Volume 126 — Massachusetts Reports

Petition to the Superior Court, filed originally by Walter Farnsworth alone, on December 18, 1876, for a jury to assess damages, for the taking by the respondent of a parcel of land in Boston, under the St. of 1873, o. 340.

<p>Petition to the Superior Court, filed December 18,1876, for a jury to assess the damages occasioned to the petitioner by the taking by the respondent of a lot of land in Boston, under the St. of 1873, e. 340.</p> <p>After the filing of this petition, Henrietta Goldsmith filed her petition for damages suffered by her as mortgagee of the same land by the same taking; and the trial of Farnsworth’s case was postponed to allow of proper notice to the city of Goldsmith’s petition. The judge ordered both cases to be tried together, before one jury.</p> <p>At the trial, before Dewey, J., it appeared that on December 29,1876, the city awarded as damages, for the taking of the land, the sum of $8,139. It was agreed by all parties that Goldsmith’s mortgage exceeded $13,000. The jury found the value of the land to be, with interest, $12,073.44; and, after deducting certain sums due the city, returned a verdict of $10,496.66 for Goldsmith; and she accepted the verdict, and collected the same, with her costs, on execution against the city. The jury also returned a verdict for the city in Farnsworth’s case.</p> <p>Farnsworth asked that judgment be entered for the city without costs, because the damages were increased above the sum before offered by the city. The judge refused this request, and, at the end of the term, passed a general' order for judgment. Farnsworth alleged exceptions.</p>

<p>‘ Contract on an account annexed for leather sold and delivered. The answer contained a general denial, and alleged an agreement on the part of the plaintiffs that the leather was good, and suitable to be made into boots and shoes, and averred that it was not suitable for that purpose, but was worthless.</p> <p>At the trial in the Superior Court, before Bacon, J., without a jury, it appeared in evidence that the plaintiffs were dealers in leather in Boston, and that the defendants were manufacturers of boots and shoes in Milford; that the leather was sold at the store of the plaintiffs; that the defendants had full opportunity at the time of purchase to examine the whole lot purchased, and did examine two rolls out of the twenty sold; and that the rolls examined were equal in quality to that of the bulk.</p> <p>It also appeared that the leather was bought by the defendants for the purpose of being manufactured into boots and shoes; and that the plaintiffs, when the sale was made, supposed that such was the purpose for which it was bought, but nothing was said at the sale about this purpose, although an inquiry was made as to whether the leather would crimp; and that the leather appeared to be good leather, and was suitable for the purpose above stated, and both parties believed it to be suitable for such purpose.</p> <p>The defendants put in evidence tending to show that the leather was rotten and unfit to be made into boots and shoes, and contained a latent defect, but was of some value; and offered evidence tending to show that there was a general and universal usage in the leather trade, that, when leather is sold as good leather, which appears like good leather, and it turns out to be rotten and nearly worthless, the buyer is not bound by the con tract of sale, and may revoke it as in this case; but the defend ants did not contend that there was any fraud on the part of the plaintiffs. The judge excluded this evidence, on the ground that such a usage would not be valid in this case.</p> <p>Upon all the evidence in the case bearing upon the sale, the judge found that there was no express warranty; and, upon that part of the evidence which is stated above, ruled, as a matter of law, that there could be no implied warranty of the leather sold; and ordered judgment for the plaintiffs. The defendants alleged exceptions.</p>

Tort. Writ dated January 18, 1877. The declaration was as follows: “ And the plaintiff says, that the defendant held herself out as a competent and skilful midwife practicing in Boston; that the mother of plaintiff was about to be delivered of child, and, at the defendant’s request, employed the defendant as midwife; that thereafterwards the mother of plaintiff was delivered of child, being the plaintiff, and the defendant acted as midwife; and the defendant neglected to…

Contract against the maker of a promissory note for $300, dated November 12, 1875, and payable, six months after date, to the order of the plaintiff’s intestate. Writ dated December 13, 1876. The answer contained a general denial, and alleged payment by another promissory note for $300, dated May 12, 1876, signed by the defendant, payable in six months, and delivered to the plaintiff’s intestate.

<p>Tort for damages occasioned by the defendant’s horse kicking a shoe through a window of a store occupied by the plaintiff. Answer, a general denial.</p> <p>At the trial in the Superior Court, before Pitman, J., there was evidence tending to show that on August 31,1876, the plaintiff was in the possession and occupancy of a store on Bromfield Street in Boston; that a large plate-glass window of the store was broken by the defendant’s horse kicking a loose shoe through it after he had been violently struck twice -by the driver; that the city was then repaving that street; that the defendant was the owner of horses and wagons which he let, among others the one hi question, and furnished a driver by the day; that the horse, wagon, and driver were, at the time of the injury complained of, let by the defendant to the city, and were then under the exclusive direction and control of the city as to where to go and where to unload, and what to do in the performance of the work of paving; that the defendant had no other connection with the premises than that of letting his horse, wagon, and driver by the day, and they were kept at his expense; that the driver of the horse which damaged the plaintiff’s window was furnished by and in the employ of the defendant, who paid him by the week; that the driver had the entire management of this horse; that he had the selection of his route to and from the street, fed and took care of the horse at noon, and at night fed and put him up in the defendant’s stable, and harnessed him in the morning; and that it was his business to see that he was properly shod, and to get him shod if he needed it.</p> <p>Upon this evidence the defendant contended, and asked the judge to rule, that the defendant was not liable in this action. But the judge refused so to rule, and ruled that the driver was the servant of the defendant; and that, if the window was broken by any want of reasonable care, or by the culpable carelessness of the defendant or his servant, the jury should find for the plaintiff.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>A judgment by consent for the defendant, after a plea in abatement has been filed and sustained, and without further answer or trial, is no adjudication of the merits.</p>

Contract upon a judgment recovered by the plaintiffs against the defendant in the Supreme Judicial Court of Maine.

Charges oe fraud, filed under the Gen. Sts. c. 124, § 31, upon the defendant’s application to be admitted to take the poor debtor’s oath. The first and fourth charges were as follows: “ First.

Contract upon an account annexed to recover back $300 paid on account of the purchase money, which was $2,500, of a parcel of real estate sold by auction to the plaintiff. Answer, a general denial.

<p>A valid attachment for a substantial amount, placed on the estate of a vendor of land, after the sale and before the tender of the deed, is such an incumbrance as, in a court of law, justifies the purchaser in refusing to accept the deed, and in recovering back the part of the purchase money already paid, where the conditions of sale provide that the deed is to be ready “ on or before fifteen days, or as soon as the papers can be completed, from the day of sale."</p>

<p>Indictment on the Gen. Sts. c. 165, § 4, averring that Howard A. Richardson, on August 6, 1848, at” Foxborough, “ being then and there a single man unmarried, was lawfully married to one Almira F. Belcher, and her the said Almira F. Belcher then and there had and took for his the said Howard A. Richardson’s wife, and cohabited with her as his lawful wife, and that afterward he, the said Howard A. Richardson, on the seventeenth day of October, in the year of our Lord one thousand eight hundred and seventy-six, at Shutesbury, in the county of Franklin, did unlawfully marry and take to his wife one Mary E. Flagg, he, the said Howard A. Richardson, then and there being married and the lawful husband of the said Almira F. Belcher, she the said Almira F. Belcher being his lawful wife, and living, and he, the said Howard A. Richardson, never having been legally divorced from the said Almira F. Belcher, and that the said Howard A. Richardson afterward did cohabit and continue to cohabit with the said Mary E. Flagg, as his second wife, in this state, to wit, at New Salem, in the county of Franklin, for a long space of time, to wit, for the space of one year; whereby and by force of the statute in such case made and provided he, the said Howard A. Richardson, is deemed guilty of the crime of polygamy. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Howard A. Richardson in manner and form as aforesaid at New Salem aforesaid, on the first day of January now last past) did commit the crime of polygamy.”</p> <p>At the trial in the Superior Court, before Pitman, J., it appeared that Almira F. Belcher, named in the indictment, was lawfully married to the defendant and cohabited with him as his wife for some years; that in March, 1857, she was duly divorced from him by a decree of the Supreme Judicial Court, sitting in the county of Norfolk, dissolving the bonds of matrimony between them for misconduct on his part; and that thereafter-wards she married one Eddy, since deceased. The government offered evidence tending to prove the other essential allegations in the indictment.</p> <p>The defendant contended that there was a variance between the proof and the allegations of the indictment, as to the first wife; and that upon these facts it was not competent for the jury to convict the defendant on this indictment. But the judge ruled otherwise; the jury returned a verdict of guilty; and, the question of law arising at the trial, being in the opinion of the presiding judge so doubtful as to require the decision of this court, was reported, at the request of the defendant, for its determination</p>

Indictment in two counts. The first count, upon which alone the defendant was convicted, charged that the defendant, on December 5, 1876, at Pelham, “unlawfully and maliciously did thrust a certain instrument, the name of which is to the jurors aforesaid unknown, into the body and womb of one Mary M. Wilson, then and there being pregnant with child, with intent thereby then and there to cause the said Mary M. Wilson to miscarry and prematurely bring forth from her body the…

Indictment in three counts. The second count, upon which alone the defendant was convicted, charged that the defendant, on February 14, 1878, at Williamsburg, “feloniously, wilfully, and maliciously did set fire to, burn, and consume a certain grist mill and shop there situate, of the property of Herbert L. Bradford and Gilbert M. Bradford, of said Williamsburg; which grist-mill and shop was then, to wit, at the timé of committing the felony aforesaid, insured against loss…

<p>An indictment, on the St. of 1862, c. 168, § 1, alleging that the defendant printed and published obscene pictures of naked girls, is not sustained by proof that he printed and published obscene pictures of girls naked only above the waist.</p>

Complaint on the Gen. Sts. c. 87, §§ 6, 7, charging the defendant with keeping and maintaining a certain tenement in Mew Bedford, used for the illegal sale and illegal keeping of intoxicating liquors, the same being a common nuisance. At the trial in the Superior Court, before Putnam, J., it was admitted that the place in question was a common nuisance; but the defendant asked the judge to rule that the evidence would not warrant a finding that he kept it.

Complaint to the Police Court of Haverhill charging Edward Donahue with unlawfully keeping intoxicating liquor with intent unlawfully to sell the same. The record, transmitted to the Superior Court on appeal, was in the usual form, and did not state the age of the defendant.

Indictment, under the Gen. Sts. c. 161, § 38, charging Charles L. Swasey with embezzling “ three treasury notes, of the denomination and value of one hundred dollars each, three national bank bills, of the denomination and value of one hundred dollars each, three other notes of kinds to said jurors unknown, of the denomination and value of one hundred dollars each, divers other notes of kinds and denominations to said jurors unknown, of the value of one thousand dollars, all…

Indictment, charging the defendant with the larceny, on September 19,1878, from the person of John Sheridan, of “divers promissory notes, payable to the bearer on demand, current as money in said Commonwealth, of the amount and of the value of eighty dollars, a more particular description of which is to the jurors unknown.” At the trial in the Superior Court, before Putnam, J., Sheridan testified that his wallet, containing eighty dollars in bank bills, one twenty-dollar…

Complaint to the District Court of East Norfolk, on the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining on January 1, 1878, and on divers other days between that day and July 22, 1878, a certain tenement in Weymouth, used for the illegal sale and illegal keeping of intoxicating liquors, the same being a common nuisance.

<p>Indictment on the St. of 1874, c. 372, § 163, alleging, in separate counts, that on August 29, 1877, Joseph Swasey, Lydia A. Swasey, Wilbur B. Swasey and Rachel B. Gifford, not being passengers, while in the exercise of due diligence, were killed by the defendant corporation, through the gross negligence and carelessness of its servants and agents, while engaged in its business, upon the pier of the Philadelphia and Reading Coal and Iron Company, at Salem. At the trial in the Superior Court, before Bacon, J., the following facts appeared:</p> <p>The pier where the accident happened was not within the location of any railroad corporation, but the tracks were laid by the Eastern Railroad Company, under a license from the Phil adelphia and Reading Coal and Iron Company. The pier extends from Derby Street, southerly into the harbor of Salem, about two thousand feet, of which about thirteen hundred feet, being the part towards Derby Street, is built upon piles, and about seven hundred feet in length of the southern end is solid, being built of stones and earth. The width of the part on piles is twenty-six feet, and the width of the filled part is one hundred and three feet. About two hundred feet from Derby Street, on the pier, is a gate, which is in two parts and opens-against a water box on the east side of the pier, and against the rail on the western side; the eastern half of the gate is eleven feet three inches long. There are two tracks from Derby Street upon the pier: the eastern track has the rails even with the planking of the' wharf, and the rails on the western track are laid upon the surface of the planking. The width of the pier, inside of the timbers on the side of it, is twenty-three feet five inches; on the eastern side of the pier is a box that covers a pipe that carries water from Derby Street, down to the head of the pier; this box is fourteen and one half inches wide, and one foot deep, and the top of it, at the gate, is three feet seven inches above the planking. The east rail on the east track is three feet and one inch from the timber under the box on the eastern side of the wharf. The width of the tracks is four feet eight and a half inches, and the distance between the two tracks seven feet, and, when there is a train of cars on each track, the distance between the two trains is about three feet. The distance from the side of the car to the water box is six and one half inches, and, at the gate, five and one quarter inches. There was a nut about three inches from the bottom of the car, on the side of the car that caused the accident, that extended out from the side of the car an inch and a half, and a staple about a foot long extended out from under the side of the car, from the bottom of the car, about two inches and a half from the side of the car. The car is nine feet seven inches wide. From the bottom of the car body to the planking the distance is three feet five inches, and from the lower step sixteen and one half inches to the planking.</p> <p>On August 29,1877, the steamer Plymouth Rock, for which an excursion had been arranged by her agent, sailed from the pier to the Isles of Shoals in the forenoon and returned to the pier at about seven o’clock in the evening of the same day. Tickets for the excursion were sold by the ticket-masters of the defendant at Lowell and Lawrence, and a special train was run which united cars from Lowell and Lawrence, and the same were taken in the morning, by the persons in charge of the train, upon the pier, and the passengers discharged. The engine and cars were manned by servants of the defendant corporation.</p> <p>The Plymouth Rock took on the excursion from the head of the pier, in the morning, about twenty-five hundred passengers, and returned with the same number in the evening. There were only about five hundred and twenty of the passengers on the steamer that were passengers in the train, the rest of the passengers being from Salem and vicinity. The train that went to the pier to take the Lowell and Lawrence passengers consisted of twelve cars, and arrived at the pier soon after eight o’clock in the evening.</p> <p>The government offered evidence tending to prove, and it was admitted to be true, that the conductors of the train, and such other persons as had charge and control of it, were the agents and servants of the defendant, engaged at the time in its business ; and that this train was then engaged in the business of carrying passengers for hire, and the profits of such carrying were for the benefit of the defendant, and were received by it, although it received no additional recompense for the moving of the train on to the pier.</p> <p>When the train stopped upon the pier in the evening, the engine and five cars and a part of the sixth car had passed the gate, and, when it stopped, Joseph Swasey was found on the east rail of the east track under the rear truck of the fifth car, dead, a few feet down the pier from the gate, and Rachel B. Gifford, Lydia A. Swasey and Wilbur B. Swasey were found at the gate and a few feet from the northern end of it. Mrs. Swasey was dead, and Wilbur B. Swasey and Rachel B. Gifford were still living. Rachel B. Gifford died the same night, and Wilbur B. Swasey died the next morning. The physicians, who were called to examine them soon after the accident, testified that these persons were all injured in the same manner, and that the injuries were such as would be caused by the rolling of their bodies between the car and the water box, and that the injuries were such as must cause death.</p> <p>There was evidence tending to prove that this train of cars came upon the pier at about eight o’clock, at a speed of six miles an hour, without any light upon the engine which could be seen by the people in front of it ; that the night was so dark that the train could not be seen by a person who was looking intently for it, and who, being upon the pier, was watching to see which track it was coming upon, until it was within fifteen feet of him; that no whistle was blown at any place at which the train could have been seen from the pier, in the day-time; that no bell was rung, and no lights were displayed upon or in the vicinity of the train, and no warning ■ given in any manner of its approach. The defendant put in evidence contradicting the testimony in behalf of the Commonwealth on these points.</p> <p>There was also evidence tending to prove that, in addition to the passengers arriving by the steamboat, a large number of persons came down upon the pier to see her arrive or to meet their friends; that during the whole time between the arrival of the steamer and the occurrence of the accident, there were large crowds of people upon the pier, and especially that the part of the pier between the solid part and the gate was so crowded with people as to impede locomotion; that a large number of those who were waiting for the train, in which to go to Lawrence and Lowell, were standing upon the pier; and that the switches upon the pier also interfered with the travel of passengers.</p> <p>Joseph Swasey, Lydia A., his wife, and Rachel B. Gifford, a sister of Lydia A., went upon the excursion in the Plymouth Rock, lived in Salem, and were not passengers in the cars. They landed from the steamer Plymouth Rock among the last that landed, not more than two or three hundred landing after them. There was evidence that it took the passengers about an hour to get off the steamboat.</p> <p>One witness testified that he saw Joseph Swasey, his wife and wife’s sister, at the head of the coal pockets which are on the solid part of the pier; that they passed up the pier, and he remained a few minutes at the pockets after they passed up; that he did not remain longer than fifteen minutes, and then passed up the pier to Derby Street; that when going up the pier towards Derby Street he did not see Mr. and Mrs. Swasey or Miss Gifford; that when he got on to Derby Street, about three or four rods from the railroad track, he saw the train going across Derby Street towards the pier; and that, after going up to East Webb Street, and assisting two ladies to take the horse-cars, lie stopped some five minutes, and returned to Derby Street, where he heard of the accident.</p> <p>Another witness testified that he went upon the pier between seven and eight o’clock of the evening of the accident; that he went down the pier towards the steamboat, remained awhile, and then proceeded up the pier towards Derby Street; that when on the way up, and within a few feet of the engine, he saw it coming and jumped to the right and threw himself upon the water box some ten feet to the north of the gate; that when he got on to the water box he saw a young man standing some four feet to the south of him and between him and the gate; that he saw two women standing near the young man a little farther to the south; that he cried out to the young man to get upon the box; that the car took the young man and the women and rolled them round and round, and they fell between the car and the gate; that when the car stopped the four persons killed were under the cars.</p> <p>There was also evidence that one person as the engine approached got over the side of the pier, and held on by the railing, and others, including one woman, got on the water box.</p> <p>No other witness testified to seeing either of the persons killed prior to or at the time of the accident; but Wilbur B. Swasey, who did not go upon the excursion, was seen at a place in Salem about a mile distant from the pier at about six o’clock the same evening.</p> <p>It appeared in evidence that the pier was constructed by the Philadelphia and Reading Coal and Iron Company, and was owned by it, for the purpose of landing coal to be delivered to the railroads with which the tracks upon it were connected, and that the consent of the agent of the Coal and Iron Company was obtained by the agent of the steamboat for the boat to land at the pier, and for the train to run upon the same, as a matter of mere accommodation and without compensation, and that the defendant corporation had no right to run upon the pier except by virtue of this license. There was no evidence that the directors, superintendent, or managers of the defendant corporation had any knowledge of the arrangement thus made, or of the use of the pier under such license.</p> <p>The defendant asked the judge to rule that the defendant, was not liable to an indictment under the St. of 1874, c. 372, § 163, where a death was caused upon a track not owned by or within the chartered limits of its road, nor within the chartered limits of any other railroad which was under its control, but was upon a private railroad track not constructed under any law of the Commonwealth, and upon which a train of cars belonging to the defendant was being drawn by the mere sufferance and license of the owner of said track, without any contract or compensation therefor, but simply by permission for this particular occasion; that the defendant would not be liable for the death of a person upon said track, if the only evidence of authority from the defendant to take its train upon the track was the fact that it was so taken by its conductors upon this occasion, for the accommodation of these excursion passengers, without any additional compensation to the defendant therefor, or any knowledge that the same was to be done by any other officer of the corporation.</p> <p>The judge refused so to rule, but ruled that if a train, belonging to the defendant corporation and under the charge of its conductors, without any previous contract or direction therefor, and under the circumstances above described, was taken by the direction of the conductors upon the track for the accommodation of the persons carried and to be carried in said cars, although the corporation received no additional compensation for entering upon said track, the defendant would be liable under this statute for the killing of a person through the gross negligence and carelessness of its servants and agents.</p> <p>At the close of the evidence, the defendant requested the judge to direct a verdict of not guilty, on the ground that there was no evidence tending to show that the persons killed, or either of them, were in the exercise of due diligence at the time of the accident. The judge declined so to do, and ruled that the question of due diligence was a question that should be submitted to the jury under all the circumstances of the case, and that the question whether these persons were walking upon the track or •vent upon the pier under a license express or implied from the owners of the wharf, together with the nature and extent of the license, was a question for the jury under all the circumstances of the case.</p> <p>The jury returned a verdict of guilty on all the counts; and the defendant alleged exceptions.</p>

<p>Contract on a policy of insurance, dated June 20, 1874, against perils of the seas, whereby the defendant company insured, “lost or not lost, B. A. Hathaway, for Sylvanus W. Burgess, twenty-three hundred dollars, loss, if any, payable to Sylvanus W. Burgess, on Schooner Christie Johnstone; eight hundred dollars on great generals; three hundred and fifty dollars on small generals ; three hundred and fifty dollars on advance to crew on board said schooner, at and from Plymouth to Banks, cod-fishing, and at and thence back to Plymouth; risk to com menee June 13,1874, at noon.” The rate of the premium was 3-4 per cent per month, the premium note given was for $114, and the vessel was valued at $2,500. The policy was indorsed “ expires with voyage.” Answer, a deviation.</p> <p>Trial in this court before Gray, C. J., who reported the case for the consideration of the full court in substance as follows:</p> <p>The plaintiff introduced evidence tending to show the following facts: The vessel sailed from Plymouth on June 13, 1874, on a cod-fishing voyage to the Banks, in a seaworthy condition, with four barrels of clam bait, which was the usual quantity of bait taken by vessels of her class on such a voyage. For several years past it has been the practice of such vessels not to take enough bait to last for the entire trip, but to rely principally on catching squid on the Banks, and to use them for bait; and for several years prior to 1874 squid have been plenty on the Banks, but in 1874 they were very scarce.</p> <p>After fishing on the Banks for three weeks, and having exhausted nearly all his bait, the master of the vessel, solely for the purpose of procuring bait, went to St. Peter’s, the nearest practicable port where bait could be obtained, there procured bait, and then sailed from St. Peter’s to the Banks, and resumed fishing. To reach the port of St. Peter’s, the vessel sailed about one hundred and ten miles from the fishing-ground. She left the fishing-ground on Thursday, reached St. Peter’s on Saturday; and, having procured bait there, left St. Peter’s on Tuesday following, and then sailed for another Bank, where she arrived and resumed her fishing on the next Thursday. On August 6,1874, while so fishing on the Banks, the vessel encountered a severe gale, sprung a leak, and was totally lost, with all the property on board.</p> <p>The defendant requested the judge to rule, that these facts amounted in law to a deviation. The judge declined so to rule; but ruled as follows: “ If the vessel left Plymouth with the usual amount of bait for the kind of fishing in which she was to engage, and, by an unexpected failure of bait of the kind ordinarily taken on the fishing-ground, it became necessary for her to go into port to procure bait, and she went to the nearest practicable port for that purpose, such going into port was not, as matter of law, a deviation.”</p> <p>The defendant consented to a verdict for the plaintiff, subject to the opinion of the full court upon the question, whether, as matter of law, there had been a deviation. If, in the opinion of the court, the going to St. Peter’s for bait was a deviation which discharged the insurer, the verdict was to be set aside, and judgment entered for the defendant; otherwise, judgment for the plaintiff on the verdict.</p> <p>The case was argued in October 1875, and reargued in March 1876.</p>

<p>Tort for personal injuries received by the plaintiff, while in the employ of the defendant, a manufacturing corporation, from the burning of its mill.</p> <p>At the trial in this court, before Lord, J., the plaintiff offered to prove that the mill was a large building, five stories in height, with an attic; that each story contained one large room; that the only way of entrance to the several stories was through a tower on the outside of the mill, with stairs leading from story to story and coming to the platform at each story, and sufficient at all ordinary times to allow the operatives a passageway in and out; that this tower went up to the edge of the roof, to the sixth story; that on each side of this tower were fire escapes coming up from the ground to the fifth story, and there stopping, leaving the sixth story without any means of escape save by going down the tower or jumping from the gable windows of the room; that the plaintiff, a woman between twenty and thirty years old, had been at work at the mill about two years, in the upper room, spinning cotton; that the spinning rooms are inflammable, dangerous, and require constant care and watching to prevent fire; that about seven o’clock in the morning of September 19, 1874, a fire broke out in the fourth story, caused by the heating of a bearing in one of the mules, which, when first seen, was about the size of the flame of a candle; that it was first discovered by a man not in charge of that mule, who, on seeing it, ran to the end of the room, where there was a hose coiled up and hung upon a hook, having a nozzle to it and means for stopping and starting the water; that he uncoiled the hose, and turned the valve in the pipe leading from a cistern in the top of the building, from which another pipe led to each story, and ran with the hose toward the fire; that when he got near the fire, he opened the stop-cock on the hose-pipe to let the water come out, but none came; that he then dropped it and ran to the sink at the end of the room, and got a vessel of water and ran and threw it on the fire, but that did no good, the fire having got too much headway by that time; that no alarm up to that time had been made; but the alarm became general in that room, and the occupants all ran down out of the building; that in the fifth story the work was still going on, and the alarm was first given there by the fire drawing up the tower and the smoke coming into that room; that when the smoke rushed up into the sixth story the fire had so far progressed that escape by the tower was deemed impossible; that some tried it, but died, and some escaped by jumping; that the plaintiff, after trying the tower, ran back to the end of the room, and taking hold of a warp of yarn let herself down as far as she could, and then dropped the rest of the way, causing the injuries in question; that about twenty persons were either burnt or killed in jumping, and a great, many wounded; that the hose and the apparatus for water were apparently, and to all outward appearances, in good order, and they had been, not frequently, but occasionally during the summer, tried to see if they were in order.</p> <p>The plaintiff contended that it was the duty of the defendant to keep the apparatus for extinguishing fires in good order, to make safe and convenient ways of egress in case of fire in such a building, and to provide buckets with water in the rooms.</p> <p>The judge thereupon reserved the case for the consideration of the full court. If a verdict for the plaintiff could be sustained on this offer of proof, with. such inferences as the jury could legally draw, the case was to stand for trial; otherwise, the plaintiff to become nonsuit.</p> <p>The ease was argued in January 1877, and reargued in Janu ary 1878.</p>

<p>In an action by an employee, between twenty and twenty-one years of age, against a manufacturing corporation, for personal injuries received while endeavoring to escape from its mill, which was on fire, the plaintiff requested the judge tc instruct the jury that it was the duty of the defendant to provide proper and suitable means of extinguishing fire, proper and suitable ways and means of escape, and of giving alarm to its servants in case of fire. The judge instructed the jury, that if the room in which the plaintiff was at work was a suitable place, and there were proper and suitable means of extinguishing fire, and the means of egress and escape were suitable and proper, and in order and ready for use, the plaintiff could not recover. Held, that the instructions as applied to the first and second requests were sufficiently favorable to the plaintiff; and that the third request for instructions was properly refused.</p>

<p>If a levy of an execution is made on the land of a debtor who is absent from or not a resident of this state, a statement in the return of the officer that one of the appraisers was appointed by a person “ who claimed to act as the authorized agent of ” the debtor is insufficient, although the return states that the officer had caused three disinterested and discreet men to be sworn as appraisers, and sets forth the residence of the debtor in another state, and that he had no attorney in this state to the knowledge of the officer.</p>

<p>Under the Gen. Sts. c. 11, § 54, and c. 12, § 56, a collector of taxes, who, under a warrant committed to him by the assessors of a town, distrains and sells the property of a person for a school-district tax, is not deprived of his justification under the warrant, by reason of the fact that, to the amount of the tax voted, the assessors have added, “ for the overlaying on said tax,” a sum in excess of the five per cent authorized by the Gen. Sts. c. 11, § 32.</p> <p>If a collector of taxes, who, under a warrant committed to him by the assessors of a town, has distrained the property of a person for a school-district tax, knowingly sells more of it than is necessary to satisfy the tax and all charges, he is liable in tort to the owner of the property for the excess.</p>

Contract for money paid. Trial in the Superior Court, before Aldrich, J., Avho, by consent of parties, before verdict, reported the case, for the determination of this court, in substance as folloAVS: Personal property of Munson Avas attached on a writ in favor of J. H. Gautier and others, and on October 16, 1875, Munson and Woodward signed and gave a receipt therefor to the attaching officer, in which it was agreed, in consideration of the officer allowing the property to…

Contbact against the sureties on a bond executed on October 4, 1870, by them, and by Joel S. Sanderson as principal, to the Judge of the Probate Court for the county of Franklin, in the sum of $15,000, and containing the following condition: “ The condition of this obligation is such that if the above bounden Joel S. Sanderson, who has been duly appointed trustee of the estate of Mary Ward, of Montague, in said county of Franklin, shall: First, make a true inventory of all…

Contract upon two orders alleged to be drawn on the defendants by John O’Flaherty, payable to the plaintiff and accepted by the defendants. Writ dated February 19, 1878. Trial in the Superior Court, before Allen, J., who ruled that the plaintiff could not recover; directed a verdict for the defendants; and reported the case for the determination of this court. The facts appear in the opinion.

<p>Trustee Process. Writ dated July 23,1874, returnable to the Superior Court. The Woronoco Savings Bank, summoned as trustee, answered that, at the time of the service of the writ, it had in its hands and possession the sum of $200, standing in the name of Sarah E. Aldrich, and denied that it had any goods, effects or credits in its hands and possession in the name of Bennet Aldrich. C. K. Lambson appeared as claimant of the funds in the hands of the trustee. The defendant was defaulted; and the case was tried between the plaintiff and claimant before Crardner, J., without a jury.</p> <p>It was agreed that the claimant was administrator of the estate of Sarah E. Aldrich, the deceased wife of the defendant, who died before any service of the process. It appeared in evidence that the defendant was entitled to a lapsed pension from the United States; that he applied to an attorney to get the pension restored; that the latter agreed to get it restored, on condition that, if successful, the defendant would give the amount received to his wife, that the draft for said amount should never go into the defendant’s hands, that the attorney shoidd retain the draft, and the defendant should indorse it, and that the attorney should then deposit it in a savings bank in the name of the wife as her property; that the defendant assented to this arrangement, and in pursuance thereof, three or four months after, the attorney obtained from the United States pension office a draft for about $800, payable to the order of the defendant; that thereupon the attorney sent for the defendant, who came to his office; that the attorney placed the draft upon the table before the defendant, who indorsed the same, not taking it up; that the attorney took the draft, sent for the defendant’s wife, and the three went to the trustee bank, and in their presence the attorney deposited $250 in the bank in the name of Sarah E. Aldrich, she signing the bank-book, and receiving a book in her own name; and that the attorney gave her the balance of the amount of the draft, being about $50.</p> <p>The plaintiff was a creditor of the defendant upon an account due before the above arrangement with the attorney was entered into ; the defendant, in presence of his wife, promised to pay the plaintiff out of the pension money when received; while the application was pending, both husband and wife agreed that the plaintiff should be paid out of the pension money when received; when the draft was received, neither the defendant nor his wife had any visible property; and the arrangement with the attorney was made fraudulently, to prevent the money from being attached by the defendant’s creditors.</p> <p>The claimant admitted that no consideration passed between the defendant and his wife, and that the pension check was a voluntary gift by the husband to the wife through the intervention of the attorney; and asked the judge to rule that the pension was exempt from attachment, that it never came into the defendant’s hands in other form than as exempted by law, and that the trustee should be discharged.</p> <p>The judge refused so to rule ; found the facts as above stated, and that the draft was passed to the defendant bj the attorney for the sole purpose of making it negotiable; ruled that the money in the hands of the trustee was not exempt from attachment by a creditor of the defendant; and ordered the trustee to be charged. The claimant alleged exceptions.</p>

Contract on a promissoty note for $729, payable to the plaintiff or bearer. Trial in the Superior Court, before Allen, J., who ordered a verdict for the plaintiff for the full amount of the note, and reported the case for the consideration of this court. The facts appear in the opinion.

<p>If a passenger delivers to a railroad company a trunk containing samples of merchandise belonging to a third person, whose agent he is, to be transported to a place to which he has a ticket, the only contract entered into is for the transportation of the personal baggage of the agent, and the company is not liable in contract to the owner of the trunk for its loss; nor in tort, except for gross negligence ; and evidence that a large part of the defendant’s business consists in transporting passengers known as commercial travellers, with trunks like the one lost, containing merchandise, that such trunks are known as sample trunks and are of special construction, and that such travellers purchase tickets for the ordinary passenger trains and receive checks for their trunks, and are transported for the price of the tickets, is immaterial.</p>

<p>If a person, by false and fraudulent representations, induces another to exchange certain chattels for a parcel of land, of which he delivers an invalid deed, the grantee can recover for the conversion of the chattels; and the deed is admissible in evidence, without proving its execution by the attesting witness.</p>

Writ of entry, dated September 8, 1877, to recover a parcel of land in Hingham. Plea, nul sdisseisin.

<p>An agreement between A. and B., by which A. is to take charge of B.’s brick-yard, and to have the brick made “ in the best manner and at the lowest cost possible, and to attend to and watch over the interests of the work, as a skilful owner would do for himself,” is not a guaranty that the bricks shall be made in the best manner and at the least possible cost, without regard to the kind of mate rials and machinery furnished by B.</p>

Bill in equity, filed July 17,1878, alleging that on July lb, 1871, Lewis Porter and George Southworth executed and délivered to the North Bridgewater Savings Bank their promissory note for $7,445.56, secured by a mortgage of land in Brockton; that in 1875 Porter and Southworth were adjudged bankrupts, and in the same year their assignees conveyed the land to a third person, who conveyed it to the plaintiff; that the mortgage to the bank was given without consideration and…

<p>A tenant at will, under an agreement that he is at liberty to leave the premises at pleasure and at a moment’s notice, is not liable for rent after he has given such notice, and is not obliged to give the notice mentioned in the Gen. Sts. c. 90, § 31.</p>

Bill in equity, filed February 13, 1877, to redeem a parcel of land in Fall River from a mortgage.

<p>Petition, under the Gen. Sts. c. 150, to the Superior Court, dated May 6, 1878, to enforce a mechanic’s lien, alleging that the petitioner made a verbal contract with James. E. Cunneen of Fall River, concerning the building on the premises hereinafter described, to “ take apart, repair and put together again such defective boilers and piping as were on the premises,” for $3.50 a day; that the petitioner, at the special instance and request of said James E. Cunneen, performed upon said building the labor mentioned in the account annexed, and that James E. Cunneen had authority from, and was rightfully acting for, the Border City Mills, a corporation in Fall River, it being the owner of the premises, and with its consent; that under and by virtue of said contract he performed the labor mentioned in the account annexed, “ in the alteration and repair of said structure upon said premises,” that the premises are situated in the northerly part of Fall River, (describing them by metes and bounds,) “ being the same lot of land which is occupied by Border City Mills, known as Border City Mills Number Two, and the structure upon which said labor was performed is a cotton mill situated upon said premises and recently erected thereon, and said premises at the time said contract was made, and said labor performed, were the property of said Border City Mills; ” that the petitioner ceased to perform said labor upon April 12, 1878, and within thirty days thereafter filed in the registry of deeds for the county of Bristol a statement of a just and true account of the amount, due him, with all just credits given, together with a description of the property intended to be covered by this lien, sufficiently accurate for identification, with the name of the corporation which is the owner thereof, which statement was subscribed and sworn to by the petitioner and was in all respects duly made and recorded in accordance with the statutes of this Commonwealth; and praying that said premises might be sold, and the proceeds of sale applied to the discharge of his demand and costs. The account annexed stated the amount due at $75.25.</p> <p>The certificate of lien stated that the above sum was due “ for labor performed, in the alteration and repair of a building situated on a lot of land in Fall River, being the land occupied by mill known as Border City Mills Number Two; ” described it by metes and bounds; and gave the time when the petitioner “ceased to labor on said building.”</p> <p>The case was submitted to the Superior Court upon an agreed statement of facts, in substance as follows: The petitioner was hired by James E. Cunneen, the defendant’s superintendent, who was duly authorized to hire and employ the petitioner to repair two stationary steam-boilers in the boiler-house, used in connection with its cotton mill, the boiler-house being a separate building from the mill, but joining the mill on the back. The repairs consisted of putting on patches to the boilers, and riveting the same. In consequence of this contract, the petitioner did repair the boilers. The certificate of lien was duly sworn to, filed and recorded within thirty days from the time the petitioner ceased labor on the boilers. If, as matter of law, the lien, on these facts, could be maintained, the petitioner was to have judgment for $75.25; otherwise, judgment for the respondent.</p> <p>Gardner, J., ordered judgment for the respondent; and the petitioner appealed to this court.</p>

<p>Cortract on a bond, executed to the plaintiffs by Abraham Osborn, the defendant’s intestate, and conditioned to keep and cause to be kept at all times thereafter open and unobstructed, for the benefit of the plaintiffs, their heirs and assigns, a certain way in Edgartown, described as “ beginning at the northeast corner of a lot of land belonging to said plaintiffs; ” (thence by various courses and distances which it is unnecessary to state;) “ thence in an easterly direction to the south corner of William P. Chadwick’s shop; thence on a straight line to the shop of Joseph V. Kelley; then across the way aforesaid to the first bound.”</p> <p>After the decision reported 124 Mass. 151, the case was tried in the Superior Court, before Rockwell, J., who allowed a bill of exceptions in substance as follows :</p> <p>The question for the jury was whether a fence erected by Joseph V. Kelley, claimed by him to be on the line between his land, adjacent to the shop mentioned in the bond, and the way defined in the bond, was within the way and an obstruction thereof. There was evidence tending to show that at that locality an ancient way of varying width had existed for a long period prior to giving the bond, and that Osborn had included it in a warranty deed to Kelley, bounding him upon the plaintiffs’ land which lay on the other side of the way; that Kelley fenced the way, resulting in a suit between him and the plaintiffs, which was adjusted by Osborn giving the bond. As to the line of the ancient way, as defined by buildings and fences on the side where Chadwick’s and Kelley’s shops stood, evidence was offered on both sides and was conflicting. The line called for in the bond was a straight one from the south corner of William P. Chadwick’s shop to the “shop” of Joseph V. Kelley, and the principal point in dispute was whether by the term “ shop ” was included a platform which extended from the entire front of the shop about four feet toward the way. The shop fronted on the way, as also did Chadwick’s shop on the same side. If by the term “ shop ” was meant only the upright main part of the building, the fence was within the line, and an obstruction of the way.</p> <p>The defendant introduced evidence tending to show that the fence, which the plaintiffs claimed to be an obstruction, was erected on the straight line extending from the south corner of Chadwick’s shop to the outer or southwest corner of this platform nearest the way; that Kelley’s shop was built about seventy years ago in the following manner: The whole structure rested on piles driven into the ground, upon which rested certain timbers called stringers or lower sills, which were mortised into the piles. On these stringers rested the main or upper sills, into which were built and mortised all the upright walls of the building; the stringers or lower sills extended out in front toward the way beyond the upper sills about four feet, and upon them the platform was built. The building was designed and afterwards used for a cabinet-maker’s shop, and the platform was built for the purpose of placing the furniture made inside, out to dry. It was about three feet high originally, but had been raised with the building to about six feet high, giving room for persons to pass under it into a basement room under the original building. The plaintiffs introduced no evidence as to the method of constructing the shop and platform, but the evidence was conflicting as to whether it had thus been raised before the bond was given. The jury viewed the locality and the building inside and out. The defendant’s evidence tended to show that it had been so raised, and that of the plaintiffs that it had not, until several years after-wards. It had been entirely removed about five years ago. There was other and conflicting evidence as to the original location of both shops and the width of the platform, the defendant’s evidence tending to show that it was but about two or three feet wide.</p> <p>The defendant requested the judge to instruct the jury as follows : “ 1. The words of description in the bond are to be construed as defining and determining the bounds of the established way referred to in said bond, and not as creating a new way. 2. If the jury find that the platform was built with the shop and for use in connection with it in the manner described by the plaintiff’s witnesses, then the expression in the bond ‘to the shop of Joseph V. Kelley ’ must mean to the southwest corner of the platform (meaning the outer corner on the side next to Chadwick’s shop).”</p> <p>The judge declined to give these instructions, but instead thereof instructed the jury as follows: “The plaintiffs’ theory is that there has been a breach of the bond given by Osborn to the plaintiffs. You have the bond which gives a description of a certain way, which Osborn bound himself and his representatives should be kept open substantially as described in the bond. If there is a permanent obstruction of that way, there is a breach of the bond, otherwise not. An important question is, where was the south corner of Joseph V. Kelley’s shop. The plaintiffs’ theory is that it was the corner of the upright building, and not of the platform. The defendant’s theory is that it. was the corner of the platform. The corner of the upright building being some distance, from four to six feet, from the corner of the platform, if the plaintiffs’ theory is correct there has been a breach of the bond, but if the defendant’s theory is correct there has not been. The question which of these corners was the one described in the bond is a question for the jury. If the platform was a part of the building in the same manner as a porch, veranda, piazza or outside flight of stairs would have been, then the corner of the platform is the corner spoken of in the bond. But if the platform was merely a platform made and used, not as a permanent part of the building, like a porch, veranda, piazza or outside flight of stairs, but only as a temporary convenience to the tenants of the building, then the ‘ south corner ’ did not mean the corner of the platform, but the corner of the upright part of the building. The precise question of fact, then, for the jury to decide, upon this part of the case, is, which kind of platform was this. The jury will decide this question upon the whole of the evidence. The plaintiffs contend that, even if this bound was the corner of the platform, yet the fence is further out into the way. To aid in ascertaining what are the bounds of the way described in the bond, the jury may consider the evidence which has been introduced in relation to the way existing before the bond was given. ”</p> <p>The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.</p>

Contract upon an agreement signed by the defendant and others, to recover an assessment made by the plaintiff corpora tian on ten shares of stock standing in the name of the defendant. The parts of the agreement now material to be stated were as follows: “ Whereas, by act of the Legislature of Massachusetts in the year 1872, Erastus P. Carpenter, Joel hi.

Contract on a policy of insurance of the life of James W. Hoyt, the plaintiff’s former husband, in the sum of $3000, payable on his death to the plaintiff; and on an agreement to insure.

Contbact to recover the amount of a tax assessed on the personal property of the plaintiff, on May 1, 1876, and paid by the plaintiff under protest.

Contract to recover the amount of a tax assessed by the defendant city on the personal property of the plaintiff, on May 1, 1876, and paid by the plaintiff under protest.

<p>A building contract between A. and B. provided that A. should do the work and find the materials, and B. should pay for laying the brick, and furnishing all necessary stock, except the brick, at $14.00 per thousand, measurement 24 brick per cubic foot, less $7.45 per thousand to be paid by B. for the brick and freight. Reid, that a sale of the brick to A. was not contemplated by the terms of the contract; that the difference between these sums was the price to be paid A. for laying the brick and furnishing materials necessary therefor, estimating twenty-four bricks to a cubic foot, and not the actual number laid; and that paroi evidence was not admissible in explanation of the intent of the parties.</p> <p>If a person furnishes labor and materials in the erection of a building, under an entire contract for a round sum, and cannot maintain a lien for the materials for want of the notice to the owner of the land of his intention so to do, required by the Gen. Sts. e. 150, § 2, he .cannot maintain a lien for the labor, under the St. of 1872, c. 318, without showing what the labor alone was worth.</p>

Complaint under the bastardy act, Gen. Sts. c. 72. At the trial in the Superior Court, before Brigham, C. J., without a jury, the complainant testified that she was delivered of a child on September 14,1877; and that it was begotten by the respondent on or about the last of- December 1876, or the first day of January 1877. There was no other evidence in regard to the birth of the child.

<p>Tort for the conversion of a quantity of stone. Writ dated May 3, 1877. Answer: 1. A general denial. 2. That the defendant, at the time of the alleged conversion, was surveyor of highways for a certain district in Saugus; and that, in taking the stone, he was acting in his capacity as surveyor. At the trial in the Superior Court, before Brigham, 0. J., without a jury, the following facts appeared:</p> <p>In July 1870, and at the time this action was brought, the plaintiff was the owner of a tract of land in Saugus. At a legal meeting of the inhabitants of the town, held on July 6, 1870, pursuant to a warrant, one article of which was as follows, “ To see if the town will accept the piece of land, as laid out by the selectmen, for gravel and other material for the use of the town, on land of Anthony Hatch,” it was voted to accept the piece of land, as laid out by the selectmen, on Lincoln Avenue, belonging to Anthony Hatch, as follows': “We, the subscribers, selectmen of the town of Saugus, have laid out for the use of the town, for the purpose of procuring materials for the repairing of roads, &c., a certain piece of land on Lincoln Avenue, belonging to Anthony Hatch, as follows, viz.: beginning at a stake by the wall, on the easterly side of said avenue, neai the Wiggin House, so called, thence, south 41i-° west, 125 feet to a stake; thence, at right angles, 50 feet in an easterly direction; thence, at right angles, 125 feet to a stake; thence, at right angles, 50 feet to the stake first mentioned; the town to take such material as may be wanted for the above purpose down to the present grade of the road, or an average depth of fifteen feet, for the term of ten years. And we award to Anthony Hatch the sum of $150, to be paid by said town of Saugus.”</p> <p>The defendant, from June 1870 to the spring of 1877, was surveyor of highways in Saugus, within and for the district "in which the land was situated, to which the above proceedings related. At least seven days before the above proceedings of the selectmen, a written notice of their intention to lay out said land, for the purpose of procuring materials for repairing highways, &c., was given to the plaintiff, and a plan of the land, with the above certificate of the selectmen, was filed in the office of the town-clerk.</p> <p>The defendant, acting in his capacity of surveyor, from time to time between July 6, 1870, and the date of the writ, took gravel from the plaintiff’s land, and within the limits described- in the certificate of the selectmen, and used it in repairing the highways of the town within his district; and also took from said land stones varying in size from three inches to two feet in diameter, some of which were removed outside of the land and laid on the sides of Lincoln Avenue, and on the plaintiff’s land, for the convenience of the defendant in getting access to and removing gravel from the land, and some of the stones were used in laying a foundation for gravel upon and in widening the highway, and a small quantity of the stones, not exceeding $10 in value, were given away to persons who removed them from the land.</p> <p>The plaintiff contended that the defendant, under the proceedings of the selectmen and of the town, was authorized to take from the land gravel only; and, if authorized to take other materials from the land, to take them for the purpose only of repairing the highways. The judge found that the stones taken by the defendant were not within the ordinary meaning of the word “gravel,” but were larger than “gravel,” and were also not “ earth,” which the judge found to consist of particles of earthy matter smaller than “gravel;” but that they were, those of the smallest size unbroken and those of the largest size when broken, materials proper and customary to be used, and such as are ordinarily used, as a foundation for deposits of gravel thereupon, in constructing, widening and repairing highways.</p> <p>At December term 1874 of the Superior Court, the plaintiff obtained judgment, which was satisfied, against the town, for $429.76, upon proceedings before the county commissioners for the assessment of damages for the laying out of his land by the selectmen of Saugus, as above stated. The judge found that the damages assessed at these proceedings were for gravel only; that, in a trial by jury upon his petition, the plaintiff offered in evidence his claim for stones taken from the land, which were the same stones for the taking of which by the defendant the plaintiff claimed damages in this action; and that such evidence was excluded.</p> <p>The defendant asked the judge to rule as follows: “ 1. Upon the above facts, the taking of the land by the selectmen was legal. 2. The plaintiff is estopped to deny the legality of the taking, by reason of bis judgment, and the payment to him of his verdict. 3. Under said taking, the defendant was justified in taking the stones for repairing and widening the highways. 4. Under said taking, the defendant was justified in taking the said stones for widening said highway, although for the purpose of constructing and not repairing the same. 5. The term ‘ material ’ in said taking is coextensive in meaning with the terms ‘ earth and gravel ’ in the St. of 1869, e. 237, and the stones alleged in the plaintiff’s declaration are ‘material ’ within the meaning of the taking, and are ‘ earth or gravel ’ within the meaning of the statute. 6. The plaintiff cannot maintain his action upon the present declaration for the stones which were never removed from his land, but which were taken from the land described in the taking and were placed by the roadside upon his adjoining land. 7. The fact, if it be one, that the plaintiff was not permitted to- prove the value of the stones upon the trial of his petition for damages arising from the taking, cannot restrict the legal construction of the taking itself; and the terms of said taking and of the statute must receive the same construction, whether the rulings as to the measure of damages, or any other rulings in that proceeding, were right or wrong.”</p> <p>The judge refused to give the rulings requested; ruled that the action could be maintained; and found for the plaintiff, in the sum of |100. The defendant alleged exceptions.</p>

<p>Tort ffw malicious prosecution. Writ dated February 20, 1875. Answer, a general denial.</p> <p>At th« trial in this court, before Lord, J., the plaintiff introduced. in evidence a copy of the record of the action brought against him by the defendants, by which it appeared that the writ was dated March 5, 1874, returnable at April term 1874, that the declaration was on an account annexed for $2981.84, for money advanced, and that an attachment' was made .of his goods ■ that at July term 1874, an answer puis darrein continuance was filed alleging that since the commencement of the action the plaintiffs therein had sold property of the defendant to an amount greater than the amount of their advances to the defendant; that at January term 1875, the plaintiffs discontinued their action; and that judgment for costs was entered in favor of the defendant.</p> <p>The plaintiff testified that, in the latter part of August or the early part of September 1873, he made an agreement with the defendants, by which he was to consign to them finished calf-skins ; and they agreed to advance him money thereon from time to time, as he required, to charge him interest at the rate of seven per cent per annum upon the money so advanced, to sell the skins so sent to them at the market price, to deduct five per cent commission from the amount of the sales for selling, and, after deducting their advances, interest and commissions, to pay the balance to the plaintiff; that if, upon settlement, after all were sold, a balance was found due the defendants, the plaintiff was to pay it; that, under this agreement, the plaintiff sent a large quantity, of finished skins to the defendants, and received advances on the same; that in December 1873, the defendants declined to make any further advances on skins at seven per cent interest, but said they would receive and sell his skins on commission; that thereupon the plaintiff consigned skins thereafter dressed to other persons, who made advances thereon; that on March 5,1874, the plaintiff received from a firm of attorneys a letter requesting him to call and settle a demand in their office against him; that he immediately called upon them, when he was informed that an action had been brought against him by the defendants, and a keeper put in his factory; that he soon after obtained from the defendants an account showing that they claimed a balance due them, at the time the action was brought, of $2,981.84, for advances made on skins then held by them for sale; that, at the time said action was brought, the defendants had in their possession, unsold, a large quantity of skins sent them under the agreement, of the market value exceeding $6,000; that in March 1874, the defendants made further sales of the skins, amounting in all to $3,733.20, after the commencement and prior to the entry of said action; that afterwards the defendants sold the balance of the skins remaining in their hands, to the amount of $1,796.15, prior to judgment in said action; that, immediately after the plaintiff received notice of said action from the defendants’ attorneys, he made arrangements for an advance of money with which to pay the amount claimed by the defendants, and went to them and requested them to deliver the skins remaining in their hands to the person who was to make the advance, and receive the amount due them, but they declined to receive the money or to allow him to remove the skins; that on March 14, 1874, he forbade the defendants to make further sales of the goods consigned to them; that the officer, by virtue of the writ in said action, removed the property of the plaintiff, and other property found in the plaintiff’s factory, consisting of skins in the process of dressing, and in an unfinished condition, to the store of the defendants, which property there became heated, moulded and worthless; that the defendants, subsequently to October 6, 1874, the date of the last sale made by them, rendered an account to the plaintiff of all sales of skins sent them under the agreement, showing a balance in the plaintiff’s favor; and that the defendants never requested him to pay them any money, nor made any demand whatever upon him, until by the letter sent him by their attorneys, which was not received by him until the action had been brought and the attachment of his property made.</p> <p>Upon this evidence, the judge ruled that the plaintiff could not recover; and directed a verdict for the defendants. The plaintiff alleged exceptions.</p> <p>The case was argued in March 1878; and additional briefs were submitted to the whole court in the following October.</p>

Contract on a recognizance, entered into on April 8, 1876, under the Gen. Sts. e. 124, § 10, by the first-named defendant as principal, and the other as surety, and containing the usual conditions. The case was submitted to the Superior Court on an agreed statement of facts in substance as follows: The name of the defendant, described in the writ as Henry Winters, is Henry D. Winter. Ho other person of the name of Henry D. Winter is known to the parties.

<p>In an action on an agreement of indemnity, it appeared that the plaintiff had been applied to by A. to negotiate a loan on a certificate of stock as collateral security; that he then applied to the defendant, who said he suspected that the certificate was not genuine, agreed to lend the money if it was genuine, requested the plaintiff to bring A. to the defendant’s office, and made arrangements to have A. arrested there in case the certificate was not genuine. The defendant also requested the plaintiff, if A. would not come to the office, to draw his draft on the defendant for the amount of the loan, less the commission, payable to the order of A., and give the same to A. for the certificate, agreeing to hold the plaintiff harmless; and intending to have A. arrested, if the certificate should not be genuine. A. refused to go to the defendant’s office, and the plaintiff gave A. his draft and received the certificate, which proved to be forged; and the plaintiff was obliged to pay the draft. Held, that if the plaintiff acted in good faith, he could maintain the action.</p>

<p>Contract on the following instrument in writing, dated October 2, 1876, and signed by the defendant: “In consideration of one dollar to me paid by George F. Hall, of Boston, and for the purpose of securing a credit with him for Isidore Patterson, I hereby guarantee the full and punctual payment to George F. Hall of all indebtedness which said Isidore Patterson may incur for purchase of goods, wares and merchandise from said George F. Hall, whether such purchase shall be made on credit or otherwise, or secured by note or otherwise, without requiring notice of any kind with respect thereto. This guaranty to be an open and continuing one until revoked by notice in writing from me; it being understood that her liability thereunder shall not at any one time exceed one thousand dollars.” Answer, a general denial.</p> <p>At the trial in the Superior Court, before Dewey, J., without a jury, it was admitted that, on October 10, 1877, there was due to the plaintiff, for merchandise previously sold and delivered by him to Patterson, the sum of $53.32. The plaintiff offered evidence that, prior to October 10, the firm of Sayre & North, of New York, had delivered goods at different times to Patterson to be by her manufactured for them and returned to them; that they were to pay her for her services in manufacturing the goods; that she, did not return the goods, but disposed of the same for her own use and benefit, and thereafter, about October 10, they requested her to return the goods, at the same time charging her with having wrongfully disposed of them for her own benefit; that she then requested them to make a bill of the goods to the plaintiff; that they did so, and the plaintiff made a bill of the same to Patterson; and that this arrangement was made after the delivery of all the goods to Patterson by Sayre & North. The plaintiff admitted that he had never had possession of the goods. These goods amounted to $576.60.</p> <p>Upon this evidence the judge ruled that the plaintiff could only recover for the goods actually sold and delivered by him to Patterson; and found for the plaintiff in the sum of $53.32, and interest. The plaintiff alleged exceptions.</p>

Bill in equity, filed June 13, 1878, alleging that, on October 26, 1837, John Lovejoy conveyed to the defendant a parcel of land in Lynn, over which its railroad has been located, consisting of a strip twenty-eight feet in width; that said parcel has ever since been owned and used by the defendant; that, by the terms of the deed, Lovejoy created and reserved, for the benefit of his adjoining land, an easement in the land, namely, the right to receive water from a spring by…

Bill in equity, filed April 21, 1876, by the executor of the will of Caroline A. Ingraham, against the children of the testatrix, and her creditors, for instructions, alleging that on January 1, 1828, the Massachusetts Hospital Life Insurance Company received from Joseph Head, trustee of Caroline A. Ingraham, wife of Daniel G. Ingraham, the sum of $3000, and executed to him an instrument in writing, whereby they promised and agreed with him, his executors and administrators,…

Libel for divorce from the bond of matrimony, filed October 20,1877, alleging that the libellee had contracted gross and confirmed habits of intoxication.

<p>In an action for false and fraudulent representations, whereby the plaintiff was induced to buy an estate in another state, it appeared that the defendant made representations to the plaintiff in relation to the situation of the estate, and the condition and character of the buildings upon it; that, before the exchange of the deeds, the defendant told the plaintiff that he had never seen the estate; and that, after the exchange of the deeds, the plaintiff went for the first time to see the estate, and found that all of the representations made by the defendant were false. Held, that it was no defence that the defendant had not seen the estate; and that whether the plaintiff was negligent in not visiting the estate was a question for the jury.</p>

Contract upon a promissory note for $1045.75, dated April 27, 1876, payable six months after date to the order of Charles J. Sprague, cashier, and signed by the Winthrop Horse Railroad Company and by the defendants. Ingalls only appeared. Answer, a general denial, with allegations of payment of a lióte, for which this was given as collateral security.

Bill IH equity, filed July 19,1878, for specific performance of an agreement, signed by the plaintiff and the defendant, whereby the… Held: and leaving as his only issue two daughters, the plaintiff and the defendant, and also leaving a widow, Abby B. Barrett; that Charles Barrett at the time of his death resided, and for some years before had resided, in the house on said land, and all of said land at the time of his death was used, and for some years before had been…

<p>A testator by his will left a sum of money to a town, the principal of which was to be managed by a board of trustees named in the will and their successors in office, all of whom, except one, were to be chosen by the remaining members of the board, and he was to be chosen by the town. The income of the fund was to he applied to the support of a high school for the benefit of the youth of the toun, under the superintendence of the trustees, the town having the right to examine into the state of the school, and of the fund, and of the doings of the trustees. An information in equity, filed by the Attorney General at the relation of a committee appointed by the town, against one of the trustees, alleged that he had been appointed treasurer by the other trustees, and had acted as such for several years; that, on another trustee being appointed treasurer, the defendant refused to pay a part of the funds to the new treasurer, and refused to make known to the board the amount in his hands, or the manner of investment, and to apply any part of it to the purposes of the trust. Held, on demurrer, that a failure to make “ due application of funds given to public charities,” within the Gen. Sts. c. 14, § 20, was sufficiently alleged; but that all the other trustees from the beginning of the trust, and, it seems, the town, should have been made parties defendant.</p>

Contract upon an account annexed for services rendered and disbursements made by the plaintiff as an attorney at law. The case was tried in the Superior Court, and a verdict returned for the plaintiff for part of the amount claimed; and he alleged exceptions, which were argued in this court and overruled, and a rescript sent down accordingly. See 123 Mass. 574.

<p>The St. of 1874, c. 306, § 1, providing that no person arrested on a criminal charge, who is released on bail or recognizance, and makes default, shall be-permitted to go at large upon further bail or recognizance in the same case, without showing reasonable excuse for such default, is constitutional; and applies to a case in which a person held on a complaint for a certain offence has entered into a recognizance to answer to any indictment that might be found against him for the same offence, and has been defaulted on such recognizance, and afterwards applies to be permitted to recognize anew.</p>

<p>In an action for an assault, if the defendant has been allowed to testify fully as to all that was said or done at the time, he has no ground of exception to the exclusion of questions put to him in such a form as to call for an opinion upon the question whether his act was justifiable.</p>

Libel for divorce from the bond of matrimony, alleging impotency on the part of the libellee.

Petition to the Superior Court for partition of a parcel of land in Cambridge, in which the petitioner claimed one undivided twelfth part. The case was submitted to that court on an agreed statement of facts in substance as follows: Katharine Morse, the grandmother of the petitioner, under whom the petitioner claims title, died in 1835, seised and possessed of one undivided half part of said parcel of land.

Tort for breaking and entering the plaintiffs close in Lexington. The defendants, appearing by the same attorney, filed several answers, each containing: 1. A denial of the plaintiff’s allegations. 2. A justification of the defendant’s acts, as done as, or under the authority of, a surveyor of highways of Lexington within the limits of the public highways in that town, and for the purpose of repairing them. 3. A license from the plaintiff. The verdict was for the defendants.

Bastardy process. In the Superior Court, after a verdict of guilty, the respondent moved in arrest of judgment, because only copies of the original papers of the proceedings before the Police Court of Cambridge, to which the complaint was origi-. nally made, were in court. Allen, J., overruled the motion, and passed the order of affiliation; and the respondent appealed to this court.

<p>Contract on an account annexed for goods sold and delivered. Answer: 1. A general denial. 2. Infancy, and that the goods sold were not necessaries.</p> <p>At the trial in the Superior Court, before Gardner, J., without a jury, the only question in issue was that of the defendant’s infancy. The defendant was a witness, and, against the plaintiff’s objection, was permitted to testify that, when the goods were purchased, he was sixteen years of age, and that, at the time of the trial, he was twenty-three years of age. It appeared that the defendant’s father was dead at the time of the trial, but it did not appear whether his mother was living or not. The defendant was the only witness as to his age, and no other evidence was offered in relation thereto. The judge found for the defendant; and the plaintiff alleged exceptions to the admission of the defendant’s evidence.</p>

<p>The first case was a complaint on the Gen. Sts. a. 87, §§ 6, 7, made to “ Charles H. Sanford, Esq., a justice of the peace within and for the county of Bristol,” charging the defendant with keeping and maintaining a certain tenement in New Bedford, used for the illegal sale and illegal keeping of intoxicating liquors, the same being a common nuisance. The jurat on the complaint showed that it was received and sworn to, on January 17,1878, before “ Charles H. Sanford, Justice of the Peace.”</p> <p>At the trial in the Superior Court, before Dewey, J., on a copy of the complaint, attested by “ Charles H. Sanford, clerk,” the jury returned a verdict of guilty; and the defendant moved in arrest of judgment: “ 1st. Because he says the court has no jurisdiction, in that the complaint does not appear to have been received by and sworn to before any person that had any authority to receive said complaint. 2d. Because it does not appear by the complaint and proceedings therein that Charles H. Sanford, who received and took the oath to said complaint, was a justice of the peace having authority to receive complaints and issue warrants thereon.” The judge overruled the motion; and the defendant alleged exceptions.</p> <p>The second case was a similar complaint made to the same justice of the peace, and sworn to before him on April 11,1878. The warrant was signed “ Charles H. Sanford, Justice of the Peace,” and directed the officer to arrest the defendant, and bring him before the Third District Court of Bristol.</p> <p>At the trial in the Superior Court, before Dewey, J., on a copy of the complaint, attested as in the first case, the government, against the defendant’s objection and exception, was allowed to put in oral evidence to show that the justice of the peace who received the complaint and issued the warrant was the same person who was acting as clerk of the Third District Court of Bristol. The jury returned a verdict of guilty; and the defendant filed a motion in arrest of judgment, on the same grounds as in the first case. The judge overruled the motion; and the defendant alleged exceptions.</p>

<p>Under the St. of 1874, c. 293, § 5, a warrant issued by a special justice of the First District Court of Bristol, under his own hand and seal, and returnable to that court, is valid, notwithstanding that, by § 14, the court is given power to establish a seal and to issue all writs and processes.</p>

Complaint to the First District Court of Essex, on the St. of 1875, c. 99, charging the defendant with the illegal keeping of intoxicating liquors with intent unlawfully to sell the same.

<p>If an indictment in the first count charges the defendant with the forging of a cer. tain instrument, and in the second count with being an accessory before the fact to the uttering of the instrument by another person, the offence charged in the ' first count is a different offence from that charged in the second count; and a verdict of acquittal on the first count and of conviction on the second count is not repugnant.</p> <p>An indictment in the first count charged the defendant with the forging of a certain instrument, and in the second count charged another person with the uttering of the instrument, and then proceeded to charge the defendant with being an accessory before the fact to such uttering. Held, that the indictment contained but two counts.</p> <p>A formal error in an indictment is cured by verdict and judgment thereon, and cannot be availed of on a writ of error.</p>

Indictment chargmg the defendant, on September 9, 1878, at Boston, with the larceny of “ divers promissory notes of the amount and of the value in all of nine hundred and fourteen dollars, a more particular description of which is to the jurors unknown, of the property, goods and chattels of one Nicholas Moens.” At October term 1878 of the Superior Court, the defendant filed a plea in bar, the substance of which appears in the opinion, to wMch the government demurred.

Complaint on the St. of 1875, Before judgment in the District Court, the defendant moved to quash the complaint, “because there is no sufficient allegation that the defendant was not authorized by law to do the acts therein mentioned,” and for other reasons not now necessary to be stated. This motion was overruled, and the defendant was convicted, and appealed to the Superior Court, and there renewed his motion to quash.

Indictment on the St. of 1875, c. 99, in three counts. The first count alleged that the defendant, on June 24, 1878, at Cambridge, was the holder of a license of the first class under said statute, which license duly authorized and permitted him to sell spirituous or intoxicating liquors to be drunk on the premises described in the license, but which license was granted to and held by him upon the express provision and condition that he should not keep a public bar on said…

<p>An indictment on the Gen. Sts. c. 160, § 24, charging the robbery of several “ promissory notes then and there of the currency current in said Commonwealth,” is sustained by proof that the notes stolen were either bank-bills or treasury notes.</p> <p>In an indictment, the words “of the currency current in this Commonwealth ” are equivalent to “ current as money in this Commonwealth.”</p>

Indictment in two counts for the murder of Hannah Devlin, at Lowell, on December 8, 1877. The first count charged that the murder was caused by the defendant by beating, stamping and jumping upon the said Hannah.

Complaint on the Gen. Sts. e. 87, § 6, charging the defendant with keeping and maintaining a certain dwelling-house in Concord, used for the illegal sale and illegal keeping of intoxicating liquors, the same being a common nuisance.

<p>The omission of the record in a criminal ease to show a joinder in a demurrer to an indictment is immaterial, and cannot be objected to after the trial and determination of the issue tendered by the defendant.</p> <p>If the defendant in a criminal case, after a demurrer to the indictment against him has been overruled, has pleaded over and been found guilty, the case is ripe for final judgment and sentence, and he can then bring the questions of law ruled against him to this court by appeal, without such sentence having been actually awarded.</p>

<p>An acquittal on a complaint for keeping and maintaining a tenement for the illegal sale and illegal keeping of intoxicating liquors from January 1 to May 28, is a bar to a complaint for keeping the same tenement for the same purpose from January 1 to August 20 of the same year.</p>

Complaint bn the Gen. Sts. c. 87, §§ 6, 7, to the District Court of East Norfolk, charging the defendant with keeping and maintaining, on January 1,1878, and on divers other days between that day and May 9, 1878, a certain tenement in Weymouth, used for the illegal sale and illegal keeping of intoxicating liquors, the same being a common nuisance.

<p>Complaint to the Police Court of Lynn, purporting to be made by “W. Stone,” and signed “William Foynes,” charging the defendant with unlawfully keeping intoxicating liquor, with intent unlawfully to sell the same in this Commonwealth.</p> <p>In the Superior Court, on the day after the jury had returned a verdict of guilty, Putnam, J., without the knowledge or consent of the defendant or his counsel, and without either of them being in court, permitted the copies of the complaint filed in court, upon which the defendant was tried and convicted, and to which complaint objection and exception had been taken by the defendant before a jury had been sworn or empanelled, to be amended upon motion of the clerk of the Police Court of Lynn, by striking out the name “ Foynes ” after the name “ William ” in the signature to the complaint, and inserting the name “ Stone,” so that the record stood as if the signature and oath to the complaint were made by William Stone instead of William Foynes. The defendant was not called upon to answer or plead to the complaint as amended.</p> <p>To the ruling of the judge permitting the amendment, the defendant excepted; and also filed a motion in arrest of judgment for the same cause, which motion was overruled. The defendant alleged exceptions.</p>

<p>Indictment in two counts. The first count charged that the defendants, on August 25, 1878, at Boston, “with force and arms, in and upon one Henry Dawson, then and there in the peace of said Commonwealth being, an assault did make, he the said Dawson also then and there being a peace officer, called a police officer, and then and there also being in the due and lawful discharge of his duties as such officer.” The second count charged a similar assault upon Thomas A. Simpson, also a police officer.</p> <p>Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows:</p> <p>On July 9, 1878, the board of police commissioners of the city of Boston passed the following order: “ Ordered, that the police officers of the ■ city of Boston be and they are hereby specially appointed and authorized to enter at any time upon the premises of any person licensed to sell intoxicating liquors, under the provisions of chapter 99 of the acts of the year 1875, to ascertain the manner in which such person conducts his business, and to preserve order; and also do all other acts which officers so appointed are authorized by said statutes to do or perform.” This order was communicated to the chief of police of the city, who forthwith sent a copy to each captain of police, with a written order directing it to be communicated to all the officers, which was done. Under this order, the captain of the police station to which Dawson and Simpson were attached, directed them to go out on Sunday, August 25, 1878, and visit all liquor shops which they could find open, not designating any particular places; and instructed them to enter all licensed places found open, and to enter them for the purpose of ascertaining how the business was conducted.</p> <p>On the day above named, Dawson and Simpson, while passing a certain saloon, saw several persons going into an outside door which opened from an entry to the street, through which entry people could pass to apartments above, not occupied by the proprietor of the saloon, and also to a side room, communicating by a door with the bar-room, where liquors were sold. The proprietor had a license to sell intoxicating liquors, which prohibited him from selling on the Lord’s day. Both of these rooms were under the control of the proprietor of the saloon, and were covered by the license, and were part of the licensed premises.</p> <p>The officers testified that, suspecting that liquors were being sold, and for the purpose of ascertaining what was going on, they went into the entry, and followed two men through a door which led from the entry into the side room described above; that they passed from the -entry into the side room so quickly that they could not have been prevented from entering by anybody in the side room; that there were seven or eight men in this side room, among whom were the defendants; that when the officers entered the side room they started across it to enter the bar-room by a door that communicated with the side room, and were prevented by the defendants, and pushed by them into the entry.</p> <p>It was agreed that, if the officers had no legal authority to enter these premises, no more force was used by the defendants than was reasonably necessary to prevent them from entering.</p> <p>The defendants asked the judge to instruct the jury as follows: “ 1. The officers entered without authority, and were trespassers. 2. The authority delegated by the police commissioners to all police officers, to enter at their own discretion, at any time, any licensed place, or all licensed places, was a general authority, and not a special authority, and in contravention of the spirit of the law. 3. The authority given by the board of police commissioners of the city of Boston, to visit all places licensed to sell liquor, to see how said persons conduct their business, is not such authority as was intended by the Legislature. The particular shop or place, the owner of the shop or place, the time of such visit, and the officers authorized to make such visit, should be specially designated. Such a special order would be contrary to the elementary principles, and in direct violation of the constitutional right of the citizen, as set forth in the Declaration of Rights. 4. The authority given to the board of police commissioners by the St. of 1875, c. 99, § 11, and by said commissioners delegated to the police officers of the city of Boston, to enter at any time upon the premises of any person licensed to sell liquor, to see how said business is carried on, does not authorize an officer to break and enter the licensed premises, after a demand by an officer to enter such premises; and a refusal of entrance to the officer by the owner thereof, or his agent or agents, would not justify a forcible entry by the officer.”</p> <p>The judge declined to give the instructions asked for; but submitted the case to the jury under instructions which authorized them to find that, upon the evidence, the officers had the legal right to enter the premises for the purposes for which and in the manner in which they did enter.</p> <p>The jury returned a verdict of guilty; and the defendants alleged exceptions to the refusal to rule as requested.</p>

<p>Petition to enforce a mechanic’s lien for materials furnished in the erection of a house in Cambridge. Trial in the Superior Court, without a jury, before Rockwell, J., who ruled, as matter of law, that the petition could not be maintained; and the petitioners alleged exceptions. The facts appear in the opinion.</p>

Petition under the Gen. Sts. c. 150, to enforce a mechanic’s lien for labor performed and materials furnished in the erection of a building in Montague.

<p>The deed of a collector of taxes recited that he duly demanded the payment of the tax assessed on the estate sold, and the same was not paid; that, the tax remaining unpaid after the expiration of fourteen days from the demand, he duly advertised the estate to be sold by public auction for the payment of the tax and all costs and expenses; that, the tax not being paid, at the time and place appointed for the sale he adjourned the sale to a certain day, at which time he again adjourned the sale to a certain other day, when he proceeded to sell the estate by public auction “for the discharging and payment of said tax.” Held, that the deed sufficiently stated the cause of the sale within the requirements of the Gen. Sts. c. 12, § 35.</p> <p>The right to redeem land from a tax sale is not attachable in an action at law.</p>

<p>The duties of a board of examiners of election returns, under the Gen. Sts c. 7, § 26, are purely ministerial, and the board cannot receive or consider evidence of extrinsic circumstances, but is confined to the records of votes returned and laid before it; and mandamus will not lie to compel the board to count certain votes, containing the initial letter only of the Christian name of a candidate, with other votes containing his name in full.</p>

<p>A person who applies to the Superior Court, under the St. of 1873, c. 261, for a jury to assess the damages occasioned by the taking of his land by a city, under the St. of 1875, c. 217, is under no obligation to enter into a recognizance for costs, and, if the jury award him a sum smaller than that previously awarded by the county commissioners, the city is not entitled to judgment for costs; and, on an appeal by the city from an order disallowing its motion for costs, if the order is affirmed, the^costs of the appeal are to be taxed against the city.</p>

<p>Petition to the Superior Court, under the St. of 1871, o. 382, for a jury to revise an assessment of betterments upon the estate of the petitioner.</p> <p>In the Superior Court, when the case was reached for trial, it was stated to the court, and agreed by both parties, that, since this petition was brought, the Supreme Judicial Court, upon a petition for a writ of certiorari, had adjudged that the assessment which this petition was brought to revise was void ab initia.</p> <p>The petitioner contended that he had the right to go to a jury; and that he was entitled to a verdict reducing the assessment to nothing, so as to entitle him to costs. The respondent objected to this, and contended that, if the case was submitted to a jury, a verdict should be rendered for the respondent.</p> <p>Upon these facts, Colburn, J., ruled that there was nothing to be submitted to a jury; and ordered the petition to be dismissed without costs to either party. To this ruling both parties alleged exceptions.</p>

<p>Action on the Gen. Sts. c. 137, to recover possession of certain rooms in a house in Boston. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, on agreed facts, the substance of which appears in the opinion.</p>

<p>A hack, described as in use at certain stables, was mortgaged, and, by the terms of the mortgage, the mortgagor was to retain possession, and use and enjoy the same until default. While so in possession, the mortgagor had it repaired. Held, that the person making the repairs had a lien therefor as against the mortgagee.</p>

Tori in the nature of trover. Trial in the Superior Court before Gfardner, J., who, after verdict for the plaintiff, reported the following case for the determination of this court: On December 2,1875, Patrick F. Degnan executed a mortgage of personal property to Thomas Higgins, to secure the payment of a promissory note of that date for $2000, signed by Degnan, and payable to Higgins or order in one year, with interest at the rate of seven per cent per annum.

Information, in the nature of a quo warranta, filed, by order of court and consent of parties, on November 26, 1877, and containing the following allegations: That on April 3,1876, all the property which Ezra D. Wins-low had on February 14, 1876, was conveyed and assigned to the relators as his assignees in bankruptcy.

<p>Bill in equity, filed June 14, 1877, alleging that, in response to an advertisement inserted by the defendant in a Boston newspaper, stating that a partner in business was wanted with a capital of $5000, the plaintiff, being then out of business, and desirous of some employment, called upon the defendant for the purpose of making inquiries as to the advertisement; that at that and subsequent interviews respecting the business, the defendant represented to the plaintiff, that the business in which he desired a partner was the manufacture and sale of an article called starchene, or perfumed starch enamel, that the same was valuable, and would prove very profitable to the plaintiff if he entered into it, that the defendant had an established business in Boston, in the sale of the starchene, of fifteen gross bottles per week, that the same would continue and largely increase, that he had sold sixty gross of the same in New York, and had an established agency there and also in Albany, and that the business in these cities was well established and prosperous; that, by these representations, the defendant gained the confidence of the plaintiff, and finally induced him to abandon plans which he had entertained, and had communicated to the defendant, of undertaking other business, and to enter into a partnership with him for the manufacture and sale of starchene, and to pay the defendant the sum of $2000 for one half interest, so called, in said business, and to enter into articles of copartnership for the term of one year; that the plaintiff paid to the defendant the sum of $2000 in cash for one half interest in said business; that the plaintiff had no means of ascertaining about the business, and the knowledge of the same and of its value was peculiarly in the defendant; that the plaintiff, by the necessity of the case, was obliged, and was induced by the defendant, to rely on these representations; that all the above representations and statements of the defendant were false and fraudulent, and the defendant knew them to be so.</p> <p>The prayer of the bill was that the articles of copartnership might be cancelled; that an account be taken of the amount paid by the plaintiff to the defendant, and his outlays in said business; that the defendant might be decreed to repay the same to the plaintiff; that the defendant might be restrained by injunction from using the name of the plaintiff in said business, and for general relief.</p> <p>The defendant demurred to the bill, assigning the following grounds of demurrer: 1. That the plaintiff had a plain, adequate and complete remedy at common law. 2. Multifariousness. 3. Want of equity.</p> <p>Hearing before Endieott, J., who overruled the demurrer, and the defendant appealed to the full court.</p>

Contract. The declaration alleged that on July 27, 1876, the defendant delivered to Margaret E. Kinney a policy of insurance against fire, for the term of one year, beginning July 21, 1876, whereby the defendant agreed to insure said Kinney, on certain buildings, in the sum of $1500, against loss by fire; that on November 3, 1876, the policy was assigned to the plaintiff, the property having been conveyed to her with the assent of the defendant; that the property insured was…

Petition to enforce a mechanic’s lien for labor performed in the erection of a building on land of the respondent. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict for the petitioner; and the respondent alleged exceptions, the material parts of which appear in the opinion.

Contract on a recognizance entered into on April 30, 1873, under the Gen. Sts. c. 124, § 10, by the first-named defendant as principal, and the other as surety, and containing the usual conditions.

<p>Contract for use and occupation of a store in Boston from April 27 to September 27, 1876. Answer, a general denial. Trial in the Superior Court, without a jury, before Aldrich, J., who allowed a bill of exceptions in substance as follows:</p> <p>Joseph H. Hunneman, on September 1, 1871, executed a written lease of the store in question to the plaintiff, for the term of five years from that date. By the terms of the lease the lessee agreed to pay as rent $600 yearly in equal monthly instalments, during the term and for such further time as he, or any person claiming under him, should hold the premises. The lessee also covenanted not to assign the lease without the assent of the lessor in writing. In 1872, the plaintiff assigned in writing all his right, title and interest in the lease to Farrington and Kent, who in 1873, made a similar assignment to G. F. Farrington, who in 1875 made a similar assignment to William A. Thornes. On April 27,1876, Thornes was adjudged a bankrupt, and, on June 14, 1876, the defendant was appointed assignee of his estate. From April 27 to June 14, 1876, the messenger in bankruptcy was in occupation of the store, and, from the latter date to September 27, 1876, the defendant was in occupation of it.</p> <p>The plaintiff paid Hunneman the rent of the store for the months of March, April and May 1876; and Hunneman has not released the plaintiff from his liability to pay all the rent due and unpaid. Hunneman did not assent to any of the above assignments of the lease, and at no time recognized the defendant as his tenant or claimed rent of him.</p> <p>The defendant asked the judge to rule that the plaintiff had no claim against the defendant; that if the plaintiff could have a right of action against the defendant, it would only arise when the plaintiff had paid Hunneman the rent due under the lease, and thus extinguished Hunneman’s right against the defendant.</p> <p>The judge refused so to rule; ruled, as matter of law, that, on the facts found, the plaintiff could maintain the action; and found for the plaintiff in the full amount claimed. The defendant alleged exceptions.</p>

<p>A policy of fire insurance on oil paintings, each valued at a certain sum, con tained on its face an agreement that the representation given in the application for the insurance contained a true exposition of all the facts and circumstances in regard to the value of the property insured, and that, if any material fact or circumstance should not have been fairly represented, the policy should be void. The written application stated that the original, of one of the paintings was by Leonardo da Vinci; that it was then in the Vatican or in one of the churches at Rome, under the care of the Pope, and could not be bought for $1,000,000; that the copy was the only one in America, and no other copy could ever be allowed by the Pope. In an action on the policy, the jury were instructed that the representations as to the origin and character of the painting were material to the risk, and if falsely and fraudulently made, and if relied on by the insurer, would avoid the policy. At the close of the charge,' the defendant requested the judge to rule, that if the statements were in fact untrue, and the insurer relied on the truth of the statements, the plaintiff could not recover; that this was so, even if he believed the statements to be true; that the representations as to the origin and character of the picture were material to the risk; and, if not true, the policy was void. The judge gave the first two instructions, with the addition to each, “provided these statements were false and fraudulent; ” and, in regard to the last, replied, “ I have already given that.” Held, that the plaintiff had no ground of exception.</p> <p>If a policy of fire insurance contains a clause providing that any person -other than the assured, who may have procured the insurance to be taken, shall be deemed to be the agent of the assured, the assured is bound by representations made by an insurance broker, who procures the insurance, notwithstanding the St. of 1861, c. 170.</p> <p>On the question whether an oil painting was fraudulently overvalued in a policy of insurance, the insured cannot give in evidence offers for the picture made after the policy issued.</p>

ContraOT upon a bond, dated April 13,1874, executed to the plaintiff by Henry A. Darling, as principal, in the sum of $5000, and by the defendant and others as sureties, in the sum of -$500 each, and containing the following condition : “ The condition of this obligation is such, that whereas the said John W. Thomas, who is sheriff for said county of Norfolk, hath made, constituted and appointed the above-named Henry A. Darling a deputy sheriff under him the said John W.…

<p>A town, which accepts a statute authorizing it to lay and maintain water-pipes for the purpose of supplying the inhabitants thereof with water, at rates established by the town, is liable for an injury sustained by a traveller upon a highway of the town which has been undermined by water escaping from the pipes by reason of negligence in their construction, although the circumstances are such that no action lies for a defect in the highway under the Gen. Sts. e. 44, § 22.</p> <p>An expert, who has heard so much of the testimony of a previous witness as is material to the subject-matter of the inquiry, may be interrogated thereon.</p> <p>In an action for an injury caused by a leak in a joint in a water-pipe under ground, an expert may be asked what the condition of the pipe after the accident, as described by another witness, indicated as to the original construction of the joint; and whether pipe, situated as this was, could be affected by contraction and expansion from the time it was laid until the time of the accident.</p>

Writ of entry, dated February 15,1878, to recover a parcel of land in Hawley.

<p>Tout, in five counts, for slander, in accusing the plaintiff of the crimes of adultery and fornication. Answer, a general denial.</p> <p>At the trial in the Superior Court, before Bacon, J., the evidence tended to show that the words complained of in the first count of the declaration were spoken by the defendant to the brother of the plaintiff, in the presence of a number of persons, during an angry altercation between the brother and the defendant; that the words complained of in the second count were spoken by the defendant, to the father of the plaintiff, in a public place, in the hearing of a number of persons, during an angry altercation between the father and the defendant; and that the words complained of in the third count were spoken by the defendant, in another public place, in the hearing of a number of persons. The evidence was conflicting as to what was said by the defendant on the different occasions. There was evidence that the remarks made by the defendant on the first and second occasions were repeated by some of the persons who heard them, but there was no evidence that the remarks com plained of were repeated to the plaintiff, and how or when, if ever, she heard of what had been said; nor that the defendant asked or authorized in words any one to repeat the remarks he made.</p> <p>The defendant asked the judge to rule that no damages were to be allowed to the plaintiff on account of statements made by others than the defendant, although such statements were repetitions of statements made by the defendant; that if the jury should find that the words spoken by the defendant were not said in the presence or hearing of the plaintiff, and only became known to her as they were repeated by others, then she could not recover damages for mental distress caused by the repetitions of the statements so made to her by others, whether made before or subsequent to the suit. The judge refused so to rule, but instructed the jury as follows: “ The defendant is not responsible because somebody repeats the language which he used; for the injury done by the repetitions of his words by another he is not responsible, unless you are satisfied that he uttered the slanders under such circumstances as to authorize and to cause, as a proximate and necessary result of his utterance of the language, a repetition of the words. If it was a natural and necessary result, a natural and proximate result, of the language used by the defendant, that the words would be repeated by others, the injury done by the repetition would be a natural result of what the defendant did, would be the proximate result. If in substance he made the charge in such a way as to make himself the authority for it, and others repeated it, they would be liable to the plaintiff for the repetition, but the injury may have been, and it is for you to say whether it was in this case, the natural and proximate result of the original slander by the defendant; if so, the defendant is responsible, and if not, he is not responsible.” And at the close of the charge, after discussion by counsel, the judge instructed the jury they were not to consider the repetitions unless they were the natural and proximate result of the slanders, and the slanders were uttered in such way by the defendant as to authorize the repetitions.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Replevin of a hay-tedder, sled, wagon and mowing-machine. Writ dated April 9, 1877. The defendant, a deputy sheriff, justified under an attachment on January 23, 1877, on a writ in favor of J. A. Palmer, against the husband of the plaintiff.

<p>A trust estate, which has been sold for non-payment of taxes, will not be ordered by this court, on a bill in equity under the Gen. Sts. c. 100, § 16, to be sold free from the tax title.</p>

<p>Ii: an action on a promissory note, signed by the defendant’s intestate, and payable to the plaintiff “after death,” it appeared that an engagement of marriage had existed between the plaintiff and the intestate; that the latter was subject to heart disease and when ill had frequently sent for the plaintiff to come and take care of him; that, on the night before the date of the note, the intestate had an unusually severe attack, and said that “ if he got out of that he must have some writing done; ” that the next day he made and signed the note, and handed it to the plaintiff in a sealed envelope, saying “ there was something which would provide for her in case anything should happen to him, that if they were married, and he wanted it given up, he should expect her to give it up,” to which she assented; and that, before and during their engagement, the plaintiff had taken care of his wardrobe, repaired his clothing and bought various articles for him, and taken care of him when he was ill. Held, that the note was intended by the intestate as a provision for the plaintiff by way of gift out of his estate, and no action could be maintained on it.</p>

Contract on the following instrument, declared on as a promissory note: “ Hew Bedford, April 26,1870. On demand with interest for value received please pay Charles Akny or order fifty-five and 33-100 dollars. George F. Winslow. “ Witness, Asa C. Smith.” Writ dated March 28, 1877, and returnable to the Superior Court. The defendant demurred, on the ground that the declaration set forth no legal cause of action.

Bill usr equity against William 1ST. Field, a broker, Joseph P. Hawes and Francis Henshaw, auctioneers, under the firm of Hawes & Henshaw, and Theodore Dean.

Tort for breaking and entering the plaintiff’s close in August 1877, and removing a fence therefrom. At the trial in the Superior Court, before Bacon, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the material parts of which appear in the opinion.

<p>Bill in equity by the trustees in bankruptcy of the estate of Alexander D. Easton and James T. Milne, formerly doing business under the style of Easton & Milne, to compel the conveyance to them of certain shares of stock in two corporations, alleged to have been conveyed by Easton & Milne to the defendant, in fraud of the bankrupt act. Hearing before Ames, J., who ordered a decree to be entered dismissing the bill, and reported the case, for the entry of such decree by the full court as law and justice might require, upon the following facts:</p> <p>On January 1, 1876, Easton & Milne procured of the defendant a loan of $10,000, and gave the defendant therefor their memorandum check on Richardson, Hill & Company, bankers, of Boston, for that amount, merely as evidence of the amount of the loan, and at the same time pledged to the defendant, as collateral security for the loan, the shares of stock in question. The loan was on demand, with the agreement that it should be paid on January 5, and was made in good faith by the parties thereto, the defendant supposing Easton & Milne to be perfectly solvent. The shares of stock were pledged by delivering the certificates representing the same to the defendant, and by Easton & Milne signing a transfer on the back of each certificate, in the following form: “For value received, we hereby sell, transfer and assign to-the shares within named, and authorize -to make the necessary transfer on the books of the company.” The blanks in these transfers were not filled up at the time of depositing the certificates as collateral security, and no transfer was then made on the books of the corporations, Upon the face of the certificates was the following provision: “ which shares are transferable only on the books of the company on the surrender of this certificate.”</p> <p>At about ten o’clock in the forenoon of January 5, Easton & Milne sent their clerk to the defendant bank, who paid in cash the interest due on the loan, and offered in payment of the principal Easton & Milne’s check on Richardson, Hill & Company, for $10,000. The defendant’s cashier, supposing this to be good and drawn against funds, took it, and, after stamping the memorandum check as paid, gave it with the shares and stock to the clerk, who took them away in the same condition in which they were when delivered to the defendant. The check, so received by the defendant, was sent forward by the afternoon mail of that day, in the usual course, to its correspondent in Boston, the National Bank of Redemption, for collection.</p> <p>At about two o’clock on the same day, the treasurer of the Slade Mills, which had a large .deposit at Easton & Milne’s, drew, at the suggestion of Milne, two checks, as treasurer, upon Easton & Milne, for $10,000 each, and received therefor from Easton & Milne their checks for the same amounts on Richardson, Hill & Company, and took also, at Milne’s suggestion, one of Richardson, Hill & Company’s checks to the defendant bank, and exchanged it for a cashier’s check of the defendant bank on the National Bank of Redemption, Boston, and took the other one to the Fall River National Bank, exchanging it in the same way for a cashier’s check of that bank, also on the National Bank of Redemption. ■ Both banks had funds at the National Bank of Redemption, and the cashier of each bank supposed the checks of Easton & Milne to be good. The check so received by the defendant was also sent forward in the afternoon of that day to its correspondent in Boston for collection. Milne admitted that, when these checks were drawn, they had not the funds to meet them with Richardson, Hill & Company.</p> <p>Prior to this transaction, but on the same day, Easton & Milne came to the conclusion that they could not go on without help, and, after the transaction above described, they issued notices to the various banks in Fall River, proposing to them a meeting in the evening of January 5. On receiving this notice, the defendant’s cashier, at about five o’clock in the afternoon, for the first time learned that the checks on Richardson, Hill & Company would not be paid on presentation; and, upon the cashier’s inquiring of Milne, whether he considered it right to give such a check and take back the securities which had been given upon the loan, Milne agreed to return the securities to the defendant, and did return them in the same envelope, and in the same condition as when taken up by him. The memorandum check was not returned, and nothing was given in place of it.</p> <p>In the evening of January 5, there was a meeting of the bank officers and Easton & Milne, at which the defendant and five other banks in Fall River were represented. It was stated that Easton & Milne required the sum of $100,000 to tide them over their embarrassment, of which $60,000 would be needed to meet checks on Richardson, Hill & Company, (including the two received by the defendant, and the one received by the Fall River National Bank,) which would be presented the next morning for payment. A long discussion ensued, and it was voted that it was expedient to sustain Easton & Milne in the interest of the credit of Fall River, but there was much discussion as to the manner in which it was to be done. It was finally agreed that the banks should furnish $60,000 to meet the checks payable the next day, and in order to help Easton & Milne along; that the defendant on its part, and as its contribution to this purpose, should provide for the payment of its two checks of $10,000 each, the Fall River National Bank for its check of $10,000, and another bank for checks of Easton & Milne to the amount of $2500; that this and other banks, which had do checks of Easton & Milne, should make" up the remainder of the $60,000, and that all the banks should honor and pay such of Easton & Milne’s checks as might be presented at their counters the next day. At this meeting the defendant’s president stated that his bank held the securities which are the subject of this suit, and nothing further was said in reference to them. It was also agreed that an investigation should be had into the affairs of Easton & Milne, to determine whether the $100,000, which they requested, should be furnished them to enable them to go on, and that in case it was finally decided to let them have that amount, then what the several banks did in taking care of the $60,000 of checks, and the checks paid by them on January 6, should be taken into account in the apportionment of the $100,000 between them. Several meetings of the banks were afterwards held with a view to arranging some plan to help Easton & Milne through their difficulties; trustees were chosen, and arrangements partially completed, and some banks placed some funds in their hands; but the whole matter was finally abandoned on January 8, and funds so placed were returned; and Easton & Milne thereupon closed their doors, and on January 17, upon their own petition, were adjudicated bankrupts, and the plaintiffs were subsequently chosen trustees to wind up their estate under the supervision of a committée of the creditors.</p> <p>Immediately after the arrangement above made, the defendant drew its check on its Boston correspondent for the amount of the checks and $6000, which it advanced on the account of one of the other banks, supposing it was to be repaid by that bank. Some discussion took place as to how the funds should be sent to Boston, and it was finally agreed that the checks representing them should be made payable to the order of Easton & Milne, and that they should send the- same by a special messenger to Boston on the first train in the morning, to meet the checks that would be presented at Richardson, Hill & Company’s. This was done, and the checks received by the defendant from Easton & Milne were taken up in that way. Neither of the checks was returned to the defendant, but the defendant stated in reply to a question from the court that it made no claim under the checks.</p> <p>The firm of Easton & Milne was in fact insolvent on the morning of January 5, although Milne testified that in giving the check to the defendant in the forenoon he acted in good faith; one of the defendant’s witnesses, however, testified that Milne admitted to him, during the evening of January 5, that he had his misgivings about the matter at the time he gave the check. There was evidence that in the forenoon of January 5 the credit of Easton & Milne was good. Milne also testified that, after giving the $10,000 check to defendant in the forenoon, there was a change in the affairs of the firm; that they had a large call for funds from their depositors, amounting to between $25,000 and $30,000; but it appeared that part of this sum was the two checks amounting to $20,000 drawn by the treasurer of the Slade Mills at his, Milne’s, suggestion, and that the call was not the result of any new obligations contracted by the firm.</p> <p>It did not appear that Easton & Milne had any general authority to overdraw their account with Richardson, Hill & Company, although such overdrafts had occasionally been allowed by special permission, or when paper or valuable securities were in the hands of the drawees to be disposed, of. There had been some instances in which such overdrafts had been acquiesced in without previous permission. The account of Easton & Milne was overdrawn at the time of all the transactions above described. Heither Easton & Milne, nor their trustees, have ever paid or offered to pay the amount lent except as above; and the same never was paid unless the above was a payment.</p> <p>The shares of stock were transferred upon the books of the several companies to the defendant on the day following the redelivery of the certificates to the defendant’s cashier, and were sold some time in the fall of 1876 by the defendant for nonpayment of the loan, bringing less than the amount of the loan, and are now held by the defendant.</p> <p>The plaintiffs contended that the transaction in regard to the sending the money to Boston amounted to a new loan by the defendant to Easton & Milne; that the loan, which the shares of stock in question were pledged to secure, had been paid by the check received by the defendant from Easton & Milne; that the delivery of the shares of stock to Milne in the forenoon of January 5 was a surrender and termination of the pledge; and that the shares of stock were not legally re-pledged.</p> <p>The judge found as a matter of fact, upon the evidence thus reported, and upon the transaction above described, that the original loan of $10,000 from the defendant to Easton 5c Milne, upon which the collateral security above described was given, had never been paid; the check upon Richardson, Hill & Company, which was offered in payment therefor, having been drawn with no funds and no reasonable expectation of funds in the hands of the drawees to meet it, and with no reasonable expectation that it would be honored by the drawees.</p>

<p>A., who had levied an execution on the property of a mining company in Colorado, and had bought the property when sold under the levy, and B., a creditor of the company, entered into an agreement in this Commonwealth, by the terms of which it was agreed that there'was .due A. a certain sum and interest, that A. should manage the property, and convey it to B. whenever he realized the amount of his demand “ and interest as aforesaid,” either from the property or from B. in liquidation of his “ aforesaid demand." Held, on a bill in equity by B. against A., for the conveyance of the property, that the defendant was entitled to interest on the principal sum to the date of the decree, and upon advances and payments made by him in managing the property; and that the rate of interest was to be governed by the law of this Commonwealth, although the property was to be managed in Colorado.</p>

<p>The plaintiff gave the defendant his promissory note, payable on demand, in consideration of the sale to him of five shares of stock in a railroad company, and on the same day the parties signed.an agreement that the sale should be void, if the railroad should be sold under an execution then levied upon it, “ or if the surrender of stock as now proposed and the settlement with the creditors according thereto, as now proposed and agreed, shall not be made within sixty days." At the time the note was given, an execution had been levied upon the property of the railroad company, and a plan had been partly carried out by which all the shares of stock were to be surrendered to trustees, who were to issue new stock to the creditors in payment of their debts. Within a month afterwards, the stockholders and the creditors had all signed agreements to carry out this plan, and the interest on the debts had been reckoned and the new stock issued; but the new stock was not actually delivered and the creditors paid until after the expiration of the sixty days. Held, that the contingency by which the sale was to become void had not happened; and that an action could be maintained on the note.</p>

<p>A person distraining cattle doing damage on his land impounded them in the town pound and handed the keeper the following written memorandum, with his name and a date upon the paper: “ Two dollars for damages and three dollars and fifty cents for fees.” Held, that the memorandum was defective in not stating the cause of impounding, as required by the Gen. Sts. c. 25, § 27; and that such person was a trespasser ab initia.</p>

Contract on an account annexed for labor and materials furnished in the repair of a building upon real estate belonging to the defendants. Answer, a general denial.

<p>The owner of a wharf and dock, who dredges out a channel from his dock over flats belonging to other persons ,and lying between high and low-water mark, cannot recover damages from a city for an injury to the channel by the dis charge of sewage from a common sewer into the dock, whereby the channel is partly filled up and the owner put to additional expense in getting vessels to his wharf; although he dredged out the channel openly and with a claim of right.</p> <p>A bill in equity, brought by the owner of a wharf and dock, in a harbor, to restrain a city from discharging sewage through a common sewer into his dock, and praying that the city be required either to discontinue the use of the sewer, or to make such change in its construction as to cause it to discharge into the harbor at some other place, was referred to a master to hear the parties and report the form of a final decree, with specific directions to report whether a peremptory injunction should be granted, and whether, and by what other means or scheme, the injury to the plaintifE’s estate might be remedied. Held, that the master should report upon such means and schemes, proposed by the defendant, although they involved the exercise of the right of eminent domain on the part of the city.</p> <p>The owner of a wharf and dock let them to a firm of which he was a partner, the firm paying a rent in proportion to the amount of business, and dividing the profits equally between the partners, after deducting charges and expenses, including such rent. A city emptied sewage into the dock, and thereby caused increased expenses to the firm in the transaction of its business. Held, on a bill in equity by the owner against the city, that such increased expenses could not be allowed the owner as damages, or considered as expenses of his estate.</p>

Contract for money had and received. Answer, a general denial. At the trial in the Superior Court, before Brigham, C. J., the plaintiff offered to prove the following facts : On June 9,1874, Peter Pelletier brought an action by trustee process against Joseph Couillard, who was then in the employ of the defendant corporation.

<p>The owner of a lot of land abutting on a highway, on which is a building consisting of three shops, and having a wooden platform extending from it to the sidewalk, with no barriers separating the parts of the platform in front of the several shops from each other, and which is constructed for the common use of all the shops and used by the public as a common passageway thereto, is liable to a person who, in the exercise of due care, is injured by a defect in the platform, in the absence of an agreement by the tenants of the shops to keep it in repair.</p> <p>On the issue of fact whether a landlord or his tenant was to keep in repair a platform in front of a shop, evidence that, after an injury caused by a defect in the platform, the landlord repaired it, is competent as an admission that it was his duty to keep the platform in repair.</p>

Tort for injuries to the plaintiff, a child four years of age, by being run over by a railroad train of the defendant.

<p>B., a member of a. firm, of which he and A. were partners, fraudulently made a promissory note in the name of the firm, and delivered it to C., who had knowledge of the fraud. The firm was afterwards dissolved and a receiver appointed. A., after the note became due, and while it was still in the hands of C., no suit having been begun on it, brought a bill in equity against B. and C., the prayer of which was that C. might be ordered to produce and cancel the note and restrained from enforcing it. Held, that the bill could he maintained.</p> <p>B., a member of a firm, of which lie and A. were partners, fraudulently made a promissory note in the name of the firm, and delivered it to C., who had knowledge of the fraud. C. delivered it to D., an innocent holder for value. The firm was afterwards dissolved and a receiver appointed. D. brought an action at law upon the note. A. then brought a bill in equity against B. and C., the prayer of which was that C. might be ordered to pay, take up and cancel the note, and he restrained from enforcing it. Held, that the hill could not be maintained.</p>

Writ op review to revise a judgment recovered by the defendant in review against the plaintiff in review.

<p>Contract on a policy of insurance for $2000, dated March 5, 1875, by which the defendant insured the plaintiffs for the term of one year, as follows:</p> <p>“ $500 on their brick pottery building and ells, three stories with basement and flat roof. $500 on machinery, shafting, belting, machines, tools and all implements used by them in their business. $950 on stock in trade consisting principally of earthen-ware and on materials for manufacturing the same. $50 on office furniture, including safe, contained in said building, situate on Dwight Street, near the Fitchburg Railroad in North Cambridge, Mass.” At the trial in the Superior Court, before Colburn, J., it appeared that the plaintiffs were large manufacturers of earthenware in North Cambridge; that at the date of the policy in suit and of the fire, which occurred on June 11, 1875, their manufactory consisted of two large three-story brick buildings, connected by a three-story wooden corridor six feet wide and fifteen feet long; that one building was generally known as the pottery, and had three ells attached, one of which was used as the office; that the other building was generally known as the storehouse; that the pottery building contained the engines and most of the machinery, and was chiefly used for the manufacture of earthen ware, though to some extent also for storage; that the storehouse building was chiefly used for storing manufactured ware, though certain of the processes of manufacture were conducted there, and a limited amount of machinery and implements were contained therein; that in the course of manufacture almost all the stock went to and fro from each of the buildings to the other several times; that by the fire the storehouse' and its contents were totally destroyed, and the pottery building injured, but its contents were not damaged by fire; that the plaintiffs had a prior policy in the defendant company identical with the one in suit, for the year ending March 5,1875; and that, during its pendency, the general agent of the defendant company, under whose authority the policy in suit issued, had examined the premises and the course of manufacture therein. The plaintiffs claimed a loss of $10.55 on the first item named in the policy, $134.25 on the second item, and $950 on the third item.</p> <p>The plaintiffs were insured by policies for $2000 each, in each of three other companies, substantially for the same items and amounts as in the defendant company. They had also $4000 insurance in two other companies specifically on the stock in the storehouse, and $7000 in two other companies specifically on the pottery building, and $6000 specifically on the storehouse building.</p> <p>Upon these facts, the defendant admitted its liability for the first item, but contended that the terms of the policy only applied to the machinery and stock contained in the pottery building. The plaintiffs contended that, under the facts proved, the clauses of the policy relating to stock and machinery were not so* limited, but applied to stock or machinery in either of the buildings. But the judge ruled otherwise; and directed a verdict for the plaintiffs for the first item only. The plaintiffs alleged exceptions.</p>

<p>In an action for personal injuries occasioned to the plaintiff in being run over, while crossing a street, by a horse and wagon coming behind him from another street, the fact that the plaintiff does not show that he looked up and down the street before crossing is not conclusive evidence, as matter of law, that he was not in the exercise of due care.</p>

Contract for breach of an agreement to purchase certain black lead.

<p>Contract on a promissory note dated February 24, 1872, for $210. Answer, payment. Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The signature of the note was admitted; and it appeared that it had been secured by a mortgage of a piano and other chattels, containing a power of sale. The defendant, who was the only witness called, testified that he had made several cash payments to the plaintiff on the note, and that the plaintiff had taken from him the piano on the mortgage, but had not reported to the defendant any sale of the same, or in any way accounted for the proceeds or value thereof; and he testified to the cost of the piano when purchased by him, and stated how much the same had been used, and that the plaintiff had admitted making a sale thereof, and had also admitted that he had disposed of the piano in a barter trade for a specific sum named, greater than the verdict rendered; and that the defendant did not know where the piano was, or who had it.</p> <p>The judge instructed the jury “ that, after ascertaining the amount due on the note, they should ascertain the amount of the cash payments which they might be satisfied upon the evidence had been made, and, if such amount of payments was not sufficient to extinguish the note, they should then ascertain the value of the piano upon the evidence before them, and apply that, if they found that the plaintiff had taken the piano and used it as his own property, to the further extinguishment of the note, and if, by both cash payments and the value of the piano, the note was fully paid, they should find for the defendant; but, if otherwise, they should find for the plaintiff for the balance remaining due thereon.”</p> <p>The jury returned a verdict, which, as ordered by the court to be recorded, was as follows: “ In suit Charles A. Peterson vs. George A. Patrick to recover value of mortgage note given under date February 24, 1872, for two hundred and ten dollars, they leave out of their estimate the value of the piano, one of the articles held under said mortgage. The jury find for the plaintiff and assess damages in the sum of one hundred seventy-eight and dollars.”</p> <p>The defendant moved to set aside this verdict, as irregular, and contrary to the evidence and to the instructions of the court. The judge overruled the motion, intimating, however, that he would be willing to grant a new trial so far as to determine the value of the piano. The defendant contended that the whole verdict was irregular, and excepted to the order of the judge overruling his motion.</p>

Tort for breaking and entering the plaintiff’s close, and removing the plaintiff’s goods therefrom, and for an assault.

Contract on an account annexed for use and occupation of a building. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows: The action was brought originally in the Municipal Court of Boston, and the declaration was duly filed with the entry of the writ. The defendant appeared and answered orally, and after-wards filed in that court a declaration in set-off for more than the amount of the plaintiff’s claim.

<p>In an action for the conversion of personal property, on the issue whether the plaintiff’s claim was founded on the fraud of the defendant, so as not to he affected by his discharge in bankruptcy, the judge found that the defendant took the property in question from the plaintiff’s store during the absence of the latter, under a claim of right which he honestly entertained; and that there was in fact no fraud on the part of the defendant. Held, that the judge rightly refused to rule that, as matter of law, there was a fraudulent taking by the defendant.</p>

<p>The assignment of a lease by the lessor entitles the assignee to sue the. lessee in his own name on the covenants in the lease; and an assignment by the lessee of his right, title and interest in the lease does not exempt him from liability on his covenant to pay rent, although the assignee of the lessor assents to the latter assignment.</p>

<p>A deed of a lot of land described it as bounded on two sides by streets, cm the third side by a passageway, and on the fourth side by another lot. The con- - veyance was subject to a condition that the front line of the building should be a certain distance from, and parallel to, one of the streets, which was named; and also a condition that no dwelling-house or other building except the necessary out-buildings should be erected on the rear of the lot. At the time the deed was executed there were certain buildings on the land, and the deed stated that the buildings then on the land conformed with the conditions. Held, that there was no ambiguity as to what portion was to be deemed the rear of the lot.</p> <p>A deed of a lot of land contained the condition that “no buildings which may be erected on said lot shall be less than three stories in height, exclusive of the basement and attic, nor have exterior wails of any other material than brick, stone or iron, nor be used or occupied for any other purpose or in any other way than as a dwelling-house for the term of twenty years” from a certain day. Held, that the limitation of time applied only to the mode of use and occupation; and not to the height of the buildings or the materials of the outer walls.</p>

Contract upon an account annexed for money lent from September 1874 to January 1876.

<p>The St. of 1874, c. 404, providing that “ all persons becoming parties to promissory-notes payable on time by a signature in blank on the back thereof, shall be entitled to notice of the non-payment thereof the same as indorsers,” does not apply to a note made before the passage of the statute.</p>

<p>If a married woman carries on the business of keeping a boarding-house, and neglects to file the certificate required by the St. of 1862, c. 198, § 1, debts due to her for board are liable to attachment by the creditors of her husband.</p> <p>The St. of 1862, c. 198, is not repealed by implication by the St. of 1874, c. 184.</p>

Contract against the administrator of Maria L. Nesmith, upon a promissory note, dated October 5, 1874, payable to the order of the plaintiff, one year after date, signed by George T. Comins, and indorsed, before delivery to the payee, “ M. L. Nesmith by Edward Hastings, attorney.” Writ dated February 19, 1879.

<p>Petition to the county commissioners of Middlesex, by the owner of a mill and water privilege on a natural stream running from Horn Pond in Woburn, for a jury to assess the damages sustained by Mm tMougk the diversion of the waters of Horn Pond from that stream by the respondent in constructing and maintaining its water-works under the St. of 1871, e. 307.</p> <p>Trial before a sheriff’s jury, who returned a verdict for the petitioner for a less amount than that claimed by Mm. In the Superior Court, Colburn, J., ordered the verdict to be accepted against the objection of both parties; and they alleged excep tians. The facts appear in the opinion.</p> <p>The case was argued in January 1877, and reargued in January 1878.</p>

<p>Under the St. of 1872, c. 337, authorizing the town of Waltham to take the waters of Charles River, for the purpose of supplying the inhabitants of the town with pure water, and providing that a person injured by such taking may apply by petition to the Superior Court, and that the court may, “ upon default or hearing of said town,” appoint three disinterested persons to assess the damages sustained by the petitioner, their award to be final, unless either party shall demand a trial by jury, the merits of the controversy between the parties are not to be gone into at the hearing upon a motion for the appointment of commissioners ; but the court is to ascertain whether a case is presented which requires the appointment of commissioners, and to determine who are suitable persons to be appointed.</p> <p>Under the St. of 1872, c. 337, authorizing the town of Waltham to take the waters of Charles River, water-rights connected therewith, and lands necessary for the purpose of supplying the inhabitants of the town with pure water, neither the petition of a person injured by such taking nor the verdict of the jury awarding damages need allege that the town has complied with § 2 of the statute, requiring the town to file in the registry of deeds a description of the property taken.</p> <p>If a town takes the waters of a stream, under a statute authorizing it so to do, for the purpose of supplying the inhabitants of the town with pure water, it is no defence to a petition for damages sustained by a person injured by such taking, that the town owned a parcel of land adjoining the stream, and that the inhabitants of the town had been accustomed, from time immemorial, to use the waters of the stream for drinking and domestic purposes.</p> <p>Under the St. of 1872, c. 337, authorizing the town of Waltham to take the waters of Charles River and water-rights connected therewith, for the purpose of supplying the inhabitants of the town with pure water, and providing in § 3, that, if the owner of property taken or person sustaining damages “ shall not agree on the damages to be paid therefor,” he may file a petition for the assessment of his damages, the filing of a petition shows the election not to agree, and no previous attempt at an agreement is necessary.</p> <p>Under the St. of 1872, c. 337, authorizing the town of Waltham to take the waters of Charles River, for the purpose of supplying the inhabitants of the town with pure water, the town voted to accept the act, and to take the water from the river, to the amount of one million of gallons a day. It also dug a filtering basin on land near the river, taken under the act, pumped the water from this basin to a reservoir and distributed it to the inhabitants. A portion of the water in the basin came by percolation from the river and the rest from underground streams intercepted by the basin on their way to the river. Held, that there had been a taking of the waters of the river, within the meaning of the act, to the amount of one million of gallons a day; and that a person whose water-rights had been injured by such takinsz was entitled to recover for the injury to the market value of his property arising irom the diversion of that quantity of water.</p>

Petition to the county commissioners for a jury to assess damages for the taking by the respondent of four lots of land in the Franklin Street District, so called, in Cambridge, under the St. of 1872, c. 299.* At the trial before a sheriff’s jury, it appeared that the grade of each lot had been raised by the respondent under said act; that the expense thereof was assessed to the petitioner, who, being dissatisfied with the assessment, surrendered “ all his said estate in…

<p>Contract against- Abiel F. Fifield, George W. Fifield and Israel Tibbetts, on a bond in the sum of $5000, dated May 7, 1867, executed to the plaintiff by the first-named defendant as principal, and the others as sureties, and containing the following condition: “ Whereas the said Abiel F. Fifield has been duly elected by the Cambridge water board water registrar, now if he shall well and faithfully perform the duties of said office, then this obligation shall be void and of no effect, otherwise shall be and remain in full force and effect.”</p> <p>Trial in this court, without a jury, before Fndieott, J., who found that there had been a breach of the bond; ordered judgment for the plaintiff for the penalty of the bond; and directed the case to be sent to an assessor to determine the amount for which execution should issue. The defendant Tibbetts alleged exceptions, the material parts of which appear in the opinion.</p>

Tort for injury caused by the overflowing of a common sewer into the plaintiff’s cellar and shop, through a drain connecting the cellar with the common sewer.

<p>A testator left a widow, three sons, three married daughters and one unmarried daughter then about seventeen years of age. By his will he gave to each of his married daughters legacies in money, and to his unmarried daughter a small sum of money and “ a home and maintenance during the time she remains unmarried.” To his widow he gave the use and income of all his real and personal estate during life, which consisted of about $2000 in personal property and three farms, on one of which was the homestead where the testator had always lived with his family. To one of his sons he gave nothing, he having received his full share, and to his other sons he gave the remainder of all his property real and personal in equal shares, upon the death of his wife, “ they and each of them giving their personal services during my life and the life of their mother in cultivating the premises where I live to the best of their ability.” The widow died three years after her husband. The unmarried daughter continued to reside and receive her maintenance at the homestead for four years after the testator’s death, when she left on the ground that she was entitled to be maintained where she might choose to reside. Held, that the “ home and maintenance ” given by the will to the unmarried daughter was intended to be a home and maintenance on the premises where the testator lived at the time of his death; and that she was not entitled to be supported elsewhere.</p>

<p>Petition to the county commissioners for a jury to assess damages for the taking by the respondent of several parcels of land in the Sparks Street District, so called, in Cambridge, under the St. of 1872, c. 299.</p> <p>At the trial before a sheriff’s jury, a verdict was rendered for the petitioners for less than the amounts respectively claimed by them; the Superior Court on their motion set aside the verdict; and the respondent appealed to this court The facts appear in the opinion.</p>

Bill in EQUITY, filed February 13, 1878, alleging that on Julie 14, 1869, the plaintiff purchased five shares in the capital stock of the defendant corporation, and received a certificate for the same, numbered 6775, which certificate the plaintiff kept with due care; that on January 11, 1876, an instrument dated January 8, 1876, and having on it the name of the plaintiff as maker thereof, appointing F. W. Brown her attorney to transfer said five shares to Spencer W.…

<p>If a person owning a lot of land fronting on a highway conveys the rear part of the lot, which is surrounded entirely by the land of persons other than the grantee, the latter has a right of way by necessity to the highway, over the remaining land of the grantor; but the mere fact that the grantor had for a long time used a particular route to the rear land will not justify the implication that he intended to convey a right to this way, and exclude him from assigning any other practical and convenient way to the highway.</p> <p>If a grantee has a way by necessity over the remaining land of his grantor, and a particular way to the land conveyed has been so used by the grantor before the conveyance, and by the grantee after it, as to amount to a designation of this way as a convenient one, yet, if the grantor obstructs this way, the grantee may go over other parts of the land of the grantor.</p> <p>A question of pleading not raised at the trial is not open on exceptions in this court, although the bill of exceptions states that the pleadings may be referred to.</p>

Contract, brought for the benefit of John Nihen, administrator of the estate of William Nihen, against the executrix of the will of Comfort Weatherbee, upon a probate bond executed to the plaintiff by George M. Cook as principal, and William Jordan and Comfort Weatherbee as sureties, and conditioned for the faithful performance of the duties of Cook as administrator of the estate of Joanna Nihen.

<p>On a writ of entry, brought in 1877, there was evidence that, in 1850, an academy building, which stood on the demanded premises, was repaired by a person who took charge of the academy as a teacher; that, in the following year, the amount expended by him was raised by a subscription divided into shares of a certain amount each, and the amount paid to him; that the shareholders then took possession of the building and maintained a school in it until 1857, the lot being used as a playground; that, in 1859, the shareholders sold the building, to be removed from the premises, and divided the proceeds; that from that time until 1864 the lot remained vacant, unfenced and unused; that in 1864, with money raised by the contributions of neighbors and former pupils, for the purpose, as declared in the subscription paper, of preserving the place for the benefit of the town, the lot was fenced, and planted with trees; that after this until 1877, when the town erected a library building thereon, the lot was kept in repair by the demandant and others, some of whom were the shareholders above referred to; that in 1877, prior to the date of the writ, the demandant procured deeds from some of the shareholders, which deeds were delivered on the land ; and that he so acquired a majority of the shares. Held, that there was sufficient evidence to warrant a finding that the demandant had not acquired a title by disseisin. Held, also, that the subscription paper of 1864, being signed by the demandant’s grantors, among others, was admissible to show that they did not claim title to the land at that time. Held, also, that evidence that a person not a subscriber to the subscription paper asked the demandant’s permission to make the contemplated improvements was inadmissible in favor of the demandant.</p> <p>A., purporting to act as agent of the proprietors of an academy, made a deed in which he was so named as grantor, conveying “ the academy with the fence around said building.” The deed contained personal covenants of warranty on the part of A., and was signed and sealed by him in his own name. Held, that the deed was the deed of A., that it conveyed the land about the building, and used in connection with it, as well as the building itself; and that the construction of the instrument was for the court.</p> <p>On the issue whether a deed to a town of a lot of land, conveyed on condition that a library building should be erected upon it, had been delivered to, and accepted by, the town, there was evidence that the deed after being signed was left with the grantor; that it was acknowledge' bv him about a month afterwards, and recorded twelve days after the acknowledgment; that the town voted to erect the building on the .land, and a building committee, appointed by the town, soon after began and have since completed the library building. Held, that the evidence was sufficient to warrant a finding that the deed had been so delivered and accepted. Held, also, that evidence that the deed was found in the grantor’s house, after his death, and that the selectmen of the town had no knowledge of any delivery, was not conclusive in law to overcome the other evidence.</p> <p>If, when a deed of a person disseised is given, the grantee is in possession, or if the d sseisor is then in possession and afterwards abandons it, and the grantee takes possession, the deed conveys a good title.</p>

Complaint for flowing land under the St. of 1866, At the trial before a sheriff’s jury, the evidence tended to show that the complainants’ lands were used in the cultivation of cranberries, and that the respondents had flowed the lands for several years during the winter and spring of each year, sometimes drawing off the water in April and sometimes in the early or middle part of May, and on one occasion, within three years prior to the date of the complaint, keeping the…

<p>A witness, who has voluntarily testified in part on a matter tending to criminate him, cannot afterwards decline to answer a question upon the ground that it will criminate hire.</p> <p>If a married woman keeps intoxicating liquors for sale in violation of law in a hotel hired by her, and her husband aids her in such keeping, or if, without actually and actively aiding her, he is present, "and has knowledge of the fact and of her intent, the presumption of law is that she is acting under his coercion, and he can be convicted of such illegal keeping.</p>

Indictment on the Gen. Sts. o. 161, § 12, charging the defendants with breaking and entering, on March 27, 1876, the shop of George M. Crawford, at Ayer, with intent to steal.' At the trial in the Superior Court, before Allen, J., the government offered to prove confessions made by the defendants.

<p>Indictment on the Gen. Sts. e. 161, § 54, for obtaining money of Cornelius Sweetser by false pretences.</p> <p>At the trial in the Superior Court, before Allen, J., it appeared that, by virtue of an agreement dated October 3, 1872, Sweetser became the trustee of certain funds for Susan It. Howard and her two daughters; that in the fall of 1874, Sweetser, by an arrangement with the eestuis que trust, bought a parcel of land in Lowell with a portion of the trust funds, and took a deed thereof in trust for the persons above named.</p> <p>It also appeared that the defendant was to build a house upon this land, and was to pay all bills for materials used in said house with money which was to be given to him by Mrs. Howard, from time to time, upon the presentation by him to her of bills for such materials; that the money was to be sent to Mrs. Howard at Lowell by Sweetser, from Saco, Maine, where he resided; that the final settlement for the building of the house was made on September 16, 1875; that at that time a draft, drawn by the cashier of a bank in Saco upon a bank in Boston, for $1000, dated November 2, 1875, payable to Mrs. Howard or order, and indorsed by her, was given by her to Sweetser, and by the latter delivered to the defendant, and a certain sum was returned to Mrs. Howard by the defendant, and his bill was thus settled.</p> <p>Sweetser testified that he had collected certain notes mentioned in the agreement of trust, and had deposited the money in a bank at Saco with his own funds; that he purchased • the draft above mentioned with the funds so held by him in said bank, and sent the draft to Mrs. Howard, and charged upon his book $1000 as paid out from the trust fund; that his purpose in sending the draft was that it might be used to pay for the house, and that the balance, after the payment of the defendant’s bill, was to be paid out upon other bills contracted for the house.</p> <p>The defendant contended, and asked the judge to rule, that, as a matter of law, the money paid to the defendant, at the time of the settlement, was not the money of Sweetser within the allegation of the indictment; but the judge refused so to rule, and the defendant excepted.</p> <p>The defendant contended that he could not be convicted upon the indictment, because, upon the settlement at which it was alleged he made the false representations set forth, he had been allowed nothing for his services in building the house; that he was entitled to receive for his personal services the sum of $650; and that, if the sum he received in fact was not more than enough to pay him for the bills actually paid and for his services, then he was not guilty of false pretences, even if he had made untrue statements, because he had defrauded no one.</p> <p>When the defendant was on the witness stand, he was asked what sums he had actually put into the house upon certain bills; but the judge ruled the inquiry immaterial. The defendant’s counsel then suggested that it might be important to the defendant to prove that he only received money enough to pay him what he actually paid out, and what was actually due for labor and materials furnished at the time of the settlement. But the judge ruled that, if the defendant actually made false representations as to what went into the house as materials, he might be guilty, even if he had not received more than was due him.</p> <p>The defendant asked the judge to rule as follows: “1. If the defendant only received, at the time of the settlement with Sweetser, money enough to pay what was actually due him, then this indictment cannot be maintained. 2. If the defendant made representations only for the purpose of getting the money due him, and not for the purpose of obtaining money not due him, then this indictment cannot be maintained.”</p> <p>The judge declined so to rule; but ruled that, if the defendant made the false representations for the purpose of obtaining money that he believed to be due to him, and believed that he had a right so to obtain the money, the indictment could not be sustained.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Indictment on the Gen. Sts. o. 63, § 98, and the St. of 1871, o. 352, to recover, for the use of the widow and children of Charles Keniston, a fine, by reason of the loss of his life, from being run over on May 7, 1874, by a locomotive engine and train of cars of the defendant, at a place in Somerville where the defendant railroad crosses Park Street, so called, at grade.

<p>In an action against a town for supplies furnished J. S., a pauper, the issue was whether J. S. had acquired a settlement in the defendant town, under the St. of 1874, c. 274, by paying a tax duly assessed on his poll or estate for three years of the five years of his residence there. It appeared'that in one of the three years his name was not on the valuation list, nor on the tax-list made by the assessors and delivered with the warrant to collect the same to the collector ; that a clerk of the collector, without authority, and without the knowledge of the assessors until after this action was brought, added the name of J. S. to the list, and he paid a poll-tax to the collector, who paid it into the town treasury. Held, that J. S. had not been duly assessed for that year; and that the town was not estopped to deny the same.</p>

Tort against Richard Morse and Charles J. Willis for the conversion of one half of a horse, with a count in contract for money-had and received. Writ dated February 18, 1875. Answer, a general denial.

Replevin of a quantity of cigars. Answer, a general denial. At the trial in the Superior Court, before Putnam, J., without a jury, the following facts appeared: The plaintiff did business in Hew York, and the defendants were members of a firm doing business in Boston.

<p>A lease of a shop provided that the lessee should pay a certain rent, except in case of lire, and should keep the premises in repair, damage by fire excepted; that in case the demised premises should be damaged by fire, so as to be rendered unfit for use and habitation, the rent, or a just and proportionate part thereof, according to the nature and extent of the injury sustained, should be abated or suspended, until the premises should be put in proper condition for use and habitation by the lessor. During the term of the lease, the shop was injured by fire, so as to be unfit for use; the lessor did not repair for a certain time, refused to abate the rent, and demanded full rent of the lessee, which he paid under protest. Held, that the lessee had no cause of action against the lessor.</p>

<p>An assignee in bankruptcy has no better title than the bankrupt, except in goods conveyed in fraud of creditors.</p> <p>If goods are sold on the condition that they shall be paid for by the promissory note of the purchaser “satisfactorily indorsed ” by a third person, the taking of the note by the seller without indorsement, on the promise of the purchaser that the indorsement should be furnished, and making no subsequent demand for such indorsement, and failure to return the note, do not, as matter of law, amount to a waiver of the condition.</p>

<p>The St. of 1871, c. 245, authorized a corporation to take land for the purpose of supplying the inhabitants of a town with pure water, directed that a description of the land so taken should be filed in the registry of deeds within sixty days from such taking, provided a mode of compensation to the owners of land so taken, and authorized the town to purchase the franchise of the corporation. The St. of 1873, c. 242, ratified the purchase by the town of the franchise of the corporation, and contained provisions similar to those above stated. In 1872, the town entered upon and flowed a parcel of land, assuming to act under the St. of 1871, but filed no description of the land taken until after the passage of the St. of 1873. After the filing of the description, the owner of the land taken filed a petition under the St. of 1873, and was awarded damages, but the tribunal,-on the objection of the town, refused to admit evidence of the damages sustained by him prior to the filing of the description. Held, that he was entitled to recover such damages, under the petition, and that he could not after-wards maintain an action of tort therefor.</p>

<p>Four actions op contract. The declaration in each case alleged that the defendant was on May 12, 1874, and had since been, the owner of a lot of land in Cambridge, described by metes and bounds; that, on the day above mentioned, said lot was, and, until the filling hereinafter named, continued to be, a source of filth, a cause of sickness and a public nuisance, injurious to the public health; that, on the day above mentioned, it was duly adjudged by the board of health of the plaintiff city to be a public nuisance, injurious to the public health, and said board, by a written order, duly ordered the defendant at his own expense to remove said nuisance on or before a time therein named; that this order was duly served upon the defendant, and he had actual notice thereof; that the defendant wholly failed to comply with the order, and thereupon, after such failure, the board caused the nuisance to be removed, and, in so doing, and for that purpose, the plaintiff expended in filling such land a sum named; that the plaintiff has duly demanded the same of the defendant, but the defendant has wholly neglected and refused to pay the same or any part thereof. Writs dated June'21, 1875.</p> <p>The answer in each case contained a general denial; and averred that, if any such nuisance or filth ever existed, it was not occasioned by the defendant’s default, neglect or act, but that the plaintiff and its board of health caused such nuisance and filth to accumulate on the premises, to the injury of the defendant.</p> <p>At the trial in the Superior Court, before Brigham, C. J., without a jury, the following facts appeared:</p> <p>In 1874, the defendants and others presented a petition to the board of aldermen of the plaintiff city, praying the board “ to cause to be abated the nuisance that does now and has existed since the filling in of the land and territory known as West Dock caused by an order from the city of Cambridge under the grade law passed by the Legislature of 1872.” This petition was, on March 4,1874, referred to the board of health, and on May 12, 1874, that board passed the following order: “ Ordered, That the several owners thereof be directed, at their own expense, and within twenty days from the service of an attested copy of this order upon them, to abate the nuisance upon the premises owned by them respectively, and situate on Hampshire Street and Webster Avenue, between Portland Street .and Bristol Street. Said nuisance being the stagnant water and insufficient drainage.” Service of this order was made on May 20, 1874; and on September 7 following, the board of aldermen, acting as the board of health, passed the following order, which was approved by the mayor on September 10: “ Ordered that the committee on health be and hereby is authorized and instructed to abate the nuisance existing on estates lying between Hampshire Street, Webster Avenue, Portland and Bristol Streets, by filling the same to grade, the respective owners thereof having been directed by order of this board of health dated May 12,1874, to abate said nuisance, and failed so to do. The expense thereof to be charged to appropriation for incidental expenses and collected of the respective owners thereof in their several proportions according to law.”</p> <p>By the ordinances of the city of Cambridge, the mayor and aldermen are constituted the board of health. In pursuance of the above orders, the board of health, under the supervision of the civil engineer of the city, caused the premises of the several defendants to be filled by gravel to grade 13 above mean low-water, that is, grade 18 of city of Cambridge base, which is five feet below low-water mark. There was no evidence except as herein appears as to how, or when, or where, or under what law, the plaintiff city established any base of grade. The cost of such filling was as is alleged in the several declarations, and the same was paid from the treasury of the plaintiff city.</p> <p>The nuisance consisted of stagnant and filthy water, standing from time to time on the premises of the several, defendants, caused by cesspools, privies and other sources of filth, and surface water flowing from adjacent land of a higher grade, for which there was no practicable outlet from the defendants’ premises into any public sewer, or elsewhere. Before 1874, the premises of the several defendants were sufficiently drained into West Dock, a creek immediately in the rear of their premises, into which the tide-water flowed from Charles River. In 1873, the mayor and aldermen, acting as a board of health, ordered and caused West Dock to be .filled with gravel to grade 18, and thereby cut off any drainage of the defendants’ premises into West Dock.</p> <p>The defendants contended, and offered evidence to prove, that the condition of their premises, alleged to constitute a nuisance, was directly due to foul and noisome water and mud, which was caused by the backing up of the waters in the act of filling West Dock. But the judge did not find this to be the fact, although he did find that the filling of West Dock to a grade higher than the grade of the defendants’ premises, before the filling of 1874, was the principal, if not the exclusive, cause of their condition when the acts of the board of health applied to them, by cutting off their previous means of drainage, and exposing them to the flow of surface water from West Dock as it was left when filled; and that neither the board of health nor the city of Cambridge had provided any means of draining the defendants’ premises hitherto, nor was such drainage practicable into any previously established sewer of the city.</p> <p>Upon these facts, the judge ruled that the plaintiff was entitled to recover the sums alleged in the several declarations, and ordered judgments accordingly. The defendants alleged exceptions.</p> <p>The case was argued at the bar in January 1878, by C. F. Donnelly, for the defendants, and J. W. Hammond, for the plaintiff. In January 1879, a rescript was entered, sustaining the exceptions, and an opinion filed. The plaintiff thereupon applied to this court for leave to reargue the exceptions, and on this motion the court allowed written arguments to be filed by the same counsel.</p>

<p>A landowner can maintain a complaint, under the Gen. Sts. c. 149, § 34, for the reassessment by a jury of his annual damages for the flowing of his land by the respondent’s dam, although such damages were not “established by a jury”. as provided in that section, but by an award of arbitrators, to whom the original complaint, by agreement of parties and under rule of court, was referred, and whose award was returned into court and accepted.</p>

<p>Tort. The declaration alleged that the defendant, on June 2, 1877, was the owner of a bull; that the bull was wild and vicious, and it was unsafe to drive or permit the bull to go through any public highway, without his being tied down or secured, so as to prevent injury to any person on the highway, all of which the defendant well knew; that the defendant wrongfully, carelessly and negligently drove the bull, so being wild and vicious, and not properly secured, in a certain highway; and that the bull ran with great violence against the plaintiff, he then being on the highway, and injured him. Answer: 1. A general denial. 2. Contributory negligence.</p> <p>At the trial in the Superior Court before Brigham, C. J., the plaintiff introduced evidence tending to show that on June 10, 1877, he was walking in Lawrence, when his attention was directed to cries of help on a street at a right angle with the street he was on; that when he turned the corner he saw a man lying on his back in the middle of the road holding a rope attached to a ring in the nose of a bull, and the bull attempting to gore him; that the plaintiff went towards the bull and within a few feet of him, but did not attempt to assist the man whom the bull was trying to gore, because he was afraid of the bull, as he appeared to be dangerous; that the bull, by the detaching of the ring from his nose, escaped from the man holding him and rushed towards the plaintiff, who ran towards the gate of a yard on the side of the street, and while in the act of entering the gate was tossed by the bull into the air, fell senseless on the street, and, while lying there, was gored by the bull, and received the injuries complained of; that the defendant was, at the time, the owner of the bull, and his servant, by his direction, was then leading him through the street, when many persons were walking there.</p> <p>The only evidence, on the part of the plaintiff, of the dangerous character of the bull, was that afforded by the conduct of the bull at the time of the injury, and its circumstances, and a declaration by the defendant to the plaintiff and his wife, that his servant was careless in leading the bull through the streets, and that he ought to have led him tied behind a wagon, as he had been led on a former occasion.</p> <p>There was evidence, on the part of the defendant, that the bull was nearly three years old, and small of his age; and that, after he was one year old, he was kept for a year on a farm in New Hampshire, and afterwards, until the day of the plaintiff’s injury, on a farm in Methuen, from which, on that day, the defendant’s servant was removing him to the defendant’s farm in North Andover; that the bull had never exhit ited viciousness of disposition, but although when conducted from New Hampshire to Methuen he was tied behind a wagon, yet on the farm where he had been kept he had been managed by a snap-ring fastened in his nostrils by a spring, and attached to a rope, and was tractable when thus managed; and that the defendant had no knowledge of any exhibition of viciousness or dangerousness of the bull before the plaintiff’s injury; that, while the servant was leading the bull by the rope, the white dress and red scarf of a girl excited the bull, the servant struck him, and thereupon the bull threw the servant down and was attempting to gore and trample on him, when some person struck the bull, and he rushed forward and leaped over the servant, detaching the snap-ring from his nose as he did so, and pursued and injured the plaintiff; that the man who had the care of the bull at the defendant’s farm had found the bull to be gentle, and had never seen anything dangerous or vicious about him, and that with a snap-ring he could lead him like a dog. A snap-ring such as was used in leading the bull on the occasion of the plaintiff’s injury, and also a ring of different style, such as is used in managing bulls, and was claimed by the plaintiff to be more adapted to safety, were exhibited to the jury at the trial.</p> <p>The defendant requested the judge to instruct the jury as follows : “ 1. That, as plaintiff alleges in his declaration that, before and at the time of the injury, the defendant’s, bull was wild and vicious, and was unsafe to be led through the public streets, and the defendant knew the same, the plaintiff, in order to maintain this action, must prove that the bull was wild and vicious before and at the time of the alleged injury, and was unsafe to be led through the streets unless confined, and that the defendant had such previous knowledge of the wild and vicious habits and inclinations of said bull. 2. That the defendant is not liable for the injuries wilfully committed by his bull, unless the plaintiff proves that the defendant had actual notice of the habits and inclinations of the bull to commit the injury complained of, and that, having such notice, he did not use reasonable care in taking care of said bull. 3. That if the plaintiff, when he saw the servant on the ground, and the bull goring him, and knew the bull was dangerous, and, knowing the dangerous character of said bull, made an attack on the bull, or went so near him that the bull could attack him, he was guilty of contributory negligence. 4. That if the plaintiff knew, or had reasonable cause to believe, that it was dangerous to go to the. assistance of the servant, when the bull had him down and was goring him, and did so, it was contributory negligence, and the calls of humanity would be no excuse. 5. That if the bull was only two years and eleven months old, and had no wild and dangerous habits or tendencies known to the defendant or his keeper, and the defendant was informed that he was gentle, and could be led like a dog, then it was not negligence on the part of defendant or his servant to attempt to lead him through the public streets with a snap-ring used by his keeper to lead him. 6. That if the snap-ring used in leading said bull was such as one made and used for the purpose of leading such animals, then the defendant’s servant, in using the same to lead such bull, was in the exercise of due care.”</p> <p>The judge refused to give these instructions, but instructed the jury as follows: “ The plaintiff, in order to recover, must prove that the bull which caused his injury was the defendant’s property, and had such propensities, known to the defendant, as caused him to be a dangerous animal when led by one person only upon the streets of such a city as Lawrence, in the daytime, by means of a rope attached to a snap-ring fastened to the bull’s nose, and, being thus dangerous, was led by the defendant’s servant, acting within the scope of his general employment, or by the defendant’s specific direction; that the conduct of the defendant’s servant in thus leading the bull was negligent in view of the propensities of the bull known to the defendant, or of the known, ordinary and usual disposition and propensities of such animals; and that the plaintiff’s conduct, on the occasion of his injury, was not wanting in reasonable prudence and caution, in view of all the circumstances of his injury. In the absence of any specific evidence of any exhibitions of viciousness or unruliness by the defendant’s bull, which had been seen by or brought to the knowledge of defendant, he would not be responsible for injuries to any person caused by such propensities, unless such propensities were usual and ordinary in bulls like the defendant’s bull; in which case, the defendant "might reasonably be supposed, as owner of the bull, to have known such ordinary and usual propensities, and it would have been negligence in him not to have adapted his use and treatment of him to such ordinary and usual propensities.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Contbact. Writ dated September 10, 1874. The declaration alleged that the plaintiff and the defendant executed an agreement in writing, a copy of which was annexed, dated August 26, 1873, by the terms of which the plaintiff, in consideration of $9000 to be paid to him by the defendant, agreed to build and put in operation upon the defendant’s land certain works for the manufacture of gas from crude petroleum, the plaintiff guaranteeing that the works, when completed, would…

<p>Contract for money had and received. Answer, a general denial.</p> <p>At the trial in the Superior Court, before Pitman, J., the plaintiff testified that, in June 1877, he went to the defendant with a promissory note for $488.21, dated May 17, 1877, signed by S. Rich & Co., payable to the order of the plaintiff in three months, and by him indorsed, and asked the defendant to get the note discounted at the defendant’s bank, and allow the plaintiff to take the proceeds for his own use; that the defendant thereupon produced a promissory note for $582.50, dated May 29, 1877, signed by James Power & Co., payable in four months to the order of John Dole, and by him indorsed, and said that he should not want to use the note, and would lend it to the plaintiff, if that would answer the latter’s purpose; that the plaintiff said it would, and offered to give a receipt for it; that the defendant suggested that, instead of a receipt, he should retain the note of S. Rich & Co., and take the plaintiff’s note for the difference in amount between the former note and the note of James Power & Co., and hold both notes as collateral security for the loan of the Power note; and that the plaintiff assented to this proposal, and thereupon gave to the defendant a note for $94.29, dated May 17, 1877, payable to the order of the defendant in three months. The defendant contended that the transaction between the parties was an exchange of notes, and objected to any evidence as to the conversation between the parties at the time the notes were given, on the ground that the admission of such evi dence was an attempt to contradict by paroi the terms of written instruments; and also objected to any evidence in regard to these notes, except to show a want of consideration, for which he claimed the Power note was sufficient; but the judge overruled the objection, and admitted the evidence.</p> <p>The plaintiff further testified, against the defendant’s objection, that he had the note of James Power & Co. discounted; that, a few days before tba notes of S. Rich & Co. and his own note became due, he learned that these notes were held by a bank in Boston; that he then saw the defendant, and the latter told him that he had been short of money, and had used the notes, and that when the note of James Power & Co., who had failed before this conversation occurred, became due, the defendant would take care of it. The plaintiff paid all of the notes at their maturity, and offered the note of James Power & Co. to the defendant, and demanded of him the money paid on the other notes.</p> <p>The jury returned a verdict for the plaintiff; and the defend» ant alleged exceptions.</p>

<p>Tort for an assault. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions in substance as follows:</p> <p>In April 1877, the plaintiff, who lived with her husband in his house in Boston, let two rooms therein, with his consent, to Hernán P. Newton, who furnished and occupied the rooms. In July of the same year, Newton procured a lounge from the defendant, a furniture dealer, and signed and delivered to him an agreement in writing, which provided that the lounge was to be paid for by weekly instalments; that, until paid for, no title to the lounge should vest in Newton; and that the defendant should at all times have access to it, and the place wherein it might be; and, in case default should be made in the payment of any instalment, the defendant might enter upon the premises of Newton, and take possession of the lounge, without being liable for a trespass.</p> <p>The lounge was taken to the rooms of Newton, and used there by him, without knowledge on the part of the plaintiff and her husband of his title thereto. Newton did not pay for the lounge as agreed, and after repeated demands upon him for payment, and Ms refusal to pay, the servants of the defendant went to the plaintiff’s house in the afternoon of November 22, 1877, to get the lounge.</p> <p>The plaintiff’s evidence tended to show that, when the servants went to the house, the plaintiff, her husband being absent, answered the bell, and opened the front door about a foot; that the servants told her who they were, and the object for which they had come, showed her the agreement with Newton, and then asked permission to enter to get the lounge; that she refused to allow them to do so; and asked them to wait two hours, until Newton, who was then absent, should return; that the servants stepped up into the door, which was still open about a foot, and pushed the door open still further, and as far as they could go in; and that this was done against the will and resistance of the plaintiff. It did not appear that the servants used any more force than was necessary in thus opening the door.</p> <p>It further appeared that, after the servants got into the hall, the plaintiff opened a door leading from the hall into an adjoining room, and, standing m or near the door, spoke to two visitors who were then sitting in the room and were strangers to the servants; and these persons were allowed to testify, against the objection of the defendant, that the plaintiff stated to them that the servants had shoved her away from the door, and pushed into the house against her will. There was no evidence that, at the time the plaintiff spoke to these persons, the servants were in sight of them, or had seen them, or knew that they were in the house. But these witnesses were allowed, against the defendant’s objection, to testify further that they believed that the servants were in the ball and within hearing, because they heard one of them speak immediately after, and saw them go up-stairs for the lounge, and had previously seen them when they came up to the house. It appeared that the servants made no reply to the above statements of the plaintiff; and the servants testified that they did not hear these statements. The judge instructed the jury that they might consider such statements, made by the plaintiff to the visitors, as evidence of an admission of such shoving and pushing of the plaintiff, if the jury were satisfied that the servants heard the statements and did not deny them.</p> <p>The defendant asked the judge to instruct the jury as follows:</p> <p>1. Under the agreement between Newton and the defendant, the latter and his servants had a right, in a reasonable and proper manner, to enter any premises occupied by Newton to examine or to remove the lounge, if Newton did not pay for it as stipulated. 2. If Newton was a tenant of a part of a house, he and those with whom he did business had the right to pass in and out for all reasonable purposes, and if the defendant had permission or license from Newton to enter his premises to examine or take the lounge, the defendant and his servants had the right, in a peaceable and proper manner, to go to Newton’s rooms to get the lounge; and the plaintiff had no right to interfere to prevent them, especially after they had made known their errand to her. 3. If the plaintiff did interfere to prevent them, and was injured in consequence of such interference, she cannot recover if the defendant’s servants used no more force than was reasonably necessary to remove the lounge.”</p> <p>The judge refused so to rule; but instructed the jury that the plaintiff, in the absence of her husband, had the same rights to the possession of the premises that he had; that she had a right to close the door, the right to open it wide, or only a foot, or partly, as she saw fit, and to forbid the defendant’s servants to enter, and to keep them out by force; and that the agreement with Newton might be considered as evidence that the servants went to the house for a lawful and peaceful purpose, but not as evidence of any right, license or permission to enter the house to get the lounge against the will of the plaintiff.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Writ of review to reverse a judgment recovered by the defendant in review against the plaintiff in review. Trial in the Superior Court, without a jury, before Pitman, J., who allowed a bill of exceptions in substance as follows: The original action was begun by an attachment of the defendant’s property on March 13, 1876. The defendant gave a bond to dissolve the attachment, and the writ was returned and entered.

Petition in equity, filed February 21, 1879, alleging that on May 1, 1878, the sum of 14842.38 was duly assessed upon the defendant corporation, being a tax of three eighths of one per cent on the average amount of deposits therein for six months preceding said May 1; that on May 23, 1878, said corporation was, by a decree of this court, perpetually restrained from the exercise of its franchise, and receivers were appointed to wind up the affairs of the corporation; that…

Contract for money had and received. Answer, a general denial.

Contract on a promissory note for 1100, dated August 11, 1877, signed by the defendant, payable to the order of Jesse Wadleigh, and by him indorsed.

<p>Under the Gen. Sts. c. 142, §§ 11,16, 42, facts stated upon information and belief in the answers of a trustee are to be conclusively taken as true, although an adverse claimant has appeared.</p>

<p>Appeal by Thomas C. Robertson from a decree of the Probate Court, ordering distribution of the estate of Lucy Saunders, the seventh clause of whose will was as follows: “ I give and bequeath, or rather I wish that my house and land situated on Liverpool Street be sold at public auction by my executor, and I hereby empower him to sell it in that manner, the proceeds thereof to be distributed as follows: To Thomas Robinson, a former partner of my divorced husband, the sum of two hundred dollars, provided that it can be proved that it was loaned to my said husband to be put into the first money paid for this house, my executor hereinafter named to decide whether it is or is not proved that the money was so given.” The will then gave eleven legacies to different persons, mostly relatives, using in each case the words, “ I give and bequeath,” or “ I give,” followed by his clause: “ All these specific bequests of money, in the event of there not being enough to pay them all in full, each one is to be paid in proportion to the sum left to him, and the event of any surplus to be shared in like manner.”</p> <p>The Probate Court, on petition of the executor, praying for a decree of distribution of the balance of the estate in his hands among the persons entitled thereto under the will, made the fol lowing decree:</p> <p>“ It appearing by the account of said executor, that there is in his hands a balance of the estate of said deceased, not sufficient to pay the legacies of said deceased in full, and it further appearing that the legacy to Thomas C. Robertson, called in the will Thomas Robinson, was a conditional legacy, which has been determined in favor of said Robertson by said executor, thereto duly authorized by said will, it is ordered that said balance be distributed, pro rata, among the legatees under said will, including said Thomas C. Robertson.”</p> <p>Robertson appealed from this decree, alleging as reason of appeal that he should be paid in full the sum of $200. Colt, J., affirmed the decree; and Robertson appealed to the full court.</p>

Tort for personal injuries occasioned to the plaintiff, on February 14,1878, by a defect in a highway. Answer, a general denial. At the trial in the Superior Court, before Allen, J., the following facts appeared in evidence: Prior to 1875, the defendant purchased a parcel of land on the corner of Prospect Street and Edgeworth Street in Boston, and, during the years 1874 and 1875, built a school-house thereon.

<p>Conteact upon an account annexed for intoxicating liquors sold and delivered. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on an agreed statement of facts in substance as follows:</p> <p>The defendant bought of the plaintiff at his shop the goods mentioned in the declaration, and he owes the plaintiff the amount claimed, if the plaintiff was duly licensed to sell spirituous and intoxicating liquors. All the items in the plaintiff’s bill of particulars were for liquors sold not to be drunk on the premises, and were not drunk on the premises, and were purchased between June 26, 1875, and July 11, 1875.</p> <p>On June 11, 1875, the mayor and aldermen of Lowell voted to grant a license to the plaintiff, subject to the conditions, requirements and liabilities of the St. of 1875, e. 99 ; and a paper, of which the following is a copy, was furnished to the plaintiff: “City of Lowell. 1875-76. Fourth Class, lío. 100. License to sell liquors of any kind not to be drunk on the premises. This certifies that the mayor and aldermen of the city of Lowell hereby grant a license to Daniel Murphy, doing business at No. 68 Suffolk Street, in said city, as grocer, to sell liquors of any kind, not to be drunk on the premises, until May 1,1876. This license is granted and accepted upon the express condition that the person or persons above licensed, shall in all respects, fulfil and conform to all the conditions or requirements of chapter 99 of the Acts of the Legislature of Massachusetts of 1875, entitled ‘ An Act to Regulate the Sale of Intoxicating Liquors; ’ and that, for breach of any of its conditions or requirements, this license shall become forfeited, null and void. In testimony whereof, the undersigned have hereunto affixed our official signatures this eleventh day of June, A. D. 1875. Francis Jewett, Mayor. Samuel A. McPhetres, City Clerk.” Then followed an “ extract from chapter 99 of Acts of 1875,” section six being quoted in full.</p> <p>All the conditions of the license have been fully complied with; it has never been revoked; and the plaintiff furnished a satisfactory bond, as required by the statute.</p> <p>If, on these facts, the plaintiff was duly licensed, judgment was to be entered for the plaintiff for the sum claimed; otherwise, for the defendant.</p>

Tort. At the trial in the Superior Court, before Pitman, J the plaintiff offered to prove the following facts: In February 1877, the defendant was the owner of a dwelling-house in Norwood, which he had let by paroi to a tenant, who occupied it for a dwelling-house and market.

<p>On February 13, 1781, the following order was passed by the Senate, and on February 20 by the House of Representatives :</p> <p>Whereas it is provided by the Constitution that “ all money bills shall originate in the House of Representatives,” and the House are of opinion that, agreeable to the spirit of the clause above recited, it is their exclusive right and duty to originate an inquiry into the returns made from the several towns and plantations for the purpose of settling a valuation, and finally to conclude on the proportion of ratable property within each town and plantation in this state; and whereas the Senate are of opinion that the above recited clause does not apply to the settlement of a valuation, and therefore, that, by virtue of the equal rights and powers which are given by the first section of the first chapter in the Frame of Government to the two branches of the Legislature, the Senate have an equal right and concern with the House of Representatives in originating and completing the settlement of a valuation; and whereas it is essential to the public interest that the two branches of the Legislature should,on the present occasion, unite in their construction of the Constitution without delay; Therefore Resolved, that in order hereto the Judges of the Supreme Judicial Court be and they hereby are directed to deliver in writing to each House of the Legislature, on or before the twenty-second day of February instant, theii respective opinions on the above questions in debate.</p> <p>On February 22, 1781, the Justices of the Supreme Judicial Court came into the Senate and delivered their several opinions in writing, as follows :</p> <p>May it please your Honors :</p> <p>In obedience to the special order of the General Court of the twentieth instant, to the Justices of the Supreme Judicial Court, (with which they are honored,) directing them to deliver their respective opinions in writing to each House of the Legislature, upon their several powers respecting the list of valuation by the new Constitution; I have endeavored for myself to form an opinion, as well as I could in the short space allowed.</p> <p>The question, as far as I understand the matter, amounts to this, viz. Whether the Senate have an equal right with the House of Representatives in examining the lists of valuation returned from the several towns, and adjusting the same, as a rule for their future conduct in making laws imposing public taxes ?</p> <p>In answer to which I would observe that, by the first article of the first section of the first chapter upon the Frame of Government, the power of legislation is lodged in both Houses, each having á negative upon the other. By the fourth article of the same chapter, the General Court are empowered to impose and levy proportionable assessments and taxes upon all the inhabitants, &c. And by the same article it is directed, that, while the charges of government shall be assessed on the polls and estates in the manner that has hitherto been practised; in order that such assessments may be made with equality, “there shall be a valuation of estates within the Commonwealth taken anew once in every ten years at least, and as much oftener as the General Court shall order.” By the second section of the same chapter*, the Senators are to be elected by the districts; who are to be proportioned upon them according to. the taxes paid by such districts, and the inhabitants of the several towns, (as also of unincorporated plantations which are taxable,) having the requisite qualifications of voters, are to have a voice in electing them.</p> <p>Now, as the Senate are elected by the people and represent them; as they have a joint power with the other branch to order a general valuation, whenever it shall be taken; as they have a joint power, also, expressly to impose and levy proportional assessments and taxes, in order to which it seems necessary that they should judge of the rectitude of the proportion by which such assessments and taxes are to be regulated; I conclude that the Senate must have a right to examine the lists of valuation returned, and adjust the same for themselves, or to concur in such adjustment; and that, whether it be considered as an act of legislation, or only as a necessary step to legislation in imposing proportional public taxes — the latter of which I am rather inclined to think, as to originating the inquiry into the lists of valuation — the clause that directs that “all money bills shall originate in the House of Representatives ” does not appear to me to relate to it. For I suppose a money bill to be a bill imposing a direct tax on the people; which the inquiry into the lists of valuation and settling the same cannot so properly be said to be, as it may be called the settling a rule of proportion, by which each branch of the Court will be governed when they proceed to pass money bills. If this be the case, then, there being no other clause in the Constitution establishing a precedence in this particular, the right of both branches must be equal.</p> <p>An objection to what I have said may arise from the practice of the House of Representatives under the former government, who solely settled the valuation, in exclusion of the Council. But as that practice arose probably from a supposed resemblance of the Council to the House of Lords in the British government, who are not elected by the people, and do not represent them, but are a distinct body, having a distinct interest from the people, I apprehend no application can thence be made to a government formed upon a plan so different and popular as ours is.</p> <p>As to that clause in the said fourth article, viz. “ While the public charges of government, or any part thereof, shall be assessed on polls and estates in the manner that has hitherto been practised,” it does not appear to me to relate to the former practice of the House in settling the valuation lists, but to the mode of raising government charges, viz. upon polls and estates, rather than by duties and excises, and by other methods than by a general proportional tax upon the whole people.</p> <p>I am your Honors’ most obedient humble servant,</p> <p>William Cushing.</p>

<p>The question whether a bill or resolve appropriating money from the Treasury of the Commonwealth is a money bill, which must, by the Constitution, c. 1, sect. 3, art. 7, originate in the House of Representatives, is a question upon which the two branches of the Legislature are authorized by the Constitution, c. 3, art. 2, to require the opinion of the Justices of the Supreme Judicial Court.</p> <p>The exclusive privilege of the House of Representatives, under the Constitution of the Commonwealth, c. 1, sect. 3, art. 7, to originate money bills, is limited to bills that transfer money or property from the people to the State, and does not include bills that appropriate money from the Treasury of the Commonwealth to particular uses of the government, or bestow it upon individuals or corporations.</p>

<p>On March 8, 1879, the following order was adopted by the Governor and Council, and transmitted by the Governor to the Justices of the Supreme Judicial Court, who on March 10 returned the opinion which is subjoined.</p> <p>Ordered, That the opinion of the Justices of the Supreme Judicial Court be respectfully required on the following important question of law, arising on the solemn occasion of the death of the Sheriff of Middlesex County, and of the impendency of the execution of William Henry Devlin for murder.</p> <p>Is the “senior deputy sheriff in service,” who is authorized, under section twenty-three of chapter two hundred of the acts of the year eighteen hundred and seventy-seven, to act in case of a vacancy in the office of sheriff, the deputy sheriff who has been longest in office continuously, or</p> <p>(2d.) The deputy sheriff whose original appointment is of the earliest date, but who has not remained continuously in office since then, or</p> <p>(3d.) The deputy sheriff who has served the greatest number of years, though not continuously, or</p> <p>(4th.) The deputy sheriff who is oldest in years ?</p>