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have resulted from the negligence of the defendant's servant. The defendant's vehicle was on the left-hand side of the road at the time of the collision. At the trial in the court of common pleas, the court instructed the jury to render a verdict for the plaintiff, if they thought the defendant's servant to be alone guilty of negligence, otherwise not. The plaintiff excepted to these instructions.

The jury found a verdict for the defendant; and being asked the grounds of their verdict, at the request of the plaintiff's counsel, they replied, that they found the collision to have been occasioned by the negligence of both parties.

Henry M. Parker, for the plaintiff.

A. H. Fiske, for the defendant.

DEWEY, J. in delivering the opinion of the court cited Lane v. Crombie, (12 Pick. 177); Thompson v. Bridgewater, (7 Pick. 188); Adams v. Carlisle, (21 Pick. 146); Butterfield v. Forrester, (11 East, 60); Bridge v. Grand Junction Railway Co. (3 Mees. & W. 244,) and stated the general rule to be that in an action on the case, for an injury to the plaintiff, alleged to have been caused by the defendant's negligence in driving on the highway, the burden of proof is on the plaintiff, not only to show negligence and misconduct on the part of the defendant, but also to show ordinary care and diligence on his own part, and that the principle recognized in actions against towns, for defects in the highway, was the same.

A question was raised, whether, if the defendant appeared to have been driving on the left hand side of the street, he did not become liable for damage, at all events, under Rev. Stat. ch. 51, § 3. But the court were of the opinion, that he was no further liable, for being on the left hand side of the street, than if he unlawfully obstructed the street in any other way, or was driving with negligence in any other respect. He was in violation of the law, if he was on the left hand side of the street, but he was not liable for the damage, unless the plaintiff was himself driving carefully. A party may drive on the left hand side of the road, unless he meets some one; and then the law requires him to turn to the right. But if he does not turn to the right, this does not justify the party meeting him, and on the right side of the road, to drive carelessly against

him. The only case which seemed to the court to conflict at all with these principles, was the case of Fales v. Dearborn, (1 Pickering's Reports, 345.) The point decided in that case was, that the statute, prescribing the law of the road, and > requiring parties to turn to the right, was applicable to the city of Boston. It appears to have been argued upon that point alone, and nothing seems to have been suggested as to the negligence of the plaintiff. The words of the decision,that a party crossing must see that he could do so without interfering with persons in the proper exercise of their right of passing, and was responsible for the consequences if damage occurred, if taken in their broad sense, and without qualification, would conflict with the other cases cited. But it did not appear, in that case, that the plaintiff was guilty of any negligence. And however that might have been, the court were clearly of the opinion, that a plaintiff must show that he himself was using ordinary care, and was not driving with negligence, in order to entitle himself to a verdict. Exceptions overruled, and judgment on the verdict for the defendant.

FOGG v. WILLCUTT.

A person intending to take the benefit of the insolvent law, may, in the absence of any fraudulent intent, lawfully transfer a note to any one, who proposes to become his surety for the fees of a master in chancery.

The title of a third person cannot be set up in defence to an action on a note, regularly and honestly negotiated.

THIS was an action of assumpsit against the defendant, who on Aug. 14, 1843, made a negotiable note payable to Lyman Wood's order. At about this date, Wood applied for the benefit of the insolvent law, but the master refused to act until his fees were secured. Wood procured the present plaintiff to be his surety to the master, and Wood at the same time delivered to the plaintiff the note now in suit, as security for the fees which the plaintiff might be obliged to pay to the master. It was left doubtful on the evidence, whether the name of Wood was actually indorsed on the note before, or after, the commencement of the proceedings in insolvency, though the note was delivered before. The assignment by the master to the assignee, of Wood's property, was dated September 4, 1843,

and purported to pass all the property of which he was possessed on August 18, 1843.

At the trial of the case, in the court of common pleas, WARD, J. instructed the jury that, in the absence of fraud, Wood's transaction might be lawful. The jury found for the plaintiff, and the defendant excepted. The supreme court overruled the exceptions, SHAW, C. J. observing that the defendant could not set up the title of a third person, in defence to an action on a note, negotiated in the regular course of business, and in good faith.

FOWLE v. HARRINGTON.

An indorsement by a surviving partner, in the name of a firm, after the death of the other member, of a note payable to the firm, is useless, but the survivor may recover on the money counts.

THE defendant, surviving member of the firm of Bowen & Harrington, made a note of hand in these words :-" June 13, 1839. On demand, with interest, for value received, we promise to pay Wheeler & Fowle, or order, one hundred and forty dollars. For the late firm of Wheeler & Harrington, 100 Bowen Harrington." It appeared that the firm of Wheeler & Harrington had been dissolved some time prior to the date of the note, leaving a variety of unsettled matters for adjustment; that Wheeler formed a copartnership with the plaintiff Fowle, prior to the date of the note, which lasted until 1841; and that this note was given by Wheeler & Harrington to Wheeler & Fowle. Wheeler died June 1, 1845. The affairs of the firm of Wheeler and & Fowle not having been fully adjusted, on the 12th day of June, 1845, Fowle, as the surviving partner, carried the note, which had remained in his possession, to an attorney for collection, and there wrote upon its back these words:"Wheeler & Fowle, pay to the order of Samuel Fowle." A suit was commenced on the note, the same day, in the name of Fowle.

In the court of common pleas, a verdict was taken for the plaintiff by consent, agreeably to the ruling of WASHBURN, J. Exceptions were taken, and argued before the supreme court.

METCALF, J. This was an action upon a promissory note,

brought by the plaintiff as indorsee; and the declaration contained also the common money counts. The indorsement was as needless as it was ineffectual. The proofs did not sustain the count upon the indorsement. Neither partner can indorse a note in the name of the firm, after the death of the other partner. The only question was, whether the money counts were sustained by the proof. The indorsement was a nullity. The plaintiff was in possession of the note, as surviving partner, and was the proper person to sue. Harrington, by signing the note in the name of his late firm, bound himself, and was liable as surviving partner. The court were of the opinion that the money counts were sustained by the proof.

LINDA v. HUDSON.

If a writ of habeas corpus be applied for on behalf of any person unlawfully restrained of her liberty without authority from such person, an action of trespass may be maintained by the person restrained against the person interfering, — but not otherwise.

THE plaintiff in this case was a female slave of Mr. Hodgson, a southern gentleman, who, in 1845, accompanied her master's family to this commonwealth. While in Northampton, the defendant sued out a writ of habeas corpus in her behalf, on which she was arrested and brought before Judge Dewey (of the supreme court) against her will (so alleged.) Judge Dewey decided that she was at liberty to go where she pleased, but she chose to remain with her master. Contradictory evidence was introduced as to the authority of the defendant to proceed in her behalf, and Judge Wilde, (before whom the case was tried a second time, a previous trial having resulted in a disagreement of the jury) instructed the jury that upon the evidence, there was no legal defence. A verdict was returned for the plaintiff, and the case was reported for the opinion of the whole court.

SHAW, C. J. delivered the opinion of the court, which was that the question should have been left to the jury, whether the defendant was authorized by the plaintiff to apply for the writ of habeas corpus; with instructions, that if the application was made with authority from her, this action could not be maintained. Verdict set aside, and a new trial granted.

COMMONWEALTH v. TUBBS.

Three distinct sales are necessary to constitute a common seller. THE defendant was indicted in the municipal court for being a common seller of spirituous liquors. A question arose as to what constituted a common seller, the defendant contending that three distinct sales must be proved. But the court ruled that if a person had a bar fitted up and stored with liquors, and kept a man employed to sell, and was ready and willing to sell to any one who should call, the proof of one sale was sufficient, taken in connection with those other circumstances, to constitute such person a common seller. The jury found the defendant guilty, and he took exceptions.

DEWEY, J. delivered the opinion of the court, and referred to Commonwealth v. Odlin (23 Pick. 275) as the only case in point. The question in that case was, whether three distinct sales to the same person were sufficient; and the court held that they were, with other accompanying circumstances. This would seem to imply, that three sales were necessary, either to one or more persons. The question was not, in the present case, whether the jury might have inferred, from the evidence, that three sales were made; and possibly they might have done so; but whether one sale, with the other facts stated, constituted a common seller. The court were of the opinion, that the jury must be satisfied that there were three distinct sales. New trial granted.

KIMBALL, Petitioner, v. LORING.

Construction of the Insolvent Act.

IN this case, the court held that the provision of the insolvent act in respect to the calling of the second meeting within three months, was directory and not conditional; and that the omis sion to call the meeting within the time would not be such an error as would render the proceedings absolutely void. And, although it might be that the master had not the power, under the statute, to call the second meeting, after the lapse of a year, yet the supreme court, under the general supervisory power given them by the act, could do so.

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