Volume 110 — Massachusetts Reports

<p>K bill in equity against the X. Company, a domestic corporation, alleged that the defendants, with the Y. Company and the Z. Company, foreign corporations, being owners of certain patents, licensed the plaintiffs to use said patents in sewing machines, on payment of a royalty to a receiver appointed by the companies, and agreed that no license should be given to other persons to use said patents in drop-feed sewing machines for a less royalty, without a corresponding reduction in the royalty paid by the plaintiffs, and that said companies might terminate the license, upon thirty days’ notice, for breach of any of the agreements therein contained, or upon the machines manufacturer, by the plaintiffs falling below a certain number every quarter; that the companies subsequently licensed another person to use the patents in machines which were drop-feed sewing machines, for a less royalty; and that the plaintiffs thereupon objected to pay the larger royalty, but the companies threatened that unless the plaintiffs continued to nay the larger royalty, they would give notice to terminate the license and publish that tlr.i plaintiffs had no right to use the patents. The prayer was, among other matters, that the defendants might be enjoined from giving notice to terminate the license. Held, ¿hat the bill was not demurrable for failure to join the Y. and Z. Companies, or the receiver, as parties, and showed a case in which the court would give relief by injunction.</p> <p>The X. Company, a domestic corporation, and the Y. Company, a foreign corporation, gave a license to A. B. to use a patent. In a suit in this state by A. B. against the X, Jompany, the company was enjoined from giving notice to terminate the license or from collecting royalties thereunder. A. B. also began a similar suit in a United States coui< in another state against the Y. Company, and paid into that court a fund to cover such royalties as the court might find due. The X. Company joined in a petition with the Y. Company to the United States court for the payment of the fund to them, which the court refused. A. B. did not complain of this as a violation of the injunction. The X. Company afterwards assigned all its interest in the fund to the Y. Company, for the purpose of aiding the latter to get possession of the fund on a cross-bill in the United States court. Held, that this was a violation of the injunction, of which A. B. had a right to complain.</p> <p>A motion to dissolve or modify a preliminary injunction made more than a year after the injunction was granted, and after the cause has been brought to issue upon the merits, will not be allowed, if unsupported by proof of any new or special circumstances.</p>

<p>Under the Gen. Sts. c. 124, § 34, a debtor arrested on execution, and found guilty and sentenced to imprisonment upon charges of fraud, is not entitled to the benefit of the poor debtors’ oath, even upon a new application after the expiration of his sentence.</p>

<p>Tort to recover for personal injuries suffered by the plaintiff through the defendants’ negligence in improperly maintaining the Essex Bridge, leading from Salem to Beverly. At the trial in the Superior Court, before Rockwell, J., the plaintiff, in opening his case, stated that he should prove the following facts:</p> <p>By the St. of 1787, c. 27, certain persons were incorporated for the purpose of building the Essex Bridge, and were required to keep in the bridge a draw at least thirty feet wide, and to deliver up the bridge to the Commonwealth at the end of seventy years, during which time they were authorized to take tolls from passengers over the bridge, but not from vessels passing the draw. The corporation did build the bridge, with the draw now in use, and managed it till by the St. of 1857, c. 268, provision was made for the conveyance of the bridge and franchise to trustees to hold on certain trusts and conditions, one of which was that a draw at least thirty feet wide should be maintained. The trustees were empowered to take the same tolls as the corporation had taken. By the St. of 1868, c. 309, § 8, the county commissioners of Essex were required to lay out the bridge as a highway, which they did, making a decree “ that so much of the bridge as lies southerly of the northerly side of the draw shall be maintained, kept in repair and supported, and that the expense thereof and of raising the draw thereon shall be paid by the city of Salem.” The width of the draw, at bottom, has always been twenty-nine feet nine inches, and it was so built that its two sides or leaves, when hoisted up from the centre as far as possible, were not perpendicular to the bridge, but inclined toward each other equally, so that the space between them at the top was but twenty-seven feet; and there was a projection of about an inch made by an iron band round fche beam which formed the outer edge of the leaf t the draw nearest Salem.</p> <p>In October 1870, the plaintiff was one of the crew of a schooner passing through the draw, and was sent by the captain into the rigging to prevent it from catching, extricate it where it had caught on the side of the draw, and assist in carrying the schooner through the draw, and while the plaintiff was thus engaged on the side next to Salem, and while the schooner was passing through the draw, her rigging caught in the leaves of the draw, and against the iron band projecting from the leaf of the draw nearest Salem, and in order to extricate it the plaintiff stepped upon the top of the leaf and extricated the rigging, which, having become loosed, straightened out with great violence, and threw the plaintiff off from the leaf down upon the bridge, whereby he received severe injuries; the rigging caught in consequence of the insufficiency of the width of the draw, and of the projection of the iron band above the surface of the leaf.</p> <p>It was a reasonable and usual precaution for the captain to station his men as above set forth ; and in the plaintiff’s handling of the rigging, and when he was thrown down on the bridge, he was in the exercise of due care, and due care was used on the part of those in charge of the vessel while passing through the draw.</p> <p>It would have been practicable for the defendants to have built the draw thirty feet wide and in such a manner that the leaves thereof might be lifted to a position perpendicular to the surface of the bridge, and to have sunk the iron band into the beam to a level with the surface of the beam.</p> <p>The judge ruled that on these facts the plaintiff could not maintain his action, and, with the consent of the parties, reported the case for the consideration of this court; if the court should be of opinion that the plaintiff could maintain his action upon proof of the facts as above stated, then the case to stand for trial; otherwise judgment to be entered for the defendants.</p>

<p>Tort against the Peet Valve Company and Samuel J. Peet, a director and general agent and superintendent of the company, for personal injuries suffered by reason of the defendants’ negligence in the construction and use of a machine. At the trial in the Superior Court, before Rockwell, J., it appeared that the machine in question consisted of two heavy iron boxes, called flasks, one oí which rested on wheels so as to run on a track placed on the ground, and the other, of the same size, was suspended directly above it, by means of a beam attached by its middle to the ceiling, from each end of which beam a chain was suspended, terminating in a ring, which was slipped on to a trunnion projecting from each end of the upper flask. The trunnions were nearly two inches long, and of the same diameter throughout their whole length. At the time of the accident the upper flask was unevenly balanced, so that one end was tipped down and rested lightly on the lower flask, and the accident was caused by the slipping of the ring off the trunnion at the other end. The machine was a new invention, made by the defendants, and used by them in making experiments.</p> <p>The plaintiff testified that he was a house-joiner, and was sent by the foreman of the shop in which he worked to do a job required by the defendant Peet; that he went to the room where the machine was, and where Peet and one of his workmen were present, and was told by Peet to shove the bottom flask ; that he put his left hand on the flask, so that his fingers were over it, and his hand at the end ; and that the upper flask, which was about three feet above the lower, at that end, then fell and crushed his hand; that he did not touch any other part of the machine; that the room was dark, and he did not observe the construction of the machine, nor receive any caution concerning it.</p> <p>Other witnesses for the plaintiff testified that the machine was not safe, by reason of the absence of any projection or collar on the trunnions, which might prevent the rings from slipping off ; that if the upper flask had been properly suspended, it would have been safe for the plaintiff to have placed his hand as he did; and that the plaintiff by placing his hand as he did, could best thove the lower flask as desired.</p> <p>The defendants’ evidence tended to show that the manner i-which the upper flask was suspended was safe and proper, and that the plaintiff did not exercise due care.</p> <p>At the close of the evidence on both sides, the defendants asked the judge to rule that there was no evidence of their negligence; that on the evidence, the plaintiff did not exercise due care; and that placing the hand as the plaintiff did, without observing the construction of the machine, was such a want of due care as would prevent a recovery. But the judge refused so to rule, and submitted the case to the jury under instructions not objected to. The jury returned a verdict for the plaintiff for $3000, and the defendants alleged exceptions.</p>

Tort against common carriers. The first count of the declaration was for negligently losing a quantity of gin and whiskey intrusted to the defendants. The second count was for delivering the liquors to the wrong person.

<p>Tort for the conversion of merchandise. Trial in the Superior Court, before Dewey, J., who reported the case for the determination of this court substantially as follows:</p> <p>Charles F. Putnam and Albert Knights, partners under the style of C. F. Putnam & Company, being the owners of the merchandise in question, conveyed it to the plaintiff by bills of sale, in consideration of the plaintiff’s guaranteeing to the firm of A. French & Company the payment of such sum, not exceeding $1000, as might be due from C. F. Putnam & Company to that firm. The bills of sale were absolute on their face, but were given and received as collateral security for the liability of the plaintiff on this guaranty. On March 15, 1870, the merchandise was attached, while in the plaintiff’s possession, by the defendant, a constable of the city of Boston, on a writ against Charles F. Putnam and Albert Knights, and on March 21,1870, the plaintiff notified the defendant in writing that the goods had been conveyed to him by the bills of sale, and demanded that they should be given up to him, but made no statement that they were held as collateral security. At the time of the attachment, and ever since, the plaintiff was and is liablé to A. French & Company to the full amount of his guaranty.</p> <p>The judge, being of opinion that the demand made upon the defendant was not sufficient to dissolve the attachment, directed a verdict for the defendant, which was returned. If the demand was sufficient, the verdict to be set aside; otherwise, judgment on the verdict.</p>

Bill in equity, filed February 23, 1871, alleging that the plaintiff and William Cumston carried on the business of manufacturing and selling pianofortes, as partners, until May 1865, when the partnership was dissolved and it was agreed in writing that Cumston should employ the plaintiff as a salesman in his business for three years, paying him as compensation one third of the net profits of the business, and that William Cumston should “ have the right, during the term of…

<p>Bill in equity against the executors of the will of William Cumston, to recover a share of the net profits of a large and profitable business carried on by their testator as a manufacturer and seller of pianofortes. The defendants demurred on the ground that the plaintiff had a plain, adequate and complete remedy at common law. The case was reserved on bill and demurrer, by Wells, J., for the determination of the full court, and is stated in the opinion.</p>

Tort for breaking and entering the plaintiff’s close. Trial in the Superior Court, before Brigham, C. J. The defendant introduced evidence tending to show “ that he let the plaintiff have a piano to use for an indefinite time, upon a certain agreed rent, and that the rent was not paid as promised.” The plaintiff introduced evidence tending to show “ that he did not hire the piano, but purchased it of the defendant, and had made him payments thereon.” It appeared that in…

<p>Tort for disturbing the plaintiff’s right of way from his land m Peru to the highway over the defendant’s land. At the trial in the Superior Court, before Brigham,, C. J., the defendant contended that he had a right of way by prescription, and also that the alleged way was laid out in 1800 as a town way by the town of Peru, then Partridgefield.</p> <p>To show that the way was laid out as a town way, the plaintiff introduced in evidence the records of the town, from which it appeared that the selectmen issued a warrant on February 4, 1800, for a town meeting, to be held March 10, containing this article, “To see if they will accept any roads or discontinue any roads; ” that the meeting was adjourned from time to time till May 5; that on May 3 the selectmen surveyed and laid out a road; and that at the meeting on May 5 the town accepted the road, “ according to the survey.” The judge ruled, against the defendant’s objection, that the records showed a legal establishment of the road. There was conflicting evidence whether the location of this road was the same as that of the way in question.</p> <p>It appeared that the plaintiff had let his land for several years to one- Sargent, as tenant at will, on shares, Sargent giving him one half of all he produced, including the increase of the sheep and other stock, and the plaintiff owning the sheep and other stock, and having exclusive control of the timber, and that the defendant had interrupted the way by fencing and planting it. There was no evidence that the plaintiff was actually disturbed by the defendant in carrying wood over the way, although his right to pass over the way was denied by the defendant; and it appeared that the disturbance of the easement complained of consisted in the defendant’s stopping Sargent on one occasion, while driving said sheep and cattle over the way, and in driving them back.</p> <p>The defendant requested the judge to instruct the jury “ that if the plaintiff’s farm and stock were in possession of Sargent as his tenant at will, and on shares, then the plaintiff could not maintain this action unless he showed some injury to the stock or farm which should become or work an injury to his reversionary interest or property therein.” But the judge declined so to instruct the jury, and instructed them “ that for these acts, if proven, this action could be maintained by the plaintiff, if they should find the right of way established according to the instructions given them on that subject.”</p> <p>The jury returned a verdict for the plaintiff for $30 damages, and the defendant alleged exceptions.</p>

<p>In an action for an assault the defendant cannot justify on the ground that he had an irrevocable license to enter upon the plaintiff's land for the purpose of removing his per» sonal property therefrom, and that the plaintiff withstood his entry.</p>

Writ oe entry to recover land in Pittsfield. At the trial in the Superior Court, before Brigham, C. J., a plan was introduced in evidence, a copy of which is printed in the margin.

<p>Under the Gen. Sts. c. 11, § 8, land is taxable to the person having the legal estate therein, although he is a mere trustee without power of control or management.</p>

<p>In an action against a town under the Gen. Sts. c. 44, § 22, to recover damages for injury to the plaintiff’s horse occasioned by a defect in a highway on which the plaintiff waa travelling, evidence that the plaintiff was commonly careful and skilful in driving is not admissible to show that when the accident occurred he was in the exercise of due care.</p> <p>In an action against a town under the Gen. Sts. c. 44, § 22, to recover damages for injury to the plaintiff’s horse, alleged to have been occasioned by a defect in a highway on which the plaintiff was travelling, a witness, called by the defendants, testified that he saw the plaintiff driving in the town on the day of the accident, but that he could fix the day as the time of the accident only from the fact that, on the evening of the day when he saw the plaintiff, a person told him that the plaintiff’s horse had been injured on the same day. Held, that the admission of this testimony gave the plaintiff no ground of exception.</p>

<p>One who has taken up promissory notes at the request of a married woman cannot record from her the amount paid by him, if he does not show that they were given with reference to her separate estate.</p>

COKTBACT on a judgment against the defendant. At the trial in the Superior Court, before Brigham, C. J., the defendant admitted that the judgment was not paid, but introduced evidence tending to show that the plaintiff, the defendant, and William A. Millard, a debtor of the defendant, met together, and that it was orally agreed between them that Millard should assume and pay the amount of the judgment, that the defendant should discharge Millard’s indebtedness to him to the…

Bill in equity against Ellen Stone and the Springfield Institution for Savings. The defendant demurred on the ground that the plaintiff had a plain and adequate remedy at law. The case was reserved on bill and demurrer for the determination of the full court, and is stated in the opinion.

The motion on which this judgment was made was as follows : “ May 1, 1871. And now the defendant comes into court and says that he has been arrested in an action of contract by the said plaintiff and commanded and summoned to appear in this court, on this first day of May instant. Whereúpon this said defendant prays for his costs in this behalf by him sustained.” The writ on which the defendant was arrested, and a copy of which was filed in court, contained no declaration.

<p>In this Commonwealth, if a mortgagor, who has brought a bill to redeem, fails to pay the amount found due within the time ordered, and the mortgagee obtains judgment for costs, the mortgage is foreclosed, although no decree dismissing the bill has been ever entered.</p>

Conte ACT. Besides the original declaration filed on the entry of the writ, the plaintiff filed an additional declaration for use and occupation.

Indictment for a nuisance by obstructing a highway in Cheshire.

Indictment, on the Gen. Sts. e. 161, § 54,* alleging that the defendant, having in his hands a written instrument, in form a promissory note, did “ designedly, knowingly, wilfully and maliciously, falsely pretend ” to Marshall Sears, that the instrument was a form of a receipt in due and proper form for Sears to sign for goods delivered to him, and did “ designedly, knowingly, wilfully and falsely read said written instrument to ” Sears in the form of and as a receipt for…

<p>It is no ground for quashing an indictment for murder, that, in the signature of the foreman of the grand jury, the Christian name is represented by the initial letter only.</p>

<p>Under the Sts. of 1869, c. 416, and 1870, c. 201, the District Court of Central Berkshire has authority to issue a warrant, returnable before the District Court of Northern Berkshire, for the arrest of a person on a complaint charging him with the commission of a crime within the jurisdiction of the latter court.</p> <p>An objection that an indictment, averring that the defendant was a common drunkard on a certain day, and also on divers days and times between that day and a later day named, charges two offences, and does not properly allege the time of the commission of the offence, cannot, since the St. of 1864, c. 250, § 2, be taken after trial in a district court.</p>

Contract by a corporation established under the laws of this Commonwealth against the Grover & Baker Sewing Machine Company, a corporation also established under the laws of this Commonwealth, the Wheeler & Wilson Manufacturing Company, a corporation established in Connecticut under the laws of that state, and the Singer Manufacturing Company, a corporation Established in New York, under the laws of that state, to recove? the amount of fees for the use of patents which the…

<p>A teitator in his lifetime gave $50,000 as a permanent fund to a charitable corporation whose charter authorized it to hold property not exceeding $200,000, and by his will gave the residue of his estate to trustees to invest and add the income to the principal, holding the whole until it should amount to $200,000 in gold coin, and then to pay it to the corporation as a permanent fund. At the date of the testator’s death and of the probate of his will the residue amounted in value to $140,000 in gold, but owing to outstanding claims the estate could not be settled for more than two years, and at the time of settlement the residue exceeded in value $200,000 in gold; but before this time the corporation had been authorized by statute to hold property of $200,000, in addition to what it was before authorized to hold. Held, that the corporation was entitled to the whole of the residue.</p>

<p>Tort for the conversion of thirty tons of manure. At the trial in the Superior Court, before Wilkinson, J., the plaintiff introduced evidence that he sold and conveyed a farm to the defendant on February 11, 1870, by a deed describing it by metes and bounds, and containing no reservation except a right for the plaintiff to occupy the land until April 1; that the manure in question was on this farm; that the defendant, while negotiating for the purchase of the farm, made a separate and distinct oral agreement for the purchase of the manure; that it was agreed that the plaintiff should put up the manure for sale at auction, and the defendant should have it if he was the highest bidder; that in March the plaintiff advertised the manure for sale at auction; but that, at the time and place advertised, the defendant forbade the sale, claimed the manure under his deed, and afterwards spread it upon the land.</p> <p>On this evidence the judge ruled that the plaintiff could not maintain his action, and directed a verdict for the defendant, which was returned. The plaintiff alleged exceptions.</p>

Petition for a writ of mandamus to be issued to the Ware River Railroad Company, Charles A. Stevens, its president, and Otis Lane, its secretary, to compel them to transfer to the petitioner fifty shares of the capital stock of the company.

Contract on a promissory note dated April 9, 1860, signed by the defendant, and payable to Roxanna Blinn or bearer. Writ dated in 1870. The answer set up the statute of limitations.

<p>The St. of 1866, c. 234, § 1, does not oblige a town to support a state pauper, whose wife has a settlement in the town, unless she is also a pauper.</p>

<p>Indictment for setting fire to the dwelling-house of Edward A. Allen, at Huntington, in the night-time of January 19, 1872. Trial in the Superior Court, before Dewey, J., who, after a verdict of guilty, allowed the following bill of exceptions :</p> <p>“ The Commonwealth introduced evidence to show that the fire was set by placing a box, filled with combustibles, against the door of the house, and firing the box; and that the fire was extinguished, but not till the box had become so far charred and destroyed that only parts of it were left. These parts were produced, and the Commonwealth offered a variety of evidence tending to show that the box came from the defendant’s saloon, and, with its contents, was prepared by him. The evidence to connect him with the fire was wholly circumstantial.</p> <p>“ Allen was called as a witness by the Commonwealth, and testified that he was a constable; that on January 18 he made a search for intoxicating liquors in the defendant’s saloon, and saw a box there which was of the same size and had on it the same marks as the box placed against his door; that when found after the fire it had holes bored through its sides, which corresponded in size with auger bits which were found on the defendant’s desk after the fire ; that after the fire, he and another constable searched tin? defendant’s premises and found a hammer which had a nick or small piece clipped from one side of the face of the hammer head; that there was an impression made by a hammer near a nail head on the box, the appearance of which corresponded with the nick in this hammer ; that on the day after the fire this impression was much more distinct than at the trial; that the morning after the fire he with others searched near the premises of the defendant, and found traces of kerosene oil extending from a platform in front of the defendant’s saloon some distance into the street in the direction of the fire; that this platform was some fifteen feet wide between the saloon and the street; that on the edge towards the street he thought there was a trace of kerosene oil, some six inches square ; that early in the day" after the fire he telegraphed t« a constable at Northampton to come and help look up the case; that this constable came; and that two or three days after the defendant had his examination before a magistrate. No other witness testified to seeing any oil on the platform.</p> <p>“ At the trial, Allen could not point out the part of the impression which corresponded with the nick, and other witnesses on cross-examination said they could not then discern this peculiarity in the impression ; and it was contended by the defendant that it was utterly impossible. The identity of the box found at Allen’s door with that which was in the saloon on the day before the fire was denied and contested throughout the trial, and also that there was any visible correspondence between the face of the hammer head and the impression on the box. And it was contended by the defendant that it appeared by Allen’s cross-examination that his testimony on the points tending to identify the charred box with that in the prisoner’s saloon was much stronger on the trial than at the examination before the magistrate, and that at that examination he said nothing about discovering kero* sene oil on the platform.</p> <p>“ The testimony of Allen is stated, though not fully, for the purpose of showing the importance and nature of his testimony.</p> <p>“ The defendant called a witness, and asked him, for the purpose of affecting the credit due to Allen as a witness, whether he had had any conversation with Allen in which he stated his belief and his grounds of belief that the defendant did not set the fire. The district attorney objecting to the question, the judge ruled that the witness might testify as to any conversation and statements by Allen to the witness as to the defendant, excepting as to his opinion as to his guilt or innocence. The witness then answered that all that Allen said was what he thought of the defendant’s guilt or innocence. To this exclusion of evidence the defendant alleged exceptions.”</p>

Complaint to a trial justice for the illegal keeping of intoxicating liquor on March 28, 1872. The defendant was convicted and appealed. At the trial on appeal in the Superior Court, before Bewey, J., the certified copy of the complaint sent by the trial justice alleged the keeping of the liquor on March 28,1870.

Indictment charging the defendant with breaking and entering the shop of Albert W. Crafts, in Ashfield, on the night of October 27,1871, with the intent to steal, and stealing and carrying away, among other things, one pound weight of candy and 100 cents.

Complaint to a justice of the peace, charging that the defendant conveyed certain intoxicating liquor from place to place in the county of Franklin, he having reasonable cause to believe that the same was intended to be sold in violation of law.

Tort for taking stones from the plaintiff’s land adjoining Deerfield River, in consequence of which the river washed away part of the land.

Contract to recover money expended in 1869 and 1870 for the support of Elijah Alden, a pauper.

Bill in equity alleging that, upon an information brought by the attorney general, at the relation of the plaintiffs, against the Proprietors of Deerfield River Bridge, a corporation established by the Commonwealth, a decree was entered that the corporation should pay $4000 to these plaintiffs, and execution in favor of the plaintiffs issued thereon ; that the officers and stockholders of the corporation, desiring to evade the duties and liabilities of the corporation,…

Petition to enforce a lien for work done on a building of the respondent in Greenfield. The case was submitted to the judgment of the Superior Court, and, on appeal, of this court, on an agreed statement of facts, of which the following is all that is material. The petitioner ceased to work upon the building on April 22, 1871.

<p>Mandamus on the petition of William B. 0. Pearsons and four others, representing themselves as a majority of the board of water commissioners of the town of Holyoke. The writ set forth that the act to supply the town of Holyoke with fresh water (St. 1872, e. 62, which in §§ 2, 3, provides for the taking of water and land and the construction of waterworks) was duly accepted by the town at a legal meeting, and at the same meeting said commissioners with John Delaney, were duly elected water commissioners, and, with the respondent, who then and still was the town treasurer, constituted the board of water commissioners; that the members of the board entered upon the duties of their office; that the town voted that the water commissioners be authorized to take immediate measures for the introduction of water to the town, “ that the water commissioners be authorized to issue coupon bonds signed by the treasurer and countersigned by the chairman of the selectmen, to be denominated Holyoke Water Bonds, to an amount not exceeding two hundred and fifty thousand dollars, as provided by the act of the Massachusetts Legislature, approved March 7,1872, said bonds to be issued of the several denominations of one hundred, five hundred, and one thousand dollars, in such proportions as the commissioners may direct, *nd made payable in current funds on the 1st day of July 1900, at the office of the treasurer of the town or city of Holyoke, and to bear interest at the such rate as shall be prescribed by the commissioners within the limits of said act,” and “ that the board of water commissioners be authorized to negotiate the Holyoke Water Bonds in such amounts and at such times as they may deem best.” At a subsequent meeting, the town voted, “ that in addition to the taking and holding of lands and water, as provided in the previous vote, the board of water commissioners be authorized to exercise, in the name of the town of Holyoke, all the other powers granted to said town by section 2 and section 3 of the act of the Legislature of Massachusetts, entitled an act to supply the town of Holyoke with pure water, approved March 7, 1872, such powers to be held and exercised by said board in such a manner as a majority thereof shall determine, and that said board be authorized to pay all costs of constructing the waterworks authorized by said act, and all expenses incurred in carrying out the provisions of this vote and the previous vote, out of the proceeds of the sale of the Holyoke Water Bonds provided for in said act,” and “ that the board of water commissioners be authorized, if in their judgment it shall be expedient, to pledge the Holyoke Water Bonds to such amount as they shall see fit for the money borrowed to carry on the construction of waterworks as voted by the town.”</p> <p>The writ further set forth that under the authority of said act, and pursuant to the vote of the town, the said commissioners caused bonds to be prepared and printed ready for the signatures of the town treasurer and the chairman of the selectmen of the town, and the respondent, town treasurer as aforesaid, received them into his possession, and thereupon it became his duty, in his official capacity as town treasurer, to sign the bonds and deliver them upon demand into the custody of the board for sale, negotiation or pledging, and said commissioners had duly requested him to sign the bonds and to deliver the same into the custody of the board, but he had refused, and still refused so to do, claiming that in his capacity of town treasurer he was entitled to the custody and control of the bonds and of all the proceeds thereof; and “ that under the authority of said act, and pursuant to said votes, said commissioners had proceeded to take lands and water and to contract a large amount of indebtedness in constructing waterworks, and were greatly in need of money to meet their just obligiitions in that behalf contracted, and of said bonds foi the purpose of raising said money as intended by said act.”</p> <p>The writ commanded the respondent to sign said bonds, as town treasurer as aforesaid, without delay, “ and place the same in the custody of said board of water commissioners, to be disposed of in accordance with the provisions of said act and said votes, or to show cause to the contrary thereof.”</p> <p>The respondent, in his return to the writ, admitted that the St. of 1872, c. 62, was duly accepted by the town; that the commissioners named in the writ were duly elected, that the votes recited in the writ were passed; that bonds to the par value of $250,000 had been printed under the direction of the board of water commissioners, and that he had been requested to sign the same in his official capacity as treasurer of the town; and alleged “ that he is the legally chosen and qualified treasurer of said town, and has given bond with sureties for the faithful discharge of the duties of his office to the town; that it is his duty as such treasurer to receive and take charge of all sums of money belonging to the town, and to pay over and account for the same according to the order of the town or its officers duly authorized in that behalf ; that the proceeds of said bonds of the town, whether the same should be sold or pledged, would be money belonging to the town, which it would be his duty, as such treasurer, to receive and take charge of; that if he should permit the bonds to go out of his custody and control, he would become responsible to the town for the value thereof, and so cannot be required to part with the bonds, or any of them, except on receipt of the value thereof at a rate fixed by the town or its representatives thereto duly authorized ; that there is nothing in said act which authorizes the town to empower the board of water commissioners to negotiate, or pledge the bonds or any part thereof, or to issue the same, or vro have the custody "thereof, or to receive the proceeds thereof, or to borrow any money thereon, or to pay any of the liabilities of the town created by the action of said commissioners in taking land or water, or in making aqueducts, dams, reservoirs, buildings or fixtures, excavations or embankments, or in doing any other thing in executing, superintending or directing the performance of the works, matters and things in said act mentioned; that the liabmties so created are the liabilities of the town, and, in creating them, the board of water commissioners has not incurred and will not incur any personal obligation to pay them, or any part of them, and, in creating them, acts merely as a body of servants of the town appointed to oversee a certain work of. the town, and is not in need of any money to meet any liabilities or obligations of them, the said commissioners, or any indebtedness of them, the said commissioners, contracted in taking lands or water, or in constructing waterworks; that the said water commissioners have not any intent or obligation in relation to the bonds, or the payment of the liabilities created, under said act of the Legislature, other than each citizen of the town has, and that they are not, and never have been authorized or empowered by vote of the town, or of the inhabitants thereof, to apply for the writ, and have no right to apply for the samé in their own name; that if the said commissioners, or any other persons, have any claim on the town in their own behalf, for services rendered, or moneys expended in behalf of the town, they have a plain, adequate and complete remedy against the town at law ; that he has, and had before the petition for this writ was made, signed the bonds in his official capacity, and is ready to deliver them to any person or persons when thereto instructed by the proper authority, on receiving the amount for which they shall have been negotiated or pledged by any one having authority to sell or pledge them; that, by the by-laws of the town, it is made the duty of the treasurer to negotiate all loans that may be made for the town, under the authority and sanction of the selectmen, which by-law was approved before the said act was passed; that he is, ex officio, a member of said board of water commissioners; that the. said commissioners are not entitled to said writ; and that if the writ ought to issue against him, it ought to issue only on petition of the inhabitants of the town.”</p> <p>The petitioners demurred to the return, for the reason that the matters set out therein were not sufficient in law to justify the respondent in declining to obey the writ.</p>

<p>Tort to recover for personal injuries received by the plaintiff on September 15,1871, by reason of an alleged defect in a sidewalk on Sargeant Street in Springfield, which the defendants were bound to keep in repair.</p> <p>Trial in the Superior Court, before Rockwell, J., who, after a verdict for the plaintiff, allowed the following bill of exceptions:</p> <p>“ The alleged defect consisted of a depression or cut in the sidewalk, which was of earth not paved, caused by the rain standing in a pool and flowing therefrom, from three to four feet in width and from four to eight inches in depth. It had been substantially in the same condition since the July previous. The evidence tended to show that early in the evening, the plaintiff went from the house on Sargeant Street, where she was then living, passing over the alleged defective sidewalk ; that as she passed across it she felt a roughness; that she went to a shop on Main Street, near by, was gone a few moments and returned, and as she reached the corner of Sargeant Street and Main Street, saw a man standing upon the corner, who, as she passed him, nut out his arm as if to catch her; that at this action she was frightened, and ‘cut and run’ down Sargeant Street, thought nothing about the sidewalk or the manner of her passing over it, but the first she knew she found herself in the hole , that it was very dark at the time; and that she was thrown violently upon her side and was injured.</p> <p>“ The defendant asked the'judge to rule ‘that if the plaintiff went across the sidewalk at a run, it being very dark at the time, and gave no thought to the sidewalk or its condition, or the manner of her passage across it, then she was not in the exercise of due care, and could not recover; and that if she knew of the defect and went over the sidewalk upon a run by reason of the fright she received, and gave no thought to the sidewalk or the manner of her passage over it, then she was not in the exercise of due care and could not recover.’ The judge refused so to rule, but instructed the jury that if they believed that the plaintiff exercised her best judgment, under the circumstances which then surrounded her, and if she proved affirmatively that she was in the exercise of due and ordinary care in the circumstances, that she could recover; otherwise not. The judge gave instructions as to what would constitute due and ordinary care, which were not objected to.” The defendants alleged exceptions.</p>

Contract to recover for labor upon roads. At the trial in the Superior Court, before Brigham, C. J., the plaintiffs introduced evidence tending to show a special contract between themselves and the defendants, to put and keep certain roads “ in as good repair as usual,” for one year, for five hundred dollars.

Tort to recover for personal injuries caused by a defect in a highway in Wilbraham, on which the plaintiff was being driven, and which the defendants were bound to keep in repair.

<p>Tort to recover for personal injuries to the plaintiff occasioned by a defect in High Street in Springfield, which the defend, ants were bound to keep in repair.</p> <p>At the trial in the Superior Court, before Putnam, J., the plaintiff introduced evidence tending to show that on Monday, December 25,1865, she slipped and fell on a spot of smooth glare ice, about three feet square, in a depression on the sidewalk in Main Street, and was injured; that the ice was two or three inches thick and frozen to the ground; that the adjoining land was sc graded that water ran into this depression and stayed there in summer till it evaporated, and in winter till it froze; that on the afternoon of the Saturday preceding the accident it began raining, and rained all Sunday; “ that it was between a rain and snow, foggy and drizzling, acted as though it had hard work to rain, more of a fog than rain; ” that an icy coating was over everything on Monday morning, and that the weather was then bright and cold.</p> <p>This was all the evidence as to the time the defect had existed. The evidence on other points it is not now necessary to report. The judge ruled that the action could not be maintained, ordered a verdict to be returned for the defendants, and, with the consent of the parties, reported the case for the determination of this court. If the ruling was right, judgment to be entered on the verdict; if not, the verdict to be set aside.</p>

Contract for work and labor performed by the plaintiff during the months of April and May 1870. Writ dated October 5, 1871., Trial at June term 1872 of the Superior Court, before Brigham, C. J., who, after a verdict for the plaintiff for $37.52, allowed the following bill of exceptions : “ The plaintiff was a minor at the time of the trial.

Contract for work and labor against Joel Hayden, Joel Hayden, Jr., Sereno Kingsley and Collins Gere, doing business under the name of Hayden, Gere & Company.

Contract. The declaration alleged that the defendant hired the plaintiff to work in his garden for six months, and wrongfully discharged him before that term had expired. At the trial in the Superior Court, before Putnam, J., the plaintiff testified that on a day before the end of the six months he had a conversation with the defendant, in which the defendant told him to work that day for another man; that the plaintiff refused; and that the defendant then discharged him.

Contbact for work and labor. Writ dated January 24,1871. The defendant filed an answer denying the plaintiff’s allegations, and also a declaration in set-off.

Tout by trustee process for seducing Mary Kennedy, the plaintiff’s minor daughter. Writ dated September 18, 1870.

Bastardy process. In the Superior Court, before trial, the respondent moved to dismiss the proceedings because only copies of the original papers of the proceedings before the magistrate to whom the complaint was originally made, were in court, but Brigham, C. J., overruled the motion, and the trial proceeded. The respondent requested the judge to rule that he could not be found guilty without the production of the original papers, but the judge refused so to rule.

<p>Writ oe dower by the widow of Patrick King. At the trial in the Superior Court, before Rockwell, J., the tenant introduced in evidence a deed releasing dower, which purported to be signed by the demandant. The demandant, being called as a witness, testified that the deed was a forgery. She thereupon wrote her name in the presence of the jury, seven or eight times in succession, upon a slip of paper, and offered to submit it to the jury for the purpose of having it compared by them with the signature to the deed, as evidence that that signature was not genuine. The tenant objected, but the judge allowed the paper to be submitted to the jury.</p> <p>The demandant also offered in evidence her signatures upon the pay-roll of the Albion Paper Company, by whom she had been employed from eighteen months to two years prior to the trial, (such signatures being made at the end of every month during that time,) for the purpose of letting the jury compare them with the signature to the deed. The tenant objected, but the judge admitted the evidence.</p> <p>The jury returned a verdict for the demandant, and the tenant alleged exceptions.</p>

<p>A wife is not a competent witness to her husband’s will.</p>

Replevin of household furniture and wearing apparel. At the trial in the Superior Court, before Roehwell, J., it appeared that on March 17, 1871, when the plaintiff was living with his wife and infant child, his wife, who was then sick in bed, caused herself and her child to be carried, without the knowledge of the plaintiff, to the house of the defendant, who was her brother; that she carried with her the property replevied, which comprised the principal part of the…

Contract on a written agreement dated May 2, 1871, by which the plaintiff sold his house and land to the defendant, $50 to be paid immediately, and the balance “ on delivery of the deeds; possession at once.” At the trial in the Superior Court, before Rockwell, J., it appeared that at the time of the sale the premises were occupied by a tenant at will of the plaintiff, who paid his rent monthly in advance, the last payment being on April 10; that a few days after the sale…

<p>A bought land in 1812 with the money of B., but took the deed in his own name. B. took possession at once of the land, and often applied to A. for a deed; and he, and those claiming under him, occupied it till 1870. In 1823, A. died. Beld, that it was competent to find that A. was disseised by B.</p>

<p>An insurance company appointed an agent, to be paid by certain commissions with a guaranty that they should amount to a specified sum monthly, the agency to be terminated by either party at three months’ notice. The agent gave bond conditioned faithfully to conform to all instructions of the company and to remit to them all sums received, less his commissions. The sureties on the bond knew the terms of the appointment. Subse. quently the company and the agent agreed, without the knowledge of the sureties, that he should receive increased commissions, but give up all claim on the guaranty. Held, that this change in the mode of compensation did not discharge the sureties.</p> <p>A bond reciting that the obligor had been appointed agent to an insurance company, bound him to conform to all instructions and to remit all moneys which he, as agent, should receive. Subsequently he resigned his agency in writing and the company accepted it also in writing, but he continued to be employed by them. Held, that the bond did not cover any default after the time of his resignation.</p>

Tort for breaking and entering the plaintiff’s close, and carrying off and converting to the defendants’ use the plaintiff’s building standing thereon. The case was submitted to the judgment of the Superior Court, and, on appeal, of this court upon an agreed statement of facts substantially as follows: The building belonged originally to Michael Curran, but was subject to a mortgage to Porter Underwood, which was duly recorded in the office of the town clerk of Holyoke.

Bill eh equity against Shay and David M. Butterfield, alleging that the plaintiff bought of Butterfield, two adjacent lots of land in Chicopee, one large and the other small, and took a deed from him which was intended to cover both lots; that by mis take the small lot was omitted from the deed ; that subsequently Shay fraudulently procured from Butterfield a deed of the small lot, and put his deed on record before, the plaintiff put his on record; that the plaintiff gave a…

<p>If a police court, under the St. of 1869, c. 415, §§ 44, 48, 56, has ordered the seizure of intoxicating liquors which are found to be more than twenty dollars in value, and has issued notice to the claimant returnable to the Superior Court, it may transmit to that court copies of the complaint and search warrant instead of the originals.</p> <p>The St. of 1865, c. 249, providing for the appointment of state constables, is not in violation of the nineteenth amendment to the Constitution, which reqv *es that sheriffs shall be elected by the people.</p>

Complaint by Leonard J. Wilson to the Police Court of Milford, that William Weatherhead and Seth Hastings, on September 23, 1871, “ did unlawfully fish in that portion of a certain pond (commonly known as Mendon Pond) in which fishes are lawfully cultivated and artificially maintained” by the complainant and John Bliss, and without the permission of the complainant or Bliss, “ the proprietors of said fishes.” At the trial, on appeal, in the Superior Court, before Dewey, J„…

Indictment for keeping a tenement for the illegal sale of intoxicating liquors. At the trial in the Superior Court, before Devens, J., George E. Cutler, a witness for the Commonwealth, testified that he bought a pint of whiskey of the defendant for the purpose of testifying against him.

<p>An indictment averring that the defendant kept “a disorderly tenement” charges np offence known to the law.</p>

<p>In a complaint under the St. of 1869, c. 415, § 44, an averment “that intoxicating liquors,” describing several kinds, “were, and still are, kept and deposited by J. S. of W. in a certain grocery store, dwelling-house, and the cellar under the same, together with the outbuildings contained within the curtilage thereof, there situate, on the southeasterly corner of S. and C. Streets,” sufficiently describes the place in which the liquors are kept and deposited.</p> <p>The certificate or jurat to a complaint, under the St. of 1869, c. 415, § 44, need not contain an averment that probable cause has been shown for the issuing of the warrant, and the warrant is not fatally defective because such averment is inserted at the end of the directions therein, or even in the teste thereof.</p> <p>In a complaint under the St. of 1869, c. 415, § 44, an averment that certain liquor kept by J. S. is intended by him for sale in the Commonwealth, J. S. not being authorized to manufacture, keep for sale or sell the same in the Commonwealth, sufficiently alleges that the liquor was intended for sale in violation of law.</p> <p>[f a complaint under the St. of 1869, c. 415, § 44, contains an affidavit by one of the complainants that he has reason to believe and does believe that intoxicating liquor has been sold in a dwelling-house by the occupant within one month before the date of the complaint, neither the complaint nor the warrant need contain an averment that a place of common resort is kept in the house.</p> <p>A claimant of intoxicating liquor seized on a complaint under the St. of 1869, c. 415, § 44, cannot dispute the regularity of the notice to appear and oppose its forfeiture, if he has in fact received notice; and has appeared generally.</p> <p>At the trial of a complaint, under the St. of 1869, c. 415, § 44, upon which intoxicating liquors have been seized, the jmy are warranted in finding that the liquors seized were the liquors described in the complaint, although the officer who made both the complaint and the seizure testifies that at the time of making the complaint he had no knowledgt af the quantity, kinds or packages of the liquors.</p>

Complaint, under the St. of 1869, c. 415, § 44, alleging the keeping of intoxicating liquors in a house at Bolton, by an unknown person, for the purpose of sale contrary to law, and praying for a searchwarrant. The warrant was issued, and the liquors seized; and notice was issued to the unknown person, and all other persons claiming any interest in the liquors, to appear at January term 1872 of the Superior Court.

<p>Appeal from a decree of the Probate Court, held by George White, Esquire, acting judge, dismissing a petition filed July 3, 1871, by P. Emory Aldrich, F. P. Goulding and Asa Thayer, praying that an instrument presented might be admitted to probate as the will of Warren Hunt, and that the petitioners might be appointed administrators of his estate with the will annexed, the executor named therein having declined the trust.</p> <p>Warren Hunt died in June 1867, and in July his will was admitted to probate, and letters testamentary issued to Francis W. Hunt, the executor named therein, who gave bond, which was approved by the judge of probate. The executor represented the estate insolvent, and commissioners were appointed to receive and examine claims, and subsequently the executor .resigned his trust and his resignation was accepted. And in March 1869, Edward C. Thayer and Fenner Batcheller were appointed by the judge administrators with the will annexed of the estate of the deceased not yet administered. All these proceedings were had before Henry Chapin, Esquire, who was and is judge of probate for the county.</p> <p>Joseph Thayer, at the death of the deceased, was a principal creditor of his, having a claim against him for about $4000 ; he presented this claim to the commissioners, who allowed it, and their report was accepted by the judge. During all the proceedings in the Probate Court the judge was the son-in-law of Joseph Thayer and knew of this claim against the estate of the deceased, which was insolvent at the deceased’s death; and Edward C. Thayer was the brother-in-law of the judge.</p> <p>In October 1869, Alvin Hall, a creditor of the deceased, presented a petition to the Probate Court, praying for the appointment of an administrator with the will annexed of the estate of the deceased not yet administered; but the court dismissed the petition on the ground that administrators had been already appointed ; the petitioner appealed, on the ground that the former appointment of administrators was void, and this court sustained the appeal and ordered the petition to stand for hearing. See Sail v. Thayer, 105 Mass. 219.</p> <p>The reasons assigned for the dismissal of the present petition by the acting judge were that the questions raised by the petitioners were still pending in this court on the petition of Hall, and also that the will had been duly proved.</p> <p>On the above facts, which were agreed, the case was reserved by Chapman, C. J., for the consideration of the full court.</p>

<p>Contract brought for the benefit of Mary M. Titus, on a joint and several bond to the judge of probate for this county, dated August 1, 1851, entered into by Lewis Torrey, as principal, and the defendant and Dexter Putnam, as sureties, conditioned that Torrey, who had been appointed executor of the will of John Titus, Sen., should faithfully administer the estate of the testator. Trial in this court, before Chapman, C. J., who reported the case for the consideration of the full court, substantially as follows:</p> <p>John Titus, Sen., died in 1851, leaving a will, which was duly proved, and by which he devised certain real estate to his son John Titus, Jr., and appointed Torrey executor. Letters testamentary were issued to Torrey, and he gave the bond in suit, and returned an inventory of the estate, in which the personal property was valued at $273, and on the back of which was a list of debts due to the deceased. Among these was a note from the executor to the testator, dated January 11, 1848, for $685, and bearing indorsements of the payment on April 1,1849, of interest to date, and of the payment on September 20, 1849, of $34. This note was due from the executor to the estate.</p> <p>On December 6, 1852, the executor petitioned the Probate Court, setting forth that the legacies and debts already ascertained and charges of administration amounted to $818, and that the personal estate in his hands amounted to $285, leaving a balance against the estate of $533. The petition prayed for leave to sell real estate for the payment of debts and legacies. Leave was granted, and the executor, in April, 1853, in pursuance of the license, sold part of the real estate which had been devised to John Titus, Jr.</p> <p>On January 4, 1854, John Titus, Jr., made a mortgage of all his real and personal estate to James T. Howard, which was fraudulent as to creditors, and believed to be without considera-. tian; and he died in September 1854, intestate, leaving Mary M. Titus, who was of age, and two other children, his heirs at law.</p> <p>On November 1, 1854, the executor petitioned the Probate Court, setting forth that the legacies and debts now ascertained and charges of administration amounted to $1177; that the personal estate, “ as per the inventory thereof returned,” amounted to $273 ; that the price of cattle sold, not inventoried, amounted to $37; and that the proceeds of the real estate sold amounted to $528, so that the amount in his hands was $838, leaving a balance against the estate of $339. The petition prayed for leave to sell more real estate to meet this balance. Leave was granted, and the executor, in December 1854, in pursuance of the license, sold to Obadiah Morse some more of the real estate which had been devised to John Titus, Jr., and executed and delivered a deed to the purchaser.</p> <p>This second sale was made for the purpose of defeating the mortgage to Howard and for the benefit of the heirs of John Titus, Jr., except Mary M. Titus, who refused to assent to the transaction or to have anything to do with it. The executor never received anything on this sale, and has never rendered any account. An entry to foreclose the mortgage was made January 25, 1855, and on August 31, 1858, it was sold and assigned to-Morse, who now claims to hold the land under the foreclosure. Mary M. Titus contended that if the execu.'or had included in the amount of personal estate in his hands, stated in the petitions for sale, the debt due from him to the estate, it would have appeared that there was no occasion to sell real estate, and that it was a breach of duty in him to make such sale.</p>

<p>The maker and payee of a note entered into an agreement under seal by which the maksf bound himself, his heirs, executors and assigns, to make certain quarterly payments tor ten years, and the payee promised that if such payments, amounting in all to less than the amount of the note, were made, the note should be cancelled. The quarterly payments were made up to the maker’s death, but not afterwards. Reid, that the note was a valid claim against the estate of the maker, for its full amount, less the payments actually made.</p>

Contract to recover $40 for work and labor. The answer alleged that all money due from the defendants to the plaintiff had been attached on trustee process upon a writ against the plaintiff, and paid over by them on such process before this action was begun.

<p>Trustee process. R. P. Cooke, C. Jones and E. Plunket, doing business under the firm name of R. P. Cooke & Company, summoned as trustees, denied that they had any goods, effects or credits of the defendant in their hands. The plaintiff filed interrogatories to the trustees, which they answered. From their answers it appeared that they had employed the defendant to grade a part of the Boston, Barre .and Gardner Railroad, and that he had broken and abandoned the contract. The other facts are stated in the opinion.</p> <p>In the Superior Court the trustees were charged on their an* swers, and appealed.</p>

Tbustee pbocess against James Hogan and Thomas Hogan. By the writ, which was dated January 22, 1872, the defendants and John Tank and William H. Ward, as trustees, were summoned to appear at the Superior Court next to be holden at Worcester “on the second Monday of March next.” At March term the trustees appeared specially and moved to dismiss the writ because there was no such return day as that named in the writ, and the defendants also moved to dismiss the writ for the…

<p>The provisions of the Gen. Sts. c. 71, § 25, and of the St. of 1866, c. 272, § 1, making any one, by whose means a person not having a settlement in this Commonwealth is brought within it, liable for such person’s support if he becomes a pauper, do not apply to a common carrier of passengers who has brought such person into the Commonwealth in the ordinary course of business, and without any reason to suspect that such person would become a pauper.</p>

<p>A subscriber for shares in the capital stock of a railroad company refused to pay the assessments on the shares; the company did not formally declare them forfeited, but procured subscriptions from other persons to the full amount of the capital stock. Held, that the company could not sell the shares and sue the subscriber for the difference between the assessment and the sum for which the shares were sold, under the Gen. Sts. c. 63, § 9.</p>

Contract to recover the amount of a tax paid under protest. It appeared by the records of the defendants that, at a town meeting duly called to consider the question of reestablishing the school district system, the following vote was passed: “ Voted, to reestablish the school district system.” The defendants claimed that they could prove by paroi evidence that the vote was a two thirds vote.

<p>Tort. Writ dated April 5, 1871. The declaration alleged that the plaintiff was seised and possessed of a lot of land on both sides of Mill Brook, so called, in Worcester, with a machine shop thereon, fitted up with a large steam-engine and boilers for the . purpose of furnishing steam-power to the tenants of his said machine shop; that he had a right to have the water of the brook flow pure and uncorrupted, such water in a pure condition being absolutely essential to the carrying on of his works; that the defendants, on April 5, 1861, and on divers days and times since, “ wrongfully and unjustly cast, carried and deposited, and caused to be cast, carried and deposited into said Mill Brook and the waters thereof, at points in the channel thereof above and higher than the works of the plaintiff, great quantities of filth, dirt, gravel, refuse material, matter discharged from sewers, privies, water-closets, stables, sinks and streets, and divers other noxious materials and ingredients,” by reason of which the water became greatly corrupted and unfit for use in the plaintiff’s business, “said water so corrupted, among other things, corroding the plaintiff’s boilers and engine and fixtures, causing an adhesion of sediment and other materials to said boilers, and greatly increasing the expense of making the necessary amount, of steam for said works, and greatly increasing the danger of explosion in said boilers, and causing thereby frequent breakages in the engine, fixtures and works, and deterioration thereof, and causing great expense in the repair thereof and in the interruption to the running of the works, thereby causing great injury to all of the plain, tiff’s establishment; ” and that “ the waters of the brook so corrupted are thereby rendered so offensive that it is difficult and expensive to procure competent engineers and workmen to operate said works.”</p> <p>At the trial in this court, the case, which is stated in the opinion, was reserved by Chapman, O. J., for the determination of the full court. If, the court should be of opinion that the plaintiff was entitled to recover upon the case reserved, or any part thereof, the case to be sent to assessors to assess the damages sustained by the plaintiff, if any, upon such rules and instructions as the court should give; otherwise, judgment to be rendered for the defendants.</p>

<p>Upon an issue of the value of land taken for a highway, testimony »f the owner as to the probable future use of his remaining land is inadmissible.</p>

Bill in equity against the trustee under the will of Samuel Billings, praying for an account, for the defendant’s removal, and for further relief.

<p>t is no objection to an appeal, under the Gen. Sts. c. 99, § 8, and the St. of 1865, c. £58, by a creditor of an insolvent estate, from the allowance by commissioners of a claim by another creditor of the estate, that in the notice filed in the probate office, claiming the appeal, the appellant professes to be acting not only in his own behalf, but also in behalf of the other creditors, and of an infant child of the deceased, whose guardian he is; or that in such notice he claims an appeal from the allowance of the claims of other creditors, besides the appellee; or that he has not filed any reasons of appeal; nor is it a condition precedent to the appeal that he should give any further notice to the appellee.</p>

<p>Bill nr equity, filed August 17,1872, by Gilbert Hammond and Levi L. Hammond, executors of the will of Levi Hammond, praying for instructions. The case, as it appeared from the bill and answers, on which it was reserved by Golt, J., for the determination of the full court, was as follows :</p> <p>Levi Hammond died July 17, 1871, leaving a will which was duly proved September 5,1871, and which, omitting the formal parts, was as follows :</p> <p>“ First. I give and bequeath to my beloved wife, Rachel Hammond, all my household furniture, my top carriage and harness, and I also give to my said wife the use of the place on which I now live, at Charlton Depot, during her natural life. I also give to my said wife the interest of ten thousand dollars, to be paid to her by my executors hereinafter named yearly during her life, said provisions to be instead of dower.</p> <p>“ Second. I give and bequeath to my nephew, Lewis H. Merritt of Hartland, in the State of Vermont, one hundred dollars.</p> <p>“ Third. I authorize and direct my executors to sell to my son George Hammond my old farm at the Northside, so called, containing one hundred and sixty acres, more or less, at the appraisal of Erastus Winslow, Daniel H. Tucker and William Adams, provided my said son chooses to take said farm at said appraisal; and I hereby authorize and empower my said executors to make, execute and deliver good and sufficient deeds for the conveyance of said farm; and if my said son does not choose to take said farm at appraisal, I give my said executors authority to sell and convey said farm to any person or persons, selling at public or private sale, in their discretion; and I direct my executors to cause the barn on the aforesaid farm to be shingled out of the proceeds of my estate, provided the same is not done before my decease, and also the shed attached to said barn, and the hog-house on said farm.</p> <p>“ And any other real estate I may own at the time of my decease I order my said executors to sell and convey as aforesaid, excepting the place the use of which is herein secured to my said wife.</p> <p>“ Fourth. I authorize and direct my said executors to retain from my estate and hold in trust the sum of ten thousand dollars, the interest on said sum to be paid to my said wife yearly as hereinbefore provided, and the remainder of my estate, after the payment of my just debts and funeral charges, and for a suitable and proper monument at my grave, I give and bequeath to my children Gilbert Hammond, Levi L. Hammond, George Hammond, Aaron Hammond, Hannah D. Aldrich, wife of Dwight M. Aldrich, and Mary Jane Putnam, wife of Leonard Putnam, to be equally divided between them.</p> <p>“ And after the decease of my said wife I authorize and direct my said executors to sell at public or private sale the place on which I now live, the use of which is herein secured to my said wife, and I hereby give them authority to make, execute and deliver deeds for the conveyance thereof, and, after paying from the proceeds the funeral expenses of my said wife, and for a suitable and proper monument at her grave, and the expenses of administration, the remainder, together with the ten thousand dollars held in trust as aforesaid by my said executors, I give and bequeath to my aforesaid children, to be equally divided between them.</p> <p>“ And I ordain and appoint my sons Gilbert Hammond and Levi L. Hammond executors of this my last will and testament.”</p> <p>The children named in the will were the only heirs of the testator. Mary Jane Putnam died July 29, 1871, leaving her husband and two minor children, Levi H. Putnam and Arthur L. Putnam, her surviving. Levi H. Putnam died March 10,1872, under age and unmarried. Leonard Putnam was appointed administrator of the estates of Mary Jane Putnam and Levi H Putnam.</p> <p>The plaintiffs, as executors, under the authority of the will, on April 1,1872, sold the farm at Northside to George Hammond, at the appraisal of the persons named in the will, for $6700. All debts and legacies were paid, and this sum of $6700 remained ii he hands of the plaintiffs to be distributed as residue under the will. Leonard Putnam contended that the share of Mary Jane Putnam should be paid to him. Arthur L. Putnam, by his guardian ad litem, contended that it should be paid to him.</p>

Tout for slander alleged to have been spoken by the female defendant. Writ dated May 13, 1871. At June term 1871, James Duncan appeared in the Superior Court, and demurred on the ground that the action should have been brought against his wife alone, but Putnam, J., overruled the demurrer, the trial proceeded against both defendants, and the jury returned a verdict for the plaintiff.

<p>Tort to recover for personal injuries occasioned by the explosion of the boiler of a locomotive engine belonging to the defendants. Trial in the Superior Court, before Seudder, J.</p> <p>The plaintiff testified as follows: “ I was in the employ of the defendants as fireman from 1862 till 1866, and as engineer from 1866 till the accident. I ran on the engine Wachusett, on the freight train between Boston and Fitchburg. On Friday, March 25, 1870, by direction of George A. Cooledge, master mechanic of the road, the Wachusett was taken in for repairs. Frank Maddox, foreman of the round-house, who had charge of engines and attended to dispatching them in the absence of Cooledge, told me that Cooledge wished me to take the engine Concord that night. I took the engine and ran her that night to Fitchburg. The throttle-lever stem was out of order. It was hard to pull it open and to shut it off. I discovered this when I first took the engine. It grew worse until I could not shut off steam with it. I had to use the reverse lever, which is not the usual way. I noticed no other trouble that night. I ran the same engine on Saturday. My attention was called to the throttle, in the roundhouse of the Vermont and Massachusetts Railroad at Fitchburg, by James Day, engineer, and David T. Davis, master mechanic of the Vermont and Massachusetts Railroad. They were on the engine on Saturday morning, examining the boiler head. They took a hammer and pounded the stay-rods on the outside. I did not run her down to Boston that day. At the request of Cool-edge, I went down on the passenger train, to let him know what repairs were necessary on the Wachusett. The same morning I -oticed a bulging on the back head about the throttle-stem on the Concord. On reaching Boston, I told Cooledge the throttle of the Concord worked hard; that I had great difficulty in shutting it off; and that it ought to be attended to, it worked so hard. He asked what the trouble was. I told him I thought some of her long stay-rods were broken; that I had noticed a bulging out of the hack head; and that it came from some of the stay* rods being broken. He said the throttle had always worked hard. I told him it had not always worked as hard. He said that the bulging in the back head had been there a number of years; that he did not think any of the long stay-rods broken; and that 1 was the first one who had found any fault. I told him she was not a fit engine to run on that train ; that I had a heavy train, and that the night before I was two hours late in getting into Fitchburg. He told me I must have my trains made lighter; that he had no other engine at that time which he could put on that train ; and that he would arrange the first of the next week for me to come into the shop and work on my own engine. I noticed the difference in the riding of the Concord and Wachusett. There was no further change in the Concord, except that the throttle worked harder. I ran the Concord to Fitchburg Saturday. I had to handle her with the reverse lever. I had a heavy train Tuesday night; the rails were slippery ; and I used my sand up before reaching Fitchburg. About a half-mile below Fitchburg she began to slip. I tried to shut off the throttle, the fireman helping me. I told him it would break the stem. I put the fire out, and finally started a wood fire, and drew the train in, in parts. I put the engine into the round-house of the Vermont and Massachusetts Railroad, where it was kept when at Fitch-burg. On Wednesday morning, early, I took the dome cover off the Concord, to see what the trouble was. I went into the Vermont and Massachusetts Railroad shop, to see Davis. He sent me to Lucius P. Barnes, foreman of the repair shop, who gave me Addison Robbins, a machinist. We took the dome cover off; found no trouble. The end of the throttle-lever struck on the boiler head. Robbins unscrewed the stem, and the lever did not then hit the boiler head. We examined the stay-rods with a long iron hook, and tried the upper ones, one on the right hand side, the other on the left; our opinion was that both were broken; we felt sure the left one was; we called in Barnes and Davis. It was their opinion they were broken; the one on the left surely broken. I van her to Boston Wednesday. At Groton I sent a telegram to Cooledge that one long stay-rod of the Concord was broken. ] ran her in and left her at the coal shed; went to the round-house for another engine ; and saw Maddox, but not Cooledge. Maddox said he had no orders to get another engine ready for me. I asked if he had not received the dispatch. He said he had. I went to the shop to see Edward Tourtellotte, foreman of the repair shop. I ran the Concord into the round-house. Maddox got on the engine and wanted me to show which stay-rod was broken. I took the hammer and rapped on the heads of the six stay-rods, and showed the two I thought broken. He said it was hard to tell whether they were broken or not. I told him we had the dome cover off at Fitchburg, and thought two or three of the long stay-rods were broken. I told him I did not want to run the old trap any longer any way. Nothing more was said. At this time there were freight engines unemployed about the roundhouse, fit to run. I ran the Concord to Fitchburg that night; no change in her, the throttle working hard. On the road, the right hand pump broke, and I ran her up with the left hand pump. On Thursday morning I took off: the castings of the broken pump, and sent them down to Cooledge. I ran her down to Boston on Thursday. On that day I talked with Cooledge about the pump. He said I should find it for my benefit to look over my engine at both ends of the road. I told him I did, but did not think it necessary to examine every bolt. I ran her up to Fitchburg that night with one pump; no apparent change in her condition. There were three or four spare engines in. On Friday morning, April 1, when I was about to start, the engine exploded.”</p> <p>Cross-examination: “ There were thirty-two engines on the Fitchburg Railroad. I had run on nearly all as fireman. Some were bought new, and some they built. I intended to become an engineer when I went into the employ of the road. I did not work in the shop before I was engineer. I saw engines taken apart; I thought it necessary to understand engines well, and did so. I knew Cooledge while I was a fireman. He became master mechanic just before I became engineer, and remained so till the injury. He appointed me engineer. He had charge of the motive power, general supervision of repair, and dispatching of engines. Before the accident, I never said anything against Cool-edge. It never occurred to me that he was not a suitable man for the place. I had known the Concord ever since I had been on the road. She had been in the shop for repairs two or three times. She had been a spare engine; but before I took her, she had run a number of months on a freight train. I made no objection to the Concord when I took her. I never heard any one object to running her. On Saturday morning I thought the stay-rods were broken. She had an old-fashioned valve. The Wachusett had a balance valve, which works much easier. I noticed the throttle worked harder on Monday, and worked so continually; it worked about the same on the day of the explosion. I did not think the engine was in good working order. From Friday, when I took her, up to the time of the explosion, the engine was not in good working order. I thought her safe on Saturday ; I thought the stay-rods were broken, but considered her safe. If not more than one rod was broken, I should consider her safe. On Wednesday morning I tried two of the stay-rods. I could not see them, because they were under water. I thought them broken, because when I took hold of them with the hook they seemed slack. After Wednesday’s examination, I thought the stay-rod was broken. I did not consider her unsafe. I did not tell Maddox, who examined the boiler at Fitchburg. I said nothing to Cooledge about it on Thursday. I worked as engineer under certain rules, established by the defendants, and was bound to run by them. They were a part of my contract with the defendants. Prior to March 25, I had read them carefully and knew them. I knew Rules 1, 28 and 42.* I took the engine for a week when I was sure it was not in good working order. I considered it a part of my duty to know when it was safe to proceed with an engine when out on the road. It was my duty to know whether that engine was safe on the day of the explosion. I never drew my fire nor stopped because I thought the Concord unsafe. I did not consider her unsafe, though I had no doubt the stay-rod was broken. Stay-rods are to strengthen the boiler head and flue-sheet, which they connect. They have a tendency to strengthen the whole boiler. If there was a crack along the side of the boiler, I think that was the sole cause of the explosion. I did not go to have my trains lightened. The accident to the pump was occasioned by a nut giving way. It was the engineer’s duty to see to the nut. I think the engine would be unsafe to a certain degree if two stay-rods were broken, unsafe to proceed. I considered it.my duty then to know whether the engine was unsafe, by reason of a long stay-rod being broken. I considered myself a competent engineer, and was employed as such.”</p> <p>Reexamination: “ I never knowingly violated a rule of the company.”</p> <p>Recross-examination: “ I knew that the Concord was not in good running order.”</p> <p>Jacob W. Latin testified as follows: “ I have been a boilermaker by trade twenty-two years. I saw the wreck of the Concord after the explosion; I saw an old crack, running from the wagon-top sheet to the side sheet, two and a half feet on the inside, on the under side of the sheet, that is, just below the line ; the crack was corroded over; I could not say how long it had been there. There were two or three old cracks inside in the back head. Some of the short stay-bolts that fasten the fire-box and side sheet together were broken off and corroded, and the sheet was corroded about the bolts. The old cracks and broken stay-bolts would be a sufficient cause for the explosion. A bulge in the back head would indicate that long stay-rods were broken. I do not consider it safe to run an engine with one or more stay-rods broken, or if stay-bolts are broken. There would have been no difficulty after proper examination in discovering these defects. I would take off the dome cover, take out the valve throttle, one long stay-rod on either side, then go inside, lie down and look. - used to see the Concord the year before the explosion, in the engine-house at Fitchburg. I could see water and steam ooze out on the left hand side below the rivets. It was two years ago that I saw steam oozing out a great many times.” Cross-examinatian : “ The crack was in the lower sheet, where it begins to bend, right at the lower edge. The rest of the break on the wagon-top sheet was new. The sole cause of the explosion was the side órack. The line of explosion did not follow the cracks in the back head. The side sheet below the line of explosion was but a little sprung. It bent out above the first line of stay-bolts', and just below the old crack.” Reexamination: “ A bulge in a boiler head would indicate such a weakness in other parts as to render necessary an examination of the whole boiler.”</p> <p>Addison Robbins testified as follows: “ I examined the Concord on the Wednesday before she blew up. Bulging in the back head had thrown out the lever, and lengthening the stem relieved the throttle. Over the whole boiler, down to the running board, there was a layer of wood lagging, and a sheet iron cover, fastened over the lagging with brass bands. The crack would not show through without taking off the lagging. I saw stay-bolts, but the side sheet was substantially in its place. The crack in the side sheet was a sufficient cause for the explosion.”</p> <p>David T. Davis testified as follows: “ I am master mechanic of the Vermont and Massachusetts Railroad. The duties of a master mechanic are to have charge of the motive power and see that engines are fit to run, and have charge of artisans employed in the construction and repairs of engines. It is necessary that he should be a mechanic by trade. I examined the Concord on the Wednesday before the explosion. The boiler head was bulged out, and, in my opinion, one long stay-rod was broken. It was not safe and proper for an engineer to run with the stay-rod in the condition that was, or with the boiler head in the condition that was. I saw the engine the next day after the explosion; some stay-bolts were broken; some were pulled through the sheet; and sediment had oozed through the crack in the side sheet in some places. If the boiler head is bulged out, I consider it necessary to make a thorough examination of the inside, by a person going inside. The side crack could have been seen from the inside.” Cross-examination : “ I mean by a trained mechanic, one brought up to the business. Seven or eight trades are required to make and repair engines; each shop has a mechanic at its head; a man might be blacksmith or boiler-maker and be a competent master mechanic. The side crack was the cause of the explosion. I-have no doubt of it. To see this crack it would be necessary to take out the throttle-pipe, dry-pipe, two stay-rods, and part of the crow-foot stays. Cracks are liable to close up, and often require close inspection to discover them when the surface is exposed to view.”</p> <p>Lucius P. Barnes testified: “ I am foreman of the Vermont and Massachusetts Railroad shop. It is not safe to run an engine with a broken stay-rod. After the explosion, I saw the crack; one of the long stay-rods was broken; some of the stay-bolts were corroded off. It is not safe to run an engine with a bulge in the back head, or with stay-bolts corroded off, or with deep cracks, such as in the Concord, or when it takes two men to shut off the throttle.” Cross-examination : “ A competent engineer ought to know that it is not safe to run an engine with a bulge or with a broken stay-rod. The bulge did not cause the explosion, nor the broken stay-rod. The crack was the cause.” Reexamination : “ The bulge in the back head would indicate weakness in the boiler. It would not be proper to run the engine without an examination of the whole boiler.”</p> <p>John Webster testified: “I am master mechanic of the Boston, Clinton and Fitchburg Railroad. After the explosion, I saw the long crack near the seam just below the lap. If a proper examination had been made, by going inside, a part of it could have been seen. It is not safe to run the engine with that crack, or with a stay-rod broken, or with a bulge in the back head, without examination. There is no difficulty in finding out the cracks, broken rods and bolts, by an examination inside. A master mechanic should be a mechanic by trade, one who has worked on engines and understands them.” Cross-examination: “ Two or three inches of the crack under the lap might have been seen. If there were no leak, I should not be looking for cracks. The crack was the cause, and only cause of the explosion.”</p> <p>A. B. Cleveland testified: “ I have been a machinist twenty years. I should think the long crack might have been seen. The old cracks in the back head could have been seen. None of the cracks in the boiler head blew out. Some of the short stay-bolts in the upper row were rusted off.” Cross-examination : “ I do not know that the crack was the cause of the explosion.”</p> <p>Charles H. Damon testified : “ I am a machinist, and work on engines for the Boston, Clinton and Fitchburg Railroad. I saw the crack inside the sheet after the explosion. It looked old, as ;f steam had been oozing through in one place. The short stay- ' bolts in the top row were pretty old; some were eaten off by rust. One long stay-rod was broken. There is no difficulty in discovering a crack in a boiler. No difficulty in seeing the whole side down tó the stay-bolts. I saw cracks in the boiler head.” Cross-examination: “ When steam oozed through, there was nothing that would show through the lagging.”</p> <p>Edwin Hanscomb testified: “I am an engineer. I saw the crack after the explosion. There was a place two inches long where the steam had oozed through, and formed a sediment on the outside.” Cross-examination: “ I think the crack was the sole reason for the explosion.”</p> <p>Henry J. Colburn testified: “ I saw the crack after the explosion. There was a white deposit on the outside, as if it had been there accumulating.” Cross-examination: “ I could not say whether oozing would show outside of the lagging.”</p> <p>The president, directors and superintendent of the defendants testified that Cooledge was appointed master mechanic, after diligent search, as the best man they could obtain; that they considered him competent; that they never heard any complaint concerning him, or about the Concord; and that it was not their business personally to inspect the condition of the engines.</p> <p>John H. Edgecombe testified as follows: “ I worked for the defendants. I took the lagging off after the explosion. The crack was above where the lagging came down. I took out the long stay-rods; there were six; none were broken.”</p> <p>Alonzo Smith testified: “ I am an engineer on the defendants’ railroad. I ran the Concord two or three months, six months before the explosion. I knew of no defect in the boiler. I never saw steam oozing out of the side. There was a bulge in the back head, an inch about the throttle-stem. I saw it first four years ago.”</p> <p>Oliver Ayres testified as follows : “ I was formerly master mechanic of the defendants. General repairs were made on the boiler of the Concord in 1859. The whole of that part of the boiler, including the fire-box, was made new at that time, of the best quality of iron. I saw the crack after the explosion. The crack comes below the top of the crown sheet and crown bars of the fire-box. The crack could not have been seen without taking out the fire-box. I never knew a fire-box to be taken out for the purpose of examination of boiler. A fire-box burning soft coal will last five years. I have known Cooledge twenty years. He was engineer while I was master mechanic, and worked part of the time in the shop on repairs. I think him entirely competent for master mechanic. There can be no training better than his. I never considered it necessary for a man to be a trained mechanic in order to be a competent master mechanic, nor has it been so considered by the railroads in New England. In selecting master mechanics of roads of the size and general character of the Fitchburg Railroad, it is not usual to regard the fact of a man’s being a mechanic by trade as essential to the position of master mechanic. For twenty-five years, a large majority of master mechanics on railroads in New England have not been trained mechanics or machinists. In selecting master mechanics myself, I have not regarded it as essential. Cooledge worked in the shop three or four days in a week, setting up and taking apart engines."</p> <p>George A. Cooledge testified as follows: “ I am master mechanic for the defendants. I was fireman three years, and engineer ten years, working a third of the time in the repair shop, taking apart and setting up engines. I never knew, suspected or was informed of any defect in the Concord. The bulge was in the back head since 1867. After the explosion I saw the crack. It was not visible on the outside before the explosion. The lagging came ten inches below it. There was no position where a man could get his eyes where he could see it inside. The plaintiff spoke to me on Saturday, before the explosion, of the bulge qnd stay-rod. He said the throttle worked hard. I knew it „orked very hard, as it will with engines of that class. General repairs were made on the Concord in 1867 and 1869. In 1867 everything inside of the boiler was removed, except the fire-box and crown bars. Under my directions, a thorough examination of the entire boiler was made. I instructed my boilermaker to make a thorough examination, and I think I was inside. That is my practice. In 1869 new stay-rods were put in, and a new front flue sheet and front course in the boiler, and under my direction a thorough examination was then made, so far as could be without taking out the fire-box. The Concord, from 1859 to the explosion, was used mostly as a spare engine, and its entire use amounted to about five years’ continuous service. It is never practised to take out the fire-box to examine the outer sheet of a boiler.” Cross-examination: “ The cracks in the poiler head I did not know of till after the explosion. No cracks were visible there in 1867; I went in myself. When the plaintiff told me the throttle worked hard, I told him it always did; I told him the boiler head had been sprung out a long time. I did not think the stay-rod broken; it had been in but a year, and was of the best material. No means of discovery exist as to cracks in this position. It is practically safe to run an engine with a broken stay-rod, but I would not allow an engineer to run with a broken stay-rod, if I thought it broken. An extra number are put in for contingencies. The mere fact of the bulge would not tend to weaken the boiler head. In February preceding the explosion I had an examination of the throttle. From my present knowledge, I should think the engine unsafe for a year before the explosion. I never served an apprenticeship as a mechanic, nor worked for a series of years in a shop.”</p> <p>Frank Maddox testified as follows: “ I am foreman of the round-house of the defendants’ railroad. I am a machinist by trade. I knew the Concord. I never knew, suspected or was informed of any defect in her. After the dispatch came, I talked with the plaintiff. I got on the engine. The plaintiff told me that a long stay-rod was broken; that he rapped on the head of the stay-rods. I told him I did not think he could tell in that way. The lagging came down to the running board.” Cross-examination : “ I took no means to ascertain whether there was a broken stay-rod. I could not see the crack if all the crown bars were out, in any way I can think of.”</p> <p>Edward Tourtelotte testified as follows: “ I am foreman of the machine shop of the defendants. I knew the Concord. I never knew, suspected or was informed of any defect in her. In 1869, when repairs were made, I went inside of the boiler, up to the back flue sheet, and examined the side sheet and wagon-top sheet with a lamp as carefully as possible. I saw no defect. After the explosion, I saw the stay-rods taken out and gave them to Austin D. Robinson. Rone were broken. The lagging came down below the crack to the second row of stay-bolts. The crack could not be seen from inside.”</p> <p>Austin D. Robinson testified that he received the stay-rods after they were taken out of the Concord, and that none were broken.</p> <p>William Stounant testified as follows: “ I am a boiler-maker, and have been so twenty-four years. I repaired the boiler of the Concord in 1867. I examined the boiler all over inside, with a lamp, as far as I could see. In 1869 I examined the boiler as before, to see if I could find any defect. I saw no defect. I never knew or suspected any defect. I could not discover this crack without taking out the fire-box. The stay-bolts looked well in 1869. In 1869 there were no cracks in the boiler head.”</p> <p>Edmund Grady testified as follows: “ I have been a boilermaker for the defendants for six years. I worked on the boiler of the Concord in 1867 and 1869. I examined the boiler in 1869, by the aid of a lamp, inside. I noticed the stay-bolts. I saw in the whole length. Rone were broken in the boiler, so far as I could see. The crack in the side sheet could not be seen from the inside.”</p> <p>Moses Bayley testified as follows : “ I have been engineer on the defendants’ railroad for seven years. I ran the Concord eight months. I saw a bulge round the throttle ten years ago, the same as since the explosion.” Cross-examination: “ I took her out two or three days before the explosion to water. I said I would not take and run her as a regular thing. I think she was not fit to run with a regular train. It took the fireman and myself to shut her off.”</p> <p>Ezra B. Cole and one Rewton testified that they were engineers, had run the Concord, knew of no defect in the boiler, and never saw steam or water issuing out of the side.</p> <p>Several experts testified “ that in their judgment the crack in the side sheet could not have been seen without removing the firebox or crown bars ; that the training which it appeared Cooledge had had would be the best training to make a man a competent master mechanic of a railroad; and that, in selecting a master mechanic, railroad companies do not usually regard it as necessary that the candidate should be a mechanic by trade.”</p> <p>It was admitted by the plaintiff that the Concord was originally a suitable and proper machine for the purpose for which it was designed.</p> <p>The foregoing was all the evidence now material to report.</p> <p>The part of the boiler showing the entire fracture, and also the stay-rods were viewed by the jury.</p> <p>At the close of the evidence, the defendants asked the judge to rule that there was no evidence to go to the jury in maintenance of the action; but the judge refused so to rule.</p> <p>The defendants then asked the judge to give the following rulings : “ 1. The rules of the defendants, under which the plaintiff worked, constituted a part of the contract of his employment, and any intentional violation of any of them by him would deprive him of any rights arising from the relation in which he stood to the defendants, so long as such violation continued.</p> <p>2. Under the rules of the defendants, which prescribed the duty and ascertained the rights of the plaintiff, in respect to the operation of his engine, he was the absolute judge of whether, at any time, the engine was safe to proceed, and was in good running order ; and in respect to those questions was wholly independent of Cooledge or Maddox, or any other employé of the defendants.</p> <p>3. If the plaintiff knew, or had reasonable cause to believe, the engine to be unsafe, [or not in good working order,] he cannot recover. 4. If the defendants used reasonable care originally in furnishing a suitable and safe engine for their road, and in putting the same into the hands of fit and suitable agents to be kept in repair, they are not liable in this action for injury caused by any defect or want of repairs therein subsequently existing. 5. The plaintiff’s knowledge, as shown by the evidence in this case, of the defective condition of the engine, and his continuing to use the same after such knowledge, is conclusive evidence of a want of due care on his part. 6. The plaintiff’s knowledge that the engine was not in good order, and his using the same with such knowledge, is conclusive evidence of want of due care on his part; and if such knowledge and such use by him is proved by the evidence, he cannot recover. 7. The defendants are not liable in this case unless the plaintiff proves that the president, directors or superintendent either personally knew, or, by the exercise of reasonable care in the performance of their duties, might have known of the existence of the defect in the engine, which caused the explosion; or unless the plaintiff proves that the president, directors or superintendent either personally knew, or, by the exercise of reasonable care in the performance of their duties, might have known, that the person or persons employed to have the charge of the engine and keep it in repair were incompetent; and further proves that such incompetency caused the accident: 8. If the plaintiff violated any of the rules, and the accident would not otherwise have happened, he cannot recover. 9. Although Cooledge and Maddox failed, through incompetency, to make such examination of the boiler as the bulge in the back head, the condition of the stay-rods or throttle reasonably called for, and although, had they made such examination, the cause of the accident would probably have been discovered and the same prevented, still the defendants are not liable on that account. 10. The master mechanic was a fellow-servant of the plaintiff, and the defendants are not liable for the negligence, if any, of the master mechanic in failing to keep the engine in repair.”</p> <p>• These rulings the judge refused to give, except the third, which he gave, omitting the words in brackets.</p> <p>The judge, at the request of the defendants, also gave the following ruling : “ If the plaintiff ran the engine when it was not in good working order, knowing it to be such ; and the particulars in which it was not in good working order were signs of a defective condition in the boiler, causing an explosion, by which the plaintiff was injured, and a competent engineer ought to have known that such particulars were signs of such defective condidon, and the plaintiff held himself out as such a competent engineer when he entered into the employment of the defendants a» an engineer, he cannot recover.”</p> <p>The judge instructed the jury as follows: “ A person entering into the service of another takes upon himself, in consideration of the compensation to be paid him, the ordinary risks of the employment, including the negligence of his fellow-laborers.” “ The general rule is, that he who engages in the employment of another, for the performance of specific duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, embracing perils arising from the negligence of those in the same employ as incident to the service.” “ When a master uses due diligence in the selection of competent and trustworthy servants, and furnishes them with suitable means to perform the service in which he employs them, he is not answerable to one of them for an injury received by him in consequence of the carelessness of another, while both are engaged in the same service.” “ A corporation is required to use due care in supplying and maintaining suitable instrumentalities for the performance of the work or duty which it requires of its servants, and is liable for damages occasioned by neglect or omission to fulfil this obligation, whether it arises from its own want of care, or that of its agents intrusted with the duty. But the law does not hold it responsible for the negligence of its servants, if of competent skill and experience, in using or managing the means and appliances placed in their hands in the course of their employment, if they are neither defective nor insufficient.” “ The rules of law are well settled, that a servant, by entering into his master’s service, assumes all the risks of that service, which the master, exercising due care, cannot control, including those arising from the negligence of his fellow-servants ; but that the master is bound to use ordinary care in providing suitable structures and engines and proper servants, to carry on his business, and is liable to any of their fellow-servants for his negligence in this respect. This care he can and must exercise, both in procuring and in keeping and maintaining such servants, structures and engines. If he knows, or in the exercise of due care might have known, that his servants are incompetent, or his structures or engines insufficient, either at the time of procuring them or at ary subsequent time, he fails in his duty. For the management of his machinery and the conduct of his servants, he is not responsible to their fellow-servants; but he cannot avail himself of this exemption from responsibility, when his own negligence in not having suitable instruments, whether persons or things, to do his work, causes injury to those in his employ. He cannot divest himself of his duty, to have suitable instruments of any kind, by delegating to an agent their employment or selection, their superintendence or repair. A corporation must, and a master who has an extensive business often does, perform this duty through officers or superintendents; but the duty is his and not merely theirs, and for negligence of his duty in this respect he is responsible. To hold otherwise would be to exempt a master, who selected all his machinery and servants through agents or superintendents, from all liability whatever to their fellow-servants, although he had been grossly" negligent in the selection or keeping of proper persons and means for conducting his business.”</p> <p>“ The obligation of a corporation, so far as respects those in its employment, does not extend beyond the use of ordinary care and diligence. By ordinary care and diligence is meant such as men of ordinary sense, prudence and capacity, under like circumstances, take in the conduct and management of their own affairs. This varies according to circumstances as the risk is greater or less, and must be measured by the character and risks and exposures of the business.”</p> <p>Applying the law as stated to the present case, the judge instructed the jury that “ the exercise of ordinary diligence and care was required on the part of the defendants, and their proper officers and agents, in providing a suitable engine to be used by the plaintiff upon their road, and in keeping the engine in proper condition for such use; that the plaintiff was also required to exercise ordinary diligence and care in the use of the engine and in avoiding danger therefrom; that if neither party was in fault the plaintiff could not recover; that if the injury complained of was occasioned by the fault or negligence of both parties, the plaintiff was not entitled to recover; that if the defendants, acting by their proper officers and servants, exercised ordinary diligence and care in providing a suitable engine and in keeping the game in proper condition and repair, for the use to which it was appropriated, they were not responsible for the injury complained of ; but that if they failed so to do, and the injury complained of resulted from their neglect in this respect, then the defendants were responsible therefor, unless it appeared that the plaintiff himself was also wanting in the exercise of ordinary vigilance and care, either in the management of the engine or in improperly exposing himself to danger therefrom, thereby rendering himself guilty of contributory negligence, in which latter case he was not entitled to recover; that the burden was upon the plain tiff to show, not only that the defendants were guilty of negli gence in not exercising ordinary diligence and care in providing a suitable engine, and keeping it in proper condition, thereby causing the injury complained of, but that he was himself free from any negligence contributing to the injury; that Rule 28 did not, as a matter of law, release the defendants from their legal responsibility in this case, if any such existed, for the internal and invisible defects in the boiler, by which it was claimed the explosion was occasioned; and that the violation of Rule 42, so far as it stated it to be the duty of the plaintiff to be sure that the engine was in good working order before it was taken from the engine-house, did not, as matter of law, necessarily preclude him from recovering in this case, if otherwise entitled, unless the accident or injury complained of was occasioned in whole or in part by such violation.”</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>The tenants in common of two adjoining tracts of land on a river, the lower of which was subject to a mortgage, conveyed the upper, reserving to themselves, their heirs and assigns, the right to draw water from a reservoir on the upper tract for the use of the lower. Subsequently the equity of redemption of one of them in the lower tract was sold, and, through mesne conveyances, became vested in A., who also acquired a title in that tract, through mesne conveyances, under a foreclosure of the mortgage. Held, that the right to draw water under the reservation was vested in A.</p>

<p>A. brook entered the defendant’s land and there divided into two channels, one of which flowing southerly, continued through the defendant’s land, and the other, flowing easterly, entered the plaintiff’s land. In an action by the plaintiff against the defendant for diverting the water from this easterly channel, judgment was rendered for the plaintiff on an award which found that the defendant diverted the water from this channel so as to prevent its flowing into and upon the plaintiff’s land. Held, in a subsequent action between the parties for diverting the water from this channel, covering a period of time later than that covered by the former action, in which the record of the former action was put in evidence, that the fact that the water continued to flow in the southerly channel during the time covered by the later action, as it had done during the time covered by the former action, was evidence of a continuance of the diversion; but that the defendant could introduce evidence that a portion of the water had flowed through the southerly channel from time immemorial, and that the soil of the easterly channel was such that, without work upon it, that channel would fill up of itself, and had so filled up.</p>

Bill in equity, filed January 21, 1871, to redeem from a mortgage a parcel of land in Milford.

<p>Tort by Cordelia Hastings, Ruthven Hastings, Arthur Hastings and Leslie Hastings. The first count of the declaration was on the Gen. Sts. c. 138, § 10,* for wilfully and without license cutting down, carrying away and destroying trees, timber and wood on land of the plaintiffs. The second count was trespass for the same acts. Writ dated September 6, 1869. The answer denied all the allegations of the declaration. Trial in this court, before Chapman, C. J., who, before verdict, made a report of the case for the determination of the full court, substantially as follows :</p> <p>On September 21, 1853, William Babcock was the owner of a farm in Berlin and Bolton, on which he then lived. Included in this farm were two adjacent lots of land known as the Hoar lot and the Carter lot. The Hoar lot had been conveyed to him by Jonathan Merriam by deed dated January 11,1810 ; the rest of the farm had been conveyed to him by Merriam by deed dated March 15, 1810; and for more than forty years the Hoar lot had formed part of the farm.</p> <p>On September 21, 1853, William Babcock, by warranty deed, conveyed to his son, Jonathan Babcock, land described as follows : “ One undivided half of the farm on which I now live, situated in the northerly part of Berlin aforesaid, and in the southwesterly part of Bolton, and is the same which was deeded to me by Jonathan Merriam, March 15, 1810,-reference being had to said deed, which is recorded in the registry of deeds at Worcester, Book 212, Page 285; ” and at the same time he took from Jonathan a bond, conditioned to deliver to him annually during his natural life one half of the produce of the land conveyed, and a mortgage on the undivided half to secure the bond.</p> <p>On October 20, 1853, William Babcock, by warranty deed, conveyed to his son William Thomas Babcock land described as follows : “ One undivided half óf the farm on which I now live, situated in the northerly part of Berlin aforesaid, and in the southwesterly part of Bolton, meaning to convey all that remains of said farm, after the conveyance which was made to Jonathan Babcock on September 21, 1853 ; for other particulars reference being had to said Jonathan’s deed; ” and at the same time he took from William Thomas a bond, conditioned to deliver to him annually during his natural life one half of the produce, and a mortgage on the undivided half to secure the bond.</p> <p>On March 31, 1855, William Thomas Babcock, in consideration of $900, gave to Jonathan Babcock a quitclaim deed of all his interest in the farm, except the Hoar lot, making no reference to his mortgage, and with special covenants of warranty against all persons claiming under him.</p> <p>All of these aforesaid deeds, mortgages and bonds were duly recorded at or about their dates.</p> <p>At the time of the last conveyance, Jonathan Babcock executed to William Thomas Babcock an instrument under seal, by which he agreed to do and perform all that William Thomas was legally bound by his said bond to do and perform, and to exonerate and save him harmless, but which contained no reference to any mortgage. This agreement was not recorded till March 11, 1871.</p> <p>On June 4, 1855, William Babcock brought a writ of entry against Jonathan Babcock, to foreclose the mortgage given by the latter, wherein he demanded possession of the whole farm except the Hoar lot and Carter lot, and he recovered judgment, and obtained possession of the demanded premises. On May 1, 1856, he gave to Jonathan Babcock a quitclaim deed of his interest in the whole farm, including the Hoar lot, with special covenant of warranty against all persons claiming under him, and at the same time took back a mortgage of the whole farm, with full covenants of warranty, seisin, &c., conditioned to secure the payment of $637.51 in eight annual payments, with interest.</p> <p>On September 30, 1856, Jonathan Babcock conveyed his interest in the whole farm, including the Hoar lot, to Christopher S. Hastings, who on August 20, 1862, paid off the mortgage for $637.51, which was then discharged of record, and in September 1863, died intestate, leaving the plaintiff Cordelia Hastings, his widow, and the other plaintiffs, his children and sole heirs at law. Since his death, the plaintiffs have occupied the farm in common, under the Gen. Sts. e. 90, § 7, mending the fences, surveying it and paying the taxes, to the present time.</p> <p>William Babcock died September 14, 1861.</p> <p>On April 23,1862, William Thomas Babcock gave to the defendant a warranty deed of the Hoar lot, delivered on the land, and the defendant, between January 30, 1865, and February 11, 1865, cut timber on the Hoar lot, and also on the Carter lot, which he supposed to be a part of the former. This was the tort complained of.</p> <p>On February 20,1865, Cordelia Hastings, as administratrix of the estate of Christopher S. Hastings, made an entry upon and took possession of the premises mortgaged by William Thomas Babcock to William Babcock, for breach of condition and to foreclose the right of redemption; and a certificate thereof was duly made and recorded.</p> <p>The judge reported the questions of law arising on these facts; the case to be disposed of on such terms as might be fixed by the court, as law and justice should require.</p>

<p>The description in a deed of land was as follows: “AU those tracts or parcels of land sit* uate ” in a county in Minnesota, “ described as follows, to wit: One equal and undivided one-half part of the west half of the southeast quarter, the west half of the northwest quarter, lot one, and northwest quarter of southwest quarter, the east naif of southwest quarter and the south half of the northeast quarter, and southeast quarter of northwest quarter of section twenty, town forty, north range nineteen west, being four hundred and thirty-seven 50-100 acres; also lots three and four and northeast quarter of northeast quarter, lots six and seven, and southwest quarter of southeast quarter, lots eight, nine and ten, and the east half of southwest quarter of section nineteen, town forty, north range nineteen west, being four hundred and fifty-one 70-100 acres; also lots,” &c., “being two hundred and fifty-four 40-100 acres; also the west half,” &c., “being four hundred acres; also the west half,” &c., “being one hundred and ninety-nine 12-100 acres; also the east half,” &c., “being two hundred and eighty acres; also the south half,” &c., “being one hundred and twenty acres; also the west half,” &c., “being one hundred and twenty-seven 50-100 acres; also lots one and two,” &c., “being fifty acres.” Held, that the words “ope equal and undivided one half part” applied only to the tracts comprised in the four hundred and thirty-seven 50-100 acres.</p> <p>At the trial of an action for breach of the covenants of seisin and right to convey in a deed which stated its consideration as a certain sum of money, it appeared that in fact, by an arrangement between the parties to the deed, the consideration was the conveyance to a third person of real estate belonging to the grantee, and of personal property belonging to the grantee’s husband, who acted as her agent in the transaction. Held, that the measure of damages was the value of this real and personal property.</p>

Bill nr EQUITY, alleging that in 1855 William H. Harris conveyed a parcel of land in Worcester to the Ladies’ Collegiate Institute, upon certain conditions; that on March 13,1868, the conditions having been broken, he entered upon the premises, for breach of the conditions, and continued in possession until April 13, 1868, when he conveyed the parcel to E. H. March, who entered and on the same day conveyed to the plaintiff ; that the plaintiff had ever since remained in…

<p>Contract. The first count of the declaration alleged that on August 18,1870, the defendant, by a certain note or memorandum, signed by B. W. Abbott, who was duly authorized thereto by the defendant, agreed with the plaintiff to sell to him a certain house, being the house No. 3 Bliss Street, in Worcester, and the lot on which the same stood, for the sum of $25 above a certain claim existing on the property; and that the plaintiff paid said sum and demanded a deed of the property from the defendant 5 but that the defendant wholly refused to convey the land to the plaintiff.</p> <p>The second count alleged that on August 18,1870, the defendant offered said house and lot for sale at public auction, subject to a claim of about $2500 thereon, by and through B. W. Abbott, a duly licensed auctioneer, the defendant being present, directing the sale; that the same was struck off to the plaintiff for the sum of $25, he being the highest bidder therefor; that the plaintiff paid said sum then and there tc Abbott, for the property, and Abbott, “ acting as agent for both the plaintiff and the defendant in the premises, and being duly authorized to sign his own name bs auctioneer thereto, as and for the name of the defendant, and to bind him, made, executed and delivered to the plaintiff a memorandum in writing of the sale, signed by him under the aforesaid authority; ” and that the plaintiff thereafter demanded of the defendant a deed to be duly made and delivered of the house and lot, subject to said claim., whereof the defendant was owner subject to said claim; but that the defendant refused. The memorandum, a copy of which was annexed to the declaration, was as follows:</p> <p>“ House No. 3. Henry F. Ross. $25. Received of Henry F. Ross twenty-five dollars, amount paid above a claim of twenty-five hundred dollars on house No. 3 Bliss Street, sold by auction, August 18, 1870. B. W. Abbott, Auctioneer.”</p> <p>The defendant in his answer alleged that he never made or authorized B. W. Abbott, as his agent or attorney, or for him, to sign or make any such note or memorandum as alleged; and that he never procured or authorized B. W. Abbott as an auctioneer, for himself, or as his agent, to offer for sale at public auction or otherwise the house and lot described in the declaration; and he denied that he ever sold or offered to sell the described premises to the plaintiff, and that he ever, by himself or his agent, received any money towards the purchase or sale of the house and lot. He further alleged than by an agreement between him and J. W. Cookson, he agreed to convey the lot described in the declaration, with four others, to Cookson, and also to lend him money, and upon the repayment of the loan, and payment of a thousand dollars a lot, to convey the lots to him ; that Cookson became bankrupt, and all his rights under the agreement passed to his assignees ; that the assignees undertook to sell the lots without the consent of the defendant, but found they could not realize enough to pay the defendant the amount due to him under said agreement, and afterwards released all claim under the agreement to the defendant; and that the terms of the agreement were never fulfilled or complied with by Cookson; and the defendant denied that he was liable in any way as set forth in the declaration, left the plaintiff to prove all things necessary to maintain the action, and denied that he was obliged to convey the house to the plain tiff.</p> <p>At the trial in the Superior Court, before Bacon, J., it appeared that the defendant made the agreement with Cookson set up in the answer, and advanced him $7500 under the agreement, so that the whole amount due to him on the five houses and lots was $12,500; that Cookson became bankrupt, and Thomas Earle and William H. Howland were appointed assignees of his estate ; that they published in the newspaper the following advertisement : “ Assignees’ Sale. Five Dwelling-houses on Bliss St., each 32 X 36, with French roof, slated, in an unfinished condition, ready for' plastering, will be sold by auction, on Thursday forenoon, at ten o’clock, August 18. These houses are in a very desirable location, fine view and good air, and are very near the Technical School, and can always be filled with boarders, if desired. The lots are 60 feet by 100. For further particulars inquire of Thomas Earle, Ho. 40 Elm St. Thomas Earle, Wm. H. Howland, Assignees of estate of J. W. Cookson; ” and that the sale took place at the time appointed.</p> <p>The evidence as to the sale, which was set forth at length in the bill of exceptions, but which it is not necessary to report in full, tended to show that the auctioneer announced that the houses were sold subject to a claim of $2500 on each, which could probably remain on mortgage, and that the defendant would give a warranty deed; that the defendant assented to this statement; that the plaintiff bid $25 above the claim; that he was the highest bidder; and that he paid the $25 to the auctioneer, and took the memorandum.</p> <p>The defendant requested the judge to rule that there was no evidence in the case to warrant the jury in finding that the defendant authorized Abbott to execute and deliver to the plaintiff a memorandum as the contract of the defendant; and also that if the plaintiff was informed at the sale that the sale was advertised and conducted for the assignees, and if the jury should be satisfied that it was so advertised and conducted, then the plaintiff could not recover against the defendant upon the evidence.</p> <p>The judge declined so to rule, and ruled “ that upon the pleadings the only question at issue was whether Abbott was author ized by the defendant to make this sale and execute the memo randum; that if Abbott was not authorized by the defendant to make this sale and execute the memorandum, the plaintiff could not recover; that the plaintiff must prove that Abbott had authority, either express or implied, from the defendant, to make this sale and this memorandum as his agent; that if he had express authority, verbal or written, it would be sufficient; that if he did not have actual authority to make the sale and the memorandum, still if the defendant did by his conduct hold him out as having such authority, or did, by his acts, declarations or silence, give the plaintiff reasonable cause to believe that Abbott had such authority, he would be liable for his acts; that if the defendant consented that the property should be sold by the assignees subject to his claim of $2500 on each house, and at the auction sale stated that he would give the warranty deed, he was bound by the memorandum; and that if the defendant, by his acts, declaration or silence led the plaintiff reasonably to suppose that he authorized the sale by Abbott, he would be liable, although the plaintiff knew other parties had advertised the sale.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>A man devised all his real and personal property to his wife in trust and for use, expecting her to provide for his children with the help of the property, to the hest of her ability, and directing that she should hold and dispose of principal and income, as her comfort and those of the minor children might justly require; that for these purposes she should control the property in her own absolute right during her life, and that if any of the property bequeathed in trust and for use to her should remain at her death, it should be divided among the surviving children. The widow never gave bond as trustee under this will. Held, that she could maintain a petition brought by her, under the Gen. Sts. c. 149, to recover damages for overflowing some of the land devised, in which petition she alleged herself to be tenant for life; and that gross damages could be assessed thereon, under the Gen. Sts. c. 149, § 20.</p>

<p>A declaration alleging that the defendant forcibly entered the plaintiff’s close and built a part of his bam on the close, and thereby put and kept the plaintiff out of the possession and occupation of a part of the close, is supported by proof that the eaves of the bam projected over the close.</p> <p>A deed described the western and southern boundaries of the land conveyed as follows: “ Southerly in a line with the west end of the barn four rods to a stake and stones, and thence easterly fifteen feet in a line at right angles with the last mentioned line to a point equidistant from the west and east line ” of a certain lot. Held, that the position of the stake and stones at the date of the deed must govern in determining the southwest corner of the land; but that, in determining that position, the description of the length and direction of the western boundary was evidence as well as the description of the length and direction of the southern boundary.</p> <p>At the trial of an action for trespass in building a part of the defendant’s bam on the plaintiff’s land, a ruling by the presiding judge that it was for the jury to say whether the bam was a suitable structure and of reasonable dimensions for a fence, and that if it was, its erection was not a trespass, if it came on to the plaintiff’s land no more than a fence of ordinary width would do, is erroneous.</p>

<p>Tort under the Gen. Sts. c. 44, § 22, to recover damages for personal injuries occasioned by the plaintiff’s falling on April 27, 1871, into a cellar stairway, alleged to be a defect in Main Street, a highway in the central village of Fitchburg, which the defendants were bound to keep in repair. Trial in the Superior Court, before I)evens, J., who, after a verdict for the defendants, allowed a bill of exceptions of which the following is the material part:</p> <p>“ The alleged defect consisted of an excavated passageway leading down by a series of stone steps to the cellar of a building belonging to Lyman Patch, and known as Patch’s Block, situated easterly from and fronting on Main Street, and of an improper and insufficient railing on two sides of said passageway and want of railing elsewhere. The sidewalk on the easterly side of Main Street indicated the boundary on three sides of the passageway. Reference may be had to the plan * used at the trial. For the purpose of showing the existence of a highway, which the defendants were bound to keep in repair, over that portion of the sidewalk lying between the easterly line of a highway relocated in 1850, and Patch’s Block and an adjoining hotel, called the Roll-stone House, the plaintiff introduced evidence of the use by the public of this portion of the sidewalk as a way for a period of more than forty years. The. defendants introduced evidence that within ten years part of said portion had been temporarily inclosed up to the located line of the highway. The plaintiff asked the judge to rule that if the jury were satisfied that there was an actual, public, general and uninterrupted use of the way in question, for the period of twenty years, without reference to the time of the relocation, a way over said portion of the sidewalk would be shown by prescription, which the defendants would be under obligation to repair; but the judge declined so to rule, and ruled that it was incumbent upon the plaintiff, in order to establish a way by prescription, to show such use for a period of twenty years subsequent to the relocation.</p> <p>“ For the purpose of showing that the defendants had made repairs within six years upon the way in dispute within the provisions of the Gen. Sts. c. 44, § 26,* the plaintiff introduced as a witness George W. Holman, who testified ‘ that he had charge of the sidewalk as one of the selectmen of the town; that the town put in the brick in front of Patch’s Block in 1869 ; that the whole of the brick was laid by the town ; that the grade was changed in front of Patch’s Block, and raised about eight inches on both sides of the passageway; that the stairway was lengthened; that previous to 1869 there was flagging stone outside, and gravel inside of the walk; that the owners of the Rollstone House agreed if the town would raise the grade and brick it the whole way up to the line of the house, they would pay the expense; that a separate account was made and charged to said owners; that in front of Patch’s Block bricks up to the line of the building were relaid at the expense of the town on both sides of the passageway to the cellar; that the steps were raised at Patch’s expense and the work done by him; that the bricks in front of Patch’s Block were relaid at the expense of the town; and that Patch agreed to make no claim for damage for raising the grade of the highway in front of his block.’ Upon this testimony, the jury having previously viewed the way in dispute, the plaintiff contended that there was evidence to be submitted to the jury that the defendants had made repairs upon the way in dispute within six years; but the judge ruled that the evidence was insufficient to show such repair of the way by the defendants as would render them liable by reason thereof.</p> <p>“ From the testimony of the plaintiff it appeared that he entered the Rollstone House from Main Street at about nine o’clock in the evening; that he remained there until about half past ten o’clock; that he then left the house for the purpose of going for Ms horse to a stable, which was situated near Main Street on the opposite side thereof and several rods below ; that in passing directly from the Rollstone House to the stable, no other street would be entered ; that the night was exceedingly dark and rainy; and that he was not certain that before the accident he crossed the easterly line of the highway relocated in 1850; but that he went in the general direction and course of Main Street, when he was precipitated into said passageway. It also appeared that the sidewalk was continuous and of uniform surface on both sides of the easterly line of the relocated highway, except at the passageway to the cellar; that the bricks were so laid that the easterly line of the relocated highway passed through the centre thereof, so that the same bricks were partly within and partly without the highway as relocated, and were so laid as to lap or intersect throughout the whole width of the walk up to the line of the buildings; that there was no indication of the limits or boundaries of the highway at the point in dispute, except two stone bounds, the tops of which were on a level with the sidewalk , and that the brick sidewalk extended to the front line of the buildings. Upon tMs evidence the plaintiff contended that it was not incumbent upon Mm to show that after leaving the Rollstone House, and before the accident, he crossed the easterly line of the highway relocated in 1850 ; but the judge instructed the jury that it was incumbent upon the plaintiff to show that after leaving the Rollstone House, and before the accident, he travelled within the limits of the relocated Mghway, unless they should be satisfied that a way by dedication or prescription had been acquired. The jury returned a verdict for the defendants, .tnd the plaintiff alleged exceptions.”</p>

<p>Bill in equity against Charles W. Fenno and Frances E. Fenno, to redeem land in Worcester from a mortgage. Hearing before Chapman, C. J., who made a report of the case for the consideration of the full court, substantially as follows:</p> <p>The defendant, Charles W. Fenno, being the owner of the land, mortgaged it in March 1863 to the other defendant, his mother, Frances E. Fenno, the wife of William D. Fenno, and in July 1863 he conveyed the equity of redemption to William D. Fenno. In October 1863, Frances E. Fenno entered for condition broken, to foreclose the mortgage, in the presence of two witnesses, under the provisions of the Gen. Sts, c. 140, §§ 1, 2 ; and the certificate of entry was duly recorded. The plaintiff was one of the witnesses. In 1870, William D. Fenno died intestate, leaving the plaintiff and the defendant Charles W. Fenno, his only children, and the other defendant, Frances E. Fenno, his widow.</p> <p>The plaintiff contended that she was an owner of an undivided half of the premises, subject to the mortgage and the widow’s dower. The defendants contended that the mortgage was foreclosed.</p> <p>The case was reserved upon the question whether the mortgage was foreclosed, such decree to be entered as the court should order.</p>

<p>Tort for the seduction of the plaintiff’s wife. At the trial in the Superior Court, before Bacon, J., the plaintiff, to prove his marriage with his alleged wife, testified “ that about seven years ago, he, accompanied by his alleged wife, then named Ellen Duso, went before J. B. Hasler, Esquire, of Webster, in this county, supposed by them, to be a justice of the peace for the county, with intent on the part of both to contract marriage before him, both the plaintiff and Ellen Duso then residing at Oxford, in this county; that the plaintiff stated in Hasler’s presence and hearing that said Ellen was his wife; that thereafter they cohabited together as man and wife thence hitherto and had children, the plaintiff believing himself then and thereby lawfully married to said-Ellen, and said Ellen believing herself lawfully married to the plaintiff; and that after the time of the alleged seduction, the parties were formally married to each other, said Ellen expressing doubts as to the validity of her former so called marriage.” Hasler testified “ that he did not understand that he married the parties at that time, and that all that was said by either was that the plaintiff introduced the woman as his wife.”</p> <p>On this evidence the judge ruled that there was no evidence tc warrant the jury in finding the fact of marriage between the plaintiff and said Ellen, and directed a verdict for the defendant which was returned, and the plaintiff alleged exceptions.</p>

<p>Wbit of ebbob to reverse a judgment of the Superior Court. From the record of that court and an agreed statement of facts it appeared that the defendant in error made a complaint under the bastardy act to Joseph A. Titus, a justice of the peace for the county, against the plaintiff in error; that the parties were both residents of Worcester, and the complaint alleged that the child was there begotten; that the justice issued a warrant thereon, returnable before himself, upon which the plaintiff in error was arrested and brought before him; that the plaintiff in error pleaded not guilty, waived examination, and was required by the justice to give bond to appear before the Superior Court; that the complaint was entered in that court, and both parties appeared ; that the child having been subsequently born, a supplemental complaint was filed; that no written answer was ever filed; that a trial was had, at which the plaintiff in error appeared by counsel, but not personally; and that a verdict of guilty was rendered, and judgment entered thereon, which was the judgment it was sought to reverse. The error assigned was that the justice ought to have made the warrant returnable before the Municipal Court of the city of Worcester, and that he had no jurisdiction to act under the warrant.</p>

<p>Tobt for assault and false imprisonment. Trial in the Superior Court, before Bacon, J. The jury returned a verdict for the defendant, and the plaintiff alleged exceptions. The case is stated in the opinion.</p>

<p>Upon the sale of a live cow by a farmer to retail butchers, there is no implied warranty that she is fit for food, although he knows that they buy her for the purpose of cutting her up into beef for immediate domestic use.</p>

<p>In an action on the Gen. Sts. c. 86, § 61, to recover money paid for intoxicating liquors, it appeared that the defendant, who resided in Rhode Island, agreed, in this Commonwealth, to sell such liquors at a certain price, to the plaintiff, who resided here; that from time to time he selected them from his stock in Rhode Island and delivered them there on hoard the cars; and that the plaintiff paid the freight, and also the price of the liquors, at the place of his residence. Held, that the sale was completed in Rhode Island, notwithstanding that the defendant agreed to allow the plaintiff the amount paid as freight in the settlement of their account; and that the plaintiff could not recover.</p>

Contract against David F. Parker, M. M. Garfield and James L. Monroe. The declaration alleged that the defendants, as co-' partners, owed the plaintiff $898.10, according to an account annexed. The only debit item in the account was : “ To wood on 1T| acres and 29 rods of woodland, at $200 per acre, $2886.25.” Each of the defendants answered separately, and denied that he was ever a copartner with the other defendants, and also all the other allegations in the declaration.

<p>Contract by the wife of Noah Kimball against the administrator of the estate of Grace Brown, for money had and received. At the trial in this court, oefore Chapman, C. J., it appeared that on January 31, 1866, the defendant’s intestate had a deposit of $700 in the Worcester County Institution for Savings, and a bank book, in which the amount of' the deposit was stated.</p> <p>The plaintiff testified that on that day the defendant’s intestate delivered the bank book to her, for the purpose of transferring the money to her, and signed and delivered to her the following order: “ January 31, 1866. To the Treasurer of the Worcester County Institution for Savings: Please pay to Noah Kimball, or bearer, the whole amount of deposits and dividends due me by your Institution. Grace Brown. Witness, Martha W. Kim-ball ; ” that the order was made payable to her husband at the suggestion of the defendant’s intestate, because the rules of the bank required that there should be a witness to the signature, and the plaintiff could be a witness; that her husband had no interest in the matter ; that the intestate requested the plaintiff to keep the matter secret, for fear it would make difficulty among her relatives, and requested her not to draw the money, but keep the book and order till after her death; and that the order and bank book were not presented to the bank till after her death. It appeared that a considerable number of persons were entitled to distributive shares of the estate of the intestate, and that an arrangement was made by which the defendant was permitted to take the money from the bank and hold it for whoever should be entitled to it, and that the plaintiff had demanded it. There was evidence as to the consideration of the transfer, which it is unnecessary to report.</p> <p>The defendant offered evidence “ to prove statements of his intestate which were made between the time of the delivering of the order and bank book, as stated above, and her death, of her wishes and views in regard to her property and in regard to the plaintiff, inconsistent with the transaction as testified to by the plaintiff; ” but the judge excluded any evidence under this general offer.</p> <p>For, the purposes of the trial, the judge instructed the jury that they might find for the plaintiff, if the plaintiff proved that the order and bank book were delivered to her substantially as stated by her, whether it was as a gift without consideration or a transfer for a legal consideration.</p> <p>The jury found for the plaintiff, and the judge reported the ease for the determination of the full court. If either ruling was wrong, the verdict to be set aside and a new trial to be granted; otherwise, judgment to be entered on the verdict.</p>

<p>A lessee put furniture and fixtures into the demised premises, under an agreement with the lessor that they should become the property of the latter at the expiration of the lease. During the term, the lessor gave a bill of sale of his interest in them to a third person. Reid, that the lessor’s right in them passed to such person by the bill of sale, and that he could maintain an action for their conversion after the expiration of the lease.</p>

<p>A. sold goods to B., who mortgaged them to C., to secure him against liability on a promissory note signed by B. as principal and C. and D. as sureties. E. bought the note before maturity, but knowing of the mortgage and of the fact that C. and D. were sureties; and afterwards, in a suit against A., attached and levied upon the goods as property of A. sold by him in fraud of his creditors. Held, that he did not thereby discharge his claim against C. and D. upon the note.</p> <p>A. sold goods to B., who mortgaged them to C. to secure him against liability on a promissory note signed by B. as principal and C. and D. as sureties. The mortgaged goods were attached and levied upon in a suit against A. as sold by him in fraud of his creditors. C. brought a suit against the attaching officer for conversion of the goods, but afterwards agreed with the officer to discontinue the suit and discharge the mortgage upon the officer’s undertaking to pay part of the note and collect the balance from D. Held, that D. could maintain a bill in equity against C. and the officer, to restrain the discharging of the mortgage and the discontinuing of the suit, and for leave to prosecute the suit in his own behalf.</p>

<p>Tobt, under the Gen. Sts. c. 44, § 22, by Joseph Weare and Augusta A. Weare, his wife, to recover for personal injuries to her, alleged to have been occasioned by a defect in Milk Street in Fitchburg, on which she was travelling, and which the defendants were bound to keep in repair. Writ dated July 11, 1871. Trial in the Superior Court, before Devens, J., who made a report of the case for the determination of this court, of which the material parts were as follows:</p> <p>“ It was admitted that Milk Street was a way the defendants were obliged to maintain. It appeared from the plaintiff’s evidence that Milk Street was laid out thirty-three feet wide; that the middle of the road was prepared and wrought by the defendants for a carriageway; that on the westerly side there was a slight depression or hollowing out of the earth, which served as a watercourse or gutter; that between this watercourse and the westerly line of the street there was, and had been ever since 1867, a smooth, level footpath, about four feet in width, which was, and had been since 1867, used wholly by the foot travel in wet and muddy travelling, while in dry weather the foot trove? was substantially divided between the edge of the carriageway and the footpath, both being travelled by foot passengers indiscriminately ; that this footway was about on a level with the carriageway, and was separated from it only by the narrow watercourse or slight depression, was worn hard and smooth by foot travel, and extended westerly to the line of the street for nearly a quarter of a mile; that a portion of the way the grass had grown on each side of this path, and opposite some of the abutters the way was not so smooth as at other places; that the street was wrought for travel, and on the edge of the carriageway met the gutter or depression ; that it was safe and convenient for foot passengers, and had become hard and smooth by such travel upon foot; that there was a large amount of foot travel on Milk Street, that it was near the central and populous part of the town of Fitchburg; and that there was nothing to distinguish the footpath from the carriageway but the watercourse or depression aforesaid.</p> <p>“ There was evidence that from time to time repairs had been made upon this footway, but there was no evidence that the defendants had constructed, wrought or repaired the same, and it was admitted that it was not laid out by the defendants as a sidewalk, in conformity with the provisions of the St. of 1869, e. 427, which provisions, it was admitted, had been adopted by the defendants.</p> <p>“ It also appeared that at the time of the accident there was in Fitchburg a large quantity of brick and concrete sidewalk constructed under the provisions of the St. of 1869, e. 427, of which one half of the expense had been borne by the abutters, in accordance with the provisions of the statute and the votes of the town; that no petition for a sidewalk upon Milk Street was ever presented to the town authorities ; and that the obstruction which occasioned the injury, and which was the defect complained of, was a large stone which had been placed on this footway nearly a year previous to the accident.</p> <p>“ Upon this state of the evidence, the judge ruled that the plaintiffs could not maintain their action, on the ground that the place where the injury happened was not a part of the street that the defendants were bound to keep in repair; ordered a verdict for the defendants; and reported the case for revision of the Supreme Judicial Court, that the verdict may stand, or be set aside and a new trial ordered, as that court may direct.”</p>

<p>The First District Court of Southern Worcester has authority, under the St. of 1871, c. 391, to empanel a jury of twelve to try the issues on a petition, under the Gen. Sts. c. 150, to enforce a mechanic’s lien.</p> <p>A petition to enforce a mechanic’s lien on the respondent’s house alleged that the respondent contracted with A. to work on the house; that A., with the consent of the respondent, agreed to employ the petitioner to work on the house for a certain number of days at so much a day; and that the petitioner did work accordingly. The answer denied the petitioner’s right to maintain the petition. At the trial, it appeared that the respondent contracted with A. to do the work, A. to be paid what he had to pay his men, and ten per cent, additional: and that A. in good faith made with the petitioner the agreement alleged. The judge submitted to the jury the question whether the petitioner had claimed more than his due, but refused to submit to them what was the value of his labor, and, on the jury returning a verdict for the petitioner, ruled that he was entitled to the contract pnce. Held, that the respondent had no ground for exceptions.</p>

Contract. The declaration alleged that the defendant as principal, and the plaintiff as surety, signed a note for $500, dated September 28, 1861, and payable on demand to Nathan George or order, with interest; that the plaintiff signed as surety without consideration, and for the accommodation of the defendant ; that the defendant failed to pay the note; and that the plaintiff had to pay to George the principal of the note to take it up.

SciBE EACIAS on the judgment recovered in the case of Wallis v. Carpenter, 13 Allen, 19.

Contract against George A. Dresses, Calvin A. Paige and Andrew J. Bartholomew.

Contract to recover the price of gas furnished by the plaintiffs to the defendants in July and August 1872. At the trial in the Superior Court, before Bacon, J., without a jury, the defendants admitted that the plaintiffs furnished the gas, and the plaintiffs introduced evidence tending to show that S3.50 per 1000 cubic feet was a reasonable price therefor.

The first of these cases was a complaint to a trial justice against the defendant for unlawfully keeping intoxicating liquors with intent to sell the same unlawfully at North Bridgewater, on October 4, 1871.

Indictment on the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining in South Scituate a tenement for the sale and keeping of intoxicating liquors. At the trial in the Superior Court, before Bacon, J., it was admitted that the defendant kept a public hotel in South Scituate.

<p>Contract on a policy of insurance insuring the plaintiff “ on Ms one story frame dwelling-house, occupied by tenants, situate on the south side of Main Street, Mattapoisett,” and containing a provision “ that whenever a building hereby insured shall be altered, enlarged, or appropriated to any other purposes than those herein mentioned, or the risk otherwise increased by the act, or -vith the knowledge or consent of the insured, the consent of the directors not being first obtained and signified by the secretary in writing, then this policy shall be void.”</p> <p>At the trial in the Superior Court, after the decision reported in 105 Mass. 297, before Scudder, J., it appeared that the house insured was old; that upon one side of it was an unoccupied house, and upon the other side three buildings, two of which were unoccupied; that the house insured had been occupied by tenants, but that they moved out several months before the fire wMch destroyed the house, and, up to the time of the fire, it remained unoccupied; that no notice that the house was not still occupied was ever given to the defendants; and that, after the tenants removed from it, its windows were boarded up by the plaintiff, to protect them, and so remained till the fire.</p> <p>The defendants called as expert witnesses several insurance agents of large experience, who testified “ that insurance companies would usually charge from three to five times as much for a premium upon a house known or intended to be unoccupied, as they would charge for the same house occupied; and that the increase of premium would be greater in proportion with an old house, than a new one.” Upon cross-examination they testified “ that the reason of the larger rate was the danger from incendiarism ; ” and some of them testified “ that the risk, if the house were tenanted, would vary very much with different classes of tenants; that there would be moral risks, growing out of the character of the tenants, depending upon their habits as to care, or the want of it, the number of their little children, and the hazardous articles used by them; that some of these risks were so bad that offices would wholly refuse them; and that some tenants were worse risks than no tenants at all.” One of the experts also testified “ that in such a case as this the risk would be greatly increased by want of occupancy, and that if he had insured upon the house in question, he should have cancelled the policy at once, on learning that it was unoccupied.”</p> <p>The defendants asked the judge to instruct the jury that “ if under this policy the plaintiff might have recovered even for the consequences of the acts of vicious or bad tenants, yet he cannot recover, if the building was wholly unoccupied for so long a time as to render the risk greater than it would have been with tenants of ordinary care and habits.” The judge refused so to instruct the jury, but gave instructions to them to which no exception was taken.</p> <p>The jury returned a verdict for the plaintiff; and to the refusal to instruct the jury as requested the defendants alleged exceptions.</p>

<p>Replevin of goods by an infant, by his next friend, against a deputy sheriff. At the trial in the Superior Court, before Putnam, J., without a jury, it appeared that the goods replevied were the property of Lewis E. Bradford; that he mortgaged them to the plaintiff; that they were attached by the defendant on a writ against Lewis E. Bradford; and that the plaintiff made a demand for them on the defendant under the Gen. Sts. c. 128, §§ 62, 63. The defendant contended that the demand was invalid because made by an infant, but the judge ruled that it was sufficient, and found for the plaintiff; the defendant alleged exceptions.</p>

<p>Appeal from the Probate Court, disallowing certain items in the account of the appellant, as executor of the will 5f Catharine A. C. Blackington, the wife of the appellee. At the hearing, before Gray, J., the following facts appeared:</p> <p>On December 19, 1863, the will of Catharine A. C. Blacking-ton was proved, and letters testamentary issued, in this county, to the appellant. Among the property of the testatrix which came into the hands of the appellant in this Commonwealth was h promissory note of Samuel Clark, Sen., and a mortgage to the testatrix of real estate and personal property in Rhode Island, to secure the payment of this note. All the property of Samuel Clark, Sen., was in Rhode Island, where he died insolvent, in August 1856, and this note had no value aside from the mortgage security. On January 3, 1865, the appellant returned an inventory of the estate of his testatrix to the Probate Court, the first two items in which were, “ Samuel Clark’s note, $1500 ; ” “Interest on same, $847.50.”</p> <p>On November 26, 1864, a copy of the will, with the probate thereof in this county, was ordered to be filed and recorded by the Court of Probate, held at Smithfield, in the county of Providence, and State of Rhode Island, and letters of administration, with the will annexed, were issued to the appellant. The only evidence that notice was given of the application to the Rhode Island court was this recital in the record : “ Notice having been duly given thereon, pursuant to law.” The appellant was the clerk of the Rhode Island court. On January 26, 1865, the appellant, as administrator with the will annexed, filed an inventory in the Rhode Island court, consisting of the following items: “Note signed by Samuel Clark, $1500.00; furs, $3.00.”</p> <p>On January 28, 1865, the Rhode Island court passed the following order: “ Decreed that Samuel Clark, administrator with the will annexed on the estate of Catharine A. C. Blackington, have leave to dispose, at public auction, of the mortgage note mentioned in her said inventory. Witness Samuel Clark, P. Clerk.” No previous notice of this order, or of any application therefor, was published or given. The note and the mortgage were sold by public auction, on February 11, 1865, after notices published in the, Providence Daily Journal, February 2 and 9, 1865. The appellee offered to prove “ that this sale was for an inadequate consideration, and was by collusion and fraud between the appellant and the purchaser, the purchaser acting as agent of the appellant, and transferring the note and mortgage to the appellant, by whom they had been held ever since,” and contended that the appellant should be held to account for the actual value thereof in this Commonwealth.</p> <p>On June 24, 1865, the appellant rendered an account to the Probate Court in Rhode Island, charging himself with the amount of his inventory there, and crediting himself, among other things, with the following : E. H. Hazard’s bill, $50.54; Abraham Payne’s bill, $75.00; Christopher Robinson’s bill, $15.00; Stephen Clark, $195.85 ; Samuel Clark, $254.00; loss on sale of mortgage note, $750.00. This account was allowed by that court, by an order containing this recital, “ All persons interested in the settlement of said account having had legal notice.” No ‘other evidence of such notice was introduced.</p> <p>The appellant rendered his account as executor in the Probate Court of this county, charging himself with the amount of the inventory, $2649.37, and crediting himself with several items, among which were the following: (6) E. H. Hazard’s bill, 50.54; (7) Abraham Payne’s bill, $75.00 ; (8) Christopher Robinson’s bill, $15.00; (9) Stephen Clark, notes due from deceased, $197.85; (10) Samuel Clark, notes due from deceased, $254.10; (11) Loss on sale of note and mortgage, $750.00. “ All the foregoing charges were incurred and settled in the Probate Court in Rhode Island.” (19) “ The note and mortgage appraised at $1500, and interest at $847.50, making $2347.50, in the inventory in this state, were sold for $750, making the loss $1597.50 ; but as $750 were credited as loss in the Rhode Island account, where the whole appraisal was but $1500, the balance, $847.50, should be now credited as part of the loss, $847.50.” The items 6, 7, and 8, were for fees of counsel residing in Rhode Island, for services in a suit in equity, brought by creditors of Samuel Clark, Sen., against the testatrix, to set aside the mortgage. Stephen Clark and the appellant resided in Rhode Island. The judge of probate disallowed items 6, 7, 8, 9, 10,11, and 19, and allowed the other items in the account.</p> <p>The appellant contended that upon, the items disallowed here the decree of the Court of Probate in Rhode Island, upon the account rendered there, was conclusive. The appellee contended that he was not bound by that decree, for the following reasons: “ that the note and mortgage came into the hands of the executor in this Commonwealth; that the executor, by his inventory and account here, had submitted himself to the jurisdiction; that the note might have been sold by the executor in this Commonwealth, without any order of the Court of Probate in Rhode Island; that the record of that court was certified by the appellant, as clerk, when he was a party interested; that no notice had been given of the license granted by that court for the sale of the note; that the license included the note only, and not the mortgage; that no sufficient notice was given of the sale; that no sufficient notice was proved of the application for ancillary administration in Rhode Island; that no sufficient notice was proved of the presenting of the account in Rhode Island; and that the allowance by that court of the debts due to citizens of Rhode Island, and especially to the appellant himself, were subject to revision here, by showing that they never existed, or never bound the testatrix, or had been paid.” The statutes of Rhode Island were put into the case.</p> <p>The case was reserved for the determination of the full court; the decree to be reversed, in whole0or in part; or the case to stand for further hearing, upon the question of fraud in the sale; or such other order or decree to be made therein as law and justice might require.</p>

<p>Complaints dated April 8,1871, under the Gen. Sts. e. 149, for overflowing a parcel of land in Walpole. The complaint of Mary F. Barrett was for flowing from April 8,1868, to September 6,1870, and the complaint of George E. Craig was for flowing from September 6,1870, to the date of the complaints. Both cases were tried together in the Superior Court, before Brigham, C. J., without a jury, when the following facts appeared:</p> <p>The dam of the respondent’s mill had, for the last fifteen years, overflowed the land described in the complaints. On September 4, 1861, Samuel G. Clap, who then owned said land, signed and delivered to George Guild, who then owned, as trustee under the will of Harlow Lawrence, the dam now belonging to the respondent, the following paper: “Received of the estate of Harlow Lawrence, deceased, one dollar and other good considerations, in foil payment for all dues or demands for damage to my land by the flowage of water by the dam at the Lawrence factory, or otherwise. And I hereby discharge George Guild, as trustee of the Harlow Lawrence estate, from all liability for any flowage of my land.”</p> <p>In 1863 the dam was conveyed to the respondent. In May 1866 the land described in the complaint was conveyed to Nathaniel T. French by a deed, containing a covenant that the land was free from all incumbrances “ except such right as the proprietors of the Lawrence factory privilege may have to flow said premises by their pond; but no right of flowage is admitted.” In September 1866, French conveyed the land to the complainant Mary F. Barrett, who on September 6, 1870, conveyed it to Edward 0. Craig, who soon after conveyed it to the complainant, George E. Craig; and all these later conveyances contained the same exception as that in the deed from Clap to French. Since the release by Clap no damages for overflowing the land in question have been paid, nor have any ever been demanded until these complaints.</p> <p>The respondent contended that the release of Clap was a bar to all claim by Clap or any one holding under him, for damages for overflowing the land, but the judge ruled that it was a release only for damages due at its date; and that the complainants were entitled to have their damages assessed. The respondent alleged exceptions.</p>

<p>¡T. S., the owner of a tract of land, laid it out in lots, and recorded in the registry of deeds a plan showing the streets and lots, with their dimensions. On the north side of one of the streets were five lots, numbered consecutively from 6 to 10, and on the south side a large lot. J. S. conveyed this large lot without restriction, and built a house on lot lit, standing twenty feet back from the street. He then conveyed lot 8, and part of lot 7, to the plaintiff’s grantor, by deeds containing a provision that for fifteen years no building should be placed on the granted premises within twenty feet of the street, and no trade offensive to dwelling-houses in that neighborhood should be carried on; and that a violation of either of these restrictions should not work a forfeiture, but that J. S., his heirs or devisees, might enter upon the land and remove anything violating the restrictions. J. S. afterwards conveyed the rest of lot 7 and also lot 6 to the defendant, by deeds containing the same provision. Held, that the plaintiff could not maintain a bill in equity to restrain the defendant from erecting a building on lot 6 within twenty feet of the street.</p>

Contract on the covenant of freedom from incumbrances and the covenant of warranty in a deed of land in Brookline from the defendant to the plaintiff, dated April 30,1869.

Contract. The declaration alleged that Edwin R. Paul made a promissory note dated May 2, 1870, payable on demand to the plaintiff, or order; “that said note was given to the plaintiff for a lot of standing wood which the plaintiff had bargained to said Paul, but of which he had given him no bill of sale, or agreement in writing; that in July 1870 said Paul had cut said wood and left it on the land of the plaintiff and was about to remove the same; that the plaintiff went to…

Writ OR entry, dated July 20, 1871, to recover land in Quincy. At the trial in the Superior Court, before Pitman, J., the following facts appeared: O. S. French gave a warranty deed of the land, dated April 6, 1861, to Stephen Morse, Jr., purporting to be for a valuable consideration ; the deed was given to secure Morse against liability on a promissory note which he had indorsed at French’s request.

Writ of entry, dated March 23, 1872, to recover an undivided half of a parcel of land in Dedham. Plea, nul disseisin, At the trial in the Superior Court, before Lord, J., the following facts appeared: The demandant, whose maiden name was Catherine Riley, was born October 24, 1850, and on September 23, 1866, was married to James T. Walsh, who is still living. A child of the marriage was born August 19, 1867, and is still living.

Complaint to a trial justice under the St. of 1862, c. 160,* alleging that the defendant “ unlawfully and maliciously did deface, injure and mar a certain building, to wit, Lovell’s Hall, so called, the property of Isaac Lovell, by defacing the floor of said building with filthy matter.” At the trial on appeal, in the Superior Court, before Dewey, J., there was evidence “ that there were notices in the hall forbidding any person to spit tobacco juice on the floor; that there…

Indictment alleging that the defendant set fire to the barn of William H. Codding, and by the kindling of said fire and the burning of said barn, the dwelling-house of Codding was “ burned and consumed.” At the trial in the Superior Court, before Brigham■, C. J., the evidence tended to show that the barn was burned entirely ; that the shingles on the roof of the dwelling-house took fire and were burned in two places; and that persons were on the roof keeping it wet with…

<p>Indictment for rape committed on Mary Burns. At the trial in the Superior Court, before Pitman, J., the defendant asked Mary Burns, on cross-examination, what had been her occupation previous to the time of the commission of the offence upon her. The district attorney objecting to the question, and the defendant stating that he proposed to prove that she had been engaged in the unlawful sale of liquor, the judge ruled that such fact could not he shown, but that if she had been convicted, it might be shown by the record. The district attorney then stating that he did not object to any inquiry as to her business at the time of the alleged commission of the offence, the judge allowed her to be inquired of as to her occupation at that time, but not as to her previous occupation.</p> <p>The defendant requested the judge to instruct the jury “ that in order to convict the defendant, his act must have been without the woman’s consent; that if there was no evidence of actual and determined resistance on her part, the inference would be that it was with her consent; and that there must have been sufficient force used by the defendant to overcome any resistance that the woman might have offered.” The judge declined so to instrnct them, but instructed them “ that the act of the defendant must have been without the woman’s consent, and there must have been sufficient force used by him to accomplish his purpose; that the jury must be satisfied that there was no consent during any part of the act; and that the degree of resistance was frequently an essential matter for them to consider in determining whether the alleged want of consent was honest and real, but that there was no rule of law requiring a jury to be satisfied that the woman, according to their measure of her strength, used all the physical force in opposition of which she was capable.”</p> <p>The jury returned a verdict of guilty, and the defendant al-. leged exceptions.</p>

Complaint to a trial justice, alleging that the defendant “ with force and arms in and upon the body of Timothy Harrington an assault did make, and him did then and there threaten to shoot with a gun, which he then and there pointed and aimed at said Harrington.” At the trial, on appeal, in the Superior Court, before Pit-man, J., the Commonwealth introduced evidence tending to show that the defendant was driving in a wagon along a highway which Harrington, one Sullivan and…

<p>At the trial of an indictment for an assault and battery upon J. S. on a certain day, the record of the conviction of J. S. for an assault and battery on the same day upon the defendant is not admissible in evidence for the purpose of showing that J. S. assaulted the defendant first, and that the defendant acted in self defence.</p>

<p>At the trial of an indictment when the defendant has not testified and has called no witnesses, it is erroneous for the judge to instruct the jury that nothing is to be presumed against the defendant for not testifying, but that the failure of a defendant to produce evidence which it was in his power to produce, to meet the evidence adduced by .he Commonwealth, is a proper matter for them to consider.</p>

Indictment under the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining a tenement for the illegal sale and keeping of intoxicating liquors. ' At the trial in the Superior Court, before Allen, J., the Commonwealth introduced evidence tending to show that the defendant was an apothecary in New Bedford; that he kept intoxicating liquors in his shop, and also in a building in the rear of the shop, and that sales were made in the shop; and it contended that the liquors in the…

Complaint to the Municipal Court of Taunton charging the defendant with keeping intoxicating liquors with intent to sell.

<p>A complaint and warrant under the St. of 1869, c. 415, § 44, to search for “ intoxicating liquors, to wit: a certain quantity of mixed liquors,” sufficiently alleges that the mixed liquors are intoxicating.</p> <p>Tn a complaint under the St. of 1869, c. 415, § 44, an allegation that ale was kept for sale by J. S., he not being authorized to sell the same in this Commonwealth for any purpose under the provisions of the St. of 1869, c, 415, or by any other legal authority whatever, sufficiently negatives any right in him to sell by virtue of a vote of any city or town under the St. of 1871, c. 334.</p>

Wbit op entby, dated August 8, 1871, to recover a strip of land adjoining Weir Street in Taunton.

Petition, under the St. of 1871, c. 382, entered at June term 1871 of the Superior Court, for a jury to determine the amount to be assessed on the petitioner’s estate, consisting of three adjoining buildings, known as Union Block, Concert Hall, and Wilbur’s Building, as a betterment levied to pay for the expense of widening Weir Street in Taunton, on which the estate abutted.

<p>A. sheriff who receives an annual salary from the county treasury, as provided by the St. of 1867, c. 345, is not entitled to additional compensation for presiding as sheriff at the trial by a jury to assess damages for land taken for a highway, nor for travel in the performance of that duty, nor for drawing up the return of the verdict to the Superior Court, nor for making out the requisitions upon the towns, and the summons to the jurors, nor for time spent in causing the jurors to be summoned; and no such charges can be allowed by the Superior Court in the bill of costs, under the Gen. Sts. c. 43, § 45.</p> <p>The Superior Court, in taxing costs under the Gen. Sts. c. 43, § 45, upon the return of the verdict of a sheriff’s jury, cannot allow fees for serving the requisitions upon the towns, the summons to the jurors, and notices to the parties, unless indorsed upon the precepts, as required by the Gen. Sts. c. 157, § 18.</p> <p>In the taxation of costs under the Gen. Sts. c. 43, § 45, upon the return of a verdict ren dered at a trial at which the sheriff presided, no exception lies to the decision of the Superior Court, allowing charges of the sheriff for a janitor, and for stationery and other trifling incidental expenses at the trial; nor to its disallowance of a charge for the travel and attendance of a deputy sheriff at such trial, unless the bill of exceptions shows that this charge was disallowed upon the ground that it could not by law be allowed.</p>

<p>When the verdict of a jury to assess damages for land taken for a highway is set aside, the application for a new jury, under the Gen. Sts. c. 43, § 42, may be by petition, although a year has elapsed since the laying out of the highway.</p> <p>The fact that the owner of land on a highway has erected a building or solid wall standing back from the highway, and that the strip between such building or wall and the highway has been used by the public for more than twenty years, is not conclusive evidence that the strip has become a part of the highway.</p> <p>On a petition for a jury to assess damages to land by widening or altering a street, the petitioner can recover for damages occasioned by raising the level of a sidewalk, if such raising is part of the actual work of widening the street.</p> <p>Jn a petition for a jury to assess damages to an estate on a street in a city for land taken for widening the street, evidence of the amount of damages paid by the city to the owners of adjoining estates is not admissible.</p>

<p>Bill nr equity by Thomas Bennett, Jr., and eleven others, alleging that they were citizens and tax payers of New Bedford; that the defendants, through their officers, were proceeding to construct a subterranean aqueduct through Willis Street from a brook west of County Street to the Acushnet River, for the purpose of diverting the waters of the brook from their natural channel; that the defendants falsely pretended that this aqueduct was a common sewer, and intended to treat it as such ; that the work would require a great expenditure of money; that the defendants proposed to assess the same upon the taxable inhabitants ; and that the defendants were acting without lawful authority. The prayer was that the defendants might be enjoined from continuing the work. The answer denied that the case was within the equity jurisdiction of this court, and alleged that there was an existing necessity for the sewer, and that the proceedings under which it was constructed were according to law.</p> <p>At the hearing, before Ames, J., it appeared that the plaintiffs were tax payers; that the city ordinances provided that “ the mayor and aldermen shall cause to be constructed and kept in repair all main drains and common sewers which shall be ordered by the city council to be laid down through any streets or private lands within the city; ” that on May 31, 1872, the committee of the city council on roads, bridges, main drains and common sewers reported that the sewer in question ought to be built; and that the following proceedings were had in the city council:</p> <p>“ City of New Bedford, in Common Council, June 6, 1872. Ordered, That a special appropriation for the sum of sixteen thousand dollars be and the same is hereby made for the purpose of constructing a sewer through Willis Street, commencing at .he brook west of County Street, and continuing to the river. Also, for the continuation of Sycamore Street sewer from Pleasant Street to enter into the Willis Street sewer; and the committee on finance are hereby authorized to raise the same in such manner as they may deem for the best interest of the city. Adopted and sent up for concurrence. Yeas 19, nays 1. William A. Church, Clerk. In Board of Aldermen, June 6,1872. Concurred. Henry T. Leonard, City Clerk.”</p> <p>“ City of New Bedford, in Common Council, June 19, 1872. Ordered, That the vote whereby the order appropriating the sum of sixteen thousand dollars, for the purpose of constructing a sewer through Willis Street, commencing at the brook west of County Street and continuing to the river, and also for the construction of the Sycamore Street sewer from Pleasant Street to enter into the Willis Street sewer be reconsidered. Adopted and sent up for concurrence. William A. Church, Clerk. In Board of Aldermen, June 19, 1872. Non-concurred and sent down. Henry T. Leonard, City Clerk.”</p> <p>It further appeared that the mayor and aldermen proceeded under the order of June 6, 1872, to construct the sewer in question.</p> <p>The plaintiffs put in evidence the following joint rule of the city council: “ After the annual appropriations shall have been passed, no subsequent expenditure shall be authorized for any purpose unless provision for the same shall be made by specific transfer from some of the appropriations contained in the annual resolutions, or by creating therefor expressly a city debt; but no such debt shall be created unless the resolution authorizing the same shall pass by the votes of two thirds of the whole number of each branch of the city council, voting by yea and nay; ” and also the following rules and orders of the common council: “ When a motion has once been made and carried in the affirmative or negative, it shall be in order for any member voting with the majority to move a reconsideration, and if such motion is seconded it shall be open to debate, and be disposed of by the council. And, in case the motion be made at the same meeting, it shall be competent for a majority of the members present to pass a vote of reconsideration; but if it be not made until the' next meeting the subject shall not be reconsidered, unless a majority of the whole council shall vote theretor. But no more than one motion for reconsideration of any vote shall be permitted. All ordinances and resolutions shall have two several readings, before they shall be finally passed by this council; they shall then be enrolled by the clerk, and the committee on enrolled ordinances shall, as soon as may be, examine them, and certify on the back thereof that they are duly enrolled. No ordinance, order or resolution imposing penalties, or authorizing the expenditure of money, shall have more than one reading on the same day.”</p> <p>The plaintiffs also introduced evidence tending to show that the proposed sewer was much larger than the other sewers in the city; that it was intended to drain and divert the waters of a brook at the upper or western end thereof, as well as to carry off the sewage on the line of the street; and that there was no present need of the sewer for sewage purposes.</p> <p>The defendants introduced evidence, against the plaintiffs’ objection, that by the usage of the common council such orders for ten years past had been adopted without a second reading.</p> <p>The judge found that “ the scheme of sewage proposed in behalf of the defendants was bona fide; was an effectual and reasonable method of providing for the sewerage of the houses on the various streets in that part of the city, and for the protection of the streets; and was an appropriate and the best method of draining the surplus waters of the brook; ” and he reserved the case for the consideration of the full court.</p>

<p>Writ oe entry to recover land in Berkley. At the trial in the Superior Court, before Allen, J., the demandant, in opening hia case, stated that he expected to prove the following facts ?</p> <p>The demanded premises were formerly the property of Thomas J. Burt, who died in 1865, leaving a will, which, excepting the formal parts, is as follows : “ I give and bequeath unto my wife Lydia Burt all the estate, both real and personal, of which I shall die seised, of whatever name or nature, and wherever the same may be situated, and to hold to her and her assigns forever. And should my wife, the aforesaid Lydia, die intestate and seised of any portion of said estate at the time of her decease, then it is my will that should my adopted daughter, Lydia C. Burt, be living, that the use and improvement of the same shall hold to her and her children after her and to their children, and so onward to the latest generation. But should she, the aforesaid Lydia C. Burt, decease without leaving issue, or should her children or her children’s children decease without leaving issue, then the same shall descend in fee to those of next akin to me according to the rules and provisions of the law in such cases. And lastly, I nominate my wife, the aforesaid Lydia, sole executrix of this my last will and testament.”</p> <p>Lydia C. Burt died in the lifetime of Thomas J. Burt, without leaving issue. Lydia Burt, on her husband’s death, entered into possession of the demanded premises, and in 1870 executed a deed thereof to the tenant; and the demandant stated facts, not now necessary to report, which he contended proved a delivery of the deed. Shortly after she died, leaving a will by which, after some legacies, she gave “ all the residue of my estate, real and personal, of which I shall die seised, to ” the tenant. The demandant was an heir of Thomas J. Burt.</p> <p>The judge ruled that on these facts the action could not be maintained, and directed a verdict for the tenant, which was returned, and the demandant alleged exceptions.</p>

Action on the Gen. Sts. c. 137, to recover possession of land in Attleborough. Writ dated July 3, 1871.

<p>A man who has received into his house and supported a woman and children compelled to leave home by the cruelty of her husband, cannot recover from the husband the expense of supporting the children, if one of his motives for receiving them was that he might maintain an adulterous intercourse with the woman.</p>

Tobt for the conversion of certain goods. Writ- dated February 25, 1871.

<p>Toet for "wrongfully diverting the water from a mill pond and using it for the defendant’s own purposes, whereby the plaintiff was prevented from using his saw mill, and his carding and shingle mill.</p> <p>At the trial in this court, before Wells, J., it appeared that Luther Lincoln owned the plaintiff’s two mills and also a furnace; that he died in 1848, leaving a will made in 1843 ; that the plaintiffs claimed under the residuary devise in his will; that there was a specific devise in the will to Annis A. Lincoln, Sen., of “ the old furnace and the privilege of using water to blow with, from the tenth day of the tenth month to the tenth day of the sixth month, but from the tenth day of the sixth month to the tenth day of the tenth month I reserve the water for the carding mill and shingle mill, viz.: when the water is drained down to two feet and six inches in the saw mill flume, the use of the water is reserved for the carding mill, but when there is more than two feet and six inches in the saw mill flume, the furnace may use the water and draw it down to two feet six inches with the carding and shingle mill working at the same time, if desired; the said Annis, his heirs and assigns, to maintain and keep that part of the dam in good repair from the waste gate to the furnace, and when there is more water than the furnace takes, it may be used for the saw mill or shingle mill, but not to draw the water lower than to see the top of a large rock about eight rods above the dam; ” and that the defendant claimed under Annis A. Lincoln, Sen.</p> <p>The plaintiff did not contend that the defendant had drawn down the water below two feet and six inches in the saw mill flume, but contended that he had used the water for other purposes than to blow his bellows or blast with; such as for drilling, grinding castings, and running grindstones, emery wheels, &c., for finishing his castings; and the defendant admitted that he used the water, either alone or in connection with steam, not only for blowing his bellows, but also for drilling and grinding castings and facings; but it appeared that such operations are a necessary and incidental part of the business of a furnace, without which merely blowing the bellows for the blast would be useless.</p> <p>It appeared that at the time the will was made and at the death of the testator, and for many years prior thereto, Annis A. Lincoln, Sen., was in occupation of the furnace property under a lease from the testator, granting him the “ privilege of using the water to blow said furnace with ; ” and that said Annis, at the time of the will, and during his occupation under the lease, used the water, not only to blow the bellows with, but for the other incidental business of the furnace as it was then occupied, such as drilling and grinding a few facings which required but little power.</p> <p>The defendant introduced in evidence the testimony of several furnace men, “ that in common and ordinary usage among furnace men the phrases ‘to blow with,’ ‘blowing the furnace, and ‘ blowing out,’ when used with reference to a furnace, were understood to mean all the operations of the furnace, and not merely 6 to blow the blast; ’ that if one furnace man said to another, 6 We are going to blow to-day,’ it would be generally understood to mean, 6 We are going to carry on all the operations,’ including the drilling, grinding, &e.; that if one furnace man said to another, 6 We have Mowed out,’ it would be generally understood to mean, ‘ We have stopped all the .works of the furnace ; ’ and that 6 blowing ’ and other operations connected with a furnace were generally carried on together and with the same oower.”</p> <p>The judge ruled, “as a matter of law, that this evidence was not sufficient to affect the construction of the will; that notwithstanding all the facts and evidence above stated, the defendant did not acquire a right under the will to use the water except to blow his bellows with; that as he admitted that he had used the water for drilling and grinding his castings, the verdict must be for the plaintiff for at least nominal damages, and for such other damages as the plaintiff proved he had sustained in loss of water at Ms saw mill.”</p> <p>The jury returned a verdict for the plaintiff for $102, and the defendant alleged exceptions.</p>

Coetbact. Writ dated August 25, 1871. The declaration was as follows: “ The plaintiff says the defendant executed to him a bond, a copy of which is hereto annexed.

<p>Conte act for the use and occupation of land in Easton. Writ dated October 20, 1870. Trial in the Superior Court, before Dewey, J., who, by consent of parties, made a report of the case substantially as follows:</p> <p>On May 2, 1863, the defendant gave to the plaintiff a mortgage on the land in question, which was occupied by the defen* ant, to secure the payment of his promissory note for $800, payable in three years from date, with interest payable semi-annually On January 12,1865, no interest having been paid on the note, the plaintiff made an open and peaceable entry upon the land to foreclose the mortgage in the presence of witnesses, and a certificate of the entry was duly recorded.</p> <p>A few days after the entry the plaintiff notified the defendant, who knew that the entry had been made, that he must pay to him $200 a year rent for the land; the defendant refused; and no agreement was made as to payment of rent.</p> <p>The defendant continued in the occupation of the land till March 1871, never having made any payment of rent nor on the mortgage note, and on January 10,1868, he filed a bill in equity against the plaintiff for the redemption of the land from the mortgage, and upon January 7, 1871, a decree was entered on this bill allowing him to redeem, by the payment to the plaintiff of $1092.66, being the amount of the note and interest, and the costs, within sixty days, otherwise his right to be foreclosed. The defendant made no payment, and at the end of the sixty days removed from the premises, which were soon after sold and conveyed by the plaintiff to one Marshall for a sum somewhat exceeding the amount of the principal and interest of the note. The plaintiff claimed to recover, upon the foregoing facts, for the use and occupation of the land from January 12,1865, to the date of the writ. It was agreed that the land was worth not less than $1500, and that $125 a year would be a proper rent.</p> <p>If the plaintiff was entitled to recover, judgment to be entered for him for the sum of $722.25 and interest from the date of the writ, unless he was entitled to recover for a portion but not the whole of said time, in which case judgment to be entered accordingly ; if he was not entitled to recover upon the foregoing facts, judgment to be entered for the defendant; the questions of law arising in the case were reported for the consideration of this court.</p>

Appeal by James O. Blackinton and Chauncey G. Fuller, executors of the will of Ellis Blackinton, from a decree of the Probate Court, on a petition of the appellee, the widow of the testator, making her an allowance of $400 as necessaries.

Writ on dower, dated October 30,1871, by Anna M. Hood, alleging that she was the widow of James M. Hood, and praying that her dower might be set off to her in land in Somerset, of which he was seised during the coverture. The tenants pleaded the general issue, and also a special plea that James M. Hood was divorced from the demandant on May 22, 1861, by a decree of the Circuit. Court of Kane County in the State of Illinois.

Tort for an assault upon the plaintiff by one of the defendants’ servants and his ejection from their cars. Answer, a gen* eral denial.

<p>Actions of contract, on accounts annexed, for services as weavers in the defendant’s mills. The cases were tried together xi the Superior Court, before Putnam, J.</p> <p>ft appeared that each of the plaintiffs, who were man and wife, entered the service of the defendants under a written contract which contained the following provision: “ If I leave or am obliged to leave the employ ” of the defendants “ from any cause whatever without giving and working out the two weeks’ notice required by "’ the defendants, “ I forfeit to them whatever may be due to me; ” that each of the plaintiffs was in charge of five looms in the weaving room; that each room had an overseer and a deputy overseer, and the superintendent had an office at the door of the mill; that the plaintiffs, in working hours, at about four o’clock in the afternoon, and when four or five hundred other operatives were at work in the same room, left the room, abandoning all of the ten looms and casting off the belts, and left the mill and went home without asking any leave or making any statement to the deputy overseer or superintendent, no sickness or other cause being alleged, and the overseer being absent at the time.</p> <p>The plaintiffs testified that one of the five looms in charge of Malley was out of order; that they tried to set it right, as did also the man in charge, but failed; that they then went away, leaving their weaving tools, which belonged to them, in the mill; that William returned to the mill about half-past five o’clock the same afternoon, and on being asked by one of the men in charge what was the matter, was told that the loom should be set right, and was further told to go and they would send him word in the morning; and that he waited till nine o’clock the next morning, about three hours after work began, when, receiving no message, they went to see the reason, and were sent away without being allowed to go to work. This testimony was contradicted by the defendants’ witnesses.</p> <p>The defendants asked the judge to rule “ that a leaving the mill in working hours, abandoning ten looms, or five by William and four by Malley, without leave, or asking leave, and without sickness or any other cause than set up in this case, was a desertion of the mill and worked a forfeiture.” But the judge refused so to rule, and ruled “ that a leaving the mill in working hours, abandoning ten looms, or five by William and four by Malley, without leave or asking leave, and without sickness or any other cause than set up in this case, was evidence for the jury to consider on the question oi an intention to leave the employment of the defendants, which would work a forfeiture of the wages,” and submitted to the jury the question of the intent of the plaintiffs, and whether they meant to abandon their employment permanently or only to omit working for a while, until the loom should be repaired. The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

<p>In an action, under the St. of 1869, o. 152, to recover for injuries caused by the explosion of illuminating oil, which had been sold by the defendant, and did not conform to the standard fixed by the statute, it is no defence either that the defendant was ignorant that it did not so conform, or that an authorized inspector had certified that it did; and if the person injured was using such care as would have been proper had the oil conformed to that standard, the jury will be warranted in finding that she was in the exercise of due care.</p>

<p>A postmaster is not liable for the loss of a letter occasioned by the negligence of his clerk.</p>

<p>On appeal from a decree of a probate court allowing an instrument as the will of A. B., the judge submitted to the jury these issues: “ Was A. B. of sound and disposing mind and memory at the date of the alleged will ? Was the alleged will procured to be made through undue influence ? Is it the will of A. B. ? ” TTeJd. that it was not erroneous for the judge to refuse to submit additional issues as to A. B.’s knowledge, wishes and mental condition, and as to the amount of his estate, and advances to his children.</p> <p>Upon the issue of a testator’s sanity, persons acquainted with him, although neither witnesses to the will nor medical experts, may testify whether they noticed any change in his intelligence or any want of coherence in his remarks.</p> <p>A testator in his will gave a certain sum to the children of his deceased son G., “ which with the advances made by me to my son G., in his lifetime, will make them share equally with my other sons.” Meld, that in considering the bearing of this provision upon the question of the testator’s sanity, the word “ advances ” was not necessarily restricted to mean “ advancements ” within the Gen. Sts. c. 91, §§ 6-10, but might be taken to include any benefits which the testator might have reasonably considered an appropriation of his estate.</p> <p>The burden of proving a will is on the party setting it up, but the fact that the alleged will is unreasonable in its provisions, although competent evidence on the question whether it is the testator’s will, imposes on the party setting it up no new or special burden.</p> <p>The fact that a testator meant to divide his property equally among his children, but that by a mistake on his part as to the value of the property, his will failed to have that effect, is not a sufficient ground for setting aside the will, if the mistake was caused not by his insanity or incapacity, but by his voluntary omission to ascertain the value correctly.</p>

<p>Bt a statute, county commissioners were authorized to lay out a highway across a cove, “ the same being navigable water,” in a town, in case they thought the public good required it; and by a later statute, to take effect when accepted by the town, the town was empowered, in making the highway authorized by the former statute, to construct sluice-ways through it, provided that such sluice-ways did “ not obstruct said highway, as laid out by the county commissioners.” More than thirty years afterwards the town was in. dieted for building, across the cove, being navigable to and from the sea, at a point where a highway struck the cove, a dam or dike, and continuing the same to the obstruction of navigation. Held, on demurrer, that it did not appear as matter of law, from the statutes and indictment (1) that the county commissioners ever laid out a highway under the former statute; or (2) that if they did, they ever authorized the entire interruption of navigation ; or (3) that the town ever availed itself of the second statute ; or (4) that the dam or dike complained of was the same as the highway authorized by the statutes; or (5) that the highway, as authorized by the statutes, would have been an entire interruption of navigation.</p> <p>Ppon overruling a demurrer to an indictment for a misdemeanor, the Superior Court may order judgment for the Commonwealth, although the defendant has excepted to the overriding of the demurrer.</p>

Complaint by George W. Geary, addressed to the justice of the Police Court of Haverhill, charging the defendant with unlawfully keeping intoxicating liquors with intent to sell. The complaint bore the following certificate: “ Received and sworn to the twenty-third day of September in the year eighteen hundred and seventy.

<p>Complaint under the St. of 1869, c. 415, § 44, alleging that on December 16, 1870, certain intoxicating liquors “ were and still are kept and deposited by Daniel Calhane, of Bradford, in a certain three story wooden building situate on the westerly side of Main Street, being the building occupied in part by A. H. Atwood as a grocery store, and in the two northwesterly divisions of the cellar under the same in said Bradford, and occupied by said Daniel Calhane as a place of common resort kept therein, and which liquors are intended by said Daniel Calhane for sale in this Commonwealth ” contrary to law; and praying “ for a warrant to search said building and cellar, described as aforesaid, for said liquors; ” that the liquors might be forfeited; and that Calhane “ and all other persons claiming an interest in said liquors ” might be summoned to show cause why they should not be forfeited. A warrant, reciting the complaint, was issued, authorizing the search of the “ building and cellar herein above described; ” and liquor was seized thereon.</p> <p>In the Superior Court, Calhane appeared as claimant, and moved to quash the complaint and warrant, because the place to be searched was not properly described therein, but Wilkinson, J.t overruled the motion. The jury returned a verdict against the claimant, and he alleged exceptions.</p>

Complaint under the St. of 1869, c. 415, § 44, to the Police Court of Gloucester, alleging that intoxicating liquors were kept and deposited by Henry Martin in the baggage room of the depot of the Eastern Railroad Company, which were intended by him for sale in this Commonwealth contrary to law. A warrant was issued upon this complaint, and three barrels of liquors were seized. At the trial in the Superior Court, before iScudder, J., Martin appeared as claimant.

Indictment on the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining a tenement in Salem used by the defendant for the illegal keeping and sale of intoxicating liquors.

Indictment for breaking and entering in the night time, “ the building of one John P. Ford,” in Lynn, “ the said building being then and there occupied by said Ford as a dwelling-house,” with the intent to commit larceny therein.

<p>In an action under the 'Gen. Sts. c. 44, § 22, against a town to recover for injuries caused by an accident arising from a highway being so narrowed by obstructions at the side that carriages could not pass, evidence that on a previous occasion two carriages had been unable to pass at the place, and that the road continued in the same condition, is inadmissible.</p>

<p>It is no defence to an action against a city or town, under the Gen. Sts. c. 44, § 22, to recover for an injury caused by a defect in a highway, that the city or town used ordinary care in repairing the way, if in fact it was not reasonably safe and convenient.</p> <p>In an action under the Gen. Sts. c. 44, § 22, against a city to recover for an injury caused by an alleged defective construction of a sidewalk, evidence that sidewalks are constructed in the same way in other cities is not admissible for the purpose of showing that such construction is not a defect.</p> <p>In an action under the Gen. Sts. c. 44, § 22, against a city to recover for an injury occasioned by an elevation in a sidewalk, alleged to be a defect, the testimony of witnesses that they have seen elevations of the same size in sidewalks is not admissible.</p> <p>In an action, under the Gen. Sts. c. 44, § 22, against a city to recover for an injury occasioned by the plaintiff's falling over a plank which separated a gravel from a brick sidewalk and projected above the gravel, it appeared that the plaintiff had often walked over and observed the plank ; that she passed over it a few minutes before the accident; and that at the time of the accident, which was in the evening, she was not thinking about it. Held, that these facts did not require the judge to rule that she was not in the exercise of due care.</p> <p>In an action by a woman, who was a boarding-house keeper, to recover for injuries caused by an accident, she may testify to the number of her boarders, at the time of the accident, for the purpose of showing what work she was then able to do.</p> <p>„n an action, under the Gen. Sts. c. 44, § 22, against a city to recover for injuries caused by the plaintiff’s tripping over a plank projecting above a gravel sidewalk, the defendants introduced evidence that from the time of the accident to a day ten months later the plank remained in exactly the same position; that on that day it was taken up to measure its thickness; and that in putting it down again it was left half an inch higher than when taken up; and they then offered evidence of accurate measurements of its height above the gravel taken afterwards on the same day. Held, that the exclusion ol the evidence offered gave the defendants no ground of exception.</p>

Tout by William West and Martha A. West, his wife, under the Gen. Sts. o. 44, § 22, to recover for personal injuries to her occasioned by a defect in Union Street in Lynn, a highway which the defendants were bound to keep in repair. Writ dated April 22,1871.

Tort under the Gen. Sts. c. 44, § 22, to recover for personal injuries occasioned by the defendants’ neglecting to keep lighted a covered bridge leading from Haverhill to Bradford, which was part of a highway that they were bound to keep in repair. At the trial in the Superior Court, before Putnam, J., no question was made but that it was the duty of the defendants to keep the bridge lighted, and that it was not lighted.

<p>1 lot of broken brick, several feet square and a few inches high, outside the line of the location of a highway, or within the line but outside the travelled part of the highway, is not such a defect in the condition of the highway as requires the town to put up a railing to protect travellers.</p> <p>In an action under the Gen. Sts. c. 44, § 22, against a town to recover for injuries occasioned to a traveller by falling, after dark and during a light fall of snow, over a lot of bricks, the judge instructed the jury that if outside of, hut immediately contiguous to, the highway or the part thereof constructed for travel, there were objects, which would be defects if within the travelled part of the highway, and if for want of indications of the proper limits of the highway a traveller following the direct and ordinary course of travel, and using due care to keep within those limits, for the want of such indications received an injury from those objects, the town was liable. Held, that these instructions were erroneous.</p>

<p>The Gen. Sts. c. 46, § 1, provide that when the boundaries of a highway are not known or cannot be made certain by records or monuments, buildings or fences fronting the highway and twenty years old shall be deemed the boundaries. Held, in an action raising the question of the boundaries of a highway, that such buildings are not to be deemed the boundaries, unless it appears that the boundaries are unknown and cannot be made certain by records or monuments.</p>

Writ op entry to recover land in Salem. The case was submitted to the judgment of the Superior Court and, on appeal, of this court, upon agreed facts substantially as follows: The demanded premises belonged to Clara Putnam, and on October 21, 1869, were set off by Daniel H. Potter, a deputy of the sheriff of Essex, to Devereux Dennis, upon an execution in his favor against Clara Putnam.

Petition filed August 19,1869, under the St. of 1864, o. 306,* for the division of flats in Lynn harbor. At November term 1870, commissioners were appointed to determine the lines and boundaries of the flats adjacent to each parcel of upland, and the court, under the St. of 1870, c. 348,† ordered the trial of other questions to be postponed until after the report of the commissioners should have been made.

<p>A bill in equity alleged that the defendant brought a writ of entry against the plaintiff, that the plaintiff disclaimed as to all the demanded premises, except a certain part; that the case was submitted to the court on an agreed statement of facts; that judgment was rendered for the tenant; that in that action it was the intention of both parties to raise only the question as to the title of said part, but that by mistake the defendant included in the description of the demanded premises a parcel of land in the plaintiff’s occupation to which the defendant had never made any claim; that neither party discovered the mistake until after the agreed statement had been signed ; that the defendant then discovered it but purposely said nothing about it until a year after the judgment had elapsed; and that then the plaintiff discovered it. Held, that on proof of these facts, the plaintiff was entitled to have the defendant enjoined from taking advantage of the judgment, as to the parcel so included by mistake.</p>

<p>Bill in equity alleging “ that the plaintiff is, and since the first day of April 1870 has been, a joint owner with the defendant of and in certain goods and chattels, viz.: One steam engine and boiler, one planer, two boring mills, nine engine lathes, one upright drill, one slobber, two pulley machines, one pair shears for cutting iron, together with a large amount of other tools and machinery, consisting of jack-screws, forges, anvils, taps and dies, rimmers, drills, boring-bars, pipe-tongs, dogs, blocks, and such other tools as are used in a machine shop, being all the tools and machinery which on the thirty-first,day of March 1870 were in the shop of the defendant, in Lawrence ; that the plaintiff is the owner of one undivided fourth part of said tools, goods and chattels, and the defendant is the owner of three undivided fourth parts of the same; and that all of said goods and chattels are in the sole and exclusive possession of the defendant.”</p> <p>The bill further alleged “ that at various times, since the first day of February last past, the plaintiff has requested the defendant to make a fair and equitable division and distribution of said goods and chattels between the plaintiff and the defendant; or to consent to an equitable and just use of the same by the plaintiff, or to cause a valuation of the same to be made, and to pay the plaintiff a fair compensation for the use and benefit of his one fourth part thereof; all and each of which said requests of the plaintiff have been refused by the defendant, who has, since the first day of February aforesaid, maintained the sole and exclusive possession of said chattels and the whole of them, has had the entire use, benefit and profit of them and all of them, has thereby diminished and is still diminishing their value, and has wholly refused to make any distribution or division of them with the plaintiff, or to allow or pay the plaintiff any compensation for the use of his fourth part thereof, or to permit any use of the same by the plaintiff; and that the plaintiff is wholly without remedy at law, for the wrongs and injuries aforesaid, but can only have relief in a court of equity.”</p> <p>The prayer was “ that the defendant may be compelled to answer the premises, but not upon oath, which is hereby waived; that an account may be taken of the said goods and chattels, so as aforesaid owned by the plaintiff and defendant in common, and of their value, and of the use of the same by the defendant, since the first day of February last past, and of the fair rental value of the fourth part thereof belonging to the plaintiff, so as aforesaid used by the defendant, including wear and depreciation by such use ; that the plaintiff may recover the same of the defendant ; that a receiver of the same be appointed by the court, by whom the same shall be sold, under the direction of the court, and the proceeds divided ratably between the said parties, unless the defendant shall assent to such division of said goods and chattels as shall to the court seem equitable ; that in the mean time the defendant shall be enjoined from selling or otherwise disposing of said goods and chattels, or any of them, or from using them in such manner as to destroy or depreciate their value; ” and for further relief.</p> <p>The defendant demurred because the plaintiff had a plain and adequate remedy at law, and the case was reserved by Cray, J., upon the bill and demurrer, for the consideration of the full court.</p>

Appeal by Henry A. Breed, the father and next of kin of Henry A. Bread, Jr., an insane person, from a decree of the Probate Court giv-nting to Charles C. Ayer, the guardian of Henry A. Breed, Jr., a license to sell all the ward’s interest in certain real estate in Lynn.

<p>Appeal by James Williams from a decree of the Probate Court, passed October 5,1869, removing him from his office as administrator of the estate of John Williams, rendered on the petition of Josiah Brackett, dated September 13, 1869, alleging that the appellant had embezzled part of the estate.</p> <p>At the hearing, before Gtray, J., it appeared that the appellee was the holder of a note signed by the intestate; that the appellant was appointed administrator in January 1868; that the estate was represented insolvent, and commissioners were appointed October 16,1868 ; that due notice of the proceedings in relation to the insolvency of the estate, and of the meetings of the commissioners, was given to the appellee; that he never proved or attempted to prove his debt; that the report of the commissioners was duly made, a dividend declared, a decree of distribution made on March 1, 1871, by the Probate Court, and the dividend paid by the appellant to all parties named in the decree; and that the appellant had settled his account of administration.</p> <p>The case was reported by the judge for the consideration of the full court. If, upon these facts, the petition could be maintained, the cause to stand for hearing; otherwise the decree to be reversed and the petition dismissed.</p>