portion of a tax assessed under the St. of 1865, c. 283, upon the petitioners, a corporation chartered by this Commonwealth for purposes of business as insurers of fire and marine risks, and having a capital stock divided into shares.

<p>Information filed December 13, 1867, on the St. of 1865, c. 283, § 14, at the relation of the treasurer and receiver-general of the Commonwealth, seeking a decree for payment by the defendants, a corporation organized under the law of Michigan for the purpose of engaging in the business of mining copper in that state, of taxes in 1866 and 1867, under the St. of 1865, c. 283, § 8, the material part of which is printed in the margin;* and for an injunction against further prosecution of business in the Commonwealth by the defendants, until the same should be paid with interest.</p> <p>The information alleged the maintenance by the defendant corporation of an office or place of business, namely, the office of its treasurer, in Boston, for the direction of its affairs and transfer of shares; and the making of returns by its treasurer to the tax commissioner in June and December 1866, and June 1867, in conformity with the statute ; that in truth and fact the par value of its capital stock as fixed on May 1 and November 1, 1866, and May 1,1867, was as thus returned ; and that “ by reason thereof said corporation became liable and was bound to pay to the treasurer of the Commonwealth ” the taxes alleged, being one twentieth of such par value at the three dates last named.</p> <p>The answer substantially admitted the facts alleged in. the information ; but denied “ that said corporation owes the taxes mentioned in said information to said Commonwealth and interest thereon, or any part of said taxes and interest, or is or was liable and bound to pay to the treasurer of said Commonwealth said taxes ; ” alleged that the defendant corporation “ is a foreign corporation owning real estate in the state of Michigan, and employing its capital stock in the working of a mine in said state, that said capital stock is owned in part by citizens of states other than the state of Massachusetts, that nearly all the contracts for labor at said company’s mine and for materials purchased for use at said mine are entered into in Michigan, and drafts for the payment of the same, drawn by the agent of the company at the mine on the treasurer of the company residing in Boston, are delivered to and received by the laborers, and parties furnishing materials, as payment; ” further denied “ that said Commonwealth has the right or power, under the Constitution of the United States, or under the Constitution of said Commonwealth, to tax said corporation, said corporation being a foreign corporation and receiving all its corporate powers and privileges from the state of Michigan; ” and finally alleged “ that the provisions of said St. of 1865, c. 283, so far as it is pretended that the same are applicable to said defendants in requiring the payment of a tax to the treasurer of said Commonwealth are repealed by the provisions of the St. of 1866, c. 291.”</p> <p>The case was reserved by Foster, J., on the information and answer, for determination by the full court.</p>

<p>A policy of life insurance, expressed, in accordance with the Gen. Sts. c. 58, § 62, to be for the benefit of the widow and child of the assured, cannot he affected by his will.</p> <p>If a policy of life insurance, expressed to be for the benefit of the widow and child of the assured, is made payable, upon his death, to his executor, the executor is liable to the child, as for money had and received to the child’s use, for the child’s share of the amount of the policy collected by him from the insurers, after deducting from such amount his expenses of collecting the same, including the expenses of taking out administration here if this was the only estáte of the deceased in this Commonwealth.</p>

<p>Bill of interpleader to obtain instructions as to the disposition to be made of the amount due on a policy of insurance made on August 27, 1866, by the plaintiffs, a life insurance company established in New York, to Caroline, wife of Louis Stauff, of Boston, upon his life for a certain term, in consideration of a premium paid by her, and expressed to be for her benefit, and payable, when due, to her executors, administrators or assigns, and, in case of her death before the death of the assured, then “ payable, after the death of the latter, to her children by him, for their sole use, or to their guardian, if under age.”</p> <p>On August 29,1866, said Caroline, with the consent of her husband and of the insurers, executed to August Weitz, as security for a debt due to him from her husband, a written assignment of this policy, which assignment, however, provided “ that the restrictions in said policy shall remain in full force notwithstanding this assignment.” On February 27, 1867, she died, leaving one only child by said Louis, named August Stauff, three years old; and on March 9, 1867, said Louis died, within the term for which his life was insured, and for which his wife had paid the premium, leaving this child, who, with his guardian, and said August Weitz, were made parties to this bill.</p> <p>The case was reserved by Hoar, J., for determination by the full court, on the bill, answers, and an agreed statement of the facts above recited.</p>

<p>A policy of fire insurance provided, in one clause, that, “ if the situation or circumstances affecting the risk” on the property insured should “be so altered or changed, by or with the advice, agency or consent of the assured, as to increase the risk thereupon,” the policy should become void; and, in another clause, that, if the risk should “ be increased by the erection of buildings, or by the use or occupation of neighboring premises, or otherwise,” or if the insurers should so elect, the insurers might terminate the insurance after giving notice to the assured. Held, that the policy was avoided under the first clause, without any election on the part of the insurers, or notice from them to the assured, by the erection by the assured of a factory on an adjoining lot of land under circumstances affecting the risk on the insured property.</p>

Contract on a policy of insurance upon the life of Calvin Perry, the plaintiff’s husband. In the superior court, on agreed facts the material part of which is stated in the opinion, judgment was ordered for the defendants; and the plaintiff appealed.

Tort for injuries sustained by being knocked down and run over by a wagon driven by the defendant.

<p>Tort for injuries incurred through negligence of servants of the defendant corporation. Trial in the superior court, before Brigham, J., who allowed a bill of exceptions substantially as 6 allows:</p> <p>The plaintiff introduced evidence tending to show that he was at a house on Main Street in Charlestown, through which street the defendants have a double track for their street railroad, when one of the defendants’ cars was signalled to stop to take him as a passenger to Boston; that it did stop, on the track furthest from the house; and that in crossing the street to reach it he was struck and injured by the horses or the pole of another car of the defendants, which was coming from Boston on the nearer track. He also introduced evidence tending to show that he exercised due care. There was conflicting evidence as to the rate of speed at which the car was driven at the time of the injury, the plaintiff’s testimony tending to show that it was as great as ten miles per hour; the defendants’ testimony, that it did not exceed six miles. There was also conflicting evidence as to whether at the time of the injury the front platform of it was occupied by a number of persons, or by the driver alone. Some of the defendants’ evidence also tended to contradict the testimony introduced oy the plaintiff that the car which he proposed to take for Boston had come to a full stop.</p> <p>“ The court instructed the jury that the defendants were liable to a suit for such damages as would indemnify any person who was injured, while in the exercise of due care, by their improper and careless running of their cars upon their tracks; that this was the general rule, but not applicable in this case; that in this case the plaintiff’s right to recover depended on his proving that, when one of the defendants’ cars had come to a full stop and was standing on their track to receive the plaintiff as a passenger, another car of the defendants, proceeding on their track, parallel to the track upon which their car was standing to receive the plaintiff as a passenger, passed or was passing said standing car at a rate of speed faster than a walk, and, while the plaintiff was proceeding to said standing car, said passing car, by the act of passing at a greater speed than a walk, struck and injured the plaintiff.</p> <p>“ To the foregoing rulings no exceptions were taken. But the plaintiff asked the following further instructions: If the plaintiff, while proceeding with due care to the defendants’ car, for the purpose of entering the same as a passenger, was struck and injured by another car of the defendants proceeding at an improper or excessive speed on a track of the defendants, parallel to the track upon which was the car which the plaintiff was proceeding to enter, the plaintiff might recover in this action, notwithstanding the car which the plaintiff was proceeding to enter was not standing or had not come to a full stop on the track where they were.”</p> <p>This prayer for instructions the judge refused; and the verdict was for the defendants. The plaintiff alleged exceptions.</p>

Contract. The declaration alleged that the defendant owed the plaintiff $150 “ for services and commissions for negotiating and bargaining and selling” for the defendant, at his request, forty-one shares in the stock of the Gillespie Governor Company, a corporation, “ which stock was bargained and sold foi him for $2400.” The answer alleged that “the plaintiff never rendered the defendant any such services, and the plaintiff did not negotiate and bargain and sell for the…

<p>Evidence that furniture attached on mesne process in the house of the defendant was left there by the officer, without the defendant’s consent, in the custody of a keeper who went away every night leaving no one in charge of it; that on the third day after the attachment the defendant gave the officer notice to remove the keeper, and forbade him to remove the furniture; and that the next morning the keeper went away, leaving no one in charge of the furniture, and giving no intimation of his purpose in going away, nor when he would return; is sufficient to warrant a finding that the attachment was abandoned.</p> <p>Personal properly subject to a mortgage and remaining in the possession of the mortgagor was attached in an action against the mortgagor, and the mortgagee was summoned therein as trustee. The mortgagee served on the officer a written statement of the debt for which the property was liable to him, and demanded payment thereof. Within ten days afterwards the attachment was abandoned; but after such abandonment the officer forcibly resumed possession, field, that the mortgagee might replevy the property from the officer, although the issue of the validity of the mortgage, which was raised in the action against the mortgagor, on the question of charging the trustee, remained undetermined.</p>

<p>Appeal by the defendant in a suit in equity from a final decree of Colt, J., “that the injunction heretofore issued in this suit be made perpetual, and that said defendant Harper be and hereby is perpetually enjoined from prosecuting the suit at law now pending for the recovery of the said plaintiff’s law library or any other action at law for the same cause ; and said Harper is directed to discontinue the suit now pending as aforesaid; provided that neither party shall be entitled to recover costs in raid suit at law against the other. And said defendant is further ordered and decreed to deliver the said law library of the plaintiff to him, free of any charge or incumbrance created by him thereupon. And it is further decreed that in this cause neither party shall have or recover any costs of the other.”</p>

Contract for money lent to the defendant and money paid to her use at her request. Answer, accord and satisfaction.

<p>In an action on a promissory note to charge as a promisor a party whose indorsement thereof appears below the indorsement of the payee to the plaintiff, parol evidence is admissible to show that the defendant’s indorsement was made before the delivery of the note by the maker to the payee for value.</p>

<p>Trustee process to recover the amount due on a promissory note made by John Conlan and dated September 25, 1866, for $5724.60, payable three months after date to the order of John P. Squire & Co., and by them indorsed to the plaintiffs. Writ dated January 7, 1867. The answer of Conlan alleged that he made the note without consideration ; and further, denied ownership of the note by the plaintiffs, and alleged that it remain; 3 property of the payees, and that the action was prosecuted for their benefit and to enable them to avoid claims of which he might have availed himself by way of set-off in an action brought in their name. The payees were summoned as trustees, and were defaulted.</p> <p>To interrogatories filed by the defendant, the president and cashier of the plaintiffs answered, that the note was received by the bank from the payees on September 26,1866, and discounted in regular course of business; that the proceeds were carried to the credit of the payees on their account with the bank and used by them in common with their other funds there deposited;, that after the protest of the note for nonpayment at maturity, Squire proposed to the plaintiffs “ that, as the bank had taken the vo'ce originally by discounting the same, they should still keep it and sue it themselves and not compel John P. Squire & Co. to take it up first, and that he would in that event secure the bank against loss if the note was not collected of the maker; that the maker would probably pay it to the bank sooner than he would if taken up by the indorsers; ” that Squire then put into the hands of the president in his unofficial capacity funds “ to hold for the parties as security for the bank against all loss on the note,” “ and the bank consented, and did do as was proposed ; ” that the note was sued by the directors and the suit prosecuted for the benefit of the bank; and that the note was, and ever since it was discounted had been, the property of the bank, and had never been taken up or paid by the payees.</p> <p>At the trial in the superior court, before Ames, C. J., the plaintiffs put the note in evidence, and rested their case ; and the defendant put in evidence his interrogatories and the answers of the plaintiffs, and, “ having no further evidence upon this part of his case,” asked the judge to rule on the facts thereby disclosed that “ he was entitled to make the same defence to the note that he could under his answer if John P. Squire & Co. were the plaintiffs.” The judge refused so to rule; and directed a verdict for the plaintiffs. The defendant alleged exceptions.</p>

Contract for the price of two hundred and fifty tons of coal at seven dollars per ton, sold by the plaintiffs to the defendant, and shipped by them from Philadelphia, consigned to him at Boston. In the superior court these facts were agreed : The defendant gave an oral order to the plaintiffs for the coal, on February 9, 1866.

Trustee process. Chandler, Shattuck and Thayer, attorneys at law, the parties summoned as trustees, filed an answer, denying that they had goods, effects or credits of the principal defendants intrusted or deposited in their hands or possession at the time of service of the writ upon them, otherwise than as follows : that they then had in their hands a check for $513,069.60, drawn by Arthur W. Austin on a national bank in Boston, and payable to their order, which they had…

<p>A devise recited that the testator gave to his daughter, (who, with her children, survived him,) land for her life, “and, in the event of her decease, I do then give the same in equal shares to her children and their heirs and assigns.” Held, that the devise over gave to her children vested remainders in fee simple.</p>

<p>Bill in equity by the trustee under the will of Sarah G. Coolidge, who died in 1861, to obtain the instructions of the court as to the disposal of the trust fund after the death in 1865 of the brother of the testatrix. The case was reserved by Foster, J., on the bill and answers, for the determination of the full court, and is stated in the opinion.</p>

<p>A. executed an invalid deed, conveying his money, which was in B.’s possession, to B., C. and D., to invest and hold on certain trusts. B. paid the money to C. in presence of D., who advised wad acted with B. and C. in the future administration of the trust but never had possession of any part of the fund. Held, that D. was not liable to A. for the fund as for money had and received by him to A.’s use, in the absence of fraud on his part and of any agreement by him to be jointly responsible with the other trustees.</p> <p>The objection that a defence is not open to a defendant under his answer must be deemed to have been waived, if first made at the hearing of exceptions to a ruling on evidence introduced in support of such defence without objection at the trial on a review of a cause in which the original judgment was entered on default.</p>

<p>Contract by the keeper of a boarding-house on an account for board and lodging furnished by the plaintiff to the defendant’s wife. Trial in the superior court, before Wilkinson, J.</p> <p>Objection having been taken in the answer that the plaintiff was a married woman and had not alleged in her writ or declaration that the cause of action was a matter having relation to her separate property or business, the judge ruled that it was sufficient if the plaintiff’s right to sue on the Gen. Sts. c. 108, § 3, was proved, without such an allegation.</p> <p>One of the-grounds of defence was, that during the time covered by the account the defendant’s wife had deserted him and was living apart from him, without cause, and with the plaintiff’s knowledge. The fact of the desertion was admitted by the plaintiff; and there was evidence tending to show the plain, tiff’s knowledge of it; but the plaintiff contended that the deeertion was caused and justified by cruel and abusive treatment of the husband, and introduced evidence to that effect. It was also admitted that, after deserting her husband, the wife brought a libel here against him for a divorce from bed and board for me same acts of alleged cruel and abusive treatment which were relied on by the plaintiff, and that this libel was dismissed after a hearing of both parties on the merits. The defendant asked the judge to rule that the decree dismissing the libel was conclusive in this action of the facts then at issue; but he refused so to rule.</p> <p>The jury found for the plaintiff; and the defendant alleged exceptions.</p>

<p>A verdict and judgment are conclusive by way of estoppel only as to facts without the ex istence and proof or admission of which they could not have been rendered.</p> <p>At the trial, with a jury, of a libel for divorce, their special findings on questions of fact are not conclusive of facts not essential to, although consistent with, their general verdict and the decree entered thereon.</p> <p>At the trial, with a jury, of a libel, filed in Massachusetts, for a divorce for the cruelty and desertion of the libellee, he denied the charges, and set up his divorce from the libellant by a court of competent jurisdiction in Indiana; and she sought to impeach this divorce, on the grounds that he went to Indiana to procure it, and that he was not a citizen of Indiana when he there filed his libel. Special issues were submitted on these questions, and on the questions of cruelty and desertion, and findings made on each for the libellee; a general verdict was returned in his favor; and exceptions taken by the libellant were not sustained, the full court being equally divided. In an action here against the libellee for the board of the libellant subsequent to the Indiana divorce, Meld) that the validity of that divorce was not established by the proceedings recited; and that the plaintiff might impeach it.</p>

Bill in equity by copartners, alleging that they were residents of Boston and had no taxable property in Charlestown, and seeking to restrain by injunction the collection of a tax illegally assessed on them by the defendants, who demurred to the jurisdiction. The case was reserved by Wells, J., on the bill and the demurrer, for the determination of the full court.

<p>Bill in equity to quiet the plaintiff’s title to land in Roxbury. The defendant demurred to the jurisdiction, and argued that the plaintiff’s remedy was plain, adequate and complete, under the Gen. Sts. c. 134, §§ 49, 50. The case was reserved by the chief justice, on the bill and the demurrer, for the determination of the full court, and is stated in the opinion.</p>

Bill in equity filed February 27, 1867, to annul, on the ground of fraud, a decree entered on the docket April 7, 1862, dismissing a bill in equity of this plaintiff against the principal defendant to redeem land; and to procure a rehearing of that cause. The answers denied fraud, and alleged, among other defences, that the plaintiff was barred by loches from any remedy on this bill.

<p>The owner or occupant of land is liable in damages to those coming to it, using due care, at his invitation or inducement, express 01 implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe condition of the land or of the access to it, which is known to him and .'not to them, and which he has negligently suffered to exist and has given them no notice of.</p> <p>The owner of a wharf procured a vessel to bring a cargo to it to be there discharged, and suffered her to be placed there, at high water, over a rock sunk and concealed in the adjoining dock. Of the position of the rock and its danger to vessels he had long been aware, but gave no notice thereof to the owners of the vessel or any one in their employment. Without negligence on their part, the vessel settled down upon the rock, with the ebb of the tide, and was bilged by it. Held, that he was liable in damages, whether or not he owned the soil of the dock, and whether or not his wharf was a public wharf.</p>

Two actions of contract, for the value, in the first case, of one hundred and fifty-six tubs of butter, and in the second case of twenty-five tierces and two hundred cans of lard, alleged to have been delivered by the plaintiffs respectively to the defendants as common carriers, for transportation over a route between New York and Boston, of which the defendants’ railroad formed a part.

<p>A written lease of a house, at a certain rent per annum, payable “ in monthly payments, or otherwise pro rata,” for a term to begin “ when said house is suitable to be occupied ” by the lessee, and undefined in duration except by a stipulation that if, after two years from the time when the lessee should move into the house, the lessor should wish to live there, he might do so, and the lessee might then retain, if he should desire, certain rooms “for such a term as maybe agreeable to us both,” creates only a tenancy at will; and paroi evidence is inadmissible to give it a different construction.</p>

<p>Contract for a balance of the price due under the defendant’s written agreement for the purchase from the plaintiffs of a wharf lot on Border Street in East Boston. The defendant claimed an abatement from the stipulated price, for the reason of a deficiency in the quantity of land.</p> <p>The case was submitted to the determination of the full court on facts agreed, the material part of which is stated in the opinion; and with an agreement of the parties that if the court should be of opinion that the plaintiffs were entitled to recover the whole or any part of the purchase money, or that the defendant was entitled to abatement, judgment should be entered accordingly.</p>

<p>Petition for the assessment by a jury of the damages sustained by the petitioners by the taking of their real estate by the city of Boston under the St. of 1865, c. 159, to lay out a street between Milk Street and Broad Street in that city. In the superior court, Vose, J., ordered the petition to be dismissed on the ground that it was not filed seasonably; and the petitioners alleged exceptions. The facts appear in the opinion.</p>

<p>Petition, filed December 9,1864, on the St. of 1864, c. 229 \ 29, for the appointment of commissioners to determine the rate of compensation to be paid by the respondents for entering and using a portion of the tracks of the petitioners, (both parties being street railway corporations,) and to revise and alter a former award of commissioners returned info court in November 1862. On this petition commissioners were appointed, and a warrant was issued to them under date of January 10, 1865. They returned an award February 15, 1868, on the issue of the approval of which a hearing was had before Foster, J., who reserved for the determination of the full court the question from what time it should take effect, and reported the material facts in substance as follows :</p> <p>The first board of commissioners found, by their award, that the cost of the section of the petitioner’s railroad used by the respondents was $46,197.96, and the annual cost of maintenance thereof was $11,970.97; and awarded that the respondents should pay annually to the petitioners one fifth of the latter sum, or $2,394.19. The second board of commissioners found the annual cost of its maintenance to be $14,500; and awarded that the respondents should pay, in semi-annual payments, to the petitioners, such a proportion of $14,500 annually "as the use of it by the cars of the respondents bears to the whole use of it by all the cars running upon it or any portion of it.”</p> <p>The award of the second board of commissioners contained this further provision : “ It was claimed by the petitioners that any revision of the compensation established by the former award should take effect from the time of filing the petition in this case. The respondents denied the power of the commissioners to make any award which should affect the rule of compensation anterior to the making of this award. If the court should be of opinion that, under a true construction of the statute, the commissioners have power to revise the former award from the time of filing the petition in this case, then we award further that the respondents shall pay to the petitioners such sum as, with the amount paid since the filing of the petition, will make the compensation for the use of said circuit by the re spondents equal to that which would have been paid if the respondents had made compensation according to the rule above given for its future use.” And the parties agreed that since the date of the filing of this petition the cars of the respondents had run more than one fifth of all the miles run over the section of the petitioners’ road, which was the subject of the controversy, and more miles than they ran previously to that date.</p>

Action on the Gen. Sts. c. 137, for possession of a house on Federal Street in Boston. Writ dated February 2, 1867.

Bill in equity by Caroline A. G., wife of Wales R. Stockbridge to obtain the direction of the court as to the execution of trusts raised by the deed of Charlotte L. Tuttle in her own right, and Gilman Tuttle, her husband, who joined in token of his assent, conveying to said Caroline land in Boston on January 1,1866.

<p>Bill in equity, filed May 15, 1867, against George D. Pat-tee, Charles H. Pattee and Charles T. Stevens, to compel specific performance of George D. Pattee’s covenant of renewal, contained in an underlease, dated November 1,1864, and signed by him alone, but purporting in the body thereof to be the lease of him and John C. Dalton, of “ the store on Hanover Street in Boston numbered 262 in the numbering of said street,” to the plaintiff, for “ the remainder of the lessors’ leasehold estate in the premises,” at an annual rent of $300; said covenant being as follows : “ The said lessors do promise to renew said indenture for such further term as their leasehold estate in the premises may be renewed or extended.” The case was submitted for the determination of the full court on agreed facts, the material parts of which were as follows:</p> <p>Amasa D. Gamage, the owner of a parcel of real estate on Hanover Street, of which the premises in question were a part, leased the whole to the copartnership of Holmes & Smith for six years from May 1, 1861, for an annual rent of $1000; and they on December 1, 1863, assigned the lease, for the unexpired balance of the term, to the copartnership of Dalton & Pattee, which consisted of John C. Dalton and George D. Pattee. On November 1,1864, Pattee gave to the plaintiff the underlease described in the bill, with the understanding that she should procure thereto the signature of Dalton also, who had agreed with him to sign it, and who fully intended to fulfil his agreement but through oversight or inadvertence failed to do so. In pursuance of this underlease, the plaintiff entered into possession, and paid rent to Dalton & Pattee until July 1865, (when that copartnership was dissolved,) and afterwards to Pattee alone. On July 15, 1865, in settlement of the affairs of their late firm, Dalton assigned to Pattee all his title and interest in and under the assignment of the original lease by Holmes & Smith to Dalton & Pattee.</p> <p>In April 1867, the month before the end of the term of the original lease, Gam age orally agreed to give George D. Pattee a new lease of the whole estate at an increased rent, if Pattee would procure a surety for the performance of his covenants; and Pattee thereupon orally agreed with Charles T. Stevens to underlet to him, under the new lease, the premises then occupied by the plaintiff, if he would become surety. The plaintiff had no knowledge of this agreement between Pattee and Stevens until after the filing of her bill. On May 1, 1867, (Gamage not having at the time executed the new lease,) Pattee gave to Stevens a lease of the premises occupied by the plaintiff, for three years from that date, at the annua] rent of $500. On May 13, 1867, Gamage executed the new lease to Pattee of the whole estate, for three years from April 30, 1867, at the annual rent of $1100 and taxes; and Stevens became Pattee’s surety thereon. The plaintiff, upon the delivery of this lease to Pat-tee, demanded of him a renewal of her underlease in pursuance of the covenant therein; but Pattee refused her demand. On the next day, (Stevens and Pattee deeming Pattee’s lease of May 1 to Stevens insufficient,) Pattee underlet the whole estate to Charles H. Pattee, and Charles H. Pattee gave to Stevens an underlease of the premises occupied by the plaintiff, for the same term and at the same rent stipulated in the lease of May 1. It was agreed that these two leases of May 14 might “ be regarded in intent and effect as a lease directly from George D Pattee to Stevens.”</p> <p>Stevens, at the time of his oral agreement with George I). Pattee in April 1867, knew that the plaintiff was in occupation as a tenant, but had no actual knowledge of the covenant for renewal in her lease ; and on May 11, 1867, the plaintiff served on Stevens notice of that covenant, and “ that no new lease to George D. Pattee of said premises has yet been executed or delivered,” and “ that any lease which you may have or take is subject to my equitable rights.”</p>

<p>A buyer sent an order for goods to the seller in another state who there delivered them to carrier for transportation to the buyer. Held, that the sale was completed in the state where the seller resided, although the terms thereof were originally agreed on by agenta of the parties at the residence of the buyer.</p> <p>When the evidence of a foreign law consists entirely of a judicial opinion, the question of its construction and effect is for the court, and if it is uncontradicted, and will not sup port the action, the jury should be so instructed.</p> <p>In the sense of the rule in Smithy. Smithy 21 Penn. State, 367, and Backentoss v.‘Speicher^ 31 Penn. State, 324, that, by the law of Pennsylvania, in order to constitute such fraud as will render a sale void, the buyer’s intention not to pay the price and concealment of his own ia solvency is not sufficient, but there must be “ artifice, intended and fitted to deceive, practised by the buyer upon the seller,” evidence that the manager of the buyer’s business, in negotiating at the buyer’s residence in Illinois with the seller’s agent for the goods within ten days before the buyer sent his order for them to‘the seller in Pennsylvania, falsely represented that the buyer owned a farm of considerable value and had other means amply sufficient for carrying on his business, and always bought for cash, and did not owe any man, is sufficient to warrant a finding that the buyer’s purchase of the goods, made immediately afterwards on a credit of sixty days, and his subsequent similar purchase from the same seller, made before that credit had expired, were fraudulent and passed no title to goods the sale of which was so induced.</p>

Contract. The declaration alleged that the defendant, who was a tailor, requested the plaintiff, a broker, “ to procure for the defendant a purchaser” of the lease of his shop, and the stock and fixtures, and the good will of his business, “ and promised to pay the plaintiff the usual commissions for his services in procuring such purchaser,” and that the plaintiff, “ in conformity with such request, and relying on the promise of the defendant, went and procured a customer…

<p>In the receipt of an expressman for a package addressed to a consignee at a particular place in a certain city, the stipulation that the package “ is to be forwarded to our agency nearest or most convenient to destination only ” does not discharge the expressman from all liability other than for the safe delivery of the package at his own place of business in that city and its safe keeping there upon arrival; but, if he has agents there who habitually deliver such packages according to the special address of each, he is bound to deliver the package as it is specially addressed, according to the reasonable usages of his business; and a usage of expressmen, whenever packages arrive at their places of business specially addressed to consignees at establishments where many persons sojourn or are employed, to deliver them in the offices or counting-rooms of such establishments for the consignees to the clerks there in charge, and take the receipts of the clerks therefor, without giving notice to the consignees personally, is a reasonable usage, in respect to ordinary packages such as a box of clothing of the value of fifty dollars.</p>

<p>Contract. Writ dated September 16, 1867. The declaration alleged that the defendant was carrying on the business of warehouseman at Bartlett’s Wharf in Boston, of which he was lessee, when the plaintiffs delivered to him fifty-five tons of iron which he received for storage on the ordinary contract of a warehouseman, whereby he became bound to use reasonable care to preserve the iron from rusting ; and that through his negligence the iron was rusted and injured. The answer admitted the receipt of the iron from the plaintiffs for storage; denied that it was received on such a contract as was alleged in the declaration ; and alleged that, on the contrary, when the plaintiffs offered the iron for storage, the defendant replied that there was salt stored in the only warehouse where he had room for the iron, and the iron would be liable to become rusted if placed there, but the plaintiffs nevertheless requested him to receive the iron, saying that they would themselves assume all risk of its rusting from neighborhood to the salt; that he received it only on that condition, and under that agreement of the plaintiffs; that he was guilty of no negligence; and that the iron, if rusted, was rusted from its neighborhood to the salt.</p> <p>At the trial in the superior court, before Ames, C. J., it appeared that the defendant was personally engaged in business elsewhere than at Bartlett’s Wharf, and intrusted the whole management of his warehousing business at that place to William H. Nichols, the wharfinger, between whom and the plaintiffs the contract for storing the iron was made; but there was no evidence that Nichols had any authority from the defendant to settle claims for injuries to warehoused property. And it appeared also, and was admitted by the defendant, that the iron was received by him and stored in a warehouse containing salt, ny neighborhood to which it was badly rusted and injured.</p> <p>The plaintiffs offered in evidence, in the course of the trial, two letters addressed to them by Nichols under the dates respectively of January 22 and January 38, 1867. The first acknowledged the receipt from the plaintiffs.of a bill for $580 for the injury of the iron; suggested that in this bill it was claimed that all the iron was injured, but that such was not the fact; mentioned previous letters of the plaintiffs as preferring a claim for only $495, and statements of the plaintiffs that appraisers did not agree in their estimates of the percentage of injury; and ended as follows: “ Now, on account of these few circumstances, and others that I have at hand, I do not feel inclined to settle such a bill as that presented, thinking that it is out of reason, and not in equity at all with the existing circumstances, and will wait until further investigation.” This letter the judge admitted ; but excluded the second letter, (which was as follows,) upon the ground that it was an offer of compromise, although the plaintiffs stated “ that they did not offer it to show the amount, but only the fact, of the defendant’s liability : ”</p> <p>“ In reply to your last, I would say that there seems still to be quite a difference of opinion as to the exact statements heretofore made, and condition of the iron at the time of taking it away from the wharf. But at the same time I am disposed to do exactly what is just and right between man and man, and do not think it would be judicious for either party to incur any more of an expense by going to law; and still I do not want to pay such an amount for a damage, as it places me in a bad fix with the lessees of the wharf, and therefore make this proposir tian to you, viz: to make Bartlett’s Wharf indebted to you for amount of bill, and you to make up the amount in wharfage and storage on iron or any goods that you may send to us,-at rates one quarter off the regular price. This is the easiest way for me, and to you makes no great difference in the long run,.as you are constantly wanting storage room of some kind;, and-I have such as will accommodate you. I hope this proposition will meet your approval, and save us both all further annoyance.”</p> <p>On the question of the terms of the contract on which the iron was received by the defendant there was a conflict of testimony, each party introducing evidence which tended to prove that it was as alleged in the declaration or in the answer respectively. The plaintiffs contended “ that, they having introduced proof of the reception of the iron and of its having been damaged, which facts were admitted by the defendant, the burden of proof was on the defendant to establish the contract as set forth in his answer; ” and asked for a ruling to that effect. The judge did not so rule, but instructed the jury substantially as follows• “ That the burden of proof was on the plaintiffs to show what the contract was under which the property was stored on the defendant’s wharf; that proof of its delivery and acceptance would he primá facie evidence that it was left there on such terms as to bring the defendant under the general common law liability of a warehouseman, responsible for reasonable and ordinary care, attention and skill in its storage; but that proof of such delivery to the defendant as a warehouseman did not of itself shift the burden of proof; and that it was for the jury to say, on all the evidence, whether the plaintiffs had shown by a preponderance of proof that the contract was such as in their declaration they had alleged.”</p> <p>The jury returned a verdict for the defendant; and the plaintiffs alleged exceptions.</p>

<p>Trustee process, by a citizen of Massachusetts against an insurance company incorporated under the laws of New York, and having an agent duly appointed under the Gen. Sts. c. 58, § 68, to receive service of process in Massachusetts, on whom service was made in this action ; upon policies of insurance written by the defendant corporation at Boston on the plaintiff’s interest in the ship Spark of the Ocean. Writ dated March 22, 1866. John L. Priest, one of the parties summoned as trustees, admitted in his answer the possession of funds belonging to the corporation. In the superior court George A. Osgood and Cyrus Curtiss appeared, by leave of court, on October 29, 1866, as claimants of these funds, in their capacity of receivers of the corporation by appointment of the supreme court of New York m an action brought therein by William H. Harbeck against the corporation. The case was submitted to the determination of the full court upon appeal from the judgment of the superior court on agreed facts; the trustee to be charged on his answer and the plaintiff to have judgment for the funds in the trustee’s hands, if in the opinion of the court a judgment could be rendered against the corporation; but if the claimants had valid title to the funds as against the plaintiff, notwithstanding the admitted fact of a loss accrued within his policies, then judgment to be entered for the claimants accordingly. The substance of the facts agreed was as follows :</p> <p>The complaint of the plaintiff in the action of Harbeck against the corporation was filed in the supreme court in New York on January 22, 1866; set forth that the plaintiff was a stockholder in the corporation; and prayed for a judgment for the dissolution of the corporation, for the appointment of receivers, and for an injunction on the officers and agents of the corporation against further prosecuting business, on the ground that the corporation had violated its charter in declaring a dividend and paying the same to the stockholders out of the capita, stock, and not out of surplus profits. On January 23,1866, the court appointed receivers as prayed for; on January 31 the corporation filed its answer to the complaint; and on February 2 the court, at the same time reappointing the former receivers “ to wind up the affairs of the company in the manner provided by law,” entered the following judgment: “ The defendant having answered the complaint in this action, and judgment having been ordered upon the answer as frivolous, it is now, on motion of Dudley Field, counsel for the plaintiff, adjudged that the Columbian Insurance Company, the defendant herein, be, and it is hereby, dissolved.”</p> <p>Of this judgment for dissolution neither the plaintiff in the present action nor the trustee had any notice or knowledge; and they had no formal notice of the previous proceedings in Harbeck’s action, although they “ knew generally that receivers had been appointed.”</p> <p>It was agreed that the various orders of the court in New York for the appointment of receivers “ were made under and by virtue of the N. Y. Rev. Sts. part 3, tit. 4, c. 8, art. 2, §§ 47, 48, 49, 51, and art. 3, §§ 77 et seq. which, together with any other laws of the state of New York bearing upon the subject, may be referred to,” and that “ by said orders of said supreme court, and by the laws of the state of New York, all the estate, real and personal, of said Columbian Insurance Company, which was in New York, or within the jurisdiction of said supreme court, passed to and vested in the receivers appointed in the original order hereinbefore referred to, and afterwards to and in the present claimants.”</p>

<p>Co pay an assessment laid on his shares in a corporation, the payee of two checks drawn on banks by third persons, payable to his order, for an amount exceeding in the aggregate the amount of the assessment, but neither check alone being equal thereto, indorsed the checks to the treasurer of the corporation, and said that they were “ all right; ” and the treasurer gave him a receipt for the assessment and paid him the balance in money. One of the checks was good when the payee took it, ten days before; but on the day when it was thus indorsed the drawer had failed, which the payee did not know till two days afterwards. The treasurer deposited the checks in bank for collection, and this one was returned in regular course of business, payment thereof having been refused. It was not protested, nor was any formal notice given to charge the payee as indorser? but four days after it was thus returned the treasurer sent it to the payee at his place of business in the same city, with a request for him to make it good, with which he refused to comply. Held, that the assessment was not fully paid.</p>

<p>Tort in the nature of trespass quare clausum fregit for the removal of the remains of the plaintiff’s deceased child from Lot No. 4 in Holyhood Cemetery in Brookline, on September 23,1865. Answer, that the plaintiff had forfeited any right of burial which he ever had in that lot, and that the defendant removed the remains and buried them elsewhere in the discharge of his duty as superintendent of the cemetery.</p> <p>At the trial in the superior court, before Ames, C. J., there was evidence that in December 1863 the plaintiff selected the lot on account of its neighborhood to a place where the remains of his father were buried ; paid to the defendant (who was in charge of the cemetery as superintendent) five dollars towards the purchase of it, which was all that he was required to pay at that time; and soon afterwards buried there the remains of the child. The evidence was conflicting as to the length of credit given for the balance of twenty-five dollars due on the price of the lot; the plaintiff testifying that he was told to pay as soon as he could do so conveniently, and the defendant testifying that the sale was on condition that the balance of the purchase money should be paid in thirty days.</p> <p>There was also evidence that in February 1865, by the direction of the plaintiff, who was then living in Woburn, his wife went to the defendant’s house and paid the balance to the defendant’s son, who was' then acting as superintendent of the cemetery in the absence of his father by reason of sickness, and who delivered to her the following deed, and entered the transaction on the defendant’s official records; and that in the following September the remains of the plaintiff’s child were disinterred, and removed by the defendant to a lot known as a “ charity lot,” and there buried in a grave containing two other bodies.</p> <p>“ Holyhood Catholic Cemetery. Brookline, Mass., Dec. 6th, 1863. Mr. T. F. Meagher, having paid thirty dollars, the receipt whereof is hereby acknowledged, is entitled to one Lot, No. 4, in Holyhood Cemetery, to have and to hold the same to said Meagher, his heirs and assigns, to his and their use as a place of burial for the dead ; yet upon the following conditions, to wit: That said lot shall not be transferred without the consent of the proprietor; shall be subject to the regulations made or to be made in the care and management of said cemetery by the proprietor, who shall also have the right to prevent the erection of any offensive or improper monument or inscription thereon; that no remains shall be deposited therein for hire ; and that persons dying in drunkenness, duel, or by selfdestruction, unbaptized, non-Catholics, or otherwise opposed to the Catholic Church, shall not be there interred. In case of a violation of any of the foregoing conditions, said premises shall revert to me, the said proprietor, my legal heirs and assigns. Three dollars will be charged for every opening of graves after the first. Jos. M. Finotti. Witness, Jarties Driscoll. Lot No. 4, Walk A, Left. By instrument recorded February 1st, 1858, lib. 262, fol. 267, in the Dedham Registry of Deeds, the cemetery is bonded to the Rt. Rev. J. B. Fitzpatrick, Bishop of the Diocese of Boston.” ■</p> <p>The defendant introduced evidence that, when he recovered from his sickness and resumed his dutieé, not knowing that the lot had been paid for, he made inquiry' for the plaintiff’s residence and wrote several letters to give . him notice that the lot would be sold to another person unlegs it should be paid for; that, not hearing from the plaintiff, nor ¿receiving any answer to his letters, he sold the lot to another person, and removed th body. There was a conflict of evidence as to the condition of the lot to which it was removed, some witnesses representing it as wet and marshy, but the majority as being unobjectionable, and not materially different from the other lots.</p> <p>It appeared “ that the cemetery was first opened in August 1857, and that the title to the various lots or rights of burial proceeded from the Reverend Joseph M. Finotti, (whose title was not controverted,) by instruments in same form” as the deed quoted. No evidence was offered of any permission from the town of Brookline to make burials in the cemetery, and the defendant insisted that for that reason the plaintiff was barred by the Gen. Sts. c. 28, § 5, from maintaining the action; but the judge ruled otherwise.</p> <p>The defendant then contended “ that, as the action was an action for trespass on real estate, the plaintiff could at all events only recover for the actual damage done to such real estate; and that, the alleged trespass on the lot and removal of the body not being wilful or with wrongful intent, but wholly from, accident and mistake, the plaintiff for that reason also would be restricted to nominal damages only; ” and further, that he could not recover at all, because the execution of the deed quoted, and the payment therefor to the defendant’s son, did not invest him with a title which would support the action. But the judge ruled “ that, as the plaintiff was in possession of the lot, having selected and taken the instrument usually given to purchasers of lots, and was holding and using the lot for the purposes and in the manner intended by the terms of the instrument, he was entitled to maintain the action; that, if it appeared that the defendant had acted in the removal of the body of the child either with a wilful disregard of the plaintiff’s rights, or under a mistake arising from gross carelessness and want of .rdinary attention or diligence in making proper inquiry, and with the opportunity, by means of his records or by inquiry, to know that the plaintiff had paid for the lot, the jury in assessing damages would have a right to consider the injury to the plaintiff’s feelings, and would not be restricted to the mere pecuniary loss or damage to his property.”</p> <p>The jury returned a verdict for the plaintiff, assessing damages in the sum of $837.50; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed September 12,1866, to restrain the defendants from constructing a building of the nature of a bridge across Boylston Square in Boston.</p> <p>The bill alleged that on April 19, 1809, the defendants, owning a lot of land on the corner of Boylston and Washington (then Orange) Streets, (which lot was conveyed to them on the previous day by Ralph I. Reed and Joseph C. Dyer out of a large parcel of land, of the rest of which, adjoining the lot granted to the defendants on the south and west, Reed and Dyer continued owners in fee simple,) executed to Reed and Dyer a deed, which was duly recorded on the same day and conained the following clause:</p> <p>“ Whereas the said Reed and Dyer are proprietors of the land adjoining the said association’s land, as above described, and it is found convenient to the parties and necessary for the accommodation of the said Reed and Dyer’s land aforesaid that a passageway of twenty feet wide adjoining the same be laid out and kept open on the said association’s land aforesaid; now be it known that, in consideration of the premises, and of the sum of two thousand seven hundred and thirteen dollars and fifty cents paid by the said Reed and Dyer, the receipt whereof the said association do hereby acknowledge, the said association do hereby give, grant, sell and convey to the said Reed and Dyer, their heirs and assigns, the rights, privileges, easements and benefits following, to wit: that all that part of the said association’s land above described, which lies between the said southerly and westerly bounds thereof and two lines drawn parallel thereto, at a dis tance of twenty feet (the one line northerly and the other easterly) therefrom, shall not be subject to have any fence or building erected thereon; and that the said Reed and Dyer, and the future proprietors or occupants of said adjoining land, now owned by said Reed and Dyer, and of any part or parts thereof, shall have the right to the use in common with the said association of the said spaces of twenty feet wide, for the accommodation of their said land or estates bounding thereon; provided that they, the said Reed and Dyer, or future proprietors of their said adjoining land or estates, shall not in any manner interfere with or obstruct the operation or effect of any by-laws or regulations which said association shall make and ordain ; and provided also that the said Reed and Dyer shall make a sidewalk of five feet wide into said passageway, and pave a strip of five feet wide adjoining said sidewalk, and that the future proprietors of the estates aforesaid, now owned by said Reed and Dyer, adjoining the said twenty feet passageway, shall keep in good repair, at their own expense, the said sidewalk and five feet of' pavement adjoining the same, comprising one half part of said twenty feet passageway ; and the said Reed and Dyer shall be permitted to have steps projecting one foot in width from their said estates into said sidewalk.”</p> <p>The bill further alleged, that the provisos of this clause had always been complied with, and the spaces twenty feet wide therein described had ever since been used, without obstruction, by the public as well as the owners of the land bounding thereon, and had become known as Boylston Square; that on May 1, 1857, the plaintiff, through mesne conveyances from Reed and Dyer, became and had ever since been owner in fee simple of a lot of land, with a brick dwelling-house thereon, bounding on Boylston Square, with all the rights, easements, privileges and appurtenances thereto belonging; that all the rights, as to this lot of land, which Reed and Dyer acquired by the defendants’ deed to them of April 19,1809, became thereby vested in the plaintiff on May 1,1857, and had belonged to him ever since; and that the defendants, in violation of these rights and against the plaintiff’s remonstrance, had begun to construct a building at some height above the ground, across Boylston Square at the entrance thereof from Washington Street, which building would impair ingress to and egress from Boylston Square, and obstruct the view of and from the plaintiff’s lot, and lessen the value of the lot.</p> <p>The prayer was for an injunction on the defendants against erecting such a structure; and for general relief.</p> <p>In their answer, the defendants demurred to the bill on the ground that the case stated was not one which entitled the plaintiff to relief in equity.; and, further answering, admitted their ownership by purchase from Reed and Dyer on April 18,1809, of the lot on the corner of Boylston and Washington Streets, and of their deed of April 19, 1809, to Reed and Dyer, as above quoted; alleged their purchase, and ownership for many years, of a piece of land fronting on Washington Street, (which also formed part of the original parcel of Reed and Dyer,) so that at the entrance of Boylston Square from Washington Street they were owners of both the lots of land, and of the buildings thereon, between and affixed to which the structure complained of was in process of erection; described this structure as a covered passageway, twelve feet high, built fifteen feet and nine inches above the ground; alleged also that they “have a contract for a valuable lease of the said buildings which requires them to erect said connecting structure, and that to be deprived of it would be a great and serious detriment to them; ” admitted the plaintiff’s ownership of a lot of land on Boylston Square; alleged that the structure in no way diminished the value of the plaintiff’s premises; “ that the nearest part of said elevated pas sage is distant from the nearest part of the premises of the plaintiff not less than one hundred and seventy-five feet; that it does not, and cannot in any manner whatever, obstruct the use of said strip of land [Boylston Square] as a passageway, cr impede the circulation of air, or intercept therefrom the rays of light that not a single ray of light passing to the premises of the plaintiff is in any manner interfered with by the same ; that the premises of the plaintiff have their common and most usual and 'argest access, as well as abundant air and light, from that par< of said strip of land which connects them with Boylston Street, and are in no manner prejudiced in these particulars by said structure, and that said structure leaves Washington Street in full and unimpeded view of the premises of the plaintiff, and in fact only screens from the view thereof a small portion, to wit, twelve feet square of the upper story of a building on the opposite of Washington Street, distant two hundred and fifty-six feet from the premises of the plaintiff, the view of which can be of no consequence or value to the premises of the plaintiff, and the screening of which only constitutes one of those limitations of prospect which must be reasonably considered as necessarily incident to a crowded city.”</p> <p>The answer further denied that, by the true construction of the clause quoted from the defendants’ deed of April 19, 1809, to Reed and Dyer, any such rights were conferred on the plaintiff as were preferred in his bill, and alleged that the clause “ was intended and understood by the parties to confer, and did in law and fact confer, only such easement or right of passage in the strip of land therein described as was necessary for the accommodation of said adjoining land,” and no right of prospect or view whatever. It also denied that the provisos of that clause had been complied with; and that the sidewalks and pavement had ever been constructed or kept in repair as therein provided. And it alleged that since April 19,1809, the defendants erected a wooden structure in the same place with that complained of, and having substantially the same effect on Boylston Square, and maintained it for more than twenty years, and until within twenty years before the filing of the bill, without objection from anybody and with the full knowledge and acquiescence of the owners of the land bounding on Boylston Square.</p> <p>The plaintiff filed a general replication, and at the hearing, before Gray, J., offered to prove, on the points at issue, the compliance by Reed and Dyer, and the subsequent proprietors of their land bounding on Boylston Square, with all the provisos of the defendants’ deed of April 9, 1809; that all the rights, easements, privileges and appurtenances which by that deed were attached to the lot of land of which he became owner on May 1, 1857, then vested in him, and ever since belonged to him ; that ever since May 1,1857, he had occupied the house on his lot as a residence for himself and his family, and as a boarding house; that the house covered the whole front of the lot, was three stories high, and had no means of access in front except through Boylston Square; that there had been no obstruction to the free use of Boylston Square by the owners of land bounding thereon and by the public, ever since April 19, 1809; that before the filing of the bill he served on the defendants a written remonstrance against the erection of the structure which they had commenced to build ; that this structure was planned to be twenty-six feet and six inches deep from the entrance of Boylston Square, fifteen feet and nine inches above the ground, and one story high ; that at the time of the filing of the bill the defendants had made no further progress with it than to lay one or two joists across the Square, between the buildings at the entrance thereof, but had since made much further progress that the structure would greatly lessen the value of his house and land, which prior to the beginning of the erection was upwards of $15,000, and would obstruct the view of and from the house, prevent the ingress or egress through Boylston Square of anything more than fifteen feet and nine inches high, and greatly incommode the plaintiff. And this offer of proof was accompanied by a plan of the premises, the accuracy of which it was agreed might be considered as proved for the purposes of the hearing, in which the relative situation of the proposed structure was represented substantially as in the following diagram, in which the land of the plaintiff is marked with bis name; the and reserved by the defendants, after setting off Boylston Square, out of the lot conveyed to them by Reed and Dyer on April 18, 1809, is marked with the figure 1, and the land after-wards acquired by them with the figure 2; and the position of the proposed structure is designated by dotted lines. The distance from Washington Street to the corner of Boylston Square .vas represented as two hundred feet, and of that comer from Boylston Street one hundred and twenty feet.</p> <p> </p> <p>The case was reserved, on the pleadings and this offer of proof, for the consideration of the full court; the bill to be dismissed if it could not be maintained thereon, but if otherwise, the case to stand for hearing; and was argued in March 1867.</p>

<p>Six persons signed an instrument reciting that, desiring to obtain and work a gold mine, they appointed one of their number to go to California and select a mine, which, if hii recommendation should be satisfactory, they would contribute equally to buy and work under his superintendence, at a salary to be fixed; and agreeing to contribute a hundred dollars each to pay his expenses to California. He was also orally assured that he should be reimbursed for his expenses over five hundred dollars, which amount his associates paid to him in equal sums; and he took with him to California a letter of instructions signed “ for subscribers to agreement ” by one of the five,‘who afterwards wrote a letter to him in the name of the “ Company,” abandoning the project on the ground that his recommendation was not satisfactory. Both of these letters purported to direct and advise him in behalf of the five, but contained expressions recognizing his association with them as well as his agency. Jffeld, that he could not maintain an action at law against his associates jointly, for his services and expenses as agent under the original instrument.</p>

<p>A having ready for delivery in a bonded warehouse in a city a certain quantity of oil of a particular kind, made a contract with B. to deliver to B. for an agreed price such a quantity of oil of that kind in such a warehouse in that city during a certain month at buyer’s option on ten days’ notice within the month. About ten days before the end of the month, B. employed a broker to sell the oil thus contrae ted for, who sold it to A. for a price less than the price agreed in the original contract. 3eld, that there was no rescission of that contract, although the oil never passed from the actual possession of A., that the authority given by B. to the broker to sell the oil included the exercise of the option to take it under the contract; and that the resale of it by the broker to A. implied an acceptance of it from A. as B.’s property, which dispensed with the necessity of any formal delivery and redelivery of it. Held, a/so, that A. might maintain an action against B. on a count upon an account annexed in whizh he charged B. with the price agreed in the original contract, and credited him with the price for which the oil was resold by the broker.</p>

<p>A usage of agents, in collecting drafts for absent parties, to surrender them to the drawees at maturity, and, upon mere confidence in the good credit of the drawees,, to take in exchange their checks upon banks, is not a reasonable usage.</p> <p>The buyer of goods sent to the seller the draft of one third person on another for their price, with a request to pass it to the buyer’s credit; and the seller, after obtaining the acceptance of the drawee, replied that it should appear to the buyer's credit when paid. At its maturity the seller surrendered it to the drawee, taking in exchange his check upon a bank. The drawee failed before the check could, be collected in the ordinary course of business; no notice of dishonor or protest of the draft was ever given to the drawer; and the seller presented the check as a claim against the drawee’s estate in insolvency. Held) that the seller could not maintain an action against the buyer for the price of the goods.</p>

<p>A party summoned as trustee in a process of foreign attachment filed an answer generally denying liability as such, and to interrogatories of the plaintiff replied that at the time of receiving service of the writ he did have in his possession a promissory note due that day and payable to the defendant’s order, which he received from a correspondent with directions to collect and pass the proceeds to such correspondent’s credit; with which directions he complied; that he never had any communication with the defendant, noi was ever informed by any one in his behalf that such proceeds belonged to him ; and that he had advised his correspondent of the service of the writ, who replied that he would take care of it and asked him to hand the summons to an attorney-at-law. Held* that he was not chargeable as trustee, although it did not appear that the note was ever indorsed by the defendant.</p>

Trustee process. Elbridge F. Rollins, the principal defendant, was defaulted.

<p>In a suit in equity to redeem land from a mortgage, if in his answer the mortgagee includes the mortgage debt and interest in an account of the amount which he claims as due on the mortgage, the mortgagor has a right, under the eighteenth rule in equity, to amend his bill so as to allege usury in the original contract.</p>

<p>On the trial of an action upon a policy of insurance made payable to the plaintiff after due notice and proof of the death of the insured, the plaintiff, to show such notice and proof, called a witness who testified that he delivered to the insurers some affidavits, together with some cuttings from newspapers and letters between persons not parties to the action. All of these the insurers produced; and the plaintiff put the affidavits in evidence, but declined to put in evidence the cuttings or the letters, and the judge refused to requin him to do so, or to permit the insurers to do s.o themselves. Held, that the refusal was not a valid ground of exception, unless it plainly appeared that the insurers were prejudiced thereby; and that they were not so prejudiced, if the fact of the death of the insured was sufficiently shown, whether the affidavits alone, or all the papers together, were considered as the proof thereof furnished to them by the plaintiff</p> <p>On the trial of an action on a policy of insurance upon the life of the insured, made on condition that it should be void if he should die in the known violation of any law, the record of the trial and acquittal by a court of competent jurisdiction of a person who killed the insured is incompetent to prove that the condition was broken.</p> <p>In a policy of insurance, the fact that it was made by a mutual company with one of its members upon his life gives to words used far a definite purpose and applied to transactions of a clearly defined character, such as a provision that the policy shall be void if the insured shall die in the known violation of any law, no significance different ifc?a what would be their fair construction in a similar contract between any parties.</p> <p>On the trial of an action on a policy of insurance upon the life of the insured, made on condition that it should be void if he should die in the known violation of any law, evidence was introduced tending to show that he was killed while doing what would constitute either robbery or larceny unless he acted under a belief which would avoid the otherwise criminal character of his acts. Meld, that instructions to the jury were erroneous which permitted them to understand that such a belief need not be a belief in his legal right to do the acts, but might be a belief in a right of self-redress by reason of the disturbed condition of the country, the inefficient administration of the laws, or otherwise. Meld, also, on a new trial upon the same evidence, that the fact that the judge did not comply with a request to instruct the jury that the insured must be presumed to have known the civil law of the state where he was killed was not a valid ground of exception, if he did instruct them that the insured had no right to do the acts in the commission of which he was killed, and that he must be presumed to have known the criminal law of the state.</p>

Contract for money received by the defendant to the plaintiff’s use.

<p>Whether the legislature has a right, under the Constitution, to give an action foi ihs recovery of a debt already barred under a general statute of limitations, by a statute passed after the bar is complete, qitcere.</p> <p>It is competent for a creditor who holds a mortgage or other security for a subsisting debt to absolve the debtor from personal obligation and agree to have recourse to the security alone for payment.</p> <p>W., to save his relative and friend J. harmless on a credit which J. opened in W.’s favor upon a banker, and to secure the payment of whatever was due or might become due from himself to J., gave to J. a mortgage of various lots of land, including one known as the A. estate. J. assigned this mortgage, except so much as covered that estate, to L., who thereupon paid all of W.’s debt to J., except a balance of fifteen thousand dollars to become due on the credit. W. then, by a deed absolute in form and with full covenants of warranty, conveyed the equity of redemption of the A. estate to J., for the expressed consideration of fifteen thousand dollars, which J. then at W.’s request agreed to pay and did pay to L., who thereupon assumed payment of the balance on the credit. W. gave to J. no note or other form of personal obligation for this sum; and in J.’s agreement to pay it to L. it was described as money paid for the A. estate. At the same time, and as part of the same transaction, an indenture was executed between J. and W., in which J. leased to W. the A. estate for an annual rent, and it was agreed that W. should have the right to redeem the estate within a certain time, and that, after a certain other time, J. should have the right to sell the estate without notice or liability to account, if W. should not have exercised his right of redemption. The term of the lease and the time of the option of redemption were subsequently extended by mutual agreement; and neither then nor in any of the other subsequent dealings of the parties was any reference made to any existing debt of W. to J.; and J. subsequently also named W. one of the residuary legatees in his will, without any intimation that W. was his debtor. Held that the conveyance of the equity of redemption of the A. estate to J. extinguished ana satisfied the debt of W. to J. which grew out of the letter of credit, and relieved W from any personal obligation to J. on account thereof.</p>

Two actions of contract by the administrator of the estate of Henry E. Sanderson; the first against William G. Colburn as administrator of the estate of Elbridge L. Sanderson; and the second against Colburn individually; to recover, as money received by the defendant to the plaintiff’s use, the proceeds, collected by the defendant from the John Hancock Life Insurance Company, of a policy of insurance by them made on the life of said Elbridge L. The cases were submitted…

<p>Contract on an agreement dated April 30, 1861, and signed by the defendants, reciting that whereas they had bought a bill of clothing, amounting to $2500, from the plaintiff, and in payment therefor had delivered to him “ three mortgage bonds of the Illinois Southern Railroad Company, numbered respectively 48, 49 and 50, for $1000 each, now, in consideration of one dollar to us paid by said Murray, we hereby guarantee to said Murray, or his legal representatives, to deliver to him or them, within six months from the date hereof, two bonds of the said railroad company for $1000 each, and one bond of said railroad company for $500, each of said last mentioned bonds to be fully indorsed by the Ohio and Mississippi Railroad” and two other railroad corporations named, “ but said last mentioned bonds are to be delivered to the said Murray upon the express condition that he shall upon said delivery restore to us the bonds first above mentioned.” The declaration alleged due demand by the plaintiff for the indorsed bonds, accompanied by a tender of the three bonds first named; and the refusal of the defendants to fulfil their agreement. Writ dated June 15,1865.</p> <p>The answer admitted the making of the agreement by the defendants ; and, at the trial in the superior court, before Lord, J., without a jury, it was admitted that the defendants did not deliver to the plaintiff the indorsed bonds stipulated for. The plaintiff introduced evidence that, at the expiration of the stipulated time, and repeatedly afterwards, he offered to restore the other bonds to the defendants, and demanded of them the indorsed bonds instead; and that, after the commencement of this action, his shop was broken into by a burglar and the other bonds were stolen from his safe, or destroyed; and he offered at the trial to execute an assignment of them to the defendants.</p> <p>He further introduced evidence, which was not controverted, that such indorsed bonds ever since the date of the agreement were worth par in the market; and “ also evidence tending to show, and which of itself did show, that .the bonds received, at the time when the indorsed bonds were to have been delivered, and up to the time when this suit was brought, had no market value, and were worth nothing in the market in Boston or elsewhere,” that they were dated October 1, 1860, with coupons attached for the interest, which was expressed to be payable annually at a bank in New York, and that no coupon of any such bonds had ever been paid.</p> <p>On the question of the value of the bonds received, the defendants introduced much evidence, including testimony that in 1861 and 1862 they were contractors for building the railroad of the Illinois Southern Railroad Company, and had graded forty of the hundred miles which was the projected length of the road, when in 1862 work on the road was wholly stopped by reason of the civil war, and had never been resumed, nor had any part of the road ever been equipped; that such bonds to the amount of about $250,000, secured by a mortgage of the road to trustees, were issued by the company, and in great part paid to the defendants for their work on the section of forty miles graded, which section, they testified, “was worth about the amount of the bonds.” The plaintiff objected to all the evidence thus offered, as incompetent “ upon the question of the market value of the bonds received ;” but the judge admitted it de bene esse.</p> <p>“ The defendants contended that the plaintiff could not recover; or not, without surrendering the bonds received by him or giving a bond to indemnify the defendants against any claim on account of them, recover more than the difference between the market value of the bonds received and those which the defendants agreed to give. The judge ruled that the plaintiff, upon delivering to the defendants an assignment of the bonds received by him, and stolen or destroyed, as he was ready to do, was entitled to recover the amount of the indorsed bonds with interest from the date when they were to have been delivered.” “ And it being agreed that the bonds received had no market value either in Boston or New York, and there being no evidence deemed competent to show such a market value anywhere, the judge found, as a fact, that said bonds had no market value;” and ordered judgment for the plaintiff, for the amount of the indorsed bonds stipulated for in the agreement, and interest. The defendants alleged exceptions.</p>

<p>The appointed by the patentee of a machine, although for a valuable consideration and 1/ an instrument in terms irrevocable, to be his “sole agent for the manufacture and sale” 'if such machines in this state, and to retain a commission on the proceeds of sales in compensation for his services, and paj to the patentee the balance after reimbursing to nimself the cost of manufacturing and selling, cannot maintain a bill in equity for an injunction on the patentee, or his subsequent assignee of the patent right, against here manufacturing and selling machines under the patent.</p>

<p>Whether or not the judge presiding at a trial will rule, at the defendant’s request, upon the sufficiency of the plaintiff’s evidence to maintain the action, before testimony is closed upon both sides, is a matter for his discretion; and no exception lies to his refusal to do so.</p> <p>A., B., C. and D. agreed to buy real estate jointly; G- and D. agreed to furnish the money ‘hr the purchase; and C. agreed with D. that the drafts for the purchase money should be drawn on D., and that he would reimburse to D. one half of what D. should pay thereon. All these agreements were oral. Held, that the promise of C. to reimburse D. was not within the statute of frauds, as a contract for the sale of lands; and that, on a count for money paid to the use of the defendant at his request, D. could recover whatever sum was lacking from C. towards such reimbursement, notwithstanding their partnership in the purchase.</p>

Petition by the husband of Catharine C. Whittaker for the appointment of a trustee in the place of Silas F. Plimpton, deceased, in a trust raised by the marriage settlement, and deeds supplemental thereto, of said Catharine, who died on April 22, 1850, leaving several children, who were cited as respondents.

<p>Tort in the nature of trespass quare clausum fregit. Writ dated August 17, 1866. The place of the alleged trespass was a strip of land eight inches wide bounding northerly on Trenton Street in East Boston. Trial in the superior court, before Brigham, J., who found these facts :</p> <p>On April 1, 1845, Joseph Noble conveyed to Noah Sturtevant and Ebenezer Atkins land described in the deed as “ two certain lots of land lying in that part of Boston called East Boston, bounded, described and situated as follows, namely: Beginning on the southerly side of Trenton Street 107 feet from Meridian Street; there turning and running in a southerly direction 100 feet to Lot 44 on a plan hereinafter mentioned ; there turning at right angles and running in an easterly direction by said lot 38 feet; there turning at right angles and running in a northerly direction 100 feet to Trenton Street; there turning at right angles and running on said street 38 feet to the point of beginning; hereby meaning and intending to convey the westerly portion of lot numbered 36 on a plan of the prop, erty of the Boyden Malleable Cast Iron and Steel Company, made by B. H. Eddy and recorded with Suffolk deeds at Lib. 448, at the close: also a lot beginning on the southerly side of Trenton Street 307 feet from the corner of Meridian Street there running in a southerly direction 100 feet to Lot 47 on above mentioned plan; there turning at right angles and running by said lot in an easterly [westerly ?] direction 37 feet 9 inches; there turning at right angles and running in a northerly direction 100 feet to Trenton Street; there turning at right angles and running on said street 37 feet 9 inches to the point of beginning; hereby meaning to convey the easterly portion of ot numbered 39 on said plan. The lots hereby conveyed are lumbered 1, 2, 9 and 10, on a plan drawn by S. C. Bugbee, dated April 1, 1845.”</p> <p>The following are copies of so much of the two plans referred to as is necessary to an understanding of the case. The Eddy plan was dated May 1,1839.</p> <p>EDDY PLAIT.</p> <p>Trenton Street.</p> <p> </p> <p>Trenton Street.</p> <p> </p> <p>Noble, also, on January 23, 1846, made a quitclaim deed to Atkins and Sturtevant, releasing to them all his right and title to “ two certain lots of land lying in that part of Boston called East Boston, bounded, described and measuring as follows, vis; On- of them beginning on the southerly side of Trenton Street 107 feet 8 inches from Meridian Street; there turning and running in a southerly direction 100 feet to lot 44 on a plan hereinafter mentioned; there turning at right angles and running in an easterly direction by said lot 38 feet; there turning at right angles and running in a northerly direction 100 feet to Trenton Street; there turning at right angles and running on said street 38 feet to point of beginning; hereby meaning and intending to convey the westerly portion of lot numbered 36 on a plan of the property of the Boyden Malleable Cast Iron and Steel Company, made by R. H. Eddy and recorded with Suffolk deeds, Lib. 448, at the end.” “ The lots hereby conveyed are numbered 1, 2,” “ on a plan drawn by S. C. Bugbee, dated April 1, 1845.” “ This deed is made ” “ to correct errors in description in” the deed of April 1, 1845. And on the same date, January 23, 1846, Sturtevant and Atkins made a deed to Noble, also referring to Eddy’s plan, and quitclaiming to Noble “ any part f lot 35 on said plan which said Noble conveyed to us by deed,” of April 1,1845. But both of these deeds of January 23, 1846, as will be noticed, were subsequent to a conveyance by Sturtevant and Atkins to Hayward on October 1, 1845.</p> <p>Under the deed of April 1, 1845, from Noble to Sturtevant and Atkins, the plaintiff derived her title, through the following mesne conveyances, (in all of which the description of the premises conveyed was the same as in that deed, so far as concerned the strip of land in controversy,) namely: Sturtevant and Atkins to James T. Hayward, October 1, 1845; Hayward to Daniel D. Stevenson, the plaintiff’s husband, June 24, 1851; Daniel D. Stevenson to Sturtevant, and Sturtevant to the plaintiff, both October 27, 1857.</p> <p>When Hayward made his conveyance to Daniel D. Stevenson, June 24,1851, the more westerly of the two lots conveyed by him, being the same described in the deed from Noble to Sturtevant and Atkins as “the westerly portion of lot numbered 36 ” on the Eddy plan, and as the lots “ numbered 1, 2 ” on the Bugbee plan, “ was occupied by a dwelling-house which was part of a block occupying said two lots and having a frontage on said Trenton Street of thirty-eight feet; but no part of said house then extended westerly beyond the division line between said lots numbered 35 and 36, as said line is indicated on said Eddy’s plan.” Daniel D. Stevenson, previously to his conveyance in 1857 through Sturtevant t.o the plaintiff, made use, for purposes of a way, of a strip of land eight inches wide, lying on the 'westerly side of said division line and extending along the whole of the easterly portion of said lot 35; and the year prior to that conveyance he added to the house gutters and a porch which extended that distance beyond the line. After Daniel D., the plaintiff occupied the strip in the same manner, under a claim of title, which, on and after May 25, 1866, was denied by the defendant; and the acts of the defendant alleged to be acts of trespass were done by him under a claim of title in himself to the- strip in controversy, and depended for their justification upon his right under such claim, which he asserted by virtue of a deed of that date to him from the heirs at law of Joseph Noble, of a lot of land described as “ beginning on the southerly side of Trenton Street, so called, at a point 57 feet 8 inches easterly from Meridian Street; thence running easterly on said Trenton Street 50 feet to lot numbered 36 on a plan of land and property of the Malleable Iron Company, East Boston, drawn by R. H. Eddy, dated May 1, 1839, and recorded with Suffolk deeds at the end of Lib. 448; there turning and running southerly on lot numbered 36 on said plan, 100 feet, to lot numbered 43; there turning and running westerly on lot numbered 43, 50 feet to lot numbered 34; there turning and running northerly on lot numbered 34,100 feet to the point of departure on said Trenton Street; containing 5000 square feet, and oeing lot numbered 35 on said plan.”</p> <p>The lots numbered 35 and 36 on Eddy’s plan were both owned by Joseph Noble on April 1,1845 ; “ and he and his heirs owned lot numbered 35 from that time until its conveyance ta the defendant.”</p> <p>On these facts the judge ruled that the plaintiff was not en* titled to recover; and found for the defendant. The plaintiff alleged exceptions.</p>

Contract on a promissory note. Writ dated March 12, 1867. By the officer’s return, it appeared that on March 14 he attached all the defendant’s real estate in the county of Essex. The defendant, after filing an answer to the merits, commenced proceedings in bankruptcy on August 26, under the U. S. St. of 1867, c. 176.

<p>A cargo of coal was ordered from a mining corporation directly through its treasurer, and was shipped in the name of the corporation directly to the buyers as consignees. At the time of receiving the order, the treasurer told the buyers that certain parties were the selling agents of the corporation, of which fact the buyers had other information also; and he afterwards told the agents that he had obtained the order for them. The bill of lading of the coal was forwarded through the hands of the agents, who sent it to the buyers with a bill for the price of the coal as due to themselves, which bill the buyers did not return for ten days; and, on receiving the bill of lading, the agents insured the coal in their own name, and, according to their usual course of business in sales made by themselves, credited the corporation with the price of it, and charged the corporation with a guaranty commission. Held, that the agents could not maintain in their own name an action for the price of the coal.</p>

<p>The owner of a house leased it for a year on condition that the lessee should pay rent monthly in advance, board him and his family at her expense, and board his servant at' a rate to be agreed. Upon his demand for payment of rent for the second month of the. term, when due, she asked for “ allowances,” first for boarding his servant, next his visitors, and finally himself and his family, each of which he refused to make. On his refusal, she refused to pay rent or furnish board, and sued him on an account for board furnished for him and his family, as well as for his servant and visitors. While this action was pending, he peaceably dispossessed her of the house; and she sued him there* upon in trespass. In these actions, tried together, Held, that she might recover the value of the board of his servant and visitors; but that he was warranted in so dispossessing her for breach of the condition of the lease.</p>

<p>A written contract for supplies for a vessel for which the master has authority to bind the owners is binding on them if such appears to be the intention as gathered from the whole instrument, although signed by him in his own name only.</p> <p>The authority of the master of a vessel to bind the owners by a contract in a foreign port for the necessary supply of a chronometer for her includes authority to obtain a chronometer by hiring with an option bf purchase.</p> <p>The ports of the several states of the United States are to each other foreign ports, as regards the authority of masters of vessels lying therein to pledge the credit of the owners for supplies necessary for their vessels.</p> <p>No demand or notice is necessary before bringing an action on a contract after the expiration of a definite time which by the terms of the contract was fixed for its performance.</p> <p>In an action for the value and hire of a chronometer delivered five years previously, on hire, to the master of a vessel, under a contract to return it at the end of a voyage from New York to Callao and back, on which the vessel was then bound, or within fourteen months, but with an option of purchasing it within six months from the date of delivery, the objections that there was no evidence at the trial that the voyage had come to an end m that the option of purchase had not been exercised, neither of which issues was specially made in the pleadings, are not open to the defendant at the argument of a bill of exceptions in which no question of law is raised in regard to them and the evidence thereon, if any, is not reported.</p> <p>The material part of a contract, made by the master, and binding on the owners, of a yea b*1 bound on a certain voyage, was thus: “ Received of N. & Co., on account of vessel and owners, a chronometer, Name N., No. 1166, Value §240, on hire,” “ at the rate of six dollars per month until the said chronometer shall be returned to them,” “to be returned ” “ at the expiration of the present voyage, or within fourteen months from the date hereof, in the same good order as received.” The master “ has the privilege of buying this chronometer within six months from date for §240 cash.” In an action by N. & Co. against the owners of the vessel for failing to return the chronometer as stipulated, Meld, that the measure of damages was the stipulated hire of the chronometer for fourteen months, with its value at the end of that time, and with interest from that time on the whole amount so ascertained; and that the recital of a value in the contract was not conclusive as to the value, although proper to be considered by the jury in assessing the same.</p>

Contract for the value of fifty-five bales of hay. In the superior court facts were agreed in substance as follows : “ The defendants were originally trustees of the Vermont Central Railroad, under the first mortgage bonds; and they were, prior to the year 1861, operating the Vermont Central Railroad under a possession taken under said bonds, and the Vermont and Canada Railroad under a lease, or supposed lease.

<p>Replevin of the materials composing the parts of two unfinished steam engines.</p> <p>At the trial in the superior court, before Ames, C. J., it appeared that the defendant Tetlow on December 3, 1864, entered into a contract with the United States to build two iron tugboats, with all their steam machinery, in which it was stipulated that the work should be superintended by inspectors appointed by the United States, that certain percentages of the contract price should from time to time be paid by the United States to Tetlow, in a proportion to the progress of his work and that the United States should have “ a lien on the vessels, and on all the materials provided for the fulfilment of this contract, for the money advanced or paid by the United States on account thereof.” It also appeared that Tetlow entered into a contract with Hepworth & Carr, who were machinists doing business at a workshop on Foundry Street in South Boston, to build the steam-engines for these boats, for the price of $20,000 for each engine when set up in the boat, and with a general understanding that Tetlow should make payments to Hepworth & Carr during the progress of their work, but without stipulating the sums of which such payments should consist, or fixing the times at which they should be made. There was evidence offered by the defendants tending to prove that on July 25,1865, Tetlow had paid to Hepworth & Carr $27,000 under this contract, and that not more than three eighths of the labor on the engines had then been finished, nor more than $17,000 spent by Hepworth & Carr for such labor; but the plaintiff offered evidence which tended to prove, on the contrary, that an expenditure of not more than $8000 was then needful to complete the engines and set them in place on the boats. And the defendants also offered evidence that “ the material for certain parts of said engines had been approved ” by the inspectors, and “payments made thereon before July 25 to said Tetlow” by the United States, and that “insurance had been effected upon said engines for the benefit of the United States.”</p> <p>It further appeared that on July 25, 1865, Hepworth & Can executed to the plaintiff a bill of sale of these engines as they then lay unfinished in the shop on Foundry Street, for a consideration named of $15,000; and, at the same time and as part of the same transaction, the plaintiff, for a nominal consideration, executed to Hepworth & Carr an instrument agreeing, upon payment by them to him of $15,000 at any time within •two months from that date, to sell and convey to them the two engines, “the same to be at the risk and expense of the said Hepworth & Carr from this date, and, in case the same should be injured or spoiled by fire or otherwise, said Wright shall be required only to convey said engines in their then condition, upon the full payment of the sum of $15,000, after deducting any sum received for insurance; ” and Seth A. Choate, a person in the employment of Hepworth & Carr, signed at the same time a receipt to Wright for the two engines, agreeing “ to hold the same for said Wright, and to deliver the same to him, without any expense to him for storage or keeping, on demand.”</p> <p>The case otherwise is stated in the opinion. After a verdict for the plaintiff, the defendants alleged exceptions.</p>

Contract on a promissory note dated September 27, 1867 payable ten days after date to the order of the defendant, and ny him signed and indorsed to the plaintiffs. Writ dated October 19, 1867.

<p>The provision of the Gen. Sts. c. 115, § 5, that “ the courts shall not charge juries with respect to matters of fact, but may state the testimony and the law,” does not restrain a judge from defining, in a charge to the jury, the degree of weight which the law attache» to a whole class of testimony, such as the testimony of accomplices, and leaving to the jury the application of the general rule to the circumstances of the case on trial; npr deprive the defendant of his right of exception, if the judge charges the jury that testimony of an accomplice against the defendant is corroborated by evidence which by the rules of law has not that effect.</p> <p>On the trial of a criminal case, the judge, in charging the jury, recited evidence introduced by the Commonwealth to corroborate the testimony of an accomplice, and said that if the jury believed the witnesses there was such corroboration. Held, that the reasonable interpretation of this instruction was, not merely that the whole testimony of all the other witnesses, taken together, amounted to a corroboration of the accomplice, but that the testimony of each of them, taken by itself or with the aid of such other evidence only as was avowedly introduced in connection with it, was corroborative evidence.</p> <p>On the trial of an indictment fa^ larceny, the principal witness for the Commonwealth was an accomplice in the theft, who testified that on the morning before committing it he walked some distance (in part on a railroad, where he met M.,) to meet the two defendants by appointment; that then they three drove with a horse and wagon to a village when the defendants left him to buy luncheon; that he walked after them, and found them waiting for him and talking with a man whom he had seen in court; that then they three drove on further, and called at two houses for water, which he obtained at one from a woman, and at the other from a girl, both of whom he saw a few days before the trial, when taken by an officer to see them; and that then they waited until night, when they committed the larceny. To corroborate him, the Commonwealth called a witness who testified that, at some time during the month of the larceny, he saw such a horse and wagón standing on the road in that village, with two men in the wagon, and had some talk with the men, such as was stated by the accomplice, during which a third man came with a lunch, of which the three partook. The witness professed himself unable to identify either of the three men; but the judge admitted his testimony in connection with that of a woman and her daughter, and of two girls, who lived in neighboring houses situated substantially as described by the accomplice, (but at a distance of several miles from the place described by the previous witness,) all of whom identified the accomplice and the defendants as having called at their houses with such a horse and wagon, and obtained water, the day preceding the larceny. The defendants, testifying in their own behalf, denied ever having seen the witness who met the three men on the highway, or either of the female witnesses, denied also the whole story of the accomplice, and said that on the day preceding the larceny he came to them, at a place different from that named by him, and borrowed their horse and wagon, about ten o’clock before noon, which was inconsistent with his statement of the time when he met M. on the railroad. The Commonwealth, thereupon, to contradict the defendants, and corroborate the accomplice, called M. as a witness, who testified that one day in one of two months (one of them being the month of the larceny) he met the accomplice at the place described by him on the railroad, at an hour which the witness thought was about the middle of the forenoon. Held, that the accomplice was corroborated by the testimony of each of the other witnesses called by the Commonwealth, taken by itself or with the aid of such other evidence as was avowedly introduced in connection with it.</p>

<p>Indictment for burning a dwelling-house. At the trial in the superior court, before Ames, C. J., the defendant testified in his own behalf; and to affect his credibility as a witness the attorney for the Commonwealth offered in evidence an original indictment for forgery found against him at a previous term of the court, and the record of the clerk, noted on the back thereof, that “ the defendant pleads guilty,” after which plea that indictment was put on file, but afterwards brought forward, and was entered on the docket and pending at the same time with this indictment for burning. The judge admitted this evidence against the objection of the defendant, who was found guilty and alleged exceptions.</p>

Indictment for stealing six oxen from Nathaniel Jackson in Brighton.

Indictment for breaking and entering a building on November 21, 1867, in the night time, with intent to steal.

Indictment for larceny from the person. In the superior court, after a verdict against the defendant, exceptions were allowed, which she waived at the argument in this court, when she filed a petition for leave to establish the truth of other exceptions disallowed below.

<p>If goods of a master fraudulently appropriated by his servant were, at the time of such appropriation, in the possession of the master, whether actual or constructive, although in the custody of the servant, the crime is larceny.</p> <p>Although a servant has the custody of goods which he receives from his master to use for a specific purpose, the possession remains in the master.</p> <p>The servant of a copartnership fraudulently appropriated money which he had received from one member of the firm under the direction to carry it to another member. Seld, that he was not liable on an indictment for embezzlement.</p>

<p>On the trial of an indictment for an attempt to steal a pocket-book from the person, the evidence showed that a police officer, seeing the defendant put her left hand into the pocket of another woman, grasped the wrist of that hand; and that the defendant then raised the hand in and with the pocket, and let it fall again suddenly, tearing the pocket, when the pocket-book fell to the ground. Held, that there was no ground of exception to the refusal of the judge to rule that on this evidence “there was a sufficient caption and asportation to constitute larceny,” and to his instructing the jury that “ if they were satisfied, beyond a reasonable doubt, that the defendant’s hand had been thrust into the woman’s pocket with a felonious intent, and was arrested in the pocket while attempting to execute that intent, and before it had reached or disturbed the pocket-book, they might find her guilty of the offence charged in the indictment.”</p>

<p>A marketman who had a lawful right to occupy with his wagon a stand in a street in a city from and after a certain hour, drove his wagon into the street twenty three minutes befoie the hour, and was so delayed there in his progress towards his stand, being stopped in one place five or six minutes by the crowding of other vehicles, that it was fifteen minutes before the hour when he reached the stand, where he stopped with his wagon unti after the hour. EM, that he did not violate an ordinance of the city, which provided that no owner or driver of a wagon should suffer it to stop in any street more than twenty minutes in any case.</p>

<p>Indictment against Silas James and Charles T. James for the murder of Joseph G. Clark.</p> <p>Before the jury were called, the counsel of Silas James moved lhat be might have a separate trial, assigning specially as reason therefor that in support of the prosecution evidence would probably be introduced of a confession by Charles T. James, which implicated both himself and Silas in the commission of the crime as charged in the indictment. And the testimony of a witness before the coroner’s jury was read, which tended to prove such confession.</p>

<p>Indictment of Albert Tryon and Flotilla F. Tryon for keeping and maintaining a building in Monterey, used for the illegal keeping and illegal sale of intoxicating liquors, in violation of the Gen. Sts. c. 87, §§ 6, 7, which provide that “ all buildings, places or tenements, resorted to for prostitution, lewd ness oi illegal gaming, or used for the illegal keeping or sale of intoxicating liquors, shall be deemed common nuisances,” and that “ whoever teeps or maintains ” such a common nuisance shall be punished Dy fine or imprisonment.</p> <p>The defendants filed a plea in abatement alleging that during the whole time charged they were husband and wife living together in the building, and therefore could not lawfully be joined in the indictment, which plea was overruled in the superior court, by Reed, J.,' on demurrer.</p> <p>“ At the trial the Commonwealth offered evidence proving sales of intoxicating liquors upon the premises and within the time named in the indictment, by each of the defendants, and sometimes by the wife when the husband was absent from home. It was also proved that intoxicating liquor was then and there kept for illegal use and sale; that the defendants were husband and wife all the time laid in the indictment, and the husband was the owner of the premises, and kept them as a hotel, and was in and about the same most of the time, attending to and supervising his business; that he alone purchased and placed in the hotel all the liquors kept therein ; that Mrs. Tryon lived with him in the hotel as the home of them and their family, having no other place of residence; and that the keeping of the house was the business of the husband, who had full and entire control thereof. There was also evidence of declarations of the wife in which she said substantially that she had thoroughly weighed the subject of the sale of intoxicating liquor, and that they had concluded to sell so long as they kept the house; and that she also said, not in the presence of her husband, ‘We do sell; and what are you going to do about it?’” This was all the evidence in the case.</p> <p>The judge refused a request of .the defendants for a ruling that the evidence would not warrant their conviction; and instructed the jury to the contrary. A verdict of guilty was returned against both defendants; and they alleged excep tians.</p>

<p>Indictment of John H. Thompson and Harriet Pitkins jointly for adultery with each other at Williamstown on August 4,1868. The first count charged both of them with being married at the time, and not to each other. The second count charged only Harriet with being so married.</p> <p>At the trial in the superior court, before Reed, J., there was evidence that at the time charged both parties were married and not to each other, but the evidence that Harriet then had a husband living consisted solely of her own declarations not made in John’s presence. The defendants’ counsel requested a ruling that declarations so made by Harriet could not affect John; and the judge instructed the jury “ that as a general proposition this was true, but that, if they should find that the female defendant had made a declaration that at the time in question she was a married woman, and if, believing this declaration, they should find that she was a married woman, then, notwithstanding such declaration was made in the absence of Thompson, they would find both parties guilty of adultery, if they should also find the act of intercourse as charged.”</p> <p>The jury returned a general verdict of guilty, after which the attorney for the Commonwealth entered a nolle prosequi as to the first count; and the defendants alleged exceptions.</p>

Writ of entry. Plea, nul disseisin. In the superior court, the facts were agreed in substance as follows : On February 9, 1856, the tenant, being owner in fee of the demanded premises, executed to Elizabeth D. Sedgwick the mortgage thereof which was the subject of the action of Sedgwick v. Laflin, reported 10 Allen, 430, in which it was adjudged that “ the estate granted by this mortgage terminated with the life of the mortgagee,” who died September 9, 1862. “ On June 17,…

<p>Bill in equity for an injunction on the defendant Pease against digging up an aqueduct which the plaintiff, Lucy Maria Cheney, laid across his land in Lee, and to enforce the plaintiff’s right to maintain the aqueduct as against the various proprietors of lands through which it was laid, who were all made defend ants. Issue being joined on their answers, the case was referred to a master to hear the parties and report the evidence; was reserved, by the chief justice, on the bill, answers and master’s report, for the determination of the full court; and is stated in the opinion.</p>

<p>A. testator devised “ to my daughters P. and G., for the term of their natural lives, all my real estate, to be held by them to their own use and behoof during life, as tenants in common, and at their death to their heirs and assigns.” Held, that G. took, by the Gen. Sts. c. 89, § 12, a life estate in an undivided half of the real estate, the remainder in which half was contingent until her death, when it vested in those who were then he* heirs at law; and that no proceedings in a suit for partition between the tenants for lift «mid affect the question in whom such remainder should vest</p>

Tort for the conversion of a stone sink. At the trial in the superior court there was evidence of the following facts : The sink, which weighed about two hundred or two hundred and fifty pounds, was put by Hiram Cobb, twenty-five or thirty years ago, in the corner of a room, over a cistern, in the house owned and occupied by him in West Stockbridge; rested upon a wooden frame next the sides of the room, without being nailed or fastened to the house, except that a lead pipe…

This was an action of tort in the superior court; and the record showed that at June term 1867 by rule of court under agreement of the parties it was referred to Jarvis Rockwell, Russell C. Brown and Nahum P. Brown for determination; that at February term 1868 Lorenzo H. Gamwell was substituted as arbitrator in the place of Rockwell; that at June term 1868 an award by the three arbitrators first named was filed, dated June 16, 1868, on which day they met and heard the…

This was an action of tort against the former sheriff of Berkshire, prosecuted in the superior court by John C. Wolcott, (assuming to be attorney for the nominal plaintiff,) who placed an indorsement upon the writ before service, directing the defendant to “take notice that the claim and demand in this case belongs to John C. Wolcott, and no other person holds any right or interest in the same.” It appeared further by the record that the plaintiff of record filed a…

Contract to recover a balance of the price of land sold by the defendant. At the trial in the superior court, before Rockwell, J., these facts appeared: The plaintiff on July 25,1853, mortgaged land In West Stockbridge to the defendant to secure the payment on or before July 1,1856, of $600 which she borrowed from him.

<p>Bill in equity for an injunction on the defendant against prosecuting an action at law on a promissory note of the plaintiff, and for general relief in the matter of a purchase of land by the plaintiff of the defendant. The case was referred to a master, who found the facts hereafter stated ; and was reserved on his report, by Gray, J., for the determination of the full court.</p> <p>In the autumn of 1864 the defendant entered into a negotiation to buy from Sarah Wheelock a lot of forty-five acres of woodland, situated near the boundary line between Sheffield and Great Barrington; employed Lyman M. Merryfield, who owned land adjoining, to point out the lot to him; and took a deed from Wheelock, dated October 17,1864, supposing that it covered all the land pointed out by Merryfield; when in fact Merryfield was mistaken as to the boundaries of Wheeloek’s lot, and had pointed out to the defendant, as a part of it, some land adjoining a cleared field and an old public road, which did not belong to Wheelock and was not covered by her deed.</p> <p>Later in the autumn, the defendant offered to sell the lot to the plaintiff, to whom he represented that it was situated in Sheffield, adjoined a cleared, field and a good wagon road, “ was all of it dry land, and very comfortable land to get timber off of,” “ would cut from fifteen to eighteen cords per acre,” and that one “ could go with a team on almost any part of it.” And soon afterwards Henry Snyder, the plaintiff’s agent, met the defendant, by agreement, for an examination of the land; and the defendant pointed out to him, as belonging to it, the land adjoining the cleared field and the road, “ and one boundary, at least, (a large rock,) which was at some distance from his land.” “ As the result of this examination, it was agreed, between Snyder and the defendant, that the defendant should convey the land to the plaintiff, who should give his note to the defendant in the sum of $600.” “ Snyder wanted a warranty deed, which the defendant refused to give, but executed a quitclaim deed ” without any covenant of title or warranty, “ and left it with one Bradford to be delivered to the plaintiff when ht should give his note for the §600; and the plaintiff afterwards called and took his deed and left the note,” which was made payable on demand. “ Snyder’s first offer to the defendant was, ‘ I will give you §600 if you will survey the land out to me; ’ and the defendant replied, ‘ No, I will not do thatand, either in this connection, or while they were upon the land, said, ‘ There are the minutes; you can survey it as well as I can.’ ”</p> <p>The deed described the premises conveyed as a parcel of land in Sheffield, “ being the same tract of land I purchased of Sarah Wheeloek by her deed dated October 17, 1864,” and referred to the Wheeloek deed, or the record thereof, for a more particular description. The land which it covered was not situated in Sheffield, but in Great Barrington, a hundred and thirty rods north of the boundary line between the two towns; would not cut from fifteen to eighteen cords of wood per acre, but would cut, in part five or six cords, in part eight or ten cords, and in part twelve or fifteen cords ; included some ledges of rock not accessible by teams, and also a swamp more than an acre in area; and did not adjoin any public road, but did adjoin a “ wood road ” along its southern boundary.</p> <p>The land erroneously shown to Snyder as belonging to the lot included at least six or eight acres, would cut from twelve to fifteen cords of wood per acre, and, as above stated, adjoined an old public road (which, however, was but little used) and a cleared field.</p> <p>During the ensuing winter, Snyder went upon the conveyed premises with a surveyor, to identify their boundaries, but was unsuccessful in the effort; and by the direction of the plaintiff, (who had never occupied or used the land,) he proposed to the defendant to return the deed and take back the note; but the defendant refused the proposal, and afterwards sued the note against the plaintiff; whereupon the plaintiff, who had fully discovered the mistake about the land, made tender to him of a reconveyance of the land and of indemnity against all expenses incurred by him in the suit on the note, and demanded of him a surrender of the note, on the ground of mistake in the contract ; and upon his refusal filed this bill.</p> <p>The plaintiff and Snyder were permitted to testify, before the master, against the defendant’s objection, that if they had known the facts about the land, as afterwards ascertained, they would not have concluded the purchase; and the plaintiff further to testify that the fact alone that the land was situated in Great Barrington instead of Sheffield would have made a difference with him.</p>

Tort praying for relief in equity. Damages were laid in the sum of two hundred thousand dollars; but no certificate, under the Gen. Sts. c. 112, § 6, of any oath or affirmation of the plaintiffs, or any one in their behalf, that the damages demanded exceeded one thousand dollars in amount, was annexed to or indorsed on the writ, which was an original writ of summons and attachment.

Trustee process. The Western Massachusetts Insurance Company, summoned as trustees, filed a general answer denying that they were chargeable, and also answered special interrogatories of the plaintiff, who then made allegations and offered evidence on the question of charging them, which Rockwell, J., excluded as immaterial; to which ruling the plaintiff alleged exceptions, and also appealed from the order of the judge for their discharge.

Martin, on the Gen. Sts. c. 96, § 6,* against Mary Clapp, for fraudulently concealing effects of Calvin Martin, the deceased husband of the complainant; which decree, after reciting that “ the parties appeared with their counsel,” that the respondent “ claimed the right to appear and be assisted by counsel in responding to the charges against her in the complaint, and in making answers to such interrogatories as might be put to her concerning the same,” and that “ the…

<p>Tort against Myron Torrey, the collector of taxes of Williamstown for the year 1866, and Samuel B. Kellogg, a deputy of the sheriff of Berkshire, for the forcible collection from the plaintiff of a tax assessed on him by the assessors of Williams-town for that year. The defendants justified under ' heir warrant from the assessors. The case was submitted for the 4eter-mination of the court on agreed facts, the substance of which appears in the opinion.</p>

<p>Upon the hearing of a petition for a review on the ground of the discovery of new and material evidence, consisting of a paper admitted to have been written by the respondent, as to the contents of which he had testified at the trial, when it was supposed to be lost, the judge, after admitting evidence of the petitioners as to what that testimony was, refused to hear contradictory evidence of the respondent on the same subject, and ordered a review, “ being of opinion that the facts found and admitted were such as required a review, whatever the evidence offered might be.” Held, that such refusal was a good ground of exception to the order for the review.</p>

<p>Before the St. of 1844, c. 107, took effect, land paid for and occupied by a debtor, the legal title to which he had never held, but had caused to be conveyed to a third person in order to secure it from his creditors, could not be attached or taken on execution as the debtor’s property. And such grantee, if he was an infant too young to participate in the fraud, may maintain a writ of entiy for the land against one of such debtor’s creditors who has taken it on execution.</p>

<p>A. deed of warranty by which A. conveyed a mill to B. gave B. a right to take and use the water that supplied the motive power; described the original location of the canal, a hundred rods long, which conducted the water from a stream to the mill; and specified the position of a weir and waste gate in the canal, used to empty on part of A.’s adjoining land the gravel with which it occasionally became obstructed. But this location had been changed by A. so that part of the canal was on -land of a railroad. After the conveyance, A., to make a head of water for another mill which he owned lower on the stream, built a dam which raised water against the bank of the canal and the weir and gate. Held, that, even if A. was authorized by the mill act, Gen. Sts. c. 149, to thus raise the water, provided that it did not injure the canal, yet, if it weakened the bank of the canal so as to make it an unsafe conductor of water and to render repairs reasonably necessary, or if it obstructed the proper use of the weir and gate, B. was not restricted to the mill act for a remedy, but the canal and weir and gate were so far a part of his mill that he might maintain an action at common law for the injury. Held, also, that if B.’s right to empty the canal upon the adjoining land was a mere easement, subject to which A. had a right to flow the land, A. was entitled to reasonable notice of B.’s intention to use the weir and gate, and to an opportunity to draw down the water so as to allow such use, before being liable to an action for obstructing it. Held, also, in such an action, that the change of the location of the canal by A. before his conveyance to B., and the subsequent purchase by A. of the land of the railroad included in the new location, were immaterial. Held, further, that B. had no right to change the position of the weir and gate so as to empty the canal upon a different part of A.’s land.</p>

<p>Under the mill act, Gen. Sts. c. 149, the proprietor of a mill on a stream may raise his danv so as to use all the unappropriated water power, even if he thereby causes water of his pond to flow into the raceway of a mill higher on the stream,</p> <p>If the proprietor of a mill on a stream, who has lowered his wheel-pit so that by lowering the wheel he might use unappropriated water power, continues to use his wheel as before, and shows no intention to lower it, the proprietor of a mill lower on the stream may appropriate such power, provided that he does not injure the upper mill as it exists; and is not estopped by the fact that the proprietor of the upper mill holds under him by deed of warranty.</p>

Two bills in equity between the parties to the actions at law reported 4 Allen, 393, 10 Allen, 441, and 97 Mass. 18.

<p>A party to a marriage by whose extreme cruelty the desertion of the other party has been caused, or a husband whose gross or wanton and cruel neglect to provide suitable maintenance for his wife, he being of sufficient ability so to do, has caused her desertion of him, cannot maintain a libel on the Gen. Sts. c. 107, § 7, for a divorce on the ground of such desertion.</p> <p>The voluntary character of the withdrawal of a wife from cohabitation with her husband, caused by his extreme cruelty or his gross or wanton and cruel neglect to provide suitable maintenance for her, he being of sufficient ability so to do, does not deprive her of her right to a divorce on the ground of desertion, although he accompanies his acts of cruelty or neglect with permission for her to leave him.</p> <p>A verdict and judgment are conclusive by way of estoppel only as to facts without the existence and proof or admission of which they could not have been rendered.</p> <p>A decree dismissing a libel for a divorce, which may have been entered upon the ground of either one of three sufficient defences relied on by the libellee, is conclusive between the parties as to neither of them.</p> <p>A decree dismissing, after a hearing on the merits, the libel of a husband, on the Gen, Sts. c. 107, § 7, for a divorce from his wife on the ground of her desertion continued for five years consecutively without his consent, in defence against which she denied that she was guilty in manner and form, as alleged, and specified that her withdrawal from him was caused by his extreme cruelty, or his wanton and cruel neglect to provide suitable maintenance for her, he being of sufficient ability so to do, is no bar to a libel by her against him, on the same statute, for a divorce for the same desertion.</p>

Complaint for being a common railer and brawler and disturber of the peace.

Complaint, dated May 25,1868, that the defendant “ on the first day of January in the year of our Lord eighteen hundred and sixty-eight” “ was and is a common drunkard, having been at divers days and times since said first day of January in the year one thousand eight hundred and sixty-eight drank and intoxicated by the voluntary and excessive use of intoxicating liquors.” At the trial in the superior court, before Vose, J., on appeal from a trial justice, the judge ruled…

<p>No appeal lies to this court from a decision of the superior court upon an answer in abatement.</p>

In taxing the costs of the trustee, the clerk of the superior court disallowed all items claimed by him as accruing after the latter appeal; the superior court affirmed the dis-allowance ; and the trustee appealed to this court.

<p>The statute of limitations, Gen. Sts. c. 155, §§ 1, 6, is not a bar to an action brought in this Commonwealth by a foreigner within six years after coming for the first time to the United States, for breach of a promise of marriage made to her twenty years previously in her native country.</p>

Tort, with a count in contract, for the conversion of seventy shares in the capital stock of the defendant corporation.

Contract by the firm of Thayer & Sergeant, grain dealers at Northampton, against the trustees of the bondholders of the Rutland and Burlington Railroad, in the use and occupation of that road as common carriers, to recover a portion of the price paid to them by the plaintiffs, under protest, for the transportation of grain from Schenectady in New York over the Rensselaer and Saratoga, Rutland and Burlington, Vermont Valley, Vermont and Massachusetts and Connecticut River…

Two petitions on the Gen. Sts. c. 18, § 79. The first, by ten taxable inhabitants of Huntington, filed May 18, 1867, was for an injunction on the treasurer of the town against paying orders drawn upon him by the selectmen, made payable June 1,1867 “to numerous individuals who had contributed money in aid of the quotas of said town for the year 1864,” and issued under votes passed at a town meeting on May 24, 1865, “ to refund and pay back all moneys contributed and paid by…

<p>A plaintiff in a trustee process, in whose favor final judgment is rendered against the principal defendant, but the trustee discharged, in the superior court, and who, after appeal • ing from the discharge of the trustee, takes out execution in that court against the principal defendant, thereby waives his appeal.</p>

Bill in equity by the granddaughter and sole heir at law of Joanna Fairbanks, of Shelburne, claiming as intestate estate the property bequeathed by the following clause in her will, of which the defendant Lamson was executor: “ The rest and residue of my estate of which I shall die seised and possessed I hereby direct my said executor to invest as he may deem best, as a fund, the annual interest of which shall be applied for the benefit of the sabbath school library of the…

<p>Appeal from a judgment of the superior court dismissing an action of contract, for want of legal service, on the motion of the defendants, who appeared specially for the purpose of objecting to the jurisdiction. The facts are stated in the opinion.</p>

Tort, with a count in contract, by the assignee of Alvin N. Claghorn, an insolvent debtor. Writ dated October 26,1867; and real estate attached thereon.

<p>Tort for an injury sustained by the fall of a bridge in a highway in Ashfield on August 20, 1867. At the trial in the superior court, before Devens, J., the only question submitted to the jury was of damages, which they assessed in the sum of $4183.33; and the defendant alleged exceptions of which the following was the material part:</p> <p>“ The evidence tended to show that before the injury complained of the plaintiff was a healthy, robust and laborious man, fifty-two years of age: that he had a wife and a family of children, some of whom were minors, living with him in the defendant town ; that he had been by occupation at different periods of his life a farmer, a tanner, and a peddler; that by the fall of the bridge he received a severe concussion of the spine by a blow upon the back of his neck and left shoulder, whereby he had since been disabled from performing any labor; that his spinal disease had not been alleviated by any medical treatment to which he had submitted, but had continued to grow worse, so that at the present time there was not more than an even chance that he would ever be restored or be any better.</p> <p>“ The judge instructed the jury, among other things not objected to, that the plaintiff was entitled to recover damages for the diminution of his ability to labor for his own support and the support of others dependent upon him; to which ruling and instruction the defendants except.”</p> <p>These exceptions the judge allowed, with additions in substance as follows: “ There was no evidence that any one was dependent on the plaintiff for support, and no evidence oí what family he had, except such as came in casually and incidentally on one side and the other without objection. The plaintiff’s deposition was taken and read in evidence, in a direct interrogatory in which he was asked what family he had in August 1867, with the names, ages and residence of his children ; which interrogatory with the answer thereto were on the defendants’ objection excluded. No point was made on either side, nor any allusion, in regard to the plaintiff’s family as affecting the amount of damages.</p> <p>“ Before the charge to the jury, the defendants presented numerous written requests for instructions upon the rule of damages applicable to the case. The judge stated in substance what instructions he should give, among other things stating that he should instruct the jury that they should give damages for the diminution of the plaintiff’s capacity to labor; and these instructions were assented to by both parties. The judge further requested the counsel on both sides that if, after hearing the charge, the instructions did not meet their views of the law, they should call his attention thereto at the close of the charge. The defendants’ counsel accordingly, at the conclusion thereof, called his attention to one particular, in respect to which they requested different or more full instructions. These were in reference to the plaintiff’s alleged negligence after the injury to take suitable care of himself. The instructions thus requested were given. No suggestion in regard to the matter now presented in the bill of exceptions was made by the defendants’ counsel; and they were not understood at the time by the presiding judge to raise any exceptions to the instructions as finally given to the jury.”</p>

Indictment for. robbery. At the trial in the superior court, before Devens, J., the defendants were found guilty, and alleged exceptions which were allowed as follows : “ The evidence for the Commonwealth tended to show that Thomas Wait of Greenfield was robbed on the night of February 19,1868, at Greenfield.

<p>Tort in the nature of trover for the conversion of an undivided half of a crop of corn. Trial in the superior court, before Lord, J., who allowed the following bill of exceptions:</p> <p>“ The plaintiff, in opening his case, stated that he expected to prove the following facts : That in the spring of 1866 he entered into a contract orally with the defendant, to farm a lot of land belonging to the defendant, upon shares; that it was agreed that each should furnish one half of the seed and manure, that the plaintiff should do the hand labor and the defendant the team work, that the plaintiff should harvest the crops, and that they should be divided equally between them; that the plaintiff went upon the land, and (after the defendant had ploughed the same) planted the same to corn, furnishing his half 'of the seed and manure; that thereafter, when the crop needed hoeing, he called on the defendant to furnish a team, to wit, a horse and a cultivator, to cultivate the same, which he refused, and then the plaintiff hoed the same as well as he could without its being cultivated; that thereafter, at the proper time, he undertook to hoe the crop a second time, and was forbidden to go upon the land by the defendant, and thereupon desisted ; that at harvest time the plaintiff went upon the land, against the defendant’s wishes and without his leave, and cut the corn and put it in stacks, and, in the night time after the day of so doing, the defendant carried the same away without the plaintiff’s knowledge or consent, (neither party having made or demanded a division of the same,) and took the whole crop and fed it out to the cattle of the defendant, against the plaintiff’s will. The plaintiff stated he did not expect to prove that the plaintiff demanded any division of the crop previous to the carrying of the same away, as above stated by the defendant. Upon this statement the court ruled that the plaintiff could not maintain his action, and ordered a verdict for the defendant; and the plaintiff excepts.”</p>

<p>The maker of a promissory note payable on demand, and due and unpaid at the time of the service of the writ on him, is chargeable in foreign attachment as trustee of the payee, in the absence of proof of the transfer or indorsement of the note.</p> <p>A person cannot be admitted for the first time, in this court, as claimant of funds in the hands of the trustee in an action of foreign attachment in the superior court, in which the question of charging the trustee on his answer is pending in this court on appeal.</p>

Appeal by thirteen trustees in an action of foreign attachment, commenced before a justice of the peace, from the dis-allowance by the superior court of their claim for costs for travel and term fees after the plaintiff’s appeal from the judgment of the justice’s court, where they were charged on their answers. The facts appear in the opinion.

Tort for assault and battery by blows on the plaintiff’s head. Writ dated February 23, 1867.

<p>A factor received tobacco for sale, and agreed not to sell it for less than forty cents per pound, and to hold it subject to his principal’s orders until sold at that price. He did not sell it at that price, nor obey the orders of Ms principal in relation to it, and refused to return it on demand. At the time of the demand it was worth forty cents per pound. In an action by the principal against the factor on the agreement, the defendant requested a ruling that, if he sold any of the tobacco for less than forty cents per pound, he was liable only for its fair market value at the time of sale. This the judge refused; and ruled, in substance, that the plaintiff might recover, for the loss sustained by the failure to obey his orders, not exceeding forty cents per pound, or the market value of the tobacco at the time when the return was demanded; and that the increase of market value up to forty cents per pound before the demand for a return was an item of damage. Held, that the defendant had no ground of exception.</p>

<p>Special findings of the jury in an action at law, not confirmed by a judgment of the court nor essential to or involved in the general verdict, are not conclusive of the facts found, on either party, in another trial of the same cause.</p> <p>On the trial of an action upon a promissory note there were special findings in favor of the defendant as to the consideration of the note, but the judge 'directed a general verdict for the plaintiff on grounds to which the defendant alleged exceptions, which were sustained. At the new trial, the plaintiff conceded that those findings negatived the only consideration for the note on which he relied, whereupon the judge ruled that he was estopped from offering evidence of such consideration, and directed a verdict for the defendant. Held, that this ruling was erroneous.</p>

Contract on an account annexed for goods sold to the defendant. Answer, that at the time of the sale she was a married woman living with her husband and not engaged in any separate business.

<p>Trustee process, dated November 12, 1866. Charles W. Grant and. Francis G. Strickland, copartners under the firm of Grant & Strickland, were summoned as trustees of the defendants Clapp and John N. Howard, copartners under the firm of Clapp & Co., and filed an answer in the superior court, of which the following is the material part:</p> <p>“ The said trustees say that on or about November 1, 1866, they bought of Eliakim W. Clapp, who they believed at the time was or had been a partner with Howard under the name and firm of Clapp & Co., all the interest of said Eliakim and said firm in the partnership effects of said firm of Clapp & Co., and all said Eliakim’s interest in the same, and, as payment for the goods and chattels thus purchased of said Clapp & Co. and said Eliakim, they gave their negotiable promisssory note for the sum of $430, payable to Mrs. Patience Clapp, wife of said Eliakim, or order, and payable, as they believe, on demand; that their said note to Mrs. Clapp was made payable to her upon the statement of said Eliakim, made at the time they gave the note, that all the money which had been put into said firm, or used therein, was his wife’s money, furnished by her, and that she must have her rights protected, which said statement said trustees believed and now believe to have been the fact, and made their note payable to her as aforesaid. They deny that they bad any goods, effects and credits of said defendants in their hands or possession at the time of said service on them, unless as above stated.”</p> <p>On this answer judgment was ordered charging the trustees and they appealed.</p>

Two actions, commenced October 2,1867, under the Gen. Sts. c. 90, § 25, (by which tenants at sufferance are made liable to pay rent during the time of their occupation,) for the use and occupation of a shop in Westfield ; the first, from April 3,1866, to January 1, 1867; the second, from January 8,1867, to October 1,1867; tried together in the superior court, before Lord, J., without a jury, and reported by him, for the determination of this court, in substance as follows:…

<p>Tort against the members of the building committee of the Methodist Episcopal Society in Wilbraham, for entering the plaintiff’s close, and quarrying and carrying away stone therefrom. Writ dated May 25,1867. The defendants set up in justification of their acts a direct license from the plaintiff’s husband as her agent, and an implied license from her knowledge of such acts and assent thereto.</p> <p>At the trial in the superior court, before Brigham, J., “ it was admitted that the plaintiff was the owner of the close; that it was situated within fifty rods of her homestead; that all the stone there quarried by the defendants was earned by her dwelling-house, and that the defendants, before commencing to quarrj and remove the stone, obtained a license therefor from Samuel F. Merrick, the plaintiff’s husband, over his own signature ; ” and there was evidence tending to show that he “ was the owner oí a lot of land adjoining the premises of the plaintiff, (both lots being included in what was known as the saw-mill lot,) and on which there was also an open quarry of the same kind of stone as that on the land of the plaintiff.” “ There was also evidence tending to show that the defendants commenced drawing the stone in July 1866, and continued the same without interruption or objection by the plaintiff until the commencement of this suit. The plaintiff denied this, and offered evidence to the contrary.”</p> <p>The defendant Plumley testified that in June 1866 he made an oral agreement with the plaintiff’s husband for a right to quarry and carry away the stone in dispute, which agreement was toe next day reduced to writing and signed and sealed by the plaintiff’s husband and himself; and “ that the written contract set out correctly the agreement between them.” “ The defendants’ counsel then asked him to state the oral agreement. To this paroi evidence the plaintiff objected. The defendants then offered to' put in the written contract. The plaintiff objected ; and the judge excluded the same at the plaintiff’s request, and then admitted the paroi evidence offered, it being also admitted on both sides that the plaintiff’s husband had no authority to make a contract for her under seal. The witness testified, among other things, that by the oral agreement the defendants were allowed to quarry the stone wherever they pleased on the whole lot; also that he agreed with the plaintiff’s husband to pay one hundred and twenty-five dollars and quarry stone to the same point.” “ The plaintiff’s husband, being called, denied that he gave the defendants the right to take stone wherever they pleased on this lot, or that he made any agreement with them differing from the terms expressed in the written contract,” which then “ by the consent of both parties was permitted to be read to the jury as a memorandum,” and in substance was as follows: “ Samuel F. Merrick, of the first part, agrees to permit the said Plumley, as agent and in behalf of the building committee of the Methodist Episcopal Society, of the second part, to enter upon the premises of the said Merrick, and quarry out and obtain and cart away, from any or all of the open quarries in the lot where the saw-mill formerly stood, all the foundation stone that may be needed, and all the block or rubble stone which may be required to build and complete a stone church and chapel.” according to the plans of a certain architect. "The said committee are further allowed to occupy and use the small barn near one of the quarries above described, as a deposit for the tools.” “ And the said Plumley, as agent for the said committee, agrees to pay the said Merrick the sum of one hundred dollars when the walls- of the main building are completed ; and the committee are by this instrument bound unto the said Merrick for the faithful performance of this contract, in the payment of the considerations above named. It is understood that the said Merrick makes no reservation of any stone quarried out or uncovered in the said lot, and it is further agreed that, if the said committee or their agent shall find it necessary to take any stone which the said Merrick has designated as specially reserved, then and in that case the said committee or their agent shall pay to the said Merrick the further sum of twenty-five dollars when the entire walls are completed. It is further understood that the committee have full permission to use the stone either in blocks or rubble, or both, as they may choose.” This was signed by Samuel F. Merrick and the defendant Plumley with their individual names only, and sealed; and appended to it was the following sentence, signed in like manner: “ It is intended to lay a wall in style similar to said Merrick’s barn, and that is the meaning of the word rubble.”</p> <p>The judge instructed the jury that this written contract “ was to be received and treated by them as an unsigned contract or memorandum merely, and that, in ascertaining the contract between the defendants and the said Samuel F Merrick, they might take either the recollections of the defendants’ witnesses or the plaintiff’s witnesses, and, in determining which were correct in their testimony, might take into consideration this memorandum.”</p> <p>“ For the purpose of showing that Samuel F. Merrick was authorized to sell the stone to the defendants, as the general agent of the plaintiff, the defendants were allowed to offer evidence that he had managed the farm of the plaintiff on whicn these quarries were situated; that his management had consisted in working the farm, in selling the produce, such as the hay, butter and eggs, and in one instance a steer from the cattle on the farm, and in letting a small tenement on the farm. The plaintiff denied that her husband had exercised any control in the management of the farm, and offered evidence tending to show that she, as well as himself, had sold the produce of the farm; that she had made all contracts relating to the cutting of the wood and timber and repairing the buildings on the farm; that she had collected the rents of the tenement; that no stone had been quarried from the farm since she became the owner of it, and that the largest portion of the stone taken by the defendants was taken from quarries newly opened by them; that her husband had only assisted her from time to time, as she needed his assistance, and that she had never appointed him as her agent. She further testified that she was willing to sell the stone for a proper consideration, but had not been asked; and that she had left the matter of the quarries mostly to her husband. It was also in evidence that the premises had been owned and occupied by said Samuel F. Merrick for many years, until 1862, when they were conveyed by him to a brother of the plaintiff by a deed recorded, and, soon after conveyance to said brother, were by him conveyed to said plaintiff by a deed never recorded ; that said plaintiff and husband had always since occupied the premises, and none of the defendants ever knew or heard of any change in the ownership or use of said farm.</p> <p>“ Upon this evidence, the plaintiff requested the judge to instruct the jury that there was not to be inferred from the fact, if believed by the jury, that the plaintiff’s husband had the general management of this farm, any authority in him to permit the defendants to quarry and remove the stone belonging to the plaintiff. This request the judge refused, but did instruct the jury that a previous authority to give such an express oral license, by the plaintiff to her husband, may be inferred by the jury from the conjugal relations of the plaintiff and her husband, taken in connection with the circumstances under which she acquired title to her land, the functions which her husband with her knowledge and consent exercised in the management of her land, in disposing of its crops and products, management of its tenements, &c., and advising, directing and controlling the same, provided it was within the scope of these functions as understood between them, to dispose of the stone in these quarries, and the privilege to quarry and carry away stone thence as commercial products of the farm, whenever the same could be done advantageously and profitably to the plaintiff.”</p> <p>It was not contended by the defendants that the plaintiff was present when the paroi agreement was made between them and her husband, nor that it was made known to her; but they offered evidence tending to show that she was present and knew the substance of the written contract at the time of its execution. The plaintiff, however, and her husband, both “ denied that she had any knowledge of the contents or purport of the written contract, or that she knew whether the stone was taken from the quarries on her own land or her husband’s, until after the defendants began to open new quarries on her land.”</p> <p>“ The plaintiff asked the judge to instruct the jury that there was no evidence of her assenting to the written contract, or any other, to remove this stone, from the fact that she saw it, from time to time, carried by her door; and also that her assent to the removal of this stone could not be implied from any knowledge of the written contract. The judge declined to give this instruction, but did instruct the jury as follows: If the plaintiff’s husband undertook, without any previous authority, to give such an express license in words, reduced to the form of a written contract, in his own name, and the plaintiff, being notified of that fact and the full effect upon the land and the quarries, allowed the defendants to act upon such license, in relation to the land and quarries, without interruption and objection thereto within a reasonable time, the jury would be authorized to infer that she ratified a license commensurate with the terms of such express license, giving to such license the effect only of evidence of a paroi license of the same terms. And he further instructed the jury that, irrespectively of any express license by the plaintiff, or by her authorized agent, through a previous authority for or ratification of his acts on her behalf, the defendants might acquire an implied license by such conduct and acts of the plaintiff and defendants in relation to each other, which were known to both of them, as indicated that the defendants, acting for successive weeks and months under a supposition that they had such a license, proceeded upon the plaintiff’s land and quarried and carried away stone therefrom, with the plaintiff’s full knowledge of the supposition of the defendants and their acts under it, and without any objection on her part.</p> <p>“ The quarries on the plaintiff’s lot were partly open, and partly unopened, and covered with earth. There was evidence tending to show that a portion of the unopened and covered quarries were, by the agreement between Samuel F. Merrick and the defendants, reserved and not to be worked unless it should be found necessary by the defendants and their agents; and that most of the stone taken by the defendants was quarried from this reserved tract, while a considerable quantity of stone, suitable for the purposes of the defendants, still remained in the open quarries.</p> <p>“ The plaintiff asked the judge to rule that if the jury believed that the license given to these parties was embodied in the written memorandum put into the case, and that there was any reserved stone on the lot, the defendants were not authorized to quarry and make use of this reserved stone until they had exhausted the open quarries of building stones like those in Merrick’s barn. This ruling the judge declined to give, except so far as the same was given in the following instruction: The questions for the jury are, whether the defendants had such a license, and acted within it. If the defendants had a license derived in any of the modes indicated, they must prove by the preponderance of their evidence, and upon the whole evidence, that their acts were within the scope of their license. Whatever of their acts were in excess of their rights under their license were in violation of the plaintiff’s rights; and, so far as they were injurious to her, she is entitled to recover indemnity for such injury.”</p> <p>The jury found for the defendants; and the plaintiff alleged exceptions.</p>

Complaint under the mill act, Gen. Sts. c. 149; referred in the superior court, by agreement of the parties and under a rule of the court, to arbitrators, who returned an award in favor of the complainant, of which the following are the material parts: “ The complainant’s land, for the injury to which he seeks compensation by this proceeding, is situated on the banks of a natural pond in the town of Holland, commonly known as Holland Pond.

<p>Tort, alleging that the defendant wilfully caused and negligently permitted the discharge of filthy matter from the vault of his barn into the plaintiff’s cellar and well, tainting the water in the well and rendering the cellar unwholesome.</p> <p>At the trial in the superior court, before Devens, J., there was much evidence, which was reported in full in the bill of exceptions, and by which it appeared that the plaintiff and the defendant owned adjoining lots on East Union Street in Springfield, which sloped so that the defendant’s land was higher than the plaintiff’s; that in 1864 the plaintiff built an addition to his house and dug a well in the cellar under the addition; that in November 1865 the defendant built a bam on his lot, constructing a vault underneath it with walls of brick but no other flooi than the earth and without a drain, the distance of the wall of the vault from the wall of the plaintiff’s cellar being about three feet and a half, and from the centre of the well in the plaintiff’s cellar about thirteen feet and a half, the bottom of the vault five feet and a half higher than the bottom of the well, and the soil sandy; that the defendant suffered manure to accumulate in the vault of his barn, which, after a time, by percolating the intermediate soil, rendered the water in the plaintiff’s well yellow in color and offensive to the taste and smell, and also passed beneath the plaintiff’s cellar wall and oozed to the surface in the cellar; and that, although the existence of the nuisance was brought to the defendant’s attention several times by the plaintiff, yet the defendant suffered it to exist from May 1866, when it first began sensibly to affect the plaintiff’s cellar and well, to the commencement of this action in January 1867.</p> <p>The defendant “ conceded that percolations passed underground from the vault of his barn into the plaintiff’s well and cellar,” but requested the judge to rule “ that the plaintiff could not recover upon the testimony; also that he could not recover under the form of declaration in the case; also that he could not recover unless the jury were' satisfied that the injuries resulted to him from the wilful or negligent conduct of the defendant, and that whether or not he had been negligent was a question for the jury; also that it was a question for the jury whether or not the defendant had negligently kept and accumulated manure or other filth in his vault, and whether or not the contents of said vault percolated through the soil into the plaintiff’s well and cellar by reason of any improper or negligent construction of this vault, or negligent keeping or having the contents of said vault in the same; also that the plaintiff could not recover for injuries resulting from percolations through the defendant’s soil and then through the soil of the plaintiff into the cellar and well of the plaintiff; also, if he could, he could not without proof that the percolations resulted from some negligence or fault on the defendant’s part; also, if liable for percolations into the cellar, the defendant was not liable for percolations into the well.”</p> <p>The judge refused so to rule; and instructed the jury “ that the defendant was bound to so construct his vault that the contents thereof should not percolate through into the plaintiff’s cellar and well, and, it being conceded that percolations did pass through, to the plaintiff’s injury, such percolations were evidence of negligence, upon which the plaintiff was entitled tc a verdict;” and he therefore directed a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>Contract on an award of arbitrators under a submission in pais. In the superior court, Brigham, J., ruled that the plaintiff .Quid not maintain his action, and directed a verdict for the defendant. The plaintiff alleged exceptions. The case is stated in the opinion.</p>

<p>Contract to recover money paid by the plaintiffs for the support of Daniel A. Warner as an insane pauper in the hospital in Northampton. Trial in the superior court, before Lord, J., who allowed the following bill of exceptions:</p> <p>The only question in dispute was as to the settlement of the pauper. The plaintiffs admitted that he once had a settlement with them, but contended that he acquired a new settlement with the defendants under the Rev. Sts. c. 45, § 1, cl. 5,12. “ It appeared from the evidence that he was taxed in Ludlow a highway tax in 1850, and was taxed as a resident of Ludlow a loll tax in 1851, 1852,1853 and 1854; that on March 28,1855, be purchased and took a deed in fee simple of a dwelling-house and about one acre of land in Ludlow, and on March 31 purchased and took a deed of about thirty acres more of land in Ludlow; that for the years 1855,1856 and 1857 he was taxed upon his poll and estate as a resident of Ludlow, and for the years 1858,1859 and 1860 was taxed upon his estate in Ludlow as a nonresident, and, during all these years, from 1855 to 1861 inclusive, the property taxed was set in the valuation of estates at more than two hundred dollars; that in May 1855 he married Caroline Fuller, of Ludlow, and went immediately thereafter to live in the house purchased by him as aforesaid, and lived there until June 1857; that his wife left him in February 1857, obtained a divorce from bed and board in April 1857, and by a decree of the court all personal property which came by the marriage was given to the wife, and on May 2, 1857, she caused all the furniture to be removed from his house and carried away, except his trunk, containing some few articles, which have never been removed; that he worked for one Plumly in in Ludlow from May to August, 1857, and, taking a bundle of clothes, went to his brother’s house in Wilbraham, and after that went to work as a day laborer, and worked about in the towns of Wilbraham, Springfield and Ludlow, until October 1861, when he went to Horace Clark, one of the selectmen of Wilbraham, for assistance, and remained there some two years or more, and until he was committed to the hospital, said Clark having been appointed his guardian just after October 1861; that in June 1857 he rented his house in Ludlow, but in renting it said he wanted one room to which he could go if he pleased, and it was thus occupied by tenants until April 1860, when it was sold for the payment of the taxes of 1858 and 1859. It did not appear that he spent a night at his house in Ludlow after June 1857. It appeared that he never occupied said room.</p> <p>“ The judge stated that he should rule and instruct the jury as follows: If after his house was leased in 1857 he left Ludlow and went to his brother’s house in Wilbraham, and from that time forward he worked in different towns and for different persons, as be could find or was willing to accept employment, wandering about from town to town and place to place, with no .purpose in view, and with no opinions, desires or intentions in relation to residence, except to have a home wherever he worked, up to the year 1861, when he went into the family of Horace Clark, of Wilbraham, to remain permanently, and did so remain until he was committed to the hospita. at Northampton, this kind of life would not continue his residence in Ludlow for the purpose of acquiring a settlement, after he left in 1857, although during the four years he worked two or three times for some persons in Ludlow.</p> <p>“ Under these circumstances, the counsel for the plaintiffs declined to argue the cause to the jury, and excepted to the foregoing rulings and instructions. A verdict was thereupon taken for the defendants, the counsel for the plaintiffs stating that under such ruling they did not claim a verdict.”</p>

Indictment for assault and battery of Eben B. Place, a police officer in the lawful execution of bis office.

<p>A. sent a promissory note by mail to B. for collection, who forwarded it by mail to 0. wilh a request for C. to collect it, and wrote to A. what he had done, who then wrote to C. that he had received B.’s letter “ saying he had forwarded the note to you for collection,” and directed C. to “ forward ” the proceeds when collected. Held, that this letter warranted C. in believing that he was authorized to forward the proceeds of the note to A. by mail.</p> <p>There is no rule of law that the United States postal service is a less safe or appropriate means of sending money than a private carrier or banker; but whether it is so in any particular case is a question of fact, depending on the amount to be sent, the proportionate expense of different modes of transmission, the time and distance intervening, the usage in similar cases, and all other circumstances of the transaction.</p>

<p>Possession and occupation for more than twenty years of land bounding on a public way is presumptive evidence of title to the middle of the way, subject to the public easement.</p> <p>Evidence that shade trees have been suffered to stand more than twenty years where they were planted in a public way raises a presumption that they were planted under lawful authority.</p> <p>Only the mayor and aldermen or selectmen have authority to cause shade trees lawfully standing in a public way to be removed against the will of the person whose private property they are to be taken to be under the Gen. Sts. c. 46, § 6; and one who assumes, without such authority, to remove or destroy such trees, on the ground that they are a public nuisance, is liable in damages to such person.</p> <p>In an action for destroying the plaintiff’s shade trees, it is no ground of defence or mitigation of damages that they rendered the defendant’s house damp and unhealthy.</p>

<p>Contract to recover the amount of a tax assessed by the assessors of the defendant town, in 1866, in part on two horses, four oxen and six cows, and in part on two barns and about a hundred and fifty acres of land, of the property of the plaintiffs, and by them paid under protest. Trial in the superior court, before Devens, J., who reserved the case for the determination of this court on the following report:</p> <p>“ It appeared in evidence that the plaintiffs were incorporated and authorized to hold property, by the Sts. of 1823, c. 80, and 1866, c. 106; and that they held property in 1866 amounting in all to about $150,000, and were at that time an educational institution situated in the town of Wilbraham, owning and occupying several buildings used exclusively for recitation-rooms, halls and lecture-rooms, together with a large boarding-house and dormitory, sufficient in size to furnish lodging-rooms for more than two hundred and fifty students, and tables for two hundred and eighty. The average attendance of students upon the school for the year 1866 was about three hundred and thirty, of boys and girls. The institution is located about two miles from Collins’s depot, and ten miles from Springfield, in a sparsely inhabited town in which there are no public markets or stores for the sale of provisions in quantities.</p> <p>“ It was also in evidence that there were not accommodations for boarding the students in the town outside of the boardinghouse ; that, with their present facilities for boarding, together with such as could be procured elsewhere in the town, they were frequently obliged to turn away students, for want of board and rooms; and that, while they were without a boarding-house some years ago on account of its destruction by fire, their school was reduced to less than half its present number for want of board and rooms, and the plaintiffs proceeded to raise funds and make preparations to rebuild their boarding-house immediately after it was burned.</p> <p>“ It appeared that the institution was in 1866 the owner of about one hundred and ninety acres of land in all; from thirty to forty acres of which were used for a play-ground and a grove for the students, and the rest constituted a farm, consisting of mowing, pasturage and tillage. This farm was the land on which was assessed the tax in question. In 1866 it was cultivated by the institution for the purpose of keeping cows to furnish the boarding-house in part with milk, and of raising vegetables and other provisions to be used there for the support of the students. The cows, oxen and horses, on which the personal property tax was assessed, were kept on this farm ; the cows for the purpose aforesaid, and the oxen and horses to do the work of the farm and draw provisions and other things for the. use of the boarding-house.</p> <p>“ The evidence showed that, in addition to summer fruits and vegetables used from day to day in the boarding-house, and hay and grain fed to cattle and horses in their barns, there were raised upon said farm, in the year 1866, seventeen bushels of beans, fifty-two bushels of beets, sixty-four bushels of turnips, forty-one bushels of onions, five hundred and eighteen bushels of potatoes, two thousand one hundred and four pounds of pork, and nine thousand eight hundred and eighty-six quarts of milk; all of which were consumed by the students, teachers and domestics in the boarding-house, the testimony being that the only sale, for some years, from the products of the farm, was of one ton of very poor hay, which was sold solely because it was too poor to be advantageously used by them. It was also proved that these products constituted but a small proportion of what they were obliged to use of the same kinds, and were mainly held in reserve for times when the plaintiffs were finable to get such provisions without great inconvenience from other gources.</p> <p>“ It further appeared that their lands outside of the pleasure grounds of the institution were kept and used for no other purpose than to supply their boarding-house as aforesaid, and cheapen the cost of education by reducing the cost of board, and allow students to some extent to reduce the expenses of their education by working upon the land in vacations, and nights and mornings and Saturdays of term-time, and receiving pay therefor. It was also in evidence that the students were charged in their term-bills for board by the week, separately from room rent and tuition. There was evidence tending to show that, by this arrangement for maintaining a boarding-house, the plaintiffs were able to furnish board to their students at a much cheaper rate than could otherwise be done, and that they made no profits for themselves or said institution from their farm or boardinghouse, but furnished board to their students at cost price, giving them the benefit of the best arrangements they could make for supplying the table cheaply. It was proved that the farmers of Wilbraham raised upon their farms sufficient produce for the supply of said boarding-house, but that it could not be obtained regularly, as needed, except by a system of contracts with individual farmers, and then at prices somewhat higher than it would cost to the producers.</p> <p>“ It was further in evidence that there were from fifteen to twenty acres of waste land, which were swampy and brushy, upon the farm; but that this portion was on one side of the farm and connected the arable land, was bought with other portions of the farm which were valuable for cultivation, and was not used or kept for any purpose, in itself, but simply as a part of the farm which they used as above described; and that the plaintiffs had offered to sell it if they could find a purchaser.</p> <p>“ Upon the foregoing facts, the court directed the jury to return a verdict for the plaintiffs for the sum of twelve dollars, the amount paid as a tax upon the personal property in question, and instructed them that the plaintiffs could not recover for the amount paid as tax upon their real estate; and accordingly a verdict was so entered, and the case reported for the supreme judicial court to enter such judgment as the facts call for.”</p>

Tort to recover the value of bonds of the United States for the payment in all of $1000, deposited with the defendants for safe keeping, and alleged in one count to have been lost through their negligence, and in another count to have been converted by them to their own use.

Tort, on the Gen. Sts. c. 118, § 91, by the assignee of Sumner Babcock, an insolvent debtor, for the conversion of six hundred corsets and seven hundred petticoats, alleged to have been conveyed by Babcock to the defendant within six months before the filing of the petition in insolvency, and received by the latter with reasonable cause to believe that Babcock was insolvent.

Contract, commenced April 9,1867, on an account for wages due from the defendant’s intestate, Ruby Carter, in his lifetime, and money paid for said Ruby’s funeral expenses ; submitted to the determination of the full court on agreed facts, of which the following are all that are material. Carter died March 28,1864.

<p>Contract against traders in tin ware, for wages as a peddler of the same. The defendants declared in set-off on an account with items for “ goods trusted out” by the plaintiff. Trial in the superior court, before Brigham, J., who allowed the following bill of exceptions:</p> <p>“ The action had been referred to an auditor, who reported a sum as due to the plaintiff, and disallowed the defendants’ set-off. The plaintiff offered in evidence the auditor’s report, and rested his ease. The defendants then offered evidence tending to show that the plaintiff performed the labor under a written contract dated September 14, 1866, by which he engaged to peddle for them one year for $600, and that on May 2, 1867, being directed by the defendants to take his wagon, furnished to him by the defendants, and go out and collect pay for goods which he had trusted out, refused to do so, and several times repeated his refusal when inquired of by the defendants whether they should understand that he refused to perform this duty, and then surrendered to the' defendants the keys of the wagon and the key of the barn where the wagon was kept. It further appeared that on the day following, and for several successive days, the plaintiff tendered himself to the defendants to go out and collect his accounts, but the defendants refused to employ him further, insisting that he had left their service as before stated.</p> <p>“ For the purpose of proving their account in set-off, the defendants showed that they employed usually about thirty peddlers ; that it was a rule of their establishment, well understood by all their peddlers, that peddlers should not trust out the goods committed to them for sale, unless upon their own responsibility ; and that, in conformity with this rule, their peddlers held themselves accountable for goods trusted out by them. The court, however, rejected all evidence of such a rule, and of the usage and conduct of the defendants’ peddlers, other than the plaintiff, under it; but permitted the defendants to show what directions they gave to the plaintiff individually on the subject. There was evidence tending to show that, subsequently to the hiring of the plaintiff and directions then given, the defendants specially authorized the plaintiff to trust out goods on their responsibility; and the plaintiff admitted that he was not authorized to trust out goods at risk of the defendants, unless the jury should find he was so authorized specially by said subsequent arrangements. There was also evidence tending to show that no such special authority was given; and this was one of the controverted questions of the case.</p> <p>“ It appeared that, on the ledger of the defendants, produced by them, the plaintiff was credited under date of May 2, 1867, with ‘ labor to May 2, $369.23.’ It was testified that said credit was made on the books, by direction of the defendants, after the labor had ceased and the contract had been broken, if broken at all. The court ruled that, if the jury believed this entry was made by the defendants with full knowledge that the contract had been broken and the plaintiff’s claim for labor forfeited, and with the intention to give the benefit of said wages to the plaintiff, they would be authorized to find from said entry a waiver of said breach of the contract. There was no other evidence of a waiver except said entry.</p> <p>“ The jury found for the plaintiff; and the defendants alleged exceptions to the rejection of evidence and the ruling of the court, as aforesaid.”</p>

Contract on a promissory note dated September 1, 1866, made by Hannah Post and Levi Post, payable on January 1, 1867, to the order of the defendant Bailey, and by him indorsed to the plaintiffs. The declaration alleged the failure of the makers to pay the note at maturity; and that due notice of its nonpayment was given to Bailey.

Appeal by the daughter and sole heir at law of Adam C. Rider, late of Springfield, from the allowance by the judge of probate of an instrument as his last will, the execution of which the appellant contended was procured by undue influence and while the testator was not of sound and disposing mind.

<p>Petition on the St. of 1863, c. 107, § 3, for a jury to revise the determination of the city council of Springfield, under § 2, of the extent of territory benefited by the construction, under § 1, of a sewer from Garden Brook to the Connecticut River in that city, and of the division of the cost of the same between the city and the owners of real estate. The sheriff of Hampden presided at the trial, and made a report thereof to the superior court, in substance as follows:</p> <p>“ It appeared that the city, pursuant to the statute above named, had constructed a sewer from Garden Brook in Ferry Street, through .Cypress Street, to the Connecticut River, and that the city council had determined to pay one third of the expense of constructing the sewer, to wit, $4543.11, and to assess the' balance, to wit, $9082.23, upon certain territory adjudged to be benefited by the sewer; and that the petitioners were each seised of lands lying in the limits of said territory. The petitioners objected that the city should pay more than one third of the expense; that their lands were not benefited; and that lands which were benefited were not included in the territory ordered to be assessed.</p> <p>“ The jury viewed the premises. Garden Brook flows northerly from the Boston and Albany Railroad, through the lands described. Before building the sewer, the brook had in freshets overflowed ; to prevent which the city claimed to have built the ewer. It appeared that in 1849 the brook had been enlarged nd the sides walled up, (under a commission appointed upon petition for the improvement of the meadows through which it flowed,) at the expense of owners of the lands benefited thereby; and that the brook had subsequently become obstructed, and had been at different times cleared out by order of the mayor of the city. It was admitted, however, that the brook was not a city sewer, and it was not shown that the city was under any legal obligation to keep the brook clear. At the time of the hearing, the brook was much obstructed by earth and rubbish, and by the falling in of the arch built over the brook, at different points. The sewer runs westerly from the brook. The city subsequently built another sewer, east of the brook on Ferry Street. The last named sewer enters the brook about one foot above and south of the point where part of the water of die brook falls into the Cypress Street sewer; and water flowing from the Ferry Street sewer is carried off in the Cypress Street sewer, or flows northerly in the brook.</p> <p>“ The city clerk testified that several parties, whose lands were in the district ordered to be assessed, had each paid the city twenty-five dollars for entering the Ferry Street sewer, to which testimony the defendant objected. The jury were instructed that, in determining the objection that the city should pay more than one third of the expense, they might consider the revenue which the city might reasonably derive from the use of the Cypress Street sewer, by parties who might pay for draining directly into it, or into any other drains connected with it, which were or might be laid pursuant to the fifteenth section of the city charter; to which the defendant excepted. It was in evidence that the city had by ordinance accepted the Gen. Sts. c. 49, §§ 3-6; which ordinance was put into the case.</p> <p>“ The case was submitted to the jury upon the following instructions, which were not objected to by the respondents :</p> <p>“ 1. Shall the objection that the city should pay more than one third of the expense be sustained ? If the jury find, upon all the evidence in the case, that the city should rightfully pay more than one third of the expense of the sewer, this objection should be sustained ; and, in determining the question, the jury are to consider the whole amount of land now included in the district to be assessed as properly liable to assessment, and will not consider the pecuniary circumstances of the owners of the lands to be assessed.</p> <p>“ 2. Shall the objection of each petitioner that his lands are not benefited be sustained ? Unless the jury find that the land of each petitioner may receive some appreciable or substantial benefit from the sewer, this objection must be sustained. The land of each petitioner should be considered separately.</p> <p>“ 3. Shall the objection that lands not included in the order of assessment are benefited be sustained? If the jury find that there are lands not included in the assessment which are benefited by the sewer by its protecting them from the overflowing of the brook in freshets, then this objection must be sustained.”</p> <p>The jury were further instructed as follows : “ That the burden of proof was upon the petitioners; that the jury are net to consider whether lands owned by others than the petitioners are improperly included in the district to be assessed, the petitioners being in no manner aggrieved thereby; that in case the taking of the water by the Cypress Street sewer lowers the level of the town brook in times of freshets so as to facilitate the draining of the lands of the petitioners by private or other drains into the town brook, or into other natural watercourses in the district, then the lands would receive such benefit as would render them liable to assessment; and the prevention or substantia] diminution of the liability to the overflow of water in freshets is such a benefit as would render their lands liable to an assessment, without showing any other benefit from the sewer oi damage to the land.</p> <p>"The respondents asked for the following instructions; which were refused, and exception was taken to the refusal:</p> <p>“ 1. The jury, in determining the amount which the- city should pay, are not to take into consideration the possible revenue that may hereafter be received by the city for permitting parties to enter any sewer which the city may hereafter construct to connect with the Cypress Street sewer.</p> <p>“ 2. The jury are not to determine whether or not the amount of benefit is equal to the probable cost to the petitioners, but only whether or not the premises included are benefited for the purposes of removing surplus water in times of freshets.</p> <p>“ 3. The jury, in making the determinations, are not to consider whether or not the town brook, if cleared out, would take all the water that would naturally seek an outlet through it in limes of freshet, but whether or not there is likely to be surplus water from the town brook which the sewer might benefit the land by taking off in times of freshet, in the present or any probable future state of the brook.”</p> <p>The jury returned a verdict that the city ought to pay more than one third of the expense of the sewer; that the lands of the petitioners were not benefited; and that there were no lands benefited not included in the order of the city council for the assessment of the cost of the sewer. This verdict was accepted by the superior court; and the respondents appealed.</p>