jury, that, as matter of law, the plaintiff was not of sufficient age to be trusted with a team. But the court declined to do so, and submitted the case to the jury, under such instructions, as were not excepted to otherwise than the above refusal.

Held, that the refusal to charge, as requested, was proper. The law has not defined the age at which one is, or is not, to be trusted to drive a team upon the highway. The capacity of children, and the circumstances of cases, are so infinitely various, that it is impossible to fix any rule upon the subject. Some persons are never capable of driving a single horse with reasonable safety, and others acquire that capacity at a very early age. It can only be determined, as matter of fact, by the jury, with reference to the circumstances of each particular case.

LEAVITT v. HOLBROOK.

Evidence of marriage in action for crim. con.—Misconduct of plaintiff.

In actions for criminal conversation with the wife, the marriage of the plaintiff is a substantive fact to be proved, but no higher proof is required than in prosecutions for adultery. It is never required in such cases, to prove the official character of the minister, or magistrate, solemnizing the marriage, further than that he in fact acted, and was recognized as such. In such actions it is not enough to deprive the plaintiff of his right of action, that he treated his wife with levity and indecency, in the presence of other men, if this had not come to the knowledge of defendant. To bar the plaintiff's action it must be shown that he connived at his own dishonor, or in some way so conducted as to encourage the defendant's misconduct.

Caledonia County.

HOIT v. SMITH.

Slander-Words not alleged to have been spoken of the plaintiff. Motion in arrest of judgment.

Action of slander, for words spoken at different times, in one count, plea general issue and notice that defendant will prove the truth of the words, and that he therefore spoke them of the plaintiff.

Some of the words were not alleged to have been spoken of the plaintiff, and the verdict being general, defendant moved in arrest of judgment.

Held, that after verdict the court will make all reasonable intendments in favor of the finding of the jury, and of its regularity and sufficiency; that they will for this purpose look into the whole record, and that the averments, in defendant's special notice, may be taken into account, in determining whether the words are admitted to have been spoken of the plaintiff. Although strictly this could not be done upon the trial of the action, the notice and the general issue being distinct, for the purposes of proof, yet upon a motion in arrest of judgment, after verdict, where nothing appears to show that any such question was raised, upon the trial, and the special notice distinctly admits the fact that the words were spoken of plaintiff, it would be unreasonable to arrest judgment on the ground of any defect in the averments upon that point, or under the possible apprehension that the jury might have given damages for words not spoken of the plaintiff.

PARKER v. MEADER.

Deposition taken out of State-Service of citation.

A citation issued by a justice in this State, to attend the taking of depositions in another State, which in form requires the officer to make service and return, may be regarded returnable process, for the purpose of determining the right of the officer to serve it. And it must be regarded as returnable to the justice issuing it, and may be served by the sheriff of that county, in any part of the State, under the statute of this State.

PASSUMPSIC BANK v. BEATTIE.

Trustee process-Execution against trustees.

In trustee actions, where there are different trustees, the plaintiff is not entitled to execution, as matter of right, until the final judgment against all the trustees, but he may take execution, by leave of court, against one or more of the trustees, as soon as final judgment is rendered against such trustee, if he have before obtained final judgment against the principal debtor.

CAMERON . THE TOWN OF MALDEN.

Sale of office of collector - Authority of moderator to bind town. Where the statute empowers towns to contract with some person to perform the duties of the office of collector and constable, or to sell it to the highest bidder, there is no implied duty on the part of the town (where the plaintiff gave $2 for the office,) that their selectmen shall make out and give such person the tax bills. He runs his risk in regard to that, the same as if he had been elected to the office in the ordinary mode. And when the moderator, in crying the office at auction, declared that the person would have all the taxes to collect, and would be entitled to certain premiums and abatements, this created no contract on the part of the town. The town could only be bound in regard to such matter, by some separate action, or by the act of some duly authorized agent. The moderators of town meetings have no authority to bind towns in such matters.

WYNN v. CHAMBERLAIN.

Receipt-Parol agreement in addition to may be shown. Where the plaintiff charged defendant with seduction and breach of promise of marriage, and he compromised and settled the whole matter for $1500, and took her receipt in full for the breach of promise of marriage, she declining to include in the receipt, the prosecution for bastardy, because the statute provided that her receipt should not bar the claim of the town, but agreed that the money was received in full of her claim on any such prosecution,

Held, that defendant might show the parol agreement made at the time the receipt was executed.

1. Because it was agreed to reduce only part of the contract to writing, and the writing will not, therefore, exclude proof of what was agreed to have rest in parol.

2. Because the receipt is merely evidence of an admission, and not a contract; and that its being expressed, "in consideration whereof I hereby release and discharge" the claim, did not alter its legal effect, or convert it into a contract.

HALL v. BARKER.

Measure of damages for insufficiency of chimney.

Where the plaintiff contracted with defendant to re-set a steam chimney, of good materials, and in a workmanlike manner, which, through defect in the materials and workmanship, fell down in about two years, but not until the plaintiff had parted with his title,

Held, that the plaintiff might recover the general damages, resulting from the difference between the chimney as it was when completed, and what it should have been under the contract; but that he could not recover any special damage, in consequence of stopping the mill and interrupting the business, he having no interest therein. Quære, how the case might have been, in regard to this latter claim, if it had appeared that the plaintiff conveyed the chimney with special warranty of its sufficiency.

IDE v. CONN. & PASS. RAILWAY CO.

Railway bonds-Action on by holder-Seal.

Held, that the holder of railway bonds may sustain an action thereon in his own name, declaring upon the instrument in the same way as upon a note or bill. The instru ment in this case was called a bond in the declaration, but not described as being under the seal of the company. The case was heard on demurrer to the declaration, and the court held, that the term bond, as applied to an instrument of this character, did not, ex vi termini, import that it was sealed. It is a general term, used as the name of this class of securities, which in fact are not, or ought not to be sealed, inasmuch as they are a quasi currency in the county and throughout the world, and pass like bills or notes, from hand to hand, by delivery. The plaintiff may therefore well declare in his own name, as holder, and in assumpsit.

Supreme Judicial Court of Massachusetts. Suffolk County, March Term, 1859.

Present-Dewey, Metcalf, Bigelow and Merrick, J. J.

BLACK RIVER SAVINGS BANK v. EDWAards.

Judgment-Evidence.

A judgment for the plaintiff in an action to recover an instalment of interest on an promissory note, in defence to

which want of consideration was relied upon, is conclusive evidence of consideration in a subsequent action between the same parties to recover the principal of the note. A. A. Ranney (E. R. Hoar with him), for plaintiff. R. Choate and E. A. Dana, for defendant.

COOK v. FISKE.

Principal and agent-Broker's commission.

A broker who procures a verbal agreement for a charter party is entitled to recover his commission from the owner of the vessel, although the latter, after assenting to the agreement, refuses to execute the charter.

C. H. Hurd, for plaintiff.

H. A. Scudder, for defendant.

A school teacher who is paid quarterly by the city, but has no express contract as to the duration of her employment, is entitled, upon the abolition of the school, pending a quarter, to compensation only to the time of such abolition. W. L. Burt, for plaintiff.

J. P. Healy (City Solicitor), for defendant.

MALDEN BANK v. BALDWIN.

Note · Demand.

A note made in Vermont, by a resident of Vermont, payable "at bank in Boston," is sufficiently presented to charge the indorser if presented at the Suffolk Bank only. F. A. Brooks, for plaintiffs.

J. D. Ball, for defendant.

WADE v. MASON.

Bailment - Replevin.

The bailor of a chattel, which the bailee has agreed not to remove without his permission, cannot, upon its being attached as the bailee's property and removed by the attaching officer, maintain replevin against the latter.

B. F. Hallett, for plaintiff.

A. Russ, for defendant.