Volume 128 — Massachusetts Reports

Tort for personal injuries occasioned to the plaintiff by being struck by a car, run and managed by the defendant over the track of the Eastern Railroad Company, at or near the place where said track crosses Saratoga Street at grade in Boston.

<p>Tort for personal injuries occasioned to Morgan Sweeney, the plaintiff’s intestate, by being struck by an engine owned and run by the defendant corporation over its railroad near the Huntington Avenue Bridge, so called, in Boston. At the trial in this court, before Morton, J., the jury returned a verdict for the plaintiff for $3000 ; and the defendant alleged exceptions. The facts appear in the opinion.</p>

Two actions OE tort, each for a personal injury occasioned to the plaintiff’s intestate by the alleged negligence of the defendant. Trial in this court, before Ames, J., who reported the cases for the determination of the full court in substance as follows: On the day of the accident, a freight train consisting of forty-seven loaded cars, drawn by two engines, started from the defendant’s station in Boston in the direction of Andover.

Bill oe interpleader, heard on the pleadings and proofs before Colt, J., who on February 8, 1879, made a final decree, from which on February 13 two of the defendants claimed an appeal, and their appeal was entered on the docket of this court for the county.

Tort for personal injuries occasioned to the plaintiff, a boy nine years old, by being struck by a car of the defendant. 'At the trial in this court, before Ames, J., it appeared that the tracks of the defendant’s railroad at the place of the accident were along a highway in that part of Boston formerly Charlestown.

<p>Trustee process. Writ dated October 4, 1877. The defendant was defaulted. Frederick O. Prince, administrator de bonis non of the estate of John Belknap, summoned as trustee, answered that at the time of the service of the writ upon him he had in his hands the sum of $1267 belonging to the defendant. H. E. Tremain appeared as claimant of the fund in the hands of the trustee, by virtue of two assignments: the first from the defendant to Edwin R. Tremain, dated February 19, 1876, and the second by Edwin R. Tremain to the claimant, dated December 11, 1877. By the first assignment, the defendant conveyed “ all my share, right, title and interest, of whatever name, nature or description, of, in or to the estate, real and personal, of my late father, and all my share thereof under the will of my father, together with all income, benefit and advantage thereof accrued or to accrue, which can in any event come to me.” By the second assignment the claimant acquired all the rights of Edwin R. Tremain under the first assignment.</p> <p>At the trial in this court, before Endicott, J., it appeared that John Belknap, the father of the defendant, on January 1, 1856, purchased of the Massachusetts Hospital Life Insurance Company an “ annuity in trust ” for $5000, the net income of which was payable to John during his life, and after his death to his wife Mary if she should survive him; and after the death of the survivor, the principal and any accrued interest was to be paid “ to the executors or administrators of said John Belknap, to be divided equally among his children,” and the issue of any deceased child by right of representation. John Belknap died on February 7, 1856, leaving a will, by which he gave the residue of his estate to the plaintiff and defendant as trustees to hold during the life of his wife on certain trusts, and, on her death, to divide the same among his children. His wife Mary died August 16, 1877. The whole-annuity fund was thereupon paid over by the company, under the provisions of the trust, to Prince, as administrator de bonis non of John Belknap. Edward’s share of this fund was $1267.</p> <p>The judge ruled that the interest of the defendant in the fund did not pass by the assignments, and that the claimant was not entitled thereto; and ordered the trustee to be charged. The claimant alleged exceptions.</p>

<p>The first case was an action of contract for money had and received. The declaration alleged that Bernard MeFeely in Ms lifetime entrusted certain funds to the keeping of the defendant; that Bernard subsequently died, and the plaintiff was on October 24, 1876, duly appointed his administrator by the Probate Court for the county of Middlesex; and a demand upon the defendant, and his refusal to pay. The defendant filed an answer in abatement, denying the jurisdiction of the Probate Court to grant letters of administration to- the plaintiff, alleging that the intestate never was an inhabitant of, or a resident in, the county of Middlesex, and left no estate to be administered therein; and that administration was fraudulently obtained by the false representations of the plaintiff.</p> <p>At the trial in tMs court, without a jury, Lord, J., found the allegations of the answer in abatement to be true, and reserved for the determination of the full court the question whether judgment should be entered for the defendant.</p>

The record showed the following facts : The action was returnable at September term 1878 of the Superior Court.

<p>Contract for breach of the following agreement, signed by the plaintiff and the defendant: “ New Bedford, June 9, 1876. This is to certify that I have this day bought of John P. Knowles 2d of the bark Sarah at the rate of five thousand dollars, as she was discharged from her late voyage, with the understanding that he, the said John P. Knowles 2d is to take her back at the end of the voyage at the rate of thirty-two hundred dollars, and I, the said Antone Thomas, the present purchaser, agree that the said Knowles shall have her at that rate.” Writ dated January 9, 1879, returnable to the Superior Court. The answer admitted the making of the contract declared on; and alleged an offer to perform on the part of the defendant, and a refusal to perform on the part of the plaintiff.</p> <p>The case was referred to an auditor, who found the following facts:</p> <p>The defendant was agent and part owner of the bark Sarah, a vessel employed and fitted for the whaling business from the port of New Bedford. In the course of the business, she arrived home from a whaling voyage on May 3, 1876, and, after discharging her cargo, and being repaired and refitted, she sailed upon another whaling voyage on June 20, 1876. From this voyage she arrived home on September 3, 1878, was discharged, again repaired and refitted, and sailed upon another whaling voyage on October 12, 1878, in the forenoon. She was capsized in a severe gale at sea on that night, and all hands lost except three men who clung to the wreck until October 15, when they were rescued by a pilot-boat. As to her subsequent fate, it was agreed by the parties that the last seen of the bark was by the crew of the pilot-boat on the 15th, and the bark was then capsized, and full of water, and abandoned, and nothing has been since heard from her, although when last seen she was afloat on the surface of the ocean.</p> <p>While the vessel was in port, on June 16, 1876, the defendant sold and duly conveyed by a bill of sale, properly recorded, three thirty-seconds of the bark to the plaintiff. At the time of the sale, the parties duly executed the agreement for reconveyance declared on. While the bark was refitting for her last voyage, the plaintiff, who was engaged in the business of outfitting and furnishing seamen for the whaling business, endeavored to ship some men on this bark; but the defendant refused to receive the men, saying to the plaintiff, “You owned in her the last voyage; but you have nothing to do with her now.” On another similar occasion he said to the plaintiff, “ I never had an outfitter for owner before, and I never will again.” Soon after these conversations, and about a week before the vessel sailed, the defendant read the contract declared on to the plaintiff, and asked him if he was going to give him, the defendant, a bill of sale; he told the plaintiff the money was ready for him; that the vessel was nearly ready for sea, and if the plaintiff did not give up the bill of sale, the vessel would be cleared with the plaintiff as an owner. The plaintiff said he did not think he should give the bill of sale for the amount named in the contract. The day before the bark sailed, the plaintiff caused a bill of sale in due form, and acknowledged, to be prepared, in which the consideration was stated to be $300. Taking this bill of sale with him, he twice during the day endeavored to find the defendant, but did not see him. He then gave the bill of sale to an attorney, who, acting under instructions from the plaintiff, went on the same day with the bill of sale to the defendant, and said to him, “ I am authorized by Mr. Thomas to deliver you this bill of sale upon your payment to me of $450.” The defendant said, “I have a written agreement with Mr. Thomas to sell his interest for $300. I am willing to carry out my agreement, and shall make him carry out his contract.” The attorney replied, “ Thomas claims that he is not bound by that agreement, as, at the time of making it, the vessel was represented to be sound, whereas she was not; and much money had to be expended in repairs; and also the outfits for the voyage were much larger than it was represented they would be ; so that the whole enterprise had cost $19,000 or thereabouts, instead of $12,000, as he, Thomas, had been led to believe it would be. And so Thomas claims he should have $450 for his interest in the vessel.” To this the defendant said, “ The contract was executed after the condition of the vessel was fully known, and the price of the repurchase was governed by that fact; I shall compel Thomas to carry out his agreement.” No money or check was offered to the attorney by the defendant. The attorney reported this interview to the plaintiff, and handed him back the bill of sale. On October 14, after the bark had sailed, there was a rumor to the effect that the bark had put into Newport disabled. The defendant, while trying to ascertain the source of the rumor, met the plaintiff, and said to him, “ Will you give me a bill of sale of the Sarah, or do you decline to do it ? ” The plaintiff replied, “ I don’t say whether I will or not.” There were no further conversations on the subject of the bill of sale between the parties. On January 8, 1879, the bill of sale above referred to was duly tendered by the plaintiff’s attorney to the defendant, who refused it.</p> <p>The auditor found that the vessel was not afloat, but was sunk in the ocean, on January 8, 1879; and found for the defendant.</p> <p>The parties then agreed to accept the auditor’s report as an agree ' statement of facts. The Superior Court ordered judgment for the defendant; and the plaintiff appealed to this court.</p>

Contbact upon an account annexed for work and materials. Answer; 1. A general denial. 2. Payment. At the trial in the Superior Court, before Pitman, J., without a jury, the plaintiff put in evidence tending to show that he performed labor and furnished materials for the defendant on the latter’s house, to the value of $142.43; and that, at the time he rendered his bill for said amount, the defendant disputed the amount, and refused to pay the bill.

<p>It is no ground for postponing judgment in an action on a promissory note, signed by a corporation as principal and an individual as surety, that the plaintiff has proved the note against the estate of the principal in bankruptcy, and that the amount of the dividend thereon has not been determined.</p>

<p>A. owed a debt to B. which B. had assigned to 0. D., who had attached the debt, agreed that the amount thereof might be paid by A. to C. 0., by mistake, demanded and received of A. part only of the debt, and A. thereupon paid the balance to D. Held, that C. could not maintain an action of money had and received against D. for this balance.</p>

<p>Contract on an account annexed for work and materials, originally brought in the Second District Court of Bristol, against the first-named defendant alone. Judgment was entered for the plaintiff; and the defendant appealed to the Superior Court. In that court he filed an answer in abatement, alleging the nonjoinder of certain persons as defendants, and also an answer containing a general denial. Both issues were tried together, and a verdict was rendered for the defendant upon his answer in abatement. The plaintiff then amended his writ and pleadings, and summoned in those persons named in the answer in abatement, as co-defendants in this action. Some of these appeared and filed answers containing a general denial, and alleging that the goods and labor declared for were furnished to the defendant Borden individually. Borden also defended under his answer of a general denial. The other defendants, eight in number, were defaulted.</p> <p>At the trial before Rockwell, J., it appeared in evidence that the defendants were members of the Quequechan Steam Fire-Engine Company in Fall River, an unincorporated association, but having regular officers including a clerk, who kept a record of all meetings; that the company met about once a month; that, on the last day of the year 1875, they moved from their old engine-house to a new one built and owned by the city of Fall River; that the plaintiff, who had already done some work in the way of fitting up the new house under orders from the city, was waited upon by the defendant Borden, then foreman of the company, and, acting under his direction, furnished certain goods and labor for further fitting up the house; and that, soon afterwards, the city paid for a part of the goods and labor so furnished, leaving a balance of $282.69, for which this action is brought.</p> <p>The plaintiff testified that, at the time of ordering the goods and labor, Borden said the city would probably pay for everything, and that he might open an account with it, but that Borden would be responsible and would see him paid; that the matter was entirely in his hands; and that the plaintiff gave credit to Borden. Borden testified that the goods and labor were procured on the credit of the Quequechan Engine Com pony; and that he gave the plaintiff so to understand.</p> <p>The plaintiff sought to maintain his action, first, upon the ground that Borden was authorized to act with the plaintiff in the premises by a direct vote of these defendants,, or otherwise by informal directions at a meeting of the company held just previous to their removal from the old to the new engine-house; secondly, upon the ground that these defendants, by their subsequent use and enjoyment of the property, and silence and acquiescence with a knowledge of the facts, had ratified the acts of Borden, and become liable to the plaintiff.</p> <p>James R. Francis, one of the defendants who had been defaulted, testified for the plaintiff that he was clerk fro tem. of a meeting of the company just previous to their removal; that a vote was passed in respect to fitting up the new room; that the record of the meeting was kept on the back of an envelope in lead pencilling; that the pencil-marks became blurred, and that a few days after the meeting he tore the envelope up, subsequently giving to the regular clerk of the company the contents of the record as he remembered it. The witness was asked to state the substance of this vote as he remembered it. This question was objected to by the defendants, and excluded. The witness further testified that he personally had authorized and consented to Borden’s acts; that he had seen the defendants Lottie, Winter, Burr and Wordell at the meetings of the company before and after the removal; and that he had “ heard them talk both ways, that they were responsible and that they were not.” The defendant objecting to the use of the word “ them ” as too general, the witness specified one instance of a talk with Wordell in which the latter said, “ I suppose we have got it to pay for.”</p> <p>The plaintiff called Borden and asked him whether either or any of these defendants had instructed him to act for them in procuring the goods and labor in question. The witness answered, “ No.” The plaintiff then asked the witness the following question: “At the meeting of the company held just previous to their removal, was anything said or done in respect to filling up the new room? ” The question was objected to by the defendants, on the ground that, the record of the meeting having been destroyed, oral evidence could not be introduced as to what took place there, and that evidence of what the company did was not admissible where the issue was that of the individual liability of these defendants. The question was excluded. The witness further testified that he had heard objections made by the members of .the company to this bill; that these objections wqre to the effect that it was exorbitant; that no objection was made to what he had done until recently; that he did not remember any one saying anything to him privately about it; and that almost everything was said in company meeting.</p> <p>It also appeared in evidence that the plaintiff had sent bills made out against the Quequechan Engine Company to the company, one through Borden, one by mail, and one through the foreman who succeeded Borden. A record of the company, dated in September 1876, was put in evidence, which read as follows: “ The bill of Mr. Newell for fitting up the room was read to the company, and no action taken upon it.” There was no evidence that the defendants used the room at the new engine-house at any other time than their regular monthly meetings ; or that any notice was ever given to the plaintiff by any of the defendants that they repudiated the act of Borden, or that the plaintiff might take back the materials he had furnished.</p> <p>° The defendants Lottie, Wordell, Tower, Winter and Burr asked the judge to rule that there was no evidence to go to the jury of their liability. The judge so ruled, and directed, a verdict for them.</p> <p>The defendant Borden asked the judge to rule that there was no evidence to go to the jury of his joint liability; and that the verdict at the former trial was conclusive as to his sole liability. The judge so ruled, and directed a verdict for him. The plaintiff alleged exceptions.</p>

<p>Under a deed of land to “ S. D., wife of A. D.,” “ to be held by said D. as a homestead,” habendum “to the said S. D. and her heirs and assigns, to her and their use and behoof forever,” the wife acquires a homestead; and if, after she has ceased to live with her husband and has obtained an absolute divorce from him', he continues to occupy the premises, no order having been made in regard to the land in the divorce proceedings, she may recover possession of them from him by a writ of entry.</p>

Two PETITIONS by owners of land in Haverhill for juries to assess damages sustained by the widening and straightening by the county commissioners of a highway over the same, The record of the county commissioners contained no mention of the petitioners in the first case, and this statement only with regard to the petitioner in the second e^se : “ Boston and Maine Railroad to be paid by the city In the first case, the petition for a jury was presented under the St. of 1870,…

Contract by the heirs at law of John Dove, deceased, upon a written agreement, dated June 21, 1879, by the terms of which the plaintiffs agreed to sell and the defendant agreed to buy a parcel of land in Andover; the plaintiffs, within one week from the date of the agreement, to convey said land in fee simple to the defendant free from all incumbrances by a good and sufficient warranty deed; and the defendant to pay the plaintiffs $100 upon the delivery of the deed.

<p>Wbit oe entby to recover a parcel of land in Ipswich. Plea, nul disseisin. The case was submitted to the Superior Court, and, after judgment for the tenant, to this court, on appeal, on an agreed statement of facts, the substance of which appears in the opinion.</p>

Contbact for rent of certain rooms in the Hotel Pelham, Boston, for the months of October, November and December, 1877, under .a lease, dated May 1, 1875, for two years from October 1, 1875, and containing the following provision; And it is hereby mutually agreed that if, before the end of the said term, neither of the said parties shall give to the other three months’ notice in writing of his intention to terminate this lease at the end of the said term, the lease shall…

<p>Indictment, in two counts. The first count charged that the defendant, on January 20, 1878, at Lowell, “a certain building, to wit, an elevator building there situate, and then and there the property of one'Ann E. Ayer, feloniously, wilfully and maliciously did set fire to, burn and consume.” The second count charged that the defendant, at the same time and place, “ a certain building, there situate, to wit, a building then and there used for shops, mechanics’ work-shops, and for an elevator ami then and there called the elevator building, and then and there the property of one Ann E. Ayer, feloniously, wilfully and maliciously did set fire to, burn and consume.”</p> <p>In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment for the following reason: “ Said indictment contains two counts describing different offences, and contains no averment that the different comits therein contained are different descriptions of the same act.” Allen, J., overruled the motion.</p> <p>The defendant was afterwards tried before Bacon, J., who allowed a bill of exceptions in substance as follows:</p> <p>It appeared that the building in question was destroyed by fire on the day alleged in the indictment, the fire being discovered at about -half-past six o’clock in the morning. The defendant contended that he left Lowell at ten o’clock on the pre vious night, proceeded to Groton in a carriage, put up at the Central House there about midnight, and returned to Lowell about eleven o’clock on the day of the fire.</p> <p>Caleb Knight testified, for the government, that he saw the defendant at the fire about eight o’clock; and, against the defendant’s objection, he was allowed to testify that he was at work removing cars loaded with potatoes from near the fire, when the defendant came up to him and inquired, “ How many bushels of potatoes have you here ? ” and that the witness replied, “ I don’t know, and if I did, I would n’t tell you.” Before admitting this evidence, the judge inquired whether the defendant denied that he was there at the time, and he replied that he denied that he was there before eleven o’clock.</p> <p>Enoch R. Blair testified for the government that he owned part of the personal property burned in the building; that he and the defendant had been connected in business from January to June, 1877; that difficulties had arisen between them, and the defendant had told him that he would be even with him yet, and would pay him, and would make it hot for him. On cross-examination, it appeared that Blair had caused a complaint for forgery to be made against the defendant; ■ aud that the defendant had brought an action against Blair for malicious prosecution. For the purpose of showing bias and interest in Blair, and that the words thus used by the defendant were not used as a menace of injury to Blair’s property by burning, the defendant offered in evidence the original writ and declaration in a civil action, together with the docket entries relating thereto, entered in the Superior Court at December term 1877, and still pending therein, in which the defendant seeks to recover damages of Blair for maliciously prosecuting him, Allen, for said alleged forgery; but the judge excluded this evidence. For the same purposes, the defendant offered in evidence a certified copy of said complaint, which Blair caused to be made against him in June 1877, in the Municipal Court of the city of Boston, for said alleged forgery, and a certified copy of the record of the proceedings thereon in that court, with an order dismissing the complaint, after a hearing on the merits, for want of probable cause to hold Allen to bail thereon; but the judge excluded this evidence.</p> <p>William It. Hoar testified for the defendant that he was the keeper of the Central House in Groton; and that the defendant put up there after midnight preceding the fire, making in his presence at the time the following entry on the register of the hotel: “ W. C. Johnson and wife, Fitchburg, Mass.” The government contended that the defendant did not make that entry; or, if he made it, that he made it at another time; and standards were introduced, by the defendant, of his handwriting. For the purpose of showing that the defendant wrote said entry, he offered in evidence certain paper writings, written by him since this prosecution was begun, for the purpose of being used as evidence, containing the identical words of said entry and none other; but the judge excluded them.</p> <p>William W. Morse and John G. Sherburne testified for the government that they severally owned a part of the personal property destroyed by the fire; that there had been difficulties between them and the defendant in August or September, 1877; and that the defendant then said they would wish they had let him alone, that he would be even with them yet, and that he would “beat” them yet. For the purpose of showing that whatever hostile feeling the defendant then had towards the witnesses had passed away prior to the fire, and that, in December 1877, and afterwards up to the time of the fire, the defendant dealt with them on friendly terms, and also for the purpose of showing bias on their part, the defendant offered in evidence their several affidavits, given -by them respectively on February 24, 1879, and filed in a case of the assignee in bankruptcy of the defendant in equity, against the latter’s wife and others, tending to show that Morse and the defendant had bought and sold divers parcels of real estate and mining property to each other in December 1877, on friendly terms, and also tending to show that the witnesses, when they gave the affidavits, sought to injure the defendant and his wife by voluntarily and maliciously aiding the plaintiff in said case. Upon the affidavits being offered in evidence, the judge asked the defendant to point out any part of either of them which would be competent evidence upon the issues in this case, and the defendant answered that he could not do so. The judge thereupon excluded the affidavits. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>An indictment on the Gen. Sts. c. 165, § 6, for “ open and gross lewdness and lascivious behavior,” is supported by proof that a man intentionally and indecently exposed his person, without necessity or reasonable excuse therefor, in the house of another, to a girl eleven years old.</p>

<p>Indictment on the Gen. Sts. e. 160, § 28, charging the defendant with maliciously threatening Ralph H. Chapin to accuse him of having committed the crime of larceny, by sending him a written communication of the tenor following: “ Mr. Chapin, if you want to settle with me for what you have stolen from me, you can do so by paying me $10; if not, I will put you where you will have a chance to look through iron. H. W. Coolidge; ” with intent thereby to extort money from said Ralph H. Chapin.</p> <p>At the trial in the Superior Court, before Pitman, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, the substance of which appears in the opinion.</p>

<p>Indictment charging the defendants in one count with the larceny of a cow, and in the other with receiving the same cow, knowing the same to have been stolen.</p> <p>At the trial in the Superior Court, before Allen, J., there was evidence tending to show that a cow was stolen, and that, soon after the larceny, the cow was in possession of the defendants. The government went to the jury upon both counts, and the judge gave instructions to the jury upon the law with reference to the offences charged in both counts, to which no objection or exception was taken, and especially instructed the jury that there was no evidence in the case to authorize a verdict of guilty on the second count.</p> <p>The' jury returned a verdict of guilty against both defendants upon both counts; and this verdict was taken and affirmed by the court in the usual way against both defendants. Upon the rendering of the verdict the defendants filed a motion in arrest of judgment, on the ground that the verdict was inconsistent and void in law, and no judgment could be legally rendered upon it.</p> <p>The district attorney thereupon moved for leave to enter a nolle prosequi as to the second count. The judge, against the defendants’ objection, allowed this to be done; and overruled the motion in arrest of judgment. The defendants alleged exceptions.</p>

<p>The provisions of the St. of 1846, c. 203, reenacted in the .Gen. Sts. c. 43, § 82, concerning the dedication of ways, do not apply to ways established by prescription.</p> <p>At the trial of an indictment charging the defendant with erecting and maintaining a fence within the limits of a highway, witnesses over seventy years of age testified that the travelled track used by the public for more than fifty years, prior to 1878, and as long as they could remember, extended over the land enclosed by the defendant; and that a stone wall, which stood on a curved line where the corner of the highway intersected another road, and which was claimed by the government to be the boundary of the highway, about two feet distant from the travelled track, had been there for the same period, and until taken down by the defendant before he built the fence. Held, that this evidence was competent, and would justify the jury in finding a way by prescription, a portion of which the defendant had enclosed, and in returning a verdict of guilty.</p>

Indictment on the St. of 1875, o. 211, charging that the defendant, on July 13, 1879, at Fall River, “one Horace S. Andrews did unlawfully and wilfully intimidate, and did seek to intimidate, and by force and intimidation did seek to prevent from continuing in the employment of a corporation, to wit, the Weetamoe Mills, a corporation then and there duly incorporated under the laws of said Commonwealth and having its usual place of business in said Fall River, he the said…

<p>A complaint alleged that, on September 24, 1878, intoxicating liquors were kept and deposited by A. in a certain building for sale in violation of law. The search-warrant issued under the complaint recited that the complaint was made on September 24,1878. The jurat affixed to the complaint was dated “ this twenty-fourth day of September in the year one thousand eight hundred and seventy- .” The court, to a special justice of which the complaint was addressed, was established in 1874. Held, that the jurat was not the only evidence of the time of making oath to the complaint; and that the record showed that the complaint was sworn to on September 24, 1878.</p> <p>A warrant issued by a special justice of the First District Court of Bristol at a session thereof at Attleborough, held under the St. of 1877, c. 189, may be returned to that court sitting at Taunton.</p> <p>A recital, in a notice to all persons claiming any interest in intoxicating liquors seized under the St. 1876, c. 162, that the seizure was made under a warrant issued by a district court, when in fact it was made under a warrant issued by a special justice thereof, does not invalidate the proceedings.</p>

Complaint on the St. of 1875, c. 99, to the First District Court of Bristol, alleging that the defendant, at Attleborough, on .September 24, 1878, “ did keep intoxicating liquors with intent to sell the same in this Commonwealth, he, the said Sprague, not being authorized, appointed or licensed according to law to sell the same in this Commonwealth for any purpose, nor by any legal authority whatever.” In the Superior Court, the defendant filed a motion to quash the…

<p>Under the St. of 1875, c. 99, § 12, authorizing the mayor and aldermen of a city, by whom a license to sell intoxicating liquors has been issued, to declare a license forfeited upon proof satisfactory to them of a violation of its conditions, after notice to the licensee and reasonable opportunity for him to be heard by them, a licensee can be convicted of keeping intoxicating liquors for sale in violation of law upon the production of the record of the mayor and aldermen, showing that, before the day named in the complaint, the board declared his license forfeited, after a hearing on a verbal complaint made to the board, the licensee being present with counsel, and after a finding that he had violated the provisions of his license.</p> <p>If any notice is necessary to a licensee, that .his license to sell intoxicating liquors has been revoked by the mayor and aldermen of a city, verbal notice is enough.</p>

<p>Indictment on the Gen. Sts. c. 161, § 54, charging that the defendant, on June 9, 1877, at Lynn, “being a person of evil disposition, and devising and intending by unlawful ways and means to obtain and get into his possession the moneys of the city of Lynn, a municipal corporation, within said county of Essex, duly and legally established by the laws of said Commonwealth, and with intent to cheat and defraud, did then and there unlawfully, knowingly and designedly, falsely pretend and represent, to said city, through its agent, servant and city solicitor, Rollin E. Harmon, that said city, on the third day of September in the year of our Lord one thousand eight hundred and seventy-six, negligently suffered Union Street, a public highway and street in said Lynn, which said city was bound to keep in repair and safe for travel, to be out of repair and dangerous, that he the said Harkins, while travelling on said Union Street and using due care, on said third day of said September, was hurt and injured by reason of the dangerous condition of said street and highway, that before said hurt and injury he the said Harkins was well and strong, was able to labor daily, and that by reason of said hurt and injury he was disabled for many days thereafter from performing any labor whatever, and that by reason of said hurt and injury, so received as aforesaid, he had suffered great pain and inconvenience until said ninth day of said June; and he the said Harkins then and there exhibited to said Harmon, servant, agent and solicitor, as aforesaid, his the said Harkins’s foot and ankle in a maimed and injured condition, and then and there falsely and fraudulently pretended and represented to said Harmon, servant, agent and solicitor as aforesaid, that said maimed and injured condition of his foot was caused by said hurt and injury received by him on said Union Street. And the said city of Lynn, then and there believing the said false pretences and representations, and being deceived thereby, and said Harmon, agent, servant and solicitor, as aforesaid, believing said false pretences and representations, so made as aforesaid, by said Harkins, and being deceived thereby, the said city of Lynn, and said Harmon, agent, servant and solicitor as aforesaid, were induced and did then and there consent and agree to the entry of a certain judgment, against said city, for the sum of, and of the value of, five hundred and eighty-seven dollars and fifty cents, which said judgment was then and there entered in pursuance of said agreement, in a certain suit, then pending in the Superior Court, civil session, for said county of Essex, in which suit said Harkins, under the name of Frank Hawkins, was plaintiff and said city was defendant; and said city of Lynn, and said Harmon, agent, servant and solicitor, as aforesaid, then and there believing said false and fraudulent representations and pretences, so made as aforesaid by said Harkins, and being deceived thereby, said city then and there paid to said Harkins the amount of said judgment, to wit, the sum of five hundred and eighty-seven dollars and fifty cents, of the property and money of said city. And the said Harkins did then and there obtain said judgment against said city of Lynn, and did then and there receive said sum of five hundred and eighty-seven dollars and fifty cents, by means of the false pretences and representations aforesaid, and with the intent to cheat and defraud said city of Lynn of the amount of said judgment, to wit, of said sum of five hundred and eighty-seven dollars and fifty cents. Whereas, in truth and in fact, said Harkins was not then and there hurt and injured by reason of any defect or want of repair in said Union Street, and said Harkins was not well and strong and able to labor daily before said third day of said September and before said alleged hurt and injury, and said Harkins was not disabled by reason of said alleged hurt and injury for many days thereafter from performing any labor whatever; and whereas in truth and in fact said Harkins was not then and there injured by reason of said alleged hurt on said Union Street, and he did not suffer great pain and inconvenience until said ninth day of said June; and whereas in truth and in fact said injured and maimed condition of said foot and ankle, so exhibited to said Harmon as aforesaid, was not caused by said hurt and injury on said Union Street, and in truth and in fact said Harkins was not injured or hurt on said Union Street, or in said Lynn at all; all of which the said Harkins then and there well knew; against the peace of the Commonwealth aforesaid, and contrary to the form of the statute in such case made and provided.”</p> <p>In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment, on the ground that it set forth no offence known to the law. Bacon, J. overruled the motion. The defendant was then tried, and found guilty; and alleged exceptions.</p> <p>The case was argued at the bar in November 1878, by F. W. Griffin, for the defendant, and O. R. Train, Attorney General, for the Commonwealth; and submitted on briefs to all the judges in November 1879, by Griffin, for the defendant, and G. Marston, Attorney General, for the Commonwealth.</p>

<p>In a ease of felony, not capital, the jury may he authorized by the court, without express assent of the defendant, after the case has been finally committed to them, to separate upon signing and sealing up a form of verdict, and to deliver their verdict orally upon the next coming in of the court.</p> <p>In a criminal case, not capital, the jury were instructed that, if they agreed after the adjournment of the court, the foreman should sign and seal up a statement of the verdict agreed upon, and return their verdict in the morning. The jury agreed upon their verdict after the adjournment of the court, and separated. After the jury had returned into court the next morning, and the written form of verdict had been handed by the foreman to the clerk and read, the jury were asked by the clerk if they had agreed upon their verdict, to which the foreman answered that they had, and that they found the defendant guilty, and thereupon the verdict was affirmed in the usual form. Held, that the verdict was duly ¡returned.</p>

Foub COMPLAINTS, each charging the defendant with permitting waste and stagnant water to stand and remain for the space of two weeks prior to March 18, 1879, upon á lot of land owned by him, in violation of an ordinance of the city of Boston, which provides that “ no person shall suffer any waste or stagnant water to remain in any cellar, or upon any lot, or vacant ground, by him owned or occupied.” The first complaint de ■’ scribed the lot as numbered one on Colby Place;…

Action on the Gen. Sts. a. 137, § 5, to recover possession of a parcel of land in North Adams, alleged to be held by the defendant unlawfully and against the right of the plaintiff. Writ dated September 10, 1878.

<p>Petition to the county commissioners, filed November 30, 1877, for a jury to assess the damages sustained by the petitioner by the taking of his land by said commissioners in altering and relocating a highway in Deerfield. By consent of parties, the matter was referred to a committee under the Gen. Sts. c. 43, § 34, whose return to the Superior Court, under § 40, set forth that the highway was, after due notice, located by the county commissioners on September 27, 1876, and the location duly recorded, but no award of damages was made to any one; that, in December 1876, the highway was accepted by the county commissioners, and an order issued by them to the clerk to draw liis warrant on the treasurer of the county for the payment of certain sums to various persons named, in full for all damages allowed them on account of the location of different highways in different towns. Among these names were those of two persons whose lands were taken for the highway in question, but the name of the petitioner did not appear. The return further stated that in the opinion of the committee the petition was not filed in season, and the petitioner was not entitled to any damages, but that if in the opinion of the court he was entitled to any damages, they assessed the damages in the sum of $120.</p> <p>The Superior Court ordered judgment for the respondent; and the petitioner appealed to this court.</p>

<p>Contract on an account annexed, containing two items, one for 500 days’ labor at one dollar per day, the other for $100, money had and received.</p> <p>At the trial in the Superior Court, before Allen, J., it appeared that the plaintiff, who was an infant, entered into partnership with the defendant, at the solicitation of the latter, in keeping a shop; that they carried on the business from September 1874 to April 1876; and that the plaintiff put $100 into the partnership as his share, and worked in the shop.</p> <p>The plaintiff contended that the arrangement was that the defendant was to pay him a dollar a day independently of the partnership; and that, as a partner, he could now disaffirm the partnership, and, as a creditor, recover of the defendant what his services during the continuance of the partnership were fairly worth. The defendant denied that he ever agreed to pay the plaintiff one dollar a day; but contended that it was agreed that the plaintiff should be paid a dollar a day out of the partnership business; and that he was not liable in this action on a quantum meruit for services performed by the plaintiff for the partnership. There was evidence that the plaintiff’s services were worth one dollar per day.</p> <p>It appeared that the partnership matters were not settled; that the business had been sold out to one H. G. Wells, who gave a note payable to the defendant’s order, (the reason for so making it payable being disputed,) and that this note, and also the books of the partnership, had since that time been in the possession of the plaintiff. The defendant testified that the plaintiff had always refused to let him take the books since the sale; and the plaintiff testified that he did once so refuse, but that at another time before the action was commenced he told him he might go up to his house and get them. The books and the note were produced at the trial by the plaintiff, he having had notice to produce the books. There was no other evidence of his disaffirmance of the partnership than his bringing the suit and saying in court that he disaffirmed it, and at the trial telling the defendant to take the books and note.</p> <p>The plaintiff asked the judge to rule as follows: “ If the plaintiff performed the labor at the instance of the defendant, he is entitled to recover whatever it was agreed between the parties he should have. • If the plaintiff performed the labor, and there was not an absolute contract by the defendant to pay him for such services, he can recover as much as his services were fairly worth. If the defendant promised to pay the plaintiff a dollar a day out of the business, and the plaintiff performed the labor by reason thereof, the defendant is liable to the plaintiff in this action therefor. If the plaintiff paid into the business $100 at the defendant’s request, though put in by virtue of an agreement that he would share in the profits, yet, if the plaintiff has avoided the contract, he is a creditor of the defendant to that extent, and can recover what he has so paid.”</p> <p>The judge declined so to rule; but ruled that the plaintiff could recover for his labor only in case the jury found that the defendant absolutely promised to pay him at all events; and that the plaintiff could not recover any money put into the business under an agreement to share in the profits.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Upon the issue of the validity of a mortgage to A. upon personal property of B., in whose possession it was attached by a creditor, and A. summoned as trustee, under the Gen. Sts. c. 123, § 67, an instrument signed by A. and B. when the mortgage was made, and as part of the same transaction, reciting that A. held the mortgage for himself and in trust for others, to secure them severally from loss on account of their indorsements of B.’s notes, a schedule of which was annexed, is admissible to show the consideration for the mortgage, and that the transaction was not fraudulent and void as against creditors.</p> <p>A mortgage of personal property, given to secure the mortgagee against liability as indorser for the mortgagor, is valid as against an attaching creditor of the mortgagor, although the liability, of the mortgagee does not become absolute, and has not been paid until after the attachment.</p> <p>At the trial of the question of the validity of a mortgage on personal property, attached in the hands of the mortgagor, in which the mortgagee is summoned as trustee, under the Gen. Sts.c. 123, § 67, the sum “justly due” upon the mortgage, to be ascertained by the court, is that sum which will fully secure the mortgagee against all contingent future liabilities covered by the mortgage.</p>

<p>A declaration contained two counts, alleged to be for the same cause of action. The first count was in tort in the nature of trover, for the conversion of ten barrels of flour. The second count was in contract, alleging that the plaintiff had in his possession as a common carrier fifteen barrels of flour transported by him and consigned to the defendant; that he permitted the defendant to take five barrels, claiming and notifying him that the plaintiff would hold the remaining ten barrels until the freight and advances due to him were paid; and that the defendant afterwards took and carried away the ten barrels, thereby becoming liable to pay the plaintiff the amount due him for such freight and advances. Held, that the two counts' were properly joined; and that it was within the discretion of the court to determine whether the plaintiff should elect upon which count he would go to the jury.</p> <p>The delivery, by a common carrier to a consignee, of a part of goods transported by the former, without payment of freight and advances, does not discharge the lien of the carrier upon the remainder of the goods for the whole amount of charges, unless it was the intention of the parties to do so; and this is a question of fact for the jury.</p> <p>A question not raised at the trial is not open upon a bill of exceptions.</p>

<p>C. peiformed labor and furnished materials under a contract with B., for an entire price, in the erection of four buildings, one of which was on land owned by B., one on land owned by A., and the others on land the ownership of which did not appear. He then filed a petition, under the Gen. Sts. c. 150, as amended by the St. of 1872, c. 318, to enforce a lien on the house and land of A. for the labor performed by him on that house, and at the trial showed what such labor was worth. Held, that the petition could not be maintained.</p>

Contract upon two orders one dated July 12, 1875, and the other September 18, 1875, drawn on the defendants by John O’Flaherty, payable to the plaintiff “ from percentage' retained en work on Episcopal Church,” and accepted, on March 28,1876, by the defendants, “ payable when the work is accepted by the church.” After the former decision, reported 126 Mass. 110, the case was tried in the Superior Court, before,Putnam, J., who allowed a bill of exceptions in substance as…

Contract for money had and received. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on an agreed statement of facts, the substance of which appears in the opinion.

<p>A contract by a guardian for the support and care of his ward binds the guardian personally, and not the ward.</p> <p>A writ against A. “ as he was the guardian of ” B., is against A. personally, and the words “ as he was the guardian," &c. may be rejected as surplusage.</p> <p>If two persons enter into a written contract, which one refuses to fulfil, and the other makes a new contract with him, which operates as a rescission of the original contract, the new contract is founded upon a sufficient consideration.</p>

<p>A conveyance by way of preference, made by an insolvent debtor, in contravention of the provisions of the insolvent law of the Commonwealth, while the United States bankrupt act of 1867 was in force, is a sufficient cause for instituting proceedings in insolvency against the debtor after the repeal of the bankrupt act.</p> <p>A petition for a warrant to seize the estate of an insolvent debtor, under the Gen. Sts. c. 118, § 103, which alleges that he has made a mortgage of his personal property to secure the payment of a preexisting debt to the mortgagee, with intent to secure to the latter a preference, and to defraud his creditors, the debtor being at the time insolvent and having reasonable cause to believe himself insolvent, need not allege that the mortgagee knew or had reasonable cause to believe that the debtor was insolvent.</p>

Contract upon a promissory note for $400, dated June 1, 1876, signed by Charles F. Pike, payable at a bank in Worcester to the order of the defendant, and by her indorsed. Answer: 1. That the note was indorsed at the plaintiff’s request, without consideration, solely for the accommodation of the plaintiff, and to render the note negotiable, and under an agreement that the defendant should not be held liable thereon. 2.

<p>Contract on the following promissory note signed by the defendant and indorsed by the payee: “ -$5000. St. Louis, Mo., January 11, 1877. Four months after date I promise to pay to Frank T. Iglehart, cashier, or order, at the banking-house of Bartholow, Lewis & Co., in St. Louis, Mo., five thousand dollars for value received, negotiable and payable without defalcation or discount, and with interest from maturity at the rate of ten per cent per annum, I having deposited with him as collateral security the following described certificates of the capital stock of the Scotia Lead Mining Company, No. 40 for 25 shares, 41 for 25 shares, 42 for 25 shares, 43 for 50 shares, 44 for 130 shares and 39 for 25 shares, aggregating 280 shares. And hereby authorize him to sell the same at public or private sale or otherwise at his option, on the non-performance of this promise, without notice, and authorize him to use, transfer or hypothecate the same at his option, he being required, on payment of the amount loaned as specified herein, and at any time before said collateral security shall have been sold, to surrender the same.’'</p> <p>Trial in the Superior Court, before Dewey, J., who reported the case for the consideration of this court in substance as follows :</p> <p>The defendant offered to show that, on January 11, 1877, the parties made an oral contract, by which the plaintiff was to let the defendant have $5000 in money, less the interest for four months, and the defendant was to transfer to the plaintiff certain shares of the Scotia Lead Mining Company, and at the end of the four months the defendant was to have the right to have the stock back by paying the $5000, and, if he did not do so, the plaintiff was to have the stock absolutely, and the defendant was not to pay the $5000; that the parties were at the banking-house, of which the plaintiff was president, and he suggested that he would like to have it appear as a bank transaction, and accordingly went to the adjoining room, where was the cashier, and returned to the defendant with the note declared on; and that the same was then duly 'executed by the defendant and delivered to the plaintiff, who paid him $5000, less four months’ discount. It was agreed that the note was made payable to the cashier for the accommodation of the plaintiff; and that neither the bank nor the cashier had any interest therein.</p> <p>The plaintiff contended that the above offer of proof was not competent. The judge so ruled; and directed a verdict for the plaintiff for the amount of- the note less $280, for which it was agreed the stock was sold by the plaintiff after the maturity of the note. If the ruling was correct, judgment was to be entered on the verdict; otherwise, the verdict to be set aside and a new trial granted.</p>

<p>In an action against a physician and surgeon for not properly treating a wound on the plaintiff's wrist, there was evidence that the wound was a very severe one, and required a considerable degree of skill in its treatment; that the defendant lived in a small country town, and had no experience in surgery beyond that usually had by country surgeons; that an eminent surgeon lived within four miles of the defendant, and the plaintiff was physically able to have visited any other surgeon than the defendant, if so directed, but no such direction was given him. At the request of the plaintiff, the judge instructed the jury that, if the defendant had not the requisite skill and experience to treat the wound, he should have temporarily dressed it, and recommended the plaintiff to a more skilful surgeon; and also instructed the jury, against the plaintiff’s objection, that the implied contract of a physician or surgeon was that he possessed that reasonable degree of learning, skill and experience which is ordinarily possessed by others of his profession, having regard to the advanced state of the science of surgery; that the defendant was bound to possess that skill only which physicians and surgeons of ordinary ability and skill, practising in similar localities, with opportunities for no larger experience, ordinarily possess; and he was not bound to possess that high degree of art and skill possessed by eminent surgeons in large cities, and making a specialty of the practice of surgery; that the rule applicable to the case was not applicable to physicians and surgeons alone, and was not confined to other members of the learned professions; hut it was equally applicable to all persons holding themselves out as possessing special skill in the business in which they were engaged; that a civil engineer, watchmaker, mechanic or blacksmith was subject to the same rule of law. The judge declined to instruct the jury, as requested by the plaintiff, that it was incumbent on the defendant to possess the degree of skill and learning possessed by well-educated surgeons; and that the average degree of skill and learning possessed by the surgeons of this Commonwealth was not necessarily all the skill and learning which it was incumbent on the defendant to possess. Held, that the plaintiff had no ground of exception.</p>

<p>On a complaint, under the Gen. Sts. c. 70, § 5, by a town against a father for the support of his adult pauper daughter, it may properly be found that he is of “ sufficient ability ” to contribute to such support, where the value of his entire property, above his debts, is between §5000 and §6000, notwithstanding he is in poor health, unable to do hard work, has a wife and infant child dependent upon him, and his* income, although he has lived in a prudent manner, is, and has been for some years, less than his expenses.</p>

<p>Appeal by Mary E. Pierce, guardian of Joanna K. Prescott, from, a decree of the Probate Court, requiring her to charge herself in her final account with certain sums of money not included therein, and disallowing certain alleged credits. Hearing before Fndieott, J., who reported the case for the determination of the full court. The facts appear in the opinion.</p>

<p>Under the Gen. Sts. c. 70, the overseers of the poor of a town have authority to bind the town by a contract for support to be furnished in another town to a pauper whose settlement is in the former town, but who, at the time the contract for his support is made, is too ill to be removed to the town of his settlement.</p> <p>A contract made on the Lord’s day by the overseers of a town for the relief of a sick pauper is not in violation of the Gen. Sts. c. 84, § 1.</p>

<p>Petition by James M. Watson, Edward W. Watson and Albert M. Watson, for the partition of certain lands on Clark’s Island in the harbor of Plymouth, formerly owned by the grandfather of the petitioners, who was the great-grandfather of the respondent, and who died intestate; and which by various conveyances had become the common and undivided property of the petitioners and of an uncle of theirs, in the following proportions : James, six forty-eighths; Edward, seven forty-eighths; Albert, six forty-eighths; and the uncle, twenty-nine forty-eighths ; and so continued at the death of the uncle, who left a will, which was duly admitted to probate on October 9, 1876, and contained the following provisions :</p> <p>“ 8. I give to my nephew, Edward W. Watson, the sum of fifty dollars, and my old easy-chair.</p> <p>“ 9. I give to my nephew, James M. Watson, my boat called the Albert Mortimer, and her outfit. Also one bedstead, one mattress, two pillows, two sheets, two blankets, one large silver spoor. 3 5 wooden chairs, one cane-bottom roundabout, the furniture which belonged to his aunt, Eliza, six hens and a cockerel, and one cow called the Marshfield cow. I also give, devise and bequeath to the said James M. Watson my share in the salt-marsh lot at the Gurnet, and all my right, title and interest in and to two acres and twenty rods of land on said Clark’s Island, lying in the cedar field, so called, and adjoining his homestead; to have and to hold the same to him, his heirs and assigns, in fee simple forever.</p> <p>“ 10. I give, devise and bequeath to my great-nephew, Horace Herbert Watson, grandson of my brother, John Watson, ten acres of pasture land on said Clark’s Island, on the northeast side of the cedar field, and adjoining the same; the lines thereof to run parallel with said cedar field, to be fenced by him at his own expense; to have and to hold the same to the said Horace Herbert Watson, his heirs and assigns absolutely and in fee simple forever. I also give to said Horace Herbert one large silver spoon.</p> <p>“11. I give to my nephew, Albert Mortimer Watson, all my farming utensils, live stock, and crockery ware, not hereinbefore disposed of, absolutely and for his own use.”</p> <p>“ 13. I give, devise and bequeath to my said nephew, Albert Mortimer Watson, the elder of that name, the use, income and improvement of all my real estate situated on said Clark’s Isl- and, saving and excepting herefrom the parcels of land herein before devised to James M. Watson and Horace Herbert Watson by articles 9 and 10 respectively; to have and to hold the same for and during the term of his natural life,” with remainder to his son, Albert M. Watson, Jr., in fee.</p> <p>The petitioner Albert was also appointed executor of the will, and took out letters testamentary, but has settled no account in the Probate Court.</p> <p>All the petitioners received the legacies, and James entered upon the lands devised to him, under the will, except that Edward did not receive the chair bequeathed to him; and at the time of receiving the legacies, and entering upon the lands, they were aware of the provisions of the will, but were ignorant of the alleged rule of law that, if any person shall take any beneficial interest under a will, he shall be held thereby to confirm and ratify every other part of the will; and they received the legacies, and entered upon the lands, in ignorance of the law, and without consulting counsel. ■</p> <p>The petitioners were first informed of that rule of law, about the middle of November 1877, by their counsel, after an interview between him and the counsel for the' respondent, by whom he was informed that he contended that such was the law; whereupon Edward, to whom no land was devised under said will, immediately returned the legacy received by him to the executor, with this statement in writing and signed: “I have just been informed that I cannot claim rights as a tenant in common of the land claimed by Horace H. Watson, if I conclude to take the legacy of fifty dollars. I therefore notify you of my election not to take the legacy.”</p> <p>In the petition, the petitioners respectively claimed the shares belonging to them at the death of their uncle as above stated, and Albert also claimed a life estate in the share belonging to the uncle, and it was alleged that Albert’s son was entitled to the remainder in this share. Notice was issued to Albert’s son, and a guardian ad litem appointed for him; and to Horace H. Watson, who filed an answer, denying that the lands described in the petition were owned in common by the petitioners, and alleging that ten acres thereof, being those described in the tenth article of the will, were owned by him in severalty.</p> <p>At February term 1878, the case was submitted by all the parties to the judgment of the Superior Court, upon the facts above stated, with this memorandum above the signature of the petitioners’ attorney: “ The petitioners do not hereby waive the right hereafter to elect, upon a decision of the law, if they should desire.” Allen, J. gave judgment for the respondent Horace H. Watson as to the parcel claimed in his answer; and judgment for the petitioners for partition of the residue of the land. The petitioners appealed to this court.</p>

Writ oe entry to recover a parcel of land in Dartmouth. Plea, nul disseisin, with a disclaimer as to a part of the demanded premises; and a specification that the title to the rest of the premises was put in issue and tried in a former action between the same parties. At the trial in the Superior Court, before Pitman, J., the jury returned a verdict for the tenant; and the demandant alleged exceptions. The facts appear in the opinion.

<p>In an action by the executor of A. against a savings bank to recover money deposited by A., it appeared that, after depositing in his own name and on his own account all that he was allowed to by the rules of the bank, A. made three other deposits as trustee, one of which was in trust for his only son by name, and the others in trust for his two grandchildren by name; that for these deposits he took separate bank books containing entries of the same, which after his death were found among his effects, having never been delivered to the persons named or to any one else for them; and that A. continued during his lifetime to collect, receipt for and use, as his own, all dividends declared upon these deposits. A by-law of the bank provided that “no person shall receive any part of the principal or interest, without producing the original books, in order that such payments may be entered thereon;” and another by-law provided that “ any depositor, at the time of making his deposit, may designate the person for whose benefit the same is made, which shall be binding on his legal representatives.” The son and grandchildren of A., who appeared as claimants of the money under the St. of 1876, c. 203, § 19, offered to prove, in addition to the facts above stated, that A. had said to each of them, at different times, “ that he had put this money in the bank for them; that he wanted to draw the interest during his lifetime; and that after he was gone they were to have the money.” Held, that the evidence offered was admissible; and that, upon all the evidence, a jury would be justified in finding that A. had fully constituted himself a trustee for the claimants.</p>

Contract for goods sold and delivered. Answer: 1. A general denial. 2. The statute of frauds. At the trial in the Superior Court, before Hoelewell, J., it was admitted that the goods were sold and delivered to Mrs. Dewire, under the circumstances hereinafter stated; and that the plaintiffs’ books showed that the goods were charged to her, and that what payments had been made were made by her.

Writ of entry, dated April 15, 1878, to recover a parcel of land in Attleborough. Plea, nvl disseisin. The tenant also filed a claim for improvements. In the Superior Court, after a finding for the demandant, the case was referred to an assessor to hear and report the evidence upon the claim for improvements.

<p>Replevin of a cow. The answer denied the plaintiff’s title. Trial in the Superior Court, before Pitman, J., who reported the case for the consideration of this court, in substance as follows :</p> <p>The plaintiff, to prove her title, called her husband, who testified that, in March 1876, he bought, for $75, a cow and two calves, one of which had become the cow in question, of Ralph King, for the plaintiff, his wife, as her property; that he agreed to cancel or release a debt of $40 then due from King to him, and his wife was to pay the balance, to amount to the sum of $75, which was to be the price of the cow and calves; that she did pay the said balance of $35, and received from King at the time the following bill of parcels or memorandum: “ Freetown, March 10, 1876. Sold to Rebecca McGowan one cow and two calves for the sum of seventy-five dollars. Received payment. Ralph King.”</p> <p>This was all the evidence offered by the plaintiff to prove her title; and the judge thereupon ruled that, as matter of law, the title was' not in the plaintiff, and directed a verdict for the defendant. If the ruling was erroneous, the verdict was to be set aside, and a new trial granted; otherwise, judgment on the verdict.</p>

<p>A. sent goods to B., to be purchased by Mm or sold on A.’s account, as B. should elect. In an action of replevin by A. against B. for the goods, A. put in evidence tending to show admissions on the part of B. that he received the goods on consignment merely. Held, that B. was properly allowed to testify that, when he received A.’s letter, he decided to purchase the goods.</p>

<p>In an action by a woman for breach of a promise of marriage, alleged to have been made in 1875, rescinded by mutual consent in 1878, and renewed the same year, the answer admitted the malting of the contract in 1875 and its rescission, but denied its renewal. Held, that the plaintiff had no ground of exception to the rejection of evidence, offered by her, that in 1839 and 1840 she and the defendant were attached to each other, but not engaged to be married; that each soon after married another person; and that, while so married, there were friendly relations between them.</p> <p>In an action for breach of a promise of -marriage, the plaintiff’s evidence tended to show a written contract, a subsequent rescission of it by mutual consent, and an oral renewal of it. The jury were instructed that evidence of an express promise of marriage was not necessary to prove a contract to marry; that the renewing of a contract to marry, which has been once released, must be proved by the same evidence, in kind and amount, required to prove an original and the same promise to marry by and between the same parties. Held, that the instruction was not open to the criticism that it required the new promise to be in writing.</p> <p>In an action on a promissory note, by which the defendant agreed to pay <the plaintiff a certain sum the day he was married, it appeared that the parties, on the day of the date of the note, signed another paper by which they agreed to live together so long as they should live, and to marry as soon as they should think it safe on account of an old engagement of the defendant; and there was evidence that the agreements were afterwards rescinded by mutual consent, and the defendant married the person to whom he had been formerly engaged. The plaintiff asked the judge to rule, that, if a valuable consideration was shown, this was sufficient, however inadequate; that this with the consideration of love and affection would be a valid consideration. The judge declined so to rule, and instructed the jury that, if the note was made and delivered in consideration of an existing promise of marriage, and an agreement that he would pay the amount stated, as a penalty for not fulfilling that promise on his marriage to another, there was a legal consideration for the note, and the plaintiff might recover, if it was not subsequently released. Held, that the plaintiff had no ground of exception.</p> <p>A man signed and delivered a promissory note, by which he agreed to pay a woman a certain sum on the day he was married. On the same day, both signed an agreement by which they agreed to live together and to take care of each other as long as they should live, and to marry as soon as they should think it safe on account of an old engagement of the man. Subsequently, after a full conference, the following papers written by a magistrate at the dictation of the woman, were signed: 1st, a receipt by the man in full of all services rendered by him to the woman; 2d, a release of the man by the woman from the promise of marriage, and an agreement not to interfere with his marrying any one else, by bringing suit against him; 3d, a receipt by the woman of the man, in full to date, for her services as housekeeper. Held, in an action by the woman against the man for breach of the two agreements first made, that she had no ground of exception to the submission of the question to the jury whether these agreements were not intended by the parties to be annulled by those subsequently made.</p> <p>If the parties to an executory contract of marriage mutually release each other from its performance, and subsequently enter into a new contrac t of marriage, this does not annul the release of the former contract.</p> <p>A man and a woman executed a written agreement by the terms of which they agreed to live with each other as long as they both should live, to take care of each other, and to marry as soon as they should think it safe on account of an old engagement. Subsequently the woman released the man from the promise of marriage, and agreed not to interfere with his marrying any one else. The man thereupon married another woman. Held, that the release was necessarily an abrogation of the former contract.</p>

Trustee process. Writ dated August 22, 1878, and served the same day.

<p>In an action of replevin of household furniture, the plaintiff claimed the property under a bill of sale from A.; the defendant also claimed under a bill of sale, dated a month later, from A., whom she subsequently married; the property remained in the possession of A. until his death two years afterwards; the defendant took her bill of sale without notice of the sale to the plaintifí. The jury returned a verdict for the plaintiff. Held, that the verdict showed that the jury must have found that the plaintiff was entitled to the property under a valid bill of sale, and had not waived or lost any of his rights under it; that the plaintiff could maintain the action without a previous demand; and that the defendant’s exceptions to a ruling that her bill of sale became inoperative and void by her marriage with A., and to a refusal to rule that, the action having been brought within forty days after the death of A., it was prematurely brought, became immaterial.</p>

Petition to the Second District Court of Bristol to enforce a mechanic’s lien. The Fall River Savings Bank, mortgagee of the premises on which the lien was claimed, appeared and filed a motion alleging that the title to real estate was brought in question and praying for a removal of the cause to the Superior Court under the Gen. Sts. c. 120, § 13; which motion was granted.

Petition, filed June 12, 1877, to the Superior Court for a writ of review of a judgment recovered in that court by the defendant in review against the plaintiff in review.

Contract upon an account annexed for goods sold and delivered. Answer, a general denial.

<p>Pending an appeal from the probate of a will, by which the entire estate of the testator was ’devised to a charity, the person named as executor and the heirs at law and next of kin of the testator made an agreement of compromise, which was afterwards ratified by this court, in November 1874, on a petition in equity, under the St. of 1864, c. 173, by the terms of which the executor was to pay immediately to the counsel employed in the case a certain sum as counsel fees; to trustees, to be appointed by the Probate Court to carry out the charity created by the will, a certain sum; after payment of debts and charges of administration, to pay the residue, not exceeding a certain sum, to the next of kin; and, if anything remained after such payment, to divide the same between the trustees bf the charity and the next of kin, in a certain proportion. The executor subsequently declined the trust, and administrators with the will annexed were appointed in March 1875, who in July of that year paid the trustees of the charity, who were appointed in the preceding April, the amount named in the agreement. After the payment of debts and charges of administration, the residue in the hands of the administrators was less than the sum which by the agreement was to be paid to the next of kin. Held, that the trustees of the charity were not entitled out of this fund to any interest on the sum paid to them.</p>

<p>Contract upon a promissory note for $800, dated December 20,1870, signed by the defendant, payable to the plaintiff, or order, and secured by a mortgage of real estate. Answer, a payment of the note by virtue of the purchase, by the plaintiff, through her agent, of the mortgaged estate at a sale under the power contained in the mortgage, for the full amount of the note and all expenses. After the former decision, reported 124 Mass. 481, the case was tried in the Superior Court, before Gardner, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The only question for the jury was whether one Baker, the agent of the plaintiff to foreclose the mortgage, was authorized to purchase for her in the manner he did. Several letters, being the correspondence, before and after the sale, between the plain tiff and Baker relating to the matter, were put in evidence, one of which, dated December 8, 1875, written by the plaintiff, contained the following: “Please foreclose the mortgage as soon as convenient; ” another, also written by her, dated December 29, contained the following: “ A year’s interest was due December 20, and it seems to me that sufficient forbearance has been exercised. I have been waiting for that money to pay the remainder of my taxes, and the interest is accumulating there too. So, if you will advertise the property as soon as possible, you will greatly oblige me.”</p> <p>The brother of the plaintiff testified that, prior to the sale, he went for her to Baker, and asked him if he had foreclosed the mortgage, as she wanted the money; that Baker said the sale was advertised and was to take place on a day named; and that the note amounted to about $900, and he, Baker, did not suppose the plaintiff wanted the estate to go for less than that amount; that the witness said he did not know anything about it, that his sister said she wanted the money; that Baker asked him, if he saw his sister before the sale, to ask her if she wanted the property sold for less than the amount of the note; that he replied that he had no authority, but thought that Baker had better not let it go for less than the full amount due; and that he did not see his sister afterwards, and had no more talk with Baker. The plaintiff also testified that she never had any talk with her brother about what should be bid for her, or what she would let the estate go for. Baker and his clerk, to whom the property was struck off as agent for the plaintiff, so as to make a title in her, by conveyance to him under the power and a reconveyance by him to her, testified to the above conversation with the plaintiff’s brother; and that the brother called a few days' afterwards, and said that his sister did not wish the property to go for less than the amount of her claim. There was no other evidence of any communication between the plaintiff and Baker, and no evidence limiting or restricting any authority contained in the correspondence between them. The defendant did not contend that Baker was the plaintiff’s general agent.</p> <p>Bilker further testified that several persons were present at the sale, and several bids were made by strangers to the title, one for $600 by a man of ample means; that, acting in good faith and with reasonable discretion, he bought the property for the plaintiff at the full amount of her claim; and that, when there were no bidders, it was not his custom to bid in the property without instructions. No question was made of Baker’s good faith, or that he did not act according to his best judgment and discretion. Liberty was given the mortgagee to purchase in the power, which was in the usual form.</p> <p>There was no other evidence upon the question of agency, excepting that the plaintiff testified that, in October 1875, she went to see Baker, and asked him to write to the defendant for the interest then due upon the note; that Baker asked her to see the defendant, which she did, and he refused to pay; that she told Baker she could not afford to lose her money, and' Baker said, “ Don’t be afraid, you shall not lose it; ” and that she had no one at the sale to bid on the property.</p> <p>The defendant asked the judge to rule, among other things, that, “ as matter of law, upon all the evidence, especially the correspondence, the agent was authorized to purchase the property for the plaintiff as he did.” The judge declined so to rule; and ruled that the two letters, in themselves alone, did nob give the agent such authority.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Contract on a bond in the penal sum of $500, executed by Allen M. Norton, as principal, and the defendants as sureties, and conditioned that Norton, who had been accused by the plaintiff of being the father of a bastard child of which she was pregnant, should appear at the time and place named therein and answer to the complaint against him, and abide the order of the court thereon.

Contract by the assignees in bankruptcy of the estate of Baldwin Coolidge to recover the salary due him as city engineer of the defendant, from July 21, 1875, to January 1, 1877. Answer, a general denial.

<p>Contract upon an account annexed for a balance alleged to be due for services as a police officer of the defendant. Answer, a general denial-. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on an agreed statement of facts in substance as follows :</p> <p>The plaintiff was duly appointed a police officer of the defendant on January 7, 1877, at the commencement of the municipal year, and was detailed for and performed regular patrol duty as night watchman until the appointment of a new police force upon the organization of the city government for 1878. He was paid at the rate of $2.25 per day of ten hours’ service, and twenty-five cents for each hour of extra service until February 12, 1877, and thereafter at the rate of two dollars per day, and twenty cents per hour for extra time, he claiming that he was entitled to receive pay at the former rate. On November 14, 1865, the city council passed a joint resolution that “the pay of the night watch shall be at the rate of two dollars and twenty-five cents per night, commencing with the 1st day of September, 1865.” In a joint resolution of the city council passed December 1,1875, fixing the compensation of city officers for the year 1876, it was provided that “the compensation of the day police and night patrolmen shall be at the rate of two dollars and twenty-five cents per day of ten hours, when employed, payable monthly, extra hours and temporary service to be paid for at the rate of twenty-five cents for each hour.” No other action appears to have been had by the city council in regard to the pay of the day or night police. From September 1, 1865, to February 12, 1877, the patrol police were paid at the rate of $2.25 per day and twenty-five cents for each additional hour of service.</p> <p>On February 12, 1877, the board of mayor and aldermen adopted the following order: “ That the pay of the regular day and night patrol shall be two dollars per day and twenty cents per hour for all extra time that they may be employed.” Of this order the plaintiff had due notice.</p> <p>Since the organization of the city government under its charter in 1853, the police force has heen appointed and reconstituted at the commencement of each municipal year, and has consisted of a regular day patrol and a regular night patrol.</p> <p>Section 8 of the city charter provides as follows: “ The executive power of the said city generally, and the administration of the police, with all the power heretofore vested in the selectmen of Lawrence, shall be vested in and may be exercised by the mayor and' aldermen as fully as if the same were herein specially enumerated. The mayor and aldermen shall have full and exclusive power to appoint a constable and assistants, or a city marshal and assistants with the powers and duties of constables, and all other police officers, and the same to remove at pleasure. . . -. All other powers now vested in the inhabitants of said town, and all powers granted by this act, shall be vested in the mayor and aldermen and common council of the said city, to be exercised by concurrent vote, each board to have a negative upon the other.”</p> <p>If, upon the above facts, the plaintiff was entitled to recover $2.25 per day, and twenty-five cents per hour for extra service, from and after February 12, 1877, during the rest of his employment, judgment was to be entered for him in the sum of $100 and interest; otherwise, judgment for the defendant.</p>

<p>Tort, under the Gen. Sts. c. 88, § 59, to recover double the amount of the damage sustained from the bite of á dog. The case was submitted to the Superior Court, and, after judgment for the ’defendant, to this court, on appeal, on an agreed statement of facts in substance as follows :</p> <p>The plaintiff, in pursuit of legitimate business, went to the poor-farm owned and used by the defendant, and was there bitten by a dog, which was owned by and licensed in the name of John W. Virgin, the superintendent of that farm. The dog was kept at the farm and in the apartments of the superintendent, with the knowledge of one of the overseers of the poor of the city, and, without objection by him, was fed with food furnished by the defendant for common use at the farm, and during a portion of the time was allowed the run of the farm. The superintendent was employed by the defendant, through the overseers of the poor, to superintend the management and working of the farm, subject to their order and approval, receiving therefor a stated salary, with house-rent and provisions for his family, and had a suite of rooms assigned to his family at the farm in a portion of the main house separate and apart from the paupers. The plaintiff was bitten in the entry of the superintendent’s apartments, while walking towards that portion of the house.</p> <p>If, upon the above facts, the plaintiff was entitled to recover, damages were to be assessed by a jury; otherwise, the plaintiff was to become nonsuit.</p>

Contract upon four promissory notes, signed by the defendant, payable to the plaintiff, or order, on demand, and dated, respectively, October 19, 1861, December 14, 1861, February 19, 1862, and August 15, 1862. Writ dated July 23, 1877. Answer, the statute of limitations.

<p>Contract against a common carrier to recover the value of an oil painting, the portrait of the plaintiff’s father. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows :</p> <p>The portrait was delivered by the plaintiff to the defendant at Lawrence, boxed in a rough board case, to be carried "with a large amount of household furniture over the defendant’s road, and other roads connecting with it, to Providence, Rhode Island.</p> <p>The plaintiff put in evidence the written contract of transportation with the defendant, dated September 17,1875, which enumerated the goods received from the plaintiff, marked “ H. H. Green, Philadelphia, Penn., via Clyde Line from Providence,” agreed to deliver them to the plaintiff, or order, at the defendant’s depot in Providence, and contained the following provision: “ No responsibility will be admitted, under any circumstances, to a greater amount upon any single article of freight than $200, unless upon notice of such amount, and a special agreement therefor. Specie, drafts, bank-bills and other articles of great intrinsic or representative value, will only be taken upon a representation of their value, and by a special agreement assented to by the superintendent.” No notice of the contents of the case was ever given to the defendant, and the defendant had no knowledge of its contents until a claim was made for its loss, and no special agreement other than the above contract was made.</p> <p>The plaintiff testified that he had never received the portrait; that, about two months after the goods were delivered to the defendant, he had a conversation with Abiel Rolfe, the defendant’s freight-agent at Lawrence, who said that the defendant had been trying to find the missing case, but so far was unable to do so; that “we or the Clyde Line will have to pay for it,” and “we have delivered it to the Clyde Line.” This conversation was admitted, against the defendant’s objection. The plaintiff also testified, against the defendant’s objection, that he had no other portrait of his father.</p> <p>One Tabor testified, for the plaintiff, that he had charge of the railroad freight of the Clyde Line in Providence in 1875 ; that he unloaded the cars containing the plaintiff’^ goods on September 23, 1875, on the wharf of the Clyde Line at Providence; that he could not now remember how long the cars had been on the wharf before he unloaded them; that he did not know whether, when he went to unload them, the doors of the cars were fastened or not; that the case described by the plaintiff was not in the cars with the other goods of the plaintiff, and he never saw the case; that the wharf of the Clyde Line was about two hundred feet long by sixty feet wide; that it was enclosed by a high board fence, and the gate was securely locked at night; and that a watchman was at all times upon the wharf.</p> <p>Abiel Rolfe testified, for the plaintiff, that he was the freight agent of the defendant at Lawrence; that he had no doubt he signed the contract of shipment; that he attended personally to the loading of the plaintiff’s goods, which were put into two cars; that he remembered the case described by the plaintiff; that the car doors were closed and secured by nailing strips of board behind them, so that they could not be opened without removing the strips; that the cars went over the defendant’s road to Ayer Junction, thence over the Nashua & Worcester Railroad to Worcester, and thence over the Providence & Worcester road to their depot in Providence; and that the defendant had no depot in Providence. He was then asked, by the defendant, if he had any authority to take such goods as this case contained. This question was objected to by the plaintiff, and excluded.</p> <p>The plaintiff also put in evidence two letters to him, one from Rolfe, and the other from J. S. Lincoln, the general freight agent of the defendant. The letter from Rolfe, dated January 10,1875, stated that the cars were not opened until they arrived in Providence; and that the writer was convinced that the case was somewhere between Providence and Philadelphia, or in Philadelphia. It also contained this sentence: “ We, of course, have to account for the case, but would ask you to delay a short time longer, in order to give further opportunity to look for it.” The letter from Lincoln, dated January 28,1876, was as follows: “ Your favor of 6th and 18th, relative to loss of a box from the shipment of your household goods, from Lawrence, Sept. 17th, is received. I have traced the line of roads from Lawrence to Providence, for this missing box, and am well satisfied it was delivered with the other goods to the Clyde Line at Providence; this freight left Lawrence 3.20 P. M. on the 17th of Sept., and was delivered to Clyde Line at 3 p. m. on the 18th, in season for the boat of that date, which was Saturday, and the goods were not forwarded until the next Wednesday, or the 22d, they remaining in the cars on the track, from the afternoon of the 18th, notwithstanding the tracer is indorsed by them ‘no delay at Providence,’ and I must respectfully refer you, for the adjustment of your claim, to the agent of the Clyde Line.”</p> <p>The defendant put in evidence tending to show that the cars were not opened between Lawrence and Worcester, or between Providence and the wharf of the Clyde Line at that place; but there was no evidence from any one who accompanied the cars from Worcester to Providence. The plaintiff made no claim to recover an amount exceeding $200.</p> <p>The defendant asked the judge to rule as' follows: “ 1. Wo notice or representation of the contents of the box claimed to be lost, nor any representation of the value of the oil painting contained in said box having been given to the defendant, and no special agreement for its transportation having been made, the defendant is not liable under the contract produced by the plain tiff. 2. Under the contract put in by the plaintiff, he cannot recover for the oil painting, unless he made representation of its value, and without a special agreement assented to by the superintendent. 3. By the contract shown by the plaintiff, the defendant was not bound to deliver any of the goods mentioned in said contract except at their freight depot in Providence, or at the depot in Providence of the connecting road by which said goods were forwarded. 4. The mere fact that the goods were not received by the Clyde Line of steamers from Providence is not evidence that the goods were lost before they arrived at the depot in Providence. 5. The plaintiff can recover only a fair market value of the article lost. 6. There was no evidence of the loss of the case between Lawrence and the depot at Prov idence.”</p> <p>The judge declined to give any of the above rulings except the third; as to the fourth, he declined to give it, on the ground that the defendant was not entitled to a ruling as to the effect of a certain fact alone, when the same fact was accompanied or surrounded by other facts and circumstances in proof; and full instructions were given which were not excepted to.</p> <p>The jury returned a verdict for the plaintiff for $200; and the defendant alleged exceptions.</p>

<p>Proceedings of composition under the U. S. St. of June 22, 1874, § 17, followed by payment or tender of the sums due, bar the rendering of any judgment against the debtor personally in an action by a creditor, whose debt is described in the statement of the debtor, and would be barred by a certificate of discharge in bankruptcy.</p> <p>The St. of 1875, c. 68, authorizing the entry of a special judgment for the purpose of charging the sureties on a bond given to dissolve an attachment, if the de fendant is “ adjudged a bankrupt,” and the attachment is " not made within four months next preceding the commencement of proceedings in bankruptcy,” does not warrant the entry of such a judgment when the attachment is made within the four months, and there is no assignment in bankruptcy, and the debtor is discharged by proceedings of composition under the U. S. St. of June 22, 1874, § 17, whether he is or is not adjudged a bankrupt.</p>

Contract in three counts. The first count was on a written contract, by the terms of which the plaintiff agreed to lay all the concrete required on “ Section A” of the Sudbury River conduit for the sum of seventy-five cents per cubic yard, and to furnish all tools and labor necessary to do the work; the defendants agreed to furnish the materials for the work, which was to be done according to the plans and specifications for “Section A,” and to the full satisfaction of the…

Tout for fraudulent representations by which the plaintiff was induced to give his promissory note for $1000 payable to James H. Langley. Writ dated April 7, 1874, returnable to the Superior Court, against Langley and Jesse F. Alderman as principal defendants, and the Boston Five Cents Savings Bank as trustee.

<p>Tort for the conversion of a horse. Trial in the Superior Court, without a jury, before Putnam, J., who found the following facts:</p> <p>In October 1875, the plaintiff, who lived in Nahant, agreed with the defendant, who kept a livery-stable and riding-school in Boston, that the latter might take the plaintiff’s horse to Boston and have the use of him until April 1, 1876, unless the plaintiff in the mean time sold the horse or took him away. The defendant was to have the use of the horse for his board and keeping, but he was to use him only in the ring in his riding-school, and was not to use him on the road. • It was further agreed between them that the defendant might have the right to sell the horse for the plaintiff if he could do so, paying to the plaintiff the sum of $250 out of the purchase money, and retaining the balance, if any, himself. The defendant took the horse to Boston and put him into his livery-stable upon these terms. In March 1876, the defendant let the horse for hire, to be used upon the road for pleasure driving, to a person who rode him under the saddle, and, while being thus used, the horse ran away and was killed.</p> <p>Upon these facts, the defendant contended, and asked the judge to rule, that the action would not lie. The judge declined so to rule, found that there was a conversion, and ordered judgment for the plaintiff. The defendant alleged exceptions.</p>

<p>Tort against the sheriff of Essex for the alleged wrongful act of his deputy. After the former decision, reported 125 Mass. 154, the case was tried in the Superior Court, without a jury, before Pitman, J., who found the following facts:</p> <p>The plaintiffs attached certain personal property on a writ against W. W. Phillips and Edward Martin, as copartners, doing business under the name of Henry Phillips, on March 24, 1875. It was afterwards sold on mesne process, on a prior attachment, on a writ in favor of Edward Martin against Henry Phillips, which last-named writ was never entered in court. The plaintiffs recovered judgment against William W. Phillips and Martin, in the Superior Court for the county of Suffolk, at January term 1876, .and placed the execution duly issued thereon in the hands of the defendant’s deputy, and requested him to apply the proceeds of the personal property in satisfaction of the execution. This he declined to do, except in part, but first applied the same in satisfaction of an execution issued from the Police Court of Haverhill on December 1,1875, upon a judgment in favor of Matthew Plumstead, Jr., recovered on ¡November 15, 1875, against Henry Phillips, William W. Phillips and Martin, as copartners, doing business under the name of Henry Phillips. Plumstead’s writ was dated March 24, 1875, and commanded the officer to attach the property of Henry Phillips; and thereon, upon March 24, prior to the attachment in the suit of the plaintiffs against William W. Phillips and Martin, the deputy did attach the personal property as the property of Henry Phillips. Subsequently, and before judgment in the action, by leave of the Police Court, and without notice to the plaintiffs, Plumstead amended his writ and declaration by declaring against Henry Phillips, William W. Phillips and Martin, as copartners, doing business under the firm name of Henry Phillips.</p> <p>In the fall of 1872, Henry Phillips, in person, made the first purchase of Plumstead, informing him that the business was his, and he alone was responsible; that the business would be carried on by William W. Phillips in the name of Henry Phillips; and that William W. Phillips did the work of the store for him. In the spring of 1873 the partnership between William W. Phillips and Martin was formed, and at that time Henry Phillips revoked William W. Phillips’s agency, and directed him not to further use his name, and had no more connection with, nor knowledge of. the business or the name in which it was carried on by William W. Phillips and Martin; but gave no notice of any change to Plumstead, who, without notice or knowledge of- the change, continued to sell goods and charge them, as he had before, to Henry Phillips; and the debts of the plaintiffs and of Plum-stead, on which their judgments were obtained, were contracted in the name of Henry Phillips, who had no interest in the attached goods, which was not known to Plumstead. The goods sued for and those goods attached were sold by Plumstead in good faith on the credit of Henry Phillips; but Henry had other property.</p> <p>Upon these findings, the plaintiffs asked the judge to rule that the relation of Henry Phillips to William W. Phillips and Martin, as to Plumstead, was that of principal and agent, and not that of partnership; that if Henry Phillips was liable at all, he was liable individually as principal, and William W. Phillips and Martin, if liable at all, were liable as agents, but that Plum-stead must elect to hold either the principal or the agents, and could not hold both; and that this property, being the property of the agents, could not be levied upon to satisfy Plumstead’s execution.</p> <p>The judge declined so to rule, ruled that the plaintiffs were not entitled to recover, and ordered judgment for the defendant. The plaintiffs alleged exceptions.</p>

<p>Tort for assault and battery. At the trial in the Superior Court, before Allen, J., the plaintiff offered evidence tending to prove that he was struck upon the head by the defendant with the butt of a whip; and called Luther B. Morse, a physician, who testified that he attended the plaintiff immediately after the injury. The witness was then asked by the plaintiff, against the defendant’s objection, whether there were any complaints of suffering made by the plaintiff at the time. The judge allowed the witness to testify to such complaints made as statements of symptoms to him as attending physician. The witness also testified that he attended upon the plaintiff for several weeks after the injury, making several visits during that time. He was then asked by the plaintiff, against the defendant’s objection, whether there were indications or symptoms of suffering during those visits. The judge allowed the question to be put, and the witness testified to such indications.</p> <p>The plaintiff testified in his own behalf; and, to affect his credibility as a witness, the defendant offered in evidence a record, which showed that the plaintiff had been indicted for an assault, to which he pleaded guilty, and that, on acknowledgment of satisfaction and payment of costs, he was discharged on probation. The plaintiff objected to its admission; and the judge excluded it. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Where a lessee of a lot of land makes a lease, for the remainder of his term, of a building standing on a portion of the leasehold premises, and by the terms of the lease grants easements, appurtenant to the building, of light and air, and of passing and repassing, over other portions of the leasehold premises, in common with Mm and those claiming under him, such lease is an underlease and not an assignment of his whole term in a portion of the leasehold premises.</p> <p>The owner of two parcels of land in a city, one on S. Street, and the other on L. Street, bounded in part by the rear line of the first parcel, demised the two parcels, on the same day, by separate indentures of lease, each for the term of twenty years, to A. These indentures were duly recorded. The city then took, by the right of eminent domain, a portion of each parcel. A. then took down the buildings on each parcel, as he had a right to do under the leases, and erected a warehouse fronting on S. Street, covering all the land included in the first lease, except that taken by the city, and also covering a portion of the land included in the second lease. He also erected a building fronting on L. Street, which covered a portion of the land included in the second lease. An area was left open between the two buildings, and a passageway constructed, leading from L. Street, under the building fronting thereon, across the area to a door in the rear of the building on S. Street. Bach building had windows opening into the area, and the building on S. Street, which was higher than the other, had windows overlooking it. Subsequently A., by an indenture duly recorded and in the form of a lease, demised to K. for the remainder of the term, “the warehouse on S. Street,” giving no other description of the premises, and making no allusion to the area or the passageway, except that the instrument contained a provision that the building on L. Street should not be carried higher so as to obstruct the light, and that the occupant of the building on L. Street should have a right through the passageway. Before giving this instrument, and while the original leases had more than seven years to run, A. demised to B., for the remainder of the term, by an instrument not recorded, the building on L. Street, expressly excluding the passageway. Subsequently, the right, title and interest of A. under the leases to him were duly sold on an execution against him. The rights under the first lease were conveyed to M., and those under the second lease to a third person, who conveyed them to M. Held, in an action by M., after an entry upon the land, against K., for the rent subsequently accruing under the indenture from A. to K., that this instrument was an underlease and not an assignment; and that the action could be maintained.</p>

<p>After judgment and execution for damages and costs have been obtained and satisfied in an action against one wrongdoer, while an action is pending against a joint wrongdoer, the plaintiff is not entitled to a judgment for nominal damages in the latter action, so as to enable him to recover the costs thereof also; and the judgment and satisfaction in the first action, having been pleaded by the defendant in the second action and admitted by the plaintiff, is a bar to the latter action, and the defendant is entitled to judgment for his costs.</p>

<p>By a deed of trust, the donor gave to trustees a large sum of money, to be by them and their successors held in trust to found and maintain a museum of archaeology and ethnology in connection with Harvard College. A portion of the sum was to be invested by the trustees, and the income applied to forming and preserving a collection of antiquities ; the income of another portion was to be applied to the establishment and maintenance of a professorship of archaeology and ethnology in the college; and the remaining portion was to be invested and accumulated until it reached a certain sum, when it might be employed in the erection, upon land of the college, of a museum building, which when completed should become the property of the college, for the uses of the trust. The trustees were directed to keep a record of their doings, and to annually make a report to the president and fellows of the college, setting forth the conditions of the trust, and the amount of income received and paid out. Provision was made for filling vacancies in the board of trustees, and permission was given to obtain an act of incorporation. The trustees were also authorized to appoint a treasurer, and to enter into any arrangements and agreements with the college, not inconsistent with the terms of the trust, which might in their opinion he expedient. An agreement was subsequently proposed to be made between the trustees and the college, by which the trust funds were to be invested and managed by the college as a part of its general fund, and a proportionate part of the entire income be annually credited to the two funds first mentioned and be paid to the trustees or their treasurer, and the proportionate income of the third fund annually added by the college to the third fund until such time as the trustees should demand payment of the whole or any part of the principal or income, upon giving six months’ notice; the management of the trust funds to be held by the college in perpetuity, subject only to the right of the trustees to demand and receive the income of the two funds first mentioned, and the whole of the third fund ; and the college to invest the funds as it should see fit, and not to be responsible for any loss. Held, on a bill in equity by the trustees for instructions, that the proposed agreement as to the two funds first mentioned was inconsistent with the terms of the trust y and that the facts that the treasurer of the trustees, who had served without compensation, was about to resign, that by the plan proposed the funds would be managed without expense, and that another treasurer could not otherwise be secured without great expense, did not present a case of such exigency as to warrant the sanction of the court to the agreement.</p>

<p>If an order for intoxicating liquors is given by a person in A. to an agent of a dealer, who has a license to sell such liquors in B., and received by the agent subject to his principal’s approval, and the liquors, which were sold on credit, are put up by the seller, marked with the buyer’s name, directed to him at A • and delivered to the carrier in B., it is a sale of the liquors in B.</p>

Appeal by the heirs at law of George Chapman ñ-om a decree of the Probate Court appointing commissioners, on the petition of the Missionary Society of the Methodist Episcopal Church, to make partition of two parcels of land in Shelburne.

Writ oe entry to foreclose a mortgage of land in Plainfield. Plea, nul disseisin. At the trial in the Superior Court, before Dewey, J., without a jury, the demandant claimed title under a deed of mortgage to her from Sarah Wetherbee, whose name alone appeared as grantor.

Bill in equity, filed April 2, 1877, against the heirs of William Dobbins, alleging that, on January 19, 1872, the plaintiff executed to William Dobbins a lease of a parcel of land in Lowell for the term of ten years from date, Dobbins to pay rent at the rate of one hundred and fifty dollars a year in monthly instalments; that Dobbins died on August 6, 1873, and on September 2, 1873, his widow was appointed administratrix of his estate, and paid the rent up to January…

<p>Petition to the Probate Court, under the Gen. Sts. o. 97, § 8, to order Sophronia Granger and John W. Smith, administrators with the will annexed of Lorenzo M. Granger, to retain in their hands sufficient funds to satisfy the petitioner’s claim against his estate. The Probate Court dismissed the petition, the petitioner appealed to this court, and the case was heard and reserved by Gray, C. J., for the determination of the full court, upon a statement of facts in substance as follows:</p> <p>Cotton Smith by his will, which was admitted to probate August 7,1860, bequeathed to George C. Smith and John W. Smith the sum of $10,500 in trust to pay to his children the income thereof during their lives, and the principal at their death to their issue, and further provided as follows: “And I further direct that, in order to the execution of either of the powers herein granted to said trustees or their successors, the consent of both shall be necessary, and in case either of said trustees shall decline to accept the said trust, or shall die before a full and complete execution of the same, I direct that the surviving trustee, if there shall be any, and my surviving children, or, in case there shall be no trustee surviving, then my surviving children alone, shall nominate another trustee or trustees, who shall be satisfactory to, and may be appointed by the court of probate of the said county of Hampshire; and the said trustee or trustees shall, after such appointment, have the same powers and be subject to the same restrictions in all respects as the trustees herein-before named. And in case the said surviving trustee or children shall fail to nominate as aforesaid, the said court of probate may appoint some suitable person to such office; and all vacancies among said trustees shall continue to be filled in like manner so long as such trustees shall be necessary.”</p> <p>George C. Smith arid John W. Smith accepted the trust, and on February 3, 1861, gave bonds for the performance thereof, with Thaddeus Smith and Lorenzo N. Granger as sureties, both of whom afterwards died. Lorenzo bT. Granger died testate March 27,1876; and on May 2,1876, the respondents gave bond as administrators with the will annexed, and published notice of their appointment, and his' estate has not been fully administered. In February 1879, George C. Smith and John W. Smith, still holding the trust fund, were removed by the Probate Court from the office of trustee. On March 22, the petitioner was appointed in their stead by that court, upon the nomination in writing of all the surviving children of Cotton Smith, and on March 27 made a written demand upon the trustees to deliver to him all the trust property in their hands, which they refused to do. All those children of Cotton Smith are still living, and some of them have children.</p> <p>The petitioner contended that, in virtue of his appointment as trustee, and by reason of the breach of the bond of the former trustees by their refusal to deliver the trust fund to him, he had a claim in the same amount against the estate of Lorenzo N. Granger as surety on that bond, and that, more than two years having elapsed since the bond was given, the respondents should be ordered to retain in their hands sufficient funds to satisfy his claim. The respondents objected, 1st, that the petitioner was not a creditor of their testator, whose right of action did not accrue within two years after the giving of that bond, within the meaning of the Gen. Sts. c. 97, § 8; 2d, that the appointment of the petitioner was invalid, because the will required the appointment of two trustees.</p> <p>It was agreed that, if, upon these facts, the petition could be maintained, judgment should be rendered accordingly; otherwise, the petition should be dismissed, or such other order entered as to the court should seem meet.</p>

<p>Petition to the Probate Court, by the executors of the will of Oakes Ames, to order the executors of the will of Oliver Ames to retain in their hands sufficient funds to satisfy the petitioners’ claim against his estate. The Probate Court dismissed the petition ; and the petitioners appealed to this court. Hearing before Gray, O. J., who affirmed the decree; and the petitioners appealed to the full court. The material facts appear in the opinion.</p>

Contract upon an agreement contained in the following ¿titer from the plaintiff .to the defendant, dated May 14, 1875: “We hereby propose to furnish the material and put up complete the roof and upper floor of Mill No. 1, the plan and material to be the same as upon Mill No. 2, with the following changes and additions. . . . Price for the above, twenty-five hundred dollars.

<p>The mayor and aldermen of a city have no authority, under the Gen. Sts. c. 48, or the St. of 1869, c. Ill, to include in the assessment of the cost of a sewer in one street a part of the cost of a sewer in another street, with which it connects, built several years before, and for the cost of which, at the time of its construction, no assessment was made upon the owners of estates benefited thereby; and an assessment so made may be quashed upon a writ of certiorari.</p>

<p>Contract upon a written agreement entered into on June 2, 1879, by the terms of which the plaintiff agreed to sell, and the defendant agreed to buy, á parcel of land in Leominster for $100, and an undivided half of another parcel of land in the same town for $40, the plaintiff to convey the same to the defendant within thirty days, “by a sufficient deed to give him a clear title thereto, free of all incumbrances.” The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on an agreed statement of facts in substance as follows;</p> <p>The plaintiff within the thirty days tendered to the defendant a deed of said land, properly executed and sufficient in form to give the defendant a clear title thereto, free of all incumbrances, and demanded of Mm the sums agreed to he paid therefor, but the defendant refused to receive the conveyance or pay the consideration therefor, on the ground that the plaintiff had no title to the land, or, if he had any title thereto, that the land was not free of all incumbrances, and the plaintiff could not give him such a title as the agreement required.</p> <p>The plaintiff’s title to both tracts of land was derived through a mortgage deed given by Joseph Collins, dated January 1,1876, and duly recorded, in which, in consideration of a certain sum to him paid “by Dwight B. Look and the estate of William Tilton,” the premises were conveyed “unto the said Dwight B. Look and Tilton estate, their heirs and assigns,” habendum “ to the said Look and Tilton estate, and their heirs and assigns; ” and it was provided that upon breach of condition “the said grantees, or their executors, administrators or assigns, may sell.” The plaintiff, claiming to be sole mortgagee of the whole land covered by the mortgage which had not been released, including that in question, sold the land under the power to himself.</p> <p>The plaintiff was the only surviving partner of the late firm of Tilton & Look, composed of himself and William Tilton, referred to in said mortgage, who died on December 7, 1878, leaving a large amount of personal property after paying his debts, besides his interest in the firm. At the time of Tilton’s death, the firm held a note for $2700, given to it by Collins, and secured by a pledge of railroad stock. At the date of the mortgage, Collins desired to use the stock so pledged and still held by the plaintiff, and proposed to give the latter in place of the note and stock a new note for $2700, secured by a mortgage on real estate, which the plaintiff consented to take, and the above mortgage and a note, payable to Dwight B. Look and William Tilton estate, were duly executed and delivered by Collins to the plaintiff, who thereupon transferred the stock to Collins.</p> <p>Prior to August 8,1876, the plaintiff, as surviving partner, and also being sole administrator of the estate of Tilton, had so far settled up the affairs of the firm as to have agreed with the parties interested therein that, as a portion of his share of the assets of the firm, he would take the note and mortgage made by Collins, and allow therefor the amount due thereon, and had accounted to them for the same.</p> <p>On August 8, 1876, Collins sold one of the tracts of land covered by the mortgage, but not including any part of the land in question, for $600, and paid the money to the plaintiff, who indorsed it on the note, leaving $2100 and interest due thereon, and released the land sold from the mortgage. The balance of the debt secured by the mortgage has never been paid nor the mortgage discharged.</p>

Contract upon an account annexed for money expended by the plaintiff town in the relief of Albert Walker, a pauper, whose settlement was alleged to be in the defendant town. Answer, a general denial. At the trial in the Superior Court, before Pitmcm, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the substance of which appears in the opinion.

Tort to recover the penalty provided by the St. of 1875, c. 99, § 16, for selling intoxicating liquors to Obadiah George, the husband of the plaintiff, within twelve months after written notice by her to the defendant that her husband was in the habit of drinking intoxicating liquors to excess, and requesting the defendant not to sell or deliver such liquors to him. Answer, a general denial.

Contract upon an account annexed for the price of four loom attachments. At the trial in the Superior Court, before Pitman, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the substance of which appears in the opinion.

<p>Under the Gen. Sts. c. 129, § 46, a defendant is bound to answer interrogatories as to such matters only as tend to support the plaintiff’s claim, and not as to matters which relate exclusively to his own defence.</p> <p>If matters which a defendant is not, as well as matters which he is, bound to answer, are included in a single interrogatory, under the Gen. Sts. c. 129, § 46, he is not required to take the risk of separating the two; and cannot, under a general order to make further answers, with which he has complied in apparent good faith, be defaulted for imperfections in such answers, without a specific order of the court as to the particulars in which they are insufficient, and opportunity to amend them.</p> <p>If, after interrogatories to a defendant, under the Gen. Sts. c. 129, § 46, have been filed and answered, an additional interrogatory is filed without leave of court, the defendant cannot be defaulted for not answering it.</p>

Contract, with a count in tort. The record and the clerk’s docket showed the following facts: .At the trial in the Superior Court, at June term 1878, before Brigham, C. J., the jury returned a verdict for the plaintiff. The defendant, at the same term, moved to set aside the verdict and for a new trial.

<p>A treasurer of a savings bank may direct a suit to be brought on an overdue note; and if, judgment being obtained, and land taken' on execution set off to the bank, the attorney of the bank, acting under the direction of the treasurer and of a trustee, to whom such matters have been entrusted, accepts seisin, and brings a writ of entry to recover possession of the land, it is no objection to the proceedings that a previous vote of the trustees authorizing them has not been passed.</p> <p>On the issue whether a conveyance of real estate is fraudulent as to creditors, evidence of the register of deeds for the district in which the estate lies, that he has searched the records of the registry, and found that there was no other property standing in the name of the grantor, is admissible.</p> <p>A real-estate broker and auctioneer, who has been accustomed for five years to value and sell real estate in various parts of a city in which a parcel of land is situated, and who has appraised land on the street where the land lies, is qualified to testify to the value of the land, although he has not sold land on that street.</p> <p>At the trial of a writ of entry to recover possession of a parcel of land, set off to a creditor of A. on execution, and alleged to have been previously fraudulently conveyed to the tenant by A. with the intent to hinder, delay and defraud his creditors, the tenant asked the judge to rule that, if he bought the property from A. knowing that the effect of it would be to deprive the creditors of the power of reaching the property of A. by legal process, it was not fraud at common law. The judge declined so to rule, and ruled that, if such was the fact, it was not of itself fraud at common law, but had some tendency to prove fraud; and also ruled that the demandant must satisfy the jury either that there was no real sale to the tenant, or that, if there was a real sale, it was made by A. for the purpose of hindering, delaying and defrauding his creditors, and that the tenant knew of and assisted in such fraudulent purpose. Held, that the tenant had no ground of exception.</p>

<p>Tort. The declaration contained two counts. The first was in the nature of trover for the conversion of a barn. The second was for breaking and entering the plaintiff’s close, removing a barn annexed to the freehold, and converting it to the defendant’s use. The answer contained a general denial; and alleged that the barn was the property of John H. Abbott, and was duly attached by the defendant, a deputy sheriff, on a writ against Abbott in favor of Benjamin Barker and others. The case was submitted to the Superior Court on an agreed statement of facts, which, after stating that the pleadings were made a part thereof, proceeded as follows:</p> <p>On April 2, 1877, the plaintiff executed to John H. Abbott, a bond for a deed of a parcel of land in Fall River, the condition of which recited that the plaintiff 'had bargained and sold to Abbott a certain parcel of land for the sum of $3700, and that Abbott had agreed to pay $30 a month, on the first of each month, until the whole sum with interest was paid, and was to pay taxes and insurance, with the privilege of paying the principal sum at any time and demanding a deed; and on breach of any of the conditions, the obligation was to be void.</p> <p>Abbott was in actual occupancy of the premises at the time of the alleged tortious acts of the defendant. The defendant seized the building as the property of Abbott, on a writ in favor of Benjamin Barker and others against Abbott. No question is made as to the legality of the writ and service, or that Abbott was indebted to the plaintiffs in the writ. At the time of the attachment, Abbott had defaulted in the obligations imposed upon him in the bond for a deed, in that he had not paid the taxes on the estate; but no measures had been taken by the plaintiff to evict him, or to assume possession of his estate in any way.</p> <p>The building in question was a barn built in October 1877 by Abbott on the plaintiff’s land, described in the bond, and was used for the stabling of horses. It rested upon the ground; four of the corners were supported upon large stones, which were imbedded in the soil, and on which there were sills. The floor first lay upon the stones and blocks of wood, and at some' places the soil was cleared away. The sills under the floor lay upon large stones, with two joists in the middle and running under the barn on all sides. On two sides, the sills were imbedded in the ground as they had sunk in, but not otherwise. Under the barn was an opening eighteen by ten feet, which was begun for a cellar, but which was given up on account of the leaking of water. There was no other underpinning except the above. The dimensions of the barn were about twenty-three by twenty-five feet. At the time the barn was built by Abbott, he did not ask permission of the plaintiff, nor had he asked or received from the plaintiff the right to remove the barn in case of an abandonment of the contract in the bond for a deed. When the barn was nearly done, the plaintiff visited the premises, and saw it, and made no objection to its staying on his land or being completed.</p> <p>When the defendant made the attachment, the plaintiff made a proper demand for it upon him, and the building was moved off the premises by the defendant after this demand. The attachment was made and building moved on March 7, 1878.</p> <p>On the above facts and pleadings, if the plaintiff could maintain the action, judgment was to be entered for him in the sum of 1330, with interest from the date of writ; otherwise, judgment for the defendant.</p> <p>The Superior Court ordered judgment for the plaintiff ¡ and the defendant appealed to this court.</p>

<p>Information in the nature of a quo warranta, filed August 11, 1879, by the attorney general, in behalf of the Commonwealth, and at the relation of two citizens of New Bedford; alleging that the defendant was usurping the office of chief of police of the city of New Bedford. The case, as it appeared from the information, answer, and demurrer to the answer, on which it was reserved by Soule, J., for the determination of the full court, was as follows:</p> <p>The St. of 1876, o. 80, provides that “in all cases in which appointments are directed to be made by the mayor and aider-men in any city of the Commonwealth, the mayor shall have the exclusive power of nomination, being subject however to confirmation or rejection by the board of aldermen; but if a person so nominated shall be rejected, it shall be the duty of the mayor to make another nomination within a month from the time of such rejection.”</p> <p>The St. of 1876, c. 92, entitled “ An act to amend the charter of the city of New Bedford,” provides, in § 1, that “ the mayor and aldermen of the city of New Bedford may, from time to time, appoint such police officers and constables for said city as they may judge necessary, subject to removal by the mayor; ” by § 3, authorizes the mayor and aldermen to "require any person appointed a police officer or constable to give a bond with sureties; by § 5, was to take effect upon its acceptance by the city council of New Bedford; and was duly accepted on May 4, 1876.</p> <p>An ordinance of the city of New Bedford, passed on January 7, 1879, provides that “ the police department shall consist of a chief of police, one deputy chief of police, two captains of police, and such number of lieutenants and other policemen as the city council may from time to time direct, all the members of which department shall be appointed and removed in accordance with the provisions of the charter and laws of the state; and they shall severally hold their offices until vacated by death, resignation, or until they may be removed by the mayor.” It is further provided by an ordinance of said city, that, “ whenever there is a vacancy in any of the offices aforesaid, the mayor shall nominate persons to fill them, and in case the board of aldermen shall reject any nomination for the police force made to them, the mayor shall make new nominations to fill the vacancies within two weeks after such rejection;” that “before entering upon his duties each member of the police department thus appointed shall be sworn to the faithful discharge of the duties of his appointment ; ” that “ the chief of police and the deputy chief of police and the two captains of police shall severally give bonds to the city treasurer, in amounts and with sureties to the satisfaction of the mayor and board of aldermen, for the faithful performance of the duties of their office.”</p> <p>On January 8, 1879, a vacancy existed in the office of chief of police of said city, and on that day William T. Soule, the mayor of the city, nominated the defendant to the board of aldermen. to fill such vacancy, and put the question in this form. “ Shall the nomination be confirmed? ” Two aldermen voted in favor of, and four against, confirmation. On January 23, the mayor again nominated the defendant to fill the said vacancy, and put the question in the same way. Three aldermen voted in favor of, and three against, confirmation. Eight times afterwards the mayor made the same nomination, with the same result; and on March 25, 1879, again nominated the defendant, and put the question in this form: “ Shall the nomination be rejected ? ” No objection was made to the form of putting the question; three of the aldermen voted in favor of, and three against, rejection; and the mayor thereupon declared the nomination not rejected, and announced that the defendant was appointed chief of police. No objection was made to this announcement, and the meeting thereupon adjourned without day. On March 26, 1879, the defendant took the oath to faithfully perform the duties of his office as chief of police, and gave a bond as required by law, which bond was approved by the mayor, in accordance with an order passed by the board of aldermen; and has since performed the duties of the office; and no other person is now claiming the office.</p>

<p>No exception lies to a refusal to grant a writ of mandamus to the mayor of a city to compel him to make a nomination to the board of aldermen for the office of chief of police, while a person is holding that office de facto, and no one but the incumbent is claiming it; and while an information, in the nature of a quo warranta, is pending to try his title to the office.</p>

<p>In an action to recover the penalty provided by the St. of 1875, c. 99, § 15, for the sale of intoxicating liquor to a minor, an allegation in the declaration that the defendant was licensed may be rejected as surplusage.</p>

<p>a policy of insurance against fire contained the following provisions: “ U the property he sold or transferred, or upon the passing or entry of a decree of foreclosure, or if any change takes place in title or possession, or if the interest of the assured, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, he not truly stated in the policy, the policy is void.” “ If the interest of the assured be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, it must be so represented to the company, and so expressed in the written part of this policy, otherwise the policy shall be void.” The assured at the time the policy was issued was the owner in fee of the property insured, but had mortgaged it, and also leased it for a term of years. The policy contained no statement of these incumbrances. Held, that the policy was not thereby avoided.</p>

Tort for personal injuries occasioned to the plaintiff, on January 9, 1878, by an alleged defect in a sidewalk of one of the streets in the defendant city. Answer: 1. A general denial. 2. That the plaintiff failed to give the defendant the notice required by the St. of 1877, c. 234. At the trial in the Superior Court, before Gardner, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the substance of which is stated in the opinion.

Tort for injuries occasioned to the plaintiff’s person and carriage by a defect in a highway in the defendant town. Writ dated January 29,1879. Answer: 1. A general denial. 2. That the defendant did not receive a sufficient notice of the plaintiff’s injury, as required by law.

<p>A., who was a student over twenty years of age, paid to a railroad corporation the regular price of a season ticket entitling him to transportation over its road, between two stations, for'three months. The directors of the corporation had authorized its president, upon special application, and in his discretion, to allow season tickets to be sold to students over twenty years of age, for the same term, between the same stations, for one half the price A. paid, and such tickets had been sold. Held, in an action by A. to recover of the corporation one half of the amount paid by him, that there was no violation of the St. of 1874, c. 372, § 138; and that the action could not be maintained.</p>

<p>Tort for personal injuries caused by an alleged defect in Bartlett Street, in that part of Boston formerly Charlestown. Writ dated June 24, 1875. After the former decision, reported 124 Mass. 434, the case was tried in the Superior Court, without a jury, before Allen, J., who found for the plaintiff in the sum of $2000; and the defendant alleged exceptions.</p>

<p>Bill in equity by the administrators with the will annexed of the estate of William H. Bordman, against Alexander Dewson, Edwin Gr. Walker and Eliza Dewson, to determine the distribution or disposition of the sum of $1000, held by the plaintiffs under the following clause in the will of the testator, dated Nov. 30,1841: “ To Alexander Dewson, my servant, I give a house to be purchased not exceeding in cost one thousand dollars, and an annuity during his life of one hundred dollars per annum. The house to be held in trust by Stephen H. Williams, and to be so legally placed as not to be liable for his debts, but to revert to his family on his decease; a sum of money sufficient to produce the sum of one hundred dollars interest per annum to be placed in the hands of said Williams, and the annuity to be paid to said Dewson personally.”</p> <p>The case was heard upon bill and answers, and reserved by Morton, J., for the determination of the full court, and was as follows :</p> <p>Alexander Dewson, mentioned in the will, died in May 1851,. leaving a widow, Eliza, a son named Alexander, and Edwin G. Walker, his stepson, the child of Eliza by a former husband. When Alexander and Eliza were married, this child was about three years of age, and lived with, was supported by, and formed one of the family of, Alexander from the time of the latter’s marriage to Eliza until Ms death. The testator died on June 15,1872. Williams declined to accept the trust; and no trustee has been appointed in his place. All the defendants contended that the legacy of $1000 did not lapse by the death of Alexander Dewson named therein. The son contended that that sum should be paid to him as sole heir at law of his father. The widow and stepson contended that each was entitled to one third of this sum.</p>

Bill in equity, filed October 12, 1878, by the owners of a parcel of land with a building thereon situated in Central Court in Boston, alleging that the first-named defendant was the owner of an adjoining parcel of land and of a parcel on the opposite side of the court, and the other defendants were the lessees of the same; that the defendants were erecting a bridge over the court to connect the buildings' on the two estates, whereby egress from the plaintiffs’ land would be…

<p>Under the St. of 1873, c. 360, authorizing the Eastern Railroad Company to take land for a freight station, and providing that the general railroad acts shall be applicable to and govern the proceedings, except that, instead of the county commissioners, three commissioners shall be appointed by this court to adjudicate the damages, from whose decision “an appeal to a jury shall lie ” in behalf of any owner of land taken, “ as is provided in case of lands taken for railroad purposes,” the award of commissioners so appointed is to be returned to this court; and the application for a jury, by way of appeal from their decision, is to be made, and the trial by jury had, at the bar of this court.</p>

<p>Under the statutes of this Commonwealth, rulings in matter of law at the trial of issues of fact in equity may be brought before the full court by bill of exceptions.</p> <p>In a suit in equity against a corporation to compel a certificate of stock to be issued to the plaintiff, the answer admitted that the plaintiff had been the owner of the certificate, but alleged that she had executed a power of attorney authorizing its transfer, and that it had been transferred accordingly; and a justice of this court passed this order: “ The defendant alleges that the plaintiff signed and executed an instrument purporting to be a power of attorney; and the plaintiff denies that she ever signed or executed said instrument; and-it is ordered by the court, on motion of the plaintiff, that an issue be tried by a jury of this court whether the plaintiff signed and executed said instrument.” Held, that the issue was not only directed, but framed, and that no more formal issue was necessary. Held, also, that on the trial of this issue the plaintiff had the right to open and close.</p> <p>Ro exception lies to the refusal to receive further evidence upon a point expressly admitted by the adverse party.</p>

Bill in equity for an injunction against obstructing a passageway running from Merrimack Street in Boston, by erecting the wall of a building within it. A preliminary injunction was refused; and the defendant completed the wall.

Contract against J. D. Putnam and A. E. Conant, as joint promisors upon the following promissory note: “ Boston, December 10, 1872. Four months after date I promise to pay George E. Spaulding or order ten hundred and twenty-six dollars, value received, with interest. J. D. Putnam.” Conant’s name appeared on the back of the note. Writ dated April 4, 1878.

Contract for the rent of a house in Boston from June 15, 1878, to September 3, 1878. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts in substance as follows : On September 15, 1875, the plaintiff leased the house in question to the defendant, for the term of three years from that date, rent being payable quarterly at the rate of $1100 a year.

Writ of entry to recover a parcel of land in Somerville. Plea, nul disseisin. Trial in the Superior Court, without a jury, before Putnam, J., who found for the demandant; and the tenant alleged exceptions. The facts appear in the opinion.

<p>Although the St. of 1874, c. 188, authorizes an estate not subject to a mortgage to be levied upon by sale instead of by extent, it does not authorize an estate, which is subject to a mortgage when attached, and which, at the time of the levy, is free from mortgage, to be levied upon and sold as an equity of re demption.</p>

<p>A testator, owning a large number of shares of stock in a certain railroad company, bequeathed to several persons shares of stock in that company, amounting in the aggregate to a less number than he owned at the time of making his will and at his death; and to some of these persons he also gave pecuniary legacies. To one person he directed that a legacy should be paid in the bonds of another railroad corporation at par, if he should possess them at his death. The will concluded with a residuary devise and bequest of “ all the rest, residue and remainder of my estate ” to his nephews and nieces, with a like direction for the payment in railroad bonds of the portions of the children of a brother; and a clause empowering his executors to sell all real estate and personal property, “ excepting what I have hereinbefore disposed of." Held, that the bequests of the shares of stock were specific.</p> <p>Where the reading of a whole will produces a 'conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express and formal words, the court will supply the defect by implication, and so mould the language of the testator as to carry into effect, as far as possible, the intention which it is of opinion that he has on the whole will sufficiently declared.</p> <p>A testator bequeathed personal property in trust for the benefit of his wife’s sister and her husband during their lives, as follows: During her life, to pay the net income to her semiannually; in case she should die before him, to transfer one half of the principal to a charitable institution, and to pay the income of the remainder to him during his life; in case he should die before her, then at her death to transfer the whole of the principal to the same institution. She died before her husband, and one half of the principal was paid to the institution and the other half kept in trust for him. Held, that on his death the institution was entitled to this part of the principal also, and that it did not pass to the residuary devisees; although a similar bequest for the benefit of another husband and wife contained an express direction for a transfer of the second half of the principal to the charitable institution upon the death of the survivor.</p>

<p>Contract by the administrator of the estate of Frederick A. Coburn. Writ dated February 26, 1877. The declaration contained three counts. The first count was for money had and received to the use of the plaintiff’s intestate. The second count alleged that the intestate in 1851 sent from California to the defendant the sum of $2000; that the defendant received the same, and agreed to invest it for the use of the intestate, and afterwards did invest it for the use of the intestate and received interest thereon; that the plaintiff was duly appointed administrator of his intestate’s estate and demanded payment of the defendant, who refused to pay the same. The third count was for money lent. The answer, among other defences, set up the itatute of limitations. Trial in the Superior Court, without a jury, before Allen, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiff’s intestate, who was the brother of the defendant, went from this Commonwealth to California in 1849, and resided there until his death in 1859. The defendant has always resided in this Commonwealth. The plaintiff was duly appointed administrator, and gave the usual bond and notice in September 1874, and in the spring of 1876 made a demand upon the defendant. The plaintiff relied upon evidence tending to prove that the defendant received from the intestate, in 1852, $1000 in gold, which the defendant retained and invested; and introduced no direct evidence of any contract or conditions under which the money was received, but relied upon circumstances to show the character .in which the defendant held the money.</p> <p>The defendant testified that he let the intestate have $100 to pay his passage to California; that the intestate then said to him, that, if he had good luck, he would send him as much more, and that he might send enough more to make the defendant rich; that, in 1852, the intestate sent from California about $1000 by a messenger, who delivered it to the defendant, saying, “Tour brother Frederick sent this to you,” and, at the same time, handed the defendant a letter from the intestate, saying, “ This letter will tell you what to do with it; ” that the letter had been in the defendant’s possession within about a year; that it was now lost and could not be found, though diligent search had been made for it; and that the defendant knew and could prove its contents, and had a copy of the letter. But the defendant did not offer to prove the contents of the letter.</p> <p>The defendant’s counsel put to him the following questions: “Did you suppose and believe, when you received the gold, that it was intended to be given to you by your brother in payment of the $100, which he borrowed of you, and in fulfilment of his promise which he made when he borrowed the money ? ” “ And did you so accept it ? ” And have you ever since used it in that belief ? ”</p> <p>The plaintiff objected to these questions, but not on account of their form, and the judge excluded them.</p> <p>The judge found that the intestate sent to the defendant $900, to keep and invest for him; that the defendant received the money and invested it in his own name, keeping it separate from other moneys for two or three years, and after that mingling it with his own moneys, in various investments, keeping no separate account of the principal and income, and treating it as his own.</p> <p>The defendant asked the judge to rule, that the action was barred by the statute of limitations; and that, if the action could be maintained, the defendant could not be charged with interest before the time of the plaintiff’s demand. But the judge ruled, that the action was not so barred; that the defendant received the $900 in trust to invest and keep for the intestate ; that the cause of action did not accrue against the defendant until the plaintiff’s demand upon him; and that the defendant was liable for the $900, and the income received thereon by him to the time of the demand, after deducting proper allowance for his services; and found for the plaintiff in the sum of $2362. The defendant alleged exceptions.</p>

Tort for forcibly breaking and entering a building, ejecting the plaintiffs therefrom, and depriving them of the use and occupation of the building, and for breaking the lock on the door thereof; with a count for the conversion of the building. Answer, a general denial.

Contract for $24.60, goods sold and delivered. The defendant filed a declaration in set-off for $27.20.

Tort for personal injuries occasioned to the plaintiff, on December 28, 1877, by a defect in a highway in the defendant city. Answer, a general denial. At the trial in the Superior Court, before Colburn, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which are stated in the opinion.

Contract for. breach of an agreement to purchase shares of stock in a corporation. Answer: 1. A general denial. 2. The statute of frauds. Trial in the Superior Court, without a jury, before Putnam, J., who found the following facts: The plaintiff was in the employ of a firm in Lowell, consisting of the defendant and one Walker, who, in 1875, being desirous of forming a corporation, applied to the plaintiff to take ten shares of the stock of said corporation.

Bill in equity, filed July 25, 1879, against A. L. Brown, John C. Moulton, Adams Ayer and Frederick P. Moseley, for an injunction to restrain the defendants from removing from the land of the plaintiff in Billerica certain buildings, sleepers and iron rails, placed thereon by the Billerica and Bedford Railroad Company.

<p>Bill in equity, filed May 14,1877, to compel the defendant to deliver to the plaintiff a deed of certain real estate in Stone-ham, to assign and release to him all her interest in the estate, and secure to him a perfect title therein, or, if it was not in her power to do so, to make compensation in damages'. At the hearing, Gray, C. J., dismissed the bill, with costs; and the plaintiff appealed to the full court. The facts appear in the opinion.</p>

<p>A city, having the legal right to construct sewers in its streets, is not liable in tort for all damages that may be caused by the blasting of rocks, necessary in such construction, but only for such damages as are occasioned by the carelessness or unskilfulness of its agents in doing the work.</p>

The record showed the following facts: The testator, by his will which was duly proved and allowed on July 7, 1869, contained the following provisions : “ After the payment of my just debts and expenses of the settlement of my estate, I dispose of the same as follows: 1.

Scire facias upon a judgment recovered by the plaintiff in a trustee, process, in which the defendant was summoned as trustee of Martin Flynn. The case was submitted to the Superior Court, and, after judgment for the plaintiff for $56, to this court on appeal, on the following agreed facts: “ The defendant is a manufacturer of boots and shoes, employing a number of persons, among whom was Flynn.

<p>tf a poor debtor directs an officer to obtain from a magistrate a notice to the creditor of the desire of the debtor to take the oath for the relief of poor debtors, and to have a time appointed for the hearing not later than a certain day, and the magistrate issues a notice in due form, appointing a later day, which notice is duly served upon the creditor, the debtor may repudiate the notice, and give a new notice immediately, notwithstanding the Gen. Sts. c. 124, § 14.</p>

Indictment for an unlawful sale of intoxicating liquor to Benjamin Stanley at Attleborough.

Complaint on the St. of 1879, e. 209, § 1, charging the defendants, on July 15, 1879, at Boston, with having in their possession, offering for sale and selling one dead woodcock.

Complaint, under the St. of 1875, c. 99, averring that the defendant, at Lowell, on August 31, 1879, “ that day being the Lord’s day, unlawfully did sell intoxicating liquors to a person, whose name is to your complainant unknown, the said Mc-Kiernan not having then and there any license, appointment or authority according to law, to make such sale of intoxicating liquors on the said Lord’s day.” At the trial in the Superior Court, before Gardner, J., the government…

<p>An indictment for manslaughter alleged that the defendant was a conductor, in the employ of a certain railroad corporation, in charge of a freight train, which had been run over the outward track of the corporation to a certain place, under his direction; that the corporation had established certain rules in regard to the crossing of the inward track by trains on the outward track, which rules were then in force and known to the defendant; that it was the defendant’s duty not to conduct his train from the outward track across the inward track, without first sending forward the proper signal to warn the driver of any approaching train on the inward track that he could not safely pass without stopping; that the defendant, knowing that a train on the inward track was then due and approaching, wilfully, and in a wanton, negligent and improper manner, and while the train on the inward track was then approaching and due, drove his own engine across the inward track to a side track, and attached to it certain cars, and again crossed the inward track to the outward track, leaving the switch out of line so as to disconnect the rails upon the inward track, without first sending forward any signal to warn the driver of the approaching train, in accordance with the rules of the corporation; that, by means of the premises and the felonious neglect and omission of the defendant, the driver of the approaching train did not stop, but continued on his course, and by reason of the misplacement of the switch the train was thrown from the track and a passenger killed. Held, that the allegation of the defendant’s knowledge of the approach of the train on the inward track was a material allegation, and must be proved as laid.</p>

Complaint to a trial justice-, averring that the defendant, on August 15, 1878, at Needham, “did keep a male dog, contrary to the provisions of the statute passed in the year 1868, being chapter 130 of the Acts of the General Court of said Commonwealth, passed in that year, and entitled ‘An Act concerning dogs, and for the protection of sheep and other domestic animals,’ in that he, the said Washburn, being on the first day of May, 1878, the owner of a male dog, and keeping…

<p>Indictment for the manslaughter of Margaret Fitzgerald, on September 22, 1879, at Boston.</p> <p>Trial in the Superior Court, before Pitman. J., who allowed a bill of exceptions in substance as follows:</p> <p>The government offered evidence tending to show that the defendant struck, kicked and threw Fitzgerald upon the ground, as charged in the indictment. George F. King, a physician at the City Hospital, testified for the government as to the condition of--Fitzgerald at the time she was brought to the hospital, and after she had received the alleged injuries at the hands of the defendant; and that he was present at the autopsy when it was made by the medical examiner. He was then asked to describe the condition and appearance of Fitzgerald’s body at the time of the autopsy. The defendant objected to this question, on the ground that, as the law had provided that autopsies in such cases should be made by the medical examiner for the county, and the latter was then present as a witness, his testimony was all that was competent oh that point; and that the testimony of Dr. King was not competent.</p> <p>The judge overruled the objection; and the witness testified to the places and appearance of various wounds and bruises, on matters material to the government’s case, and in some material matters varying from the testimony of the medical examiner, who subsequently testified in the case.</p> <p>Bridget Walters, a sister of the deceased, and a witness for the government, testified, on cross-examination, that she and her sister had lived in Lowell; had gone to Lowell from Salem; had come to Salem from Ireland some twenty years ago; and that her sister was a woman of temperate habits, and she had never known her to be intoxicated.</p> <p>The defendant contended, by the cross-examination of witnesses for the government and by the testimony of a medical expert upon the post-mortem appearances of the liver of the deceased, that she was a person who had the habit of drunkenness; that, at the time of the killing, she used coarse and abusive-language to the defendant; and that, by reason of intoxication, she fell upon the sidewalk, and thus received the injury which was the cause of her death.</p> <p>Mary Clark testified for the defence that she had known Bridget Walters six or seven years, and became acquainted with her when said Bridget and her husband lived at Ho. 79 Lowell Street, Boston, where they had a store, and sold provisions and liquors. She was then asked what she knew of the history of Bridget Walters, for the purpose of contradicting the latter, and showing that she was not a credible witness, and that she had not correctly stated her sister’s and her own residence, and had falsified as to her residence in Salem. The government objected to this question, and the judge excluded it.</p> <p>Mary Clark also testified that, on the morning after the deceased was injured, and before she was carried to the hospital, she called to see her, and had a conversation with her. She was then asked to state what the conversation was; to which the government objected. The defendant then stated that he proposed to show by this witness that the deceased then said to the witness that she struck the defendant, that her fall was the result of accident, and that the defendant was not to blame. The judge excluded the evidence.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>No exception lies to a refusal to give instructions which are not shown by the hill of exceptions to be applicable to the case.</p>

<p>An officer’s return on a sale of the right of a debtor of redeeming mortgaged land, which sets forth that he sent a notice of the time and place of sale, by mail, to the debtor, directed to a certain town in another county, as “ I could not find the debtor in my precinct,” is a sufficient return that the debtor was not “ found within his precinct,” within the Gen. Sts. c. 103, § 41.</p> <p>Section 16 of the Gen. Sts. c. 103, applies only to a levy on land by extent, and not to a levy, under §§ 39 and 40, on land subject to a mortgage.</p> <p>The provision in the Gen. Sts. c. 103, § 40, that the deed of an officer, of the right of a debtor to redeem mortgaged land, sold on execution, being recorded “ within three months after the sale, shall give to the purchaser ail the debtor's right of redemption,” is intended for the protection of bona fide purchasers and attaching creditors, and it is not a prerequisite to the vesting of the title in the pur chaser that the deed should be recorded within that time.</p> <p>Although, under the Gen. Sts. c. 123, § 65, a general attachment of real estate, which has been fraudulently conveyed by a debtor to a third person, is not valid against a creditor making a subsequent special attachment, yet, where the land is sold on an execution obtained by the creditor making the general attachment, and the proceeds are applied first in satisfaction of his judgment, and then in satisfaction of the judgment obtained by the creditor making the special attachment, with his consent, and both judgments are fully satisfied, the statute is no defence to a writ of entry brought by the purchaser at such sale to recover possession of the land.</p>

<p>A testator bequeathed to his wife “ all my personal property, my household effects, horse and carriages, my life insurance ” in a certain company, three mortgages of real estate, and certain bank stock, and to other persons large portions of his productive personal property. Held, that the bequest of “ all my personal property” was not a residuary bequest, but covered only property of personal use and convenience.</p> <p>A testator, who at the time he made his will, and at the time of his decease, owned two mortgages of real estate in C. executed by W., and a mortgage executed by the wife of W., in which the latter joined, releasing his right as tenant by the curtesy, bequeathed to his wife “two mortgages on real estate by W. in C.” Held, that this bequest covered only the two mortgages executed by W. and the debts secured thereby, and not the mortgage executed by the wife of W.</p> <p>A testator bequeathed to his wife “ one mortgage on H. B. of L.” He in fact owned two mortgages executed by H. B. Held, that the bequest gave to the widow one of the mortgages; and that she might elect which she would take.</p> <p>A testator bequeathed to his wife “ the bank stock I hold in the Eirst National Bank of C.” Held, that this was a specific bequest; and that the widow was entitled to the stock, exonerated from incumbrances put upon it by the testator.</p> <p>Under a bequest of personal property by a testator to his widow, “ to hold for her own benefit as long as she lives, in a manner that shall be divided equally among the heirs at her decease,” the widow is entitled to the management of it, in the absence of evidence of danger that the property will be wasted or secreted by her.</p> <p>A testator, at the time he made his will, owned one hundred and eighty shares of stock in the 0. bank. By his will, he bequeathed to each of his two daughters “ sixty shares of bank stock in the 0. bank; ” and, after the will was made, he sold all his stock in that bank. Held, that these bequests were general; and that each daughter was entitled to sixty shares of stock in the bank named, or their equivalent in money.</p> <p>A testator bequeathed to his son and his son-in-law each “ one half of my interest in lands and machinery and effects in the sash and blind factory in C.” The testator owned a large number of shares in a corporation in C. for the manufacture of sashes and blinds; and the corporation was indebted to him in a large amount. Held, that each legatee was entitled to one half of the number of shares in the corporation owned by the testator at his decease; and that they were not entitled to the debt due from the corporation to the testator.</p>

<p>If an incorporated benevolent society, whose by-laws provide for the payment of a weekly allowance to a sick member, upon the performance of certain condi:ioas by him, refuses to fulfil its contract, the member injured thereby may maintain an action at law against it, if the by-laws of the society make no provision for a tribunal to decide questions arising between the society and its members.</p> <p>The by-laws of an incorporated benevolent society provided that a sick member, upon sending to the society "every week during his sickness” a certificate signed by a qualified surgeon, stating his illness, “ shall be entitled to a weekly allowance of five dollars.” A member of the society was taken ill, in another state, and sent to the society a certificate, stating his illness and signed by a person who was in fact a surgeon in attendance upon him, but who did not describe himself in the certificate as such. Accompanying the certificate was a letter from the member, in which he spoke of it as the doctor’s certificate. No other certificate was furnished until after his return to this state about three months later, when he furnished a certificate that he had been ill since the date named in his first certificate. Held, that the first certificate was a substantial compliance with the by-law, and entitled the member to receive an allowance for one week; and that he was not entitled to any further allowance.</p>

Bill in equity, by the trustees under the will of John Ash-ton, to obtain the instructions of the court. Hearing before Morton, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.

Contract upon an account annexed against the defendants, as “copartners under the firm and style of the New England Express Company,” for work done by the plaintiff for said company in 1868. Writ dated April 1, 1872. Pearson alone defended, and filed an answer containing a general denial.

<p>Appeal by a debtor from the findings and sentence of a master in chancery upon charges of fraud filed against him by a judgment creditor, under the Gen. Sts. c. 124, upon his application to take the oath for the relief of poor debtors.</p> <p>The appeal was entered, and the master’s certificate of the proceedings before him, as well as the original charges of fraud and the plea thereto, were filed, in the Superior Court at October term 1876. At the first trial, at April term 1877, the creditor proposed to offer evidence upon all the specifications in the charges; but the judge limited the evidence to the single charge upon which the debtor had been found guilty by the magistrate; and, it being pleaded and admitted that the debtor had been adjudged a bankrupt, and that the creditor’s debt had been proved against his estate in bankruptcy, directed a verdict for the debtor, and reported the case to this court, which held both rulings to be erroneous, and ordered a new trial. 125 Mass. 47.</p> <p>At the second trial, at January term 1879, before Aldrich, J., the creditor read the master’s certificate of the proceedings before him, and moved to have the debtor defaulted, because he had failed to produce in the Superior Court copies of the charges of fraud and of the plea thereto, but instead thereof had produced the originals. This objection not having been previously taken, the judge overruled the motion.</p> <p>In the course of the trial, it appeared that the debtor had been examined on oath by the creditor’s attorney before the master, and his examination taken in writing, his answers read to him for correction, and no correction made; but that the examination was not afterwards sworn to nor signed by him. The creditor thereupon moved that the debtor be defaulted, because he had failed to produce in the Superior Court a copy of the examination so taken before the master. The judge over ruled this motion also; but, at the request of the creditor, permitted the original examination, having been produced by the debtor, to be read by the creditor to the jury as evidence, by reason of admissions therein contained, upon the charges of fraud.</p> <p>The jury returned a verdict of not guilty upon all the charges; and the creditor alleged exceptions to the refusals to grant his motions.</p>

Contract on an account annexed, for stone sold and delivered to the defendant, containing seven items. Item 1 related to stone used for a school-house in Newbury Street in Boston. Items 2-5 related to stone furnished for a school-house in King Street in Boston. Item 6 was for extra work on the last-named building, $92. Items 7 and 8 were credits.

Tort for a personal injury occasioned to the plaintiff’s intestate by the alleged negligence of the defendant corporation.

<p>Writ or entry, dated December 10, 1878, to recover a par eel of land in Boston, with an ad damnum of §12,000. The demandant, in its declaration, alleged that, “ being seised of said premises in fee within twenty years now last past, it ought to be in quiet possession thereof, but the said tenant hath since unlawfully entered and holds the demandant out.” Plea, nul disseisin. No replication or joinder of issue was filed.</p> <p>The Superior Court, at April term 1879, came in on April 1, and on May 9, when this case was called for trial, had actually been in session twenty-eight days, and the same persons had been serving as jurors during all this time. The tenant interposed the following challenge to the array: “And now comes the said Louis W. Burnham, in his proper person, when the jury is about to be empanelled to try the issue in the above-entitled cause, and says that the said jury is an illegal jury, and each juror drawn is not a legal juryman, and not competent to serve otherwise, because more than thirty days have elapsed since said jury was first empanelled to try causes at this present term, and more than thirty consecutive days have elapsed since each and every juryman upon said panel entered upon the first day of his service at this term, and that each and every of said jurors has served more than thirty days this term, if the time of service is legally computed.” No replication to this challenge was filed, nor was any suggestion made that issue had not been joined on the challenge, but it was immediately overruled by Bacon, J., upon its being read.</p> <p>At the trial, one Brown testified that he was clerk of the plaintiff corporation, and that two books which he produced were the records of the corporation kept by him. These books were not otherwise offered in evidence; but no objection was made to them as not being in evidence until the motion for a nonsuit, as hereinafter mentioned; and they remained on the witness stand during the trial, and were taken into the jury-room without the knowledge of the tenant.</p> <p>The demandant put in evidence the following deeds: 1st. A mortgage deed dated July 8,1871, with condition for the payment of $10,000 in five years, with interest, from Joseph Swallow to “the Provident Institution for Savings in the town of Boston, a corporation established by authority of the Commonwealth of Massachusetts,” of the parcel of land described in the writ, “with all rights, easements, privileges and appurtenances to the same belonging, and subject to the restrictions set forth in the original deed from the Boston Water Power Company, recorded with Suffolk deeds, lib. 843, fol. 98.” 2d. A deed from the tenant, dated April 2, 1877, reciting that “the Provident Institution for Savings in the town of Boston ” is the holder of that mortgage (describing it), and that the tenant, being the owner of the equity of redemption, “ has requested the said corporation” to grant further time for the payment of the mortgage debt; and that the “said corporation” has agreed to extend the time; and by which the tenant covenanted with the “ said corporation ” to pay the mortgage debt at the expiration of the extended term, together with accrued interest and any moneys paid by the “said corporation for taxes, insurance and other necessary charges on the mortgaged premises.”</p> <p>There was no other evidence that the demandant was a corporation, and no evidence as to the rights, easements, privileges, appurtenances and restrictions mentioned in the mortgage.</p> <p>The tenant introduced no testimony, but rested his case upon the demandant’s evidence, and asked the judge to direct a non-suit for the following reasons: “ The demandant has not proved a better title in itself. First. Because it has not shown or attempted to prove its own corporate existence. Second. Because the two- books (about which the witness Brown was interrogated) were not themselves offered in evidence. Third. Because there is a fatal variance between the writ and declaration and the Swallow mortgage in the description of the property which is the subject of the action. Fourth. Because at the time the demandant closed its evidence and rested its case, it had not joined issue with the tenant.” The judge overruled the motion for a nonsuit.</p> <p>The tenant requested the following instruction to the jury: 16 The demandant is not entitled in this case to recover for the vent of said premises of the tenant, nor for any taxes or insurance paid by the demandant, if any, because there are no allegations in the demandant’s writ and declaration to base any such claim upon.” The judge declined to give this instruction; “ but gave one of an opposite character; and told the jury not to include any taxes, because they were paid before entry for foreclosure ; and further instructed them that, as the tenant had shown no title other than naked possession, the demandant must show that his title is better than the naked possession of the tenant, and need show nothing more than such better title to entitle him to recover the possession.”</p> <p>The jury returned a verdict for the demandant, and assessed damages in the sum of $360.82; and “to all the rulings and action of the court as to the challenge to the array, to the motion for nonsuit, to the instruction prayed for, to the instructions actually given, and to the action as to the two books aforesaid,” the tenant alleged exceptions.</p>

<p>in an action for goods sold and delivered, the plaintiff’s evidence tended to show that his agent offered to sell to the defendant goods to be used in rigging his vessel; that the defendant agreed to take the goods, if a third person, who was doing the work on the vessel, approved of the order; that he did approve; that the agent thereupon wrote the name of the third person on the order; and l he goods were delivered and used on the vessel. Held, that the agent might be asked whether he wrote the name of the third person on the order at his request and direction.</p>

<p>A married woman, against whom a conditional judgment has been rendered, after she has appeared and pleaded since the St. of 1874, c. 184, § 3, on a writ of entry to foreclose a mortgage made by her under the Gen. Sts. c. 108, § 3, is estopped, on a writ of entry by her against the mortgagee or Ms grantee, to show that her deed was void for want of her husband’s assent or a judge’s approval</p>

Contract against Thomas Lord, Horace L. Gilley, and Martin W. Stiinson. Writ dated July 23, 1878, returnable to the Superior Court.

Tort for conversion. The case was submitted to the Superior Court, and, after judgment for the plaintiff for $35 and costs, to this court on appeal, on an agreed statement of facts in substance as follows: The property in question was sold by the plaintiff to one Harrigan, upon a written lease or agreement signed by him, stipulating that he should pay $5 a week until the purchase price, $45, was paid, and that the property should remain in the plaintiff until paid for.

<p>Contract for work done and materials furnished. In the Superior Court, the case was referred by consent of parties and rule of court.</p> <p>Before proceeding with the hearing before the referee, the defendant filed a suggestion in writing, that he had been adjudged a bankrupt under the bankrupt law of the United States, that the proceedings in bankruptcy were-still pending in the United States District Court, and that six months had not yet elapsed since the commencement of those proceedings; and also filed a motion that the case be therefore continued to await such proceedings in bankruptcy, and especially the event of the defendant’s discharge.</p> <p>The referee returned his award in favor of the plaintiff, subject, to the opinion of the court upon this question of law: At the hearing before the referee, the defendant objected to further proceedings, upon the ground, stated in the suggestion filed by him and which was annexed to the award, that he had been adjudged a bankrupt; and it appeared that the attachment upon the original writ had existed moré than four months before the filing of the defendant’s petition in bankruptcy. The referee overruled the objection, and ordered the defendant to proceed in the hearing.</p> <p>The plaintiffs moved for a special judgment to enable them to proceed against the sureties upon the bond given to dissolve the attachment. The defendant objected to the acceptance of the award, upon the ground that the referee erred in refusing his application to stay proceedings. Brigham, C. J., ordered the award to be accepted, and special judgment entered as prayed for by the plaintiffs. The defendant appealed to this court.</p>

Action by the assignee in bankruptcy of Arthur A. R. Bittern to recover back property conveyed by the debtor in fraud of the bankrupt act.

Contract for breach of an agreement in a deed of land to release the land from a mortgage.

<p>If a person can have a trade-mark in the words “ East Indian” in connection with the word “ remedy ” upon bottles of medicine, (which is at least doubtful,) yet if he has falsely adopted and used these words to denote, and to indicate to the public, that the medicines were used in the East Indies, and that the formula for them was obtained there, he cannot maintain a hill in equity to restrain an infringement of such trade-mark.</p>

<p>Debts due to different persons severally cannot be joined in one bill in equity under the Gen. Sts. c. 113, § 2, cl. 11.</p> <p>If a bill in equity purports at the beginning thereof to be brought by ten persons, who are named therein as plaintiffs, but is in fact signed by only two of them, without any signature, either of themselves or of counsel, in behalf of the others, it is the bill of those two only.</p> <p>This court will not take jurisdiction in equity, under the Gen. Sts. c. 113, § 2, cl. 11, of a claim for less than one hundred dollars, the amount and validity of which are not disputed; and two plaintiffs cannot, by improperly joining in one bill two such claims, which are in their nature several and distinct, both at law and in equity, compel the court to take jurisdiction thereof.</p>

<p>On the defendant’s exception to the refusal of the judge to rule that the plaintiff’s evidence was insufficient to support a verdict for him, it is not open to the defendant to object in this court that the action was prematurely brought, or to the form of the declaration, or to contend that the proofs did not correspond with the allegations.</p> <p>If rent is payable in advance on the first day of the month, no demand of the rent on the day it falls due is necessary to entitle the landlord to maintain an action therefor.</p>

<p>Tort for personal injuries. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiff was employed by the defendant to lay sewer-pipe in a trench in Union Avenue, Jamaica Plain, and, while engaged in such work, was injured by the caving in of the earth on one side of the trench. The trench was not braced; and the plaintiff contended that the accident was occasioned by the negligence of the defendants in failing to brace it.</p> <p>The defendants were performing the work under a written contract with the city of Boston, by which they undertook to dig the trenches and lay the sewers in Green Street and Union Avenue, the latter street connecting with the former. Prior to the accident, they had dug the trench and laid the- sewer as far on Green Street as its junction with Union Avenue, and had braced the trench the entire length on Green Street; but there was evidence that the soil in Union Avenue was different from that in Green Street. There was no evidence as to whether the trenches on Green Street and Union Avenue were of the same or different- depth or width. The defendants, prior to the accident, had been at work about a week on the trench in Union Avenue, and had laid the sewer for about 500 feet. No part of this trench had been braced or planked. At the place of the accident, the depth was about seven feet, the width at the bottom about eighteen inches, and at the top about three feet, and the soil was a mixture of loam and sand. There was conflicting evidence as to whether the trench should properly have been braced. The defendants admitted that, if the trench required bracing, it was their duty to brace it. The plaintiff offered in evidence the contract of the defendants with the city, which contained the following provision: “ The trenches shall be thoroughly braced and planked.” The judge inquired of the defendants if they admitted that, if the trench required bracing, it was their duty to brace it; to which they answered that they did. The judge then ruled, that, as the only ground on which the contract could be admitted was as an admission of the duty of the defendants to brace if necessary, and as that obligation was admitted, the contract should be excluded.</p> <p>The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.</p>

Contract upon an account annexed, for money had and received, being the amount of over-paid taxes assessed from 1864 to 1877 on premises leased by the plaintiffs of the defendants, Writ dated June 13, 1879.

<p>While two parcels of land are owned by the same person, there can be no use of one of them in favor of the other which will create an easement.</p> <p>If the owner of a parcel of land mortgages it, he cannot subsequently by grant create an easement in the land to the prejudice of the rights of the mortgagee. The use by the grantee of an easement, in land previously mortgaged by the grantor, does not begin to be adverse until possession is taken by the mortgagee.</p> <p>An assignment of a mortgage of land from a loan and fund association, concluding, “ In witness whereof the said association, by J. S., its president, duly authorized for this purpose, has hereunto set its seal, and the said J. S., president as aforesaid, has hereunto set his hand,” signed “J. S., President of” (giving the name of the association), and sealed, is in form executed by the association.</p>

Complaint under the mill act, Gen. Sts. c. 149. Trial in the Superior Court, without a jury, before Oolhurn, J., who ruled that the respondent was not entitled to flow the complainant’s land without compensation, and ordered judgment for the complainant. The respondent alleged exceptions, which appear in the opinion.

Contract by a member of a cooperative building association, to recover back $100 paid in as capital stock and $140 paid as instalments to the association. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on agreed facts, which appear in the opinion.

<p>A. and B., owners of mills on a small stream, and of a dam and reservoir, built for the purpose of supplying water to the mills, entered into an agreement, by the terms of which B. conveyed to A. all his interest in the dam and reservoir, together with the right of passing over B.’s land to the dam for the purpose of drawing water from the reservoir, during working hours, at the rate of fifty cubic feet per second for the operation of A.’s mill; and A. conveyed to B. the right of using said dam for the purpose of drawing water from the reservoir at the rate of fifty cubic feet of water per second “ at any and all times during working hours” for the purpose of running B.'s mill “or such other mill or mills as may be erected on his privilege.” The agreement further provided that, if A. should waste the water in the reservoir or draw therefrom at other times than working hours, so that B. should fail to have the supply of water required for his mill, the agreement should be void. At the time the agreement was made, the mills on the stream were cotton-mills, the working hours of which were eleven hours a day. B. subsequently changed his mill to a paper-mill, which ran day and night. Held, that the term “ working hours ” meant the working hours of the mills at the date of the agreement; and that B. could not maintain an action against A. for preventing him from using the water at night.</p>

Contract on an agreement in writing, signed by the plaintiff and the defendant, by which the plaintiff agreed to build a seawall, of certain dimensions, at Ferry Point in North Weymouth, “in a thorough and workmanlike manner,” to the satisfaction of the defendant, for $2 per perch, $100 to be paid on the completion of the front wall, $100 on the completion of one side wall, and the balance on the completion and acceptance of the work. Answer, a general denial.

<p>Since the St. of 1875, c. 209, an action cannot he maintained against a town on a promissory note given hy its treasurer for borrowed money, unless the vote of the town authorizing the treasurer to borrow money shows either that the debt was in anticipation of the taxes of the year in which the debt was incurred, and of the year next ensuing, and expressly made payable therefrom, or that the vote was passed hy two thirds of the legal voters present and voting at a legal meeting.</p> <p>If a town treasurer borrows money in a manner unauthorized by the St. of 1875, c. 209, the lender cannot maintain an action against the town to recover it back, although the money is used by the treasurer in payment of debts of the town.</p>

<p>A man and a woman entered into an antenuptial contract by which they were to retain their respective estates, with power to each to manage and dispose of them as they should see fit, and at their decease to have the same descend to their respective heirs, or otherwise disposed of as they might respectively order and appoint, with the proviso that in case of his death, she surviving, there should, within one year from the time of his death, be paid to her the sum of $1500 as a debt against his estate. He further covenanted that his representatives should pay her, if she survived him, the above sum within one year after his decease; and she covenanted that upon his death, she surviving, she would by deed release all interest in his estate, excepting the claim of $1500. The parties subsequently married, and the man died. The woman was never paid the sum of $1600, and there were no assets of her husband’s estate. Held, that she was barred of dower in his estate.</p>

<p>In an action by a savings bank, against two persons, upon a joint and several promissory note, the defendants cannot set off, either under the Gen. Sts. c. 130, § 8, or the St. of 1878, c. 261, the amounts severally due them from the bank.</p>

Contract for breach of an alleged covenant contained in a deed from William Williams to the defendant.

<p>It is a good defence to a promissory note, that the plaintiff, although in possession of the note, has no interest in it, and is prosecuting the action, not for the benefit of the person beneficially interested, but against lfis objection.</p>

<p>A notice to a city that a person has been injured by a defect on a certain street does not sufficiently designate the place of the injury, under the St. of 1877, c. 234, § 3, if it appears that the street named is half a mile long.</p>

Contract to recover back $200, paid on account of the pur chase money, which was $4050, of a parcel of real estate, sold by auction to the plaintiff.

<p>Contract against the defendant as residuary legatee under the will of Stephen G. Davis, upon a promissory note for $5000, dated July 15, 1874, signed by Davis, and payable to the plaintiff in three years from date, with interest. Writ dated July 13, 1878.</p> <p>Trial in the Superior Court, without a jury, before Putnam, J., who ruled that the plaintiff could not recover; found for the defendant; and reported the case for the determination of this court. If the ruling was correct, judgment was to be entered for the defendant; otherwise, judgment for the plaintiff. The facts appear in the opinion.</p>

Tort for personal injuries occasioned to the plaintiff by the negligence of the defendant’s servant. Trial in this court, before JEndicott, J., who, after verdict for the plaintiff, reported the case for the determination of the full court. The facts appear in the opinion.

Appeal by Peter Cummings from a decree of the Probate Court, allowing the petition of the appellees to have the account of the appellant, as guardian of Edward Cummings, an insane person, reopened.

Petition, under the Gen. Sts. c. 150, inserted in a writ dated May 2,1877, to enforce a mechanic’s lien for labor performed and materials furnished in the erection of a building in Mqntague, alleging that the respondent was the owner of the land; that the work was done and the materials furnished with his knowledge and consent; and that a certificate of the amount due the petitioner, containing a description of the property, and the name of the owner of the land, was filed…

Contract against Elnathan Davis and Francis G. Davis, to recover a balance of $200, alleged to be due the plaintiff, upon a contract to build a shop. The declaration alleged that the plaintiff had performed his part of the contract; but the defendants refused to perform their part.

<p>Appeal by Edward J. Blood from a decree of the Probate Court removing him from the office of guardian of the petitioners. Colt, J., affirmed the decree; and the guardian alleged exceptions, which appear in the opinion.</p>

<p>Tort for breaking and entering the plaintiff’s close in Dudley, and carrying away and converting to his own use a quantity of earth and gravel. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on the following agreed facts:</p> <p>The plaintiffs are owners in fee of a farm in Dudley, through which the town in 1816 laid out a public way, which it has ever since maintained. The defendant took and carried away the soil from the way, where it is laid out through the farm, in June 1875, and in October 1877. In 1875, E. L. Upham was highway surveyor of the district where the road lies, the town being then and ever since under the highway district system. In 1877, the defendant was himself the highway surveyor of the district. At both times the travelled road-bed, including the gutters, was ploughed lengthwise to the lines of the road banks, and the soil, which was taken and carried off, was loosened and turned up by such ploughing. The road was thus ploughed on both occasions, to lower the same and as a measure of repair thereof, and by direction of the highway surveyor for the time being. The place lowered in 1877 was a continuation of that lowered in 1875, and the entire lowering, a distance of eight rods, was on the south side of- a very steep hill, and on each side of the located road opposite the place so lowered was the mowing-land of the plaintiffs. Nearly one hundred rods south of the place lowered, at the foot of the hill, was a hollow, and the soil carried off by the defendant, if it had been used to raise the hollow, would have improved the road. The defendant in both cases put the soil so carried away by him on his own land, which adjoined the road south of the plaintiffs’ land, and was fifty rods from the place of lowering. The defendant was authorized by the surveyor, in 1875, to take and carry off the soil then removed by him, and did so under an agreement with the surveyor that the defendant might have the soil for carting it off from the road; and all was done as a part of the repairs then in progress, and with a view of clearing the road of needless material. In 1877, the defendant, as surveyor, took and carried off the soil then removed by him in his capacity as surveyor, and under the authority he possessed as such, and took the soil to his own use to pay him for carting it off from the road; and all was done as a part of the repairs then in progress, and with a view to clearing the road of needless material. In both cases the surveyor judged ¡it better for the interest of the town thus to dispose of the soil, than to use it elsewhere on the road. The soil was used by the defendant on his own land for grading purposes. In both cases the defendant used his own horse and cart and men for the removal of the soil, and charged the town nothing for the work so done.</p> <p>The first time he took eight loads of the agreed value of twenty-five cents a load, the last time he took twenty-five loads of the same agreed value per load. On these facts the court was to render such judgment as the law required.</p>

Petition to the Superior Court, under the Gen. Sts. a. 44, §§ 19, 20, for a jury to assess the damages occasioned to the plaintiff’s estate by a change of grade in a highway in the respondent town. The case was submitted to the Superior Court, and, after judgment for the respondent, to this court on appeal, on an agreed statement of facts, the material parts of which appear in the opinion.

<p>A tenant in a writ of entry, who claims under a deed.from a disseisee, and who is in possession of the land at the time the writ is brought, may set up such title in defence; and the fact that bis deed is merely one of quitclaim with limited covenants of warranty does not affect the case.</p> <p>A disseisee who enters upon the land of which he is disseised and removes a fence therefrom, against the wishes of the disseisor, is liable to an action of trespass by the latter, although the entry is made without a breach of the peace, and the effect of it, followed by abandonment of possession by the disseisor, is to give to the disseisee a good title to the land.</p>

Writ of dower. The case was submitted to the Superior Court, and, after judgment for the demandant, to this court on appeal, on an agreed statement of facts, in substance as follows: The demandant in 1832 was legally married to Luke Julian, who was seised and possessed of the demanded premises in 1837.

<p>Tort for the conversion of certain buildings. Trial in the Superior Court, without a jury, before Pitman, J., who reported the case for the determination of this court, in substance as follows:</p> <p>It appeared that the buildings in question were erected by one Ashworth, upon land of the defendant, in such a manner as to become a part of the realty but for the contract hereinafter referred to, and that they were never physically severed from the realty up to the date of the writ. At the time of their erection, which was in the spring of 1868, Ashworth was in the possession of the land under the following circumstances. He had heen previously a tenant of the defendant under a written lease, and had erected a brewery which had been destroyed by fire. On February 17,1868, the lease was cancelled by mutual consent, and a warranty deed was made and signed by the defendant, conveying the premises for a price agreed to Ashworth, and at the same time Ashworth executed a mortgage back to the defendant to secure a part of the purchase money. The mortgage deed was delivered to the defendant, but the warranty deed was not delivered. The defendant gave to Ashworth, as a part of the same transaction, a written agreement by which he agreed to deliver the deed upon receiving that portion of the purchase money not covered by the mortgage. This money was never paid, nor the deed delivered. Ashworth continued to occupy the premises under an agreement to pay defendant, quarterly, a sum equal to the quarterly interest upon the purchase money.</p> <p>Prior to the erection of the buildings in question, it was understood and agreed, but not in writing, between the defendant and Ashworth, that they were not to be the property of the defendant, but that he, Ashworth, should have the right to remove them at any time. While Ashworth was in possession of the premises as aforesaid, on October 3, 1868, he conveyed the buildings, by a bill of sale in common form and under seal, to the plaintiff’s intestate, for a valuable consideration, and she took possession. On April 7, 1869, the defendant, at the request of Ashworth, conveyed the land, by warranty deed in common form, to one King; and thereupon, and as a part of the same transaction, the agreement for a deed from the defendant to Ashworth was given up, and Ashworth gave to the defendant a release of the land “with all the privileges and appurtenances thereto belonging.”</p> <p>At the time of the deed to King, the defendant did not know of the conveyance from Ashworth to the plaintiff’s intestate. The deed to King and the deed of release to the defendant were duly recorded on April 9, 1869. King had no knowledge of the bill of sale of Ashworth to the plaintiff’s intestate. The deed to King made no mention of the buildings, but described the land by metes and bounds, and the habendum contained the usual phrase “ with all the privileges and appurtenances thereunto belonging.” The defendant had no actual possession of the premises from Febuary 17,1868, down to October 1872, when he entered to foreclose a mortgage of the estate given by King to him.</p> <p>The defendant asked the judge to rule as follows: “ 1. No title to the buildings, while annexed to the realty, could pass to the plaintiff’s intestate, as against the defendant, by the bill of sale. 2. This action will not lie against the defendant upon the evidence, even though the plaintiff’s intestate had the right of removal. 3. There was no evidence which would authorize a finding that the defendant converted the buildings.”</p> <p>The judge refused so to rule, but held, as matter of law, that, as against the defendant, the title to the buildings did pass to the plaintiff’s intestate by the bill of sale; that this action would lie upon the facts; and that the deed from the defendant to King operated as a conversion of the buildings, enabling King, a purchaser without notice, to hold the same as against the plaintiff’s intestate, as a part of the realty; and, upon these findings and rulings, found for the plaintiff, and assessed damages in the sum of $1302.40, being the value of the buildings for purpose of removal at the date of the defendant’s deed, with interest thereon.</p> <p>If there was error in the refusal to rule as requested, or in the rulings made, a new trial was to be had; otherwise, judgment to be entered for the plaintiff.</p>

<p>A town is not liable to a person, who has been visiting a public building of the town for the purpose of attending an entertainment of a society, to which the free use of the building had been given, for an injury received by falling into a trench near the building and outside of the highway; and the fact that, before the accident, the town had occasionally let the building for meetings and entertainments, is immaterial.</p>

<p>Appeal by Charles T. Jenkins from a decree of the Probate Court allowing the ninth account of the trustees under the will of Nathaniel Weston. The case was heard by Ames, J., and reported for the consideration of the full court, in substance as follows:</p> <p>The testator, in his will which was duly admitted to probate in December 1868, by the first article gave certain real estate to his widow in fee, with all his furniture. By the second article, he gave to trustees the sum of 140,000 for the benefit of the widow and children of a deceased son. The material parts of the third article were as follows:</p> <p>“ Third. To my said trustees and their executors and administrators, I give and devise all the residue and remainder of my estate upon the special trust here following. They and their successors shall keep the same, with so much of its accumulations as may be added thereto, at interest, or invested in such manner as they may judge best, with power to sell or purchase real estate at any time and to change any investment at their discretion; and they or their successors shall pay to my wife such part of the interest or income of the same as in her opinion she may need, or as she may from time to time signify to them a desire to receive, for her use or benefit during her natural life, it being my will that she shall always have at her command, so long as she shall live, as much of said interest or income as may seem to her desirable; and they or their successors shall also pay to my said son Nathaniel Weston and my daughter Lucy D. Weston five hundred dollars each semiannually during the continuance of this trust, such part of said interest or income as may not be needed to pay said sum to each of my said children semiannually, and to supply the wants of my said wife during her life, shall, from time to time, when received or when on hand, be added to said residue and remainder of my estate here given in trust.” “ As soon as may be after the decease of my said wife, my said trustees or their successor shall convey, transfer, or pay to ray son and daughter in equal shares all the estate, here given in trust, if they both survive my said wife.” “In case either of them should die in the lifetime of my said wife, leaving no issue, the said estate given in trust shall be transferred or conveyed to the survivor.” “ Having provided as above that my said wife shall receive or have at her command at all times so much of the interest or income of the estate here given in trust as she may need to meet all her wants of whatever nature that may at any time during her life arise, and so much thereof as may seem desirable to her for her own personal benefit and for all other purposes to which she may be disposed or have occasion to apply the same, it is my will that my said son and daughter remain with their mother in her family so long as may be agreeable to them, and that no charge be made against either of them for their board.”</p> <p>By the last clause of the will the persons named as trustees were appointed executors.</p> <p>The testator left a widow, Christiana Weston, a son, Nathaniel, a daughter, Lucy D. Weston, and the representatives of a deceased son. Lucy D. married the appellant on July 31, 1869, removed from her mother’s house, and died intestate on March 22, 1874, leaving a minor son, Clarence W. Jenkins, born December 23, 1872. The appellant was duly appointed administrator of her estate and guardian of the minor son.</p> <p>The executors filed and settled their first and final account on January 1, 1870, and added f6191.76 to the principal from income not called for by Mrs. Weston. The estate, so augmented, was transferred by the executors to themselves as trustees, and Mrs. Weston thereupon signified her intention to draw the entire net income of the trust estate in future; and thereafter from time to time in each year, at her request and upon her receipt, the net income as it accrued was paid to her by the trustees, with the exception of a trifling balance in each year which was added to the principal of the trust fund. The amount of the income was about $15,000 a year, and the greater part thereof, after its receipt by her, was invested by her with the knowledge of the trustees, one of them acting as her attorney in making the investments. The entire personal and household expenditures of Mrs. Weston were on a very moderate scale, and did not exceed a fourth part of the income so received by her, and this was known to the trustees. Mrs. Weston died testate on April 25, 1877, having accumulated and invested about $70,000 out of the income received as above stated-. The trustees filed annual accounts in January of each year from the date of their appointment, showing in each account the amounts of income received and the payments as above stated made to Mrs. Weston.</p> <p>The appellant contends that Mrs. Weston should not have been paid the entire net income, but only such amounts as she used for purposes other than investment, and that the amounts overpaid ought to be charged to the trustees, either in their ninth account, or by reopening the previous eight accounts.</p> <p>The trustees paid out of the income to Nathaniel Weston and Lucy D. Weston five hundred dollars each, semiannually, during the continuance of the trust, and these annuities were duly paid and credited to the trustees in then: annual accounts up to the death of Lucy D. Jenkins. After her death, the amount of the annuity apportioned to the time of her death was paid to the appellant as her administrator. From that time the annuity was paid to the appellant as guardian of Clarence W. Jenkins, and the payments were so charged in the several accounts approved as aforesaid. The appellant gave his receipts for these payments, signing as administrator or guardian according to the fact, in every case except one, in which he signed in his individual capacity a receipt for $500 charged to him as guardian. Before making these payments, the trustees, being in doubt whether the annuity to Mrs. Jenkins continued in force after her death, after presenting the facts and the question to Mrs. Weston, obtained from her a release under seal of all her interest in the legacy to Lucy D., to the time of her own death, and a direction to them to pay the legacy to the child of Lucy D. for such time as by the will it would have been paid to Lucy D. The appellant contended that the payments so made to him of amounts accruing after the death of his wife were improperly made, and should be charged back to the trustees in this account.</p>

<p>Tort for personal injuries received by the plaintiff while travelling on a public common, with footways, in the defendant town, which it was alleged the defendant had negligently suffered to be out of repair and unsafe. Trial in the Superior Court, without a jury, before Pitman, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The defendant derived title to the common, including also the land on which Rumford Hall stands, by two deeds from the Boston Manufacturing Company. The first deed, dated June 19, 1854, is an ordinary deed, with no conditions, and covers the entire premises, except a certain part described and specially excepted therein. The second deed, dated August 1, 1859, covers the excepted portion, and contains the following clause: “And this conveyance is made upon the following condition, to wit: that no building shall ever be erected on the lot of land above described or the land adjoining the same, owned by said inhabitants and conveyed to them by deed of said Manufacturing Company, dated June 19, 1854, and that both of said lots of land shall forever after be kept open as and for a common for the use of said inhabitants of the town of Waltham. But this condition shall not attach or be held to apply to so much of the northeast corner of the land conveyed by said deed dated June 19, 1854, as is now used for and in connection with Rumford Building so called, and the small shop in the rear of the same, being bounded on the west and south sides by the fences and the lines of the small shop as they now stand.” Rumford Hall is a building owned by the defendant, and the first story is occupied in part by the post-office and by stores, for which the defendant receives rent; the hall above is used for municipal purposes, and occasionally rented for other purposes, as is usual with town-halls.</p> <p>On August 13, 1877, the plaintiff, a boy nine years of age, in returning after dark from the post-office, to which he had helped carry a mail-bag from the depot, went, for a short distance, up Main Street, which bounds the common on the north, looking into the shop windows, and from thence proceeded to return home across the common, following one of the footpaths made by the defendant through the same. As he was passing thereupon, and just before leaving the same and entering upon the line of Elm Street, one of the public streets of the town, which bounds the common on the east, and being barefoot at the time, he stepped upon a rough iron stub of a post, which lacerated his foot and caused the injury complained of. This iron stub was the remnant of an iron post or rod fastened into a stone sleeper, which originally, with other posts, protected an opening in a continuous fence around said common from all but foot-passengers, and was at the entrance upon the common, but slightly outside of the limits of the street. The post had been broken off a long time before the accident.</p> <p>The plaintiffs requested the judge to rule as follows: “ 1. The building being so rented and standing upon the parcel of land so held by the defendant as a common, from and to which a convenient foot-passageway is made and kept in repair to all parts of the common by the defendant, the town is liable. 2. Although the iron rod upon which the injury occurred was at the outside of Elm Street it was contiguous to the street, and the defendant was bound to keep the same in repair, and if, by reason of the same being out of repair, the plaintiff passing into or upon the street was hurt thereon, using due care, the defendant would be liable.” The judge, being of opinion that upon the foregoing facts the defendant was not in law liable, declined so to rule, and ordered judgment for the defendant. If this view of the law was erroneous, the case was to stand for trial; otherwise, judgment to be entered for the defendant.</p>

Bill xn equity, filed October 11, 1879, to restrain the defendant from obstructing a passageway running from Prescott Street in Lowell to the plaintiff’s land.

<p>A testator, by his will, gave to his brother a fund which he was to set apart and invest, with power to use and expend the principal, the income to go to him during his life, and, at his death, the principal to go to his children, or, in default of children, to the testator’s heirs at law. Held, that the legatee was entitled to the income of the fund from the death of the testator, and to interest thereon from the expiration of a year after the testator’s death.</p>

<p>If an appeal from a decree of the Prohate Court, appointing a person administrator of an estate, upon his petition alleging that he was next of kin, fails because the appellant does not prove that he is a party entitled to appeal, and is dismissed upon that ground only, the decree stands as if not appealed from; and it is within the power of the Probate Court, upon the petition of a public administrator, to revoke and annul that decree.</p>

<p>In an action against a town for injuries caused to the plaintiff’s carriage by being overturned by a snow-drift in a highway, since the St. of 1877, c. 234, the surveyor of highways testified that, after the storm which caused the drift, he broke .out the street where the accident happened in the usual manner; and that, finding drifts badly driven across it, he cleared a track ten feet wide so as to be safe for travel, but, so far as possible, avoiding the drifts. The defendant then offered to show the actual cost of clearing the roads in that town after the storm, with the estimated cost of clearing them if a way for travel had been opened along the middle of the roadway regardless of drifts, together with the town valuation and the amount expended each year for the repair of roads. Held, that this evidence was admissible.</p>

<p>Tort for personal injuries occasioned to the plaintiff by being struck by a sled on Boston Common. Answer, a general denial. At the trial in this court, before Soule, J., the plaintiff offered to prove the following facts:</p> <p>The defendant, from time immemorial, has owned a tract of land enclosed by fences and used as a place of public resort for the recreation of the people, and known as Boston Common. This common is traversed by divers footpaths, leading in different directions, which have been made and kept in repair by the defendant, and to which access is gained from the streets through openings in the fence, in which posts are set so near together that only passengers on foot can pass between them. One of these paths extends from a point near the intersection of Park Street and Beacon Street to a point nearly opposite the intersection of Tremont Street and West Street, on a downward grade for a considerable part of its length. Before the plaintiff was injured, the defendant had permitted boys and young men to coast on and along this path on sleds, and had fitted the path for such coasting by building a bridge across it at an intersecting path, and by turning water from the defendant’s water-pipes upon it to freeze and render it slippery. The defendant had also kept a police-officer at the lower end of the patn. co prevent people from walking on it up the hill toward Park Street. On February 15, 1875, the plaintiff, having occasion to go toward West Street, entered on this path, having first looked up and down it to see if any one was coming, and, seeing no one, for greater security stepped out of the path upon the gutter which runs beside it. As he was walking down the hill, a sled came down behind him, struck him behind the ankle, and knocked him down, and he received the injuries complained of.</p> <p>The judge ruled that the above facts, if proved, would not sustaii the action; ordered a verdict for the defendant; and, at the request of both parties, reported the case for the consideration of the full court. If the ruling was correct, judgment was to be entered on the verdict; otherwise, a new trial to be had.</p>

Contract upon a promissory note, dated February 7, 1878, signed by William A. Hoey, payable to the order of, and indorsed by, the defendant. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows : The note was given in payment of a quantity of leaf tobacco sold and delivered by the plaintiff to William A. Hoey at the date of the note.

<p>By the Gen. Sts. c. 109, § 1, every appointment by the Probate Corut of a guardian of a person residing in this Commonwealth, and who is not now under guardianship, whether there has been a previous guardianship or not, must be made in the county in which the ward resides when the petition for such appointment is presented.</p> <p>A guardian o‘f a minor residing in the town of West Roxbury in the county of Norfolk was appointed by the Probate Court of that county before the annexation of that town to the city of Boston and county of Suffolk by the St. of 1873, c. 314, and after such annexation resigned his guardianship, and his resignation was accepted by that court, but he still held in his hands the property of the minor, and the minor continued to reside in the same territory. Held, that by § 3 of that statute the jurisdiction to appoint a new guardian of the minor was in the Probate Court of the county of Suffolk.</p>

Appeal by the stepmother of the children of Patrick Reagan, deceased, from a decree of the Probate Court, appointing their grandmother their guardian. The petitioner moved that the appeal be dismissed, because the appellant was not a person aggrieved by the decree appealed from; and it was so ordered. The appellant appealed to the full court.

<p>Tort for personal injuries occasioned to the plaintiff while travelling upon a highway in the defendant city, which was alleged to be out of repair. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows :</p> <p>It appeared in evidence that the plaintiff, in company with a lady friend, both living in Boston, drove from Boston to Cambridge in the afternoon of Sunday, October 28, 1877, to attend a funeral; that, upon leaving Mount Auburn cemetery, the lady asked him to take her back by way of Charlestown, so that she could call there upon her sister-in-law; and that he assented, and while so doing the accident happened. Neither the plaintiff nor the lady testified as to the purpose for which the call was to be made; nor did it appear that the plaintiff had any acquaint anee with the sister-in-law.</p> <p>The defendant requested the judge to instruct the jury as follows: “If the jury find that, upon leaving Mount Auburn cemetery, the plaintiff, at the request of his lady companion, undertook to drive her from Cambridge through Somerville to Charlestown, or from Cambridge to Charlestown, for the purpose of enabling her to call upon a sister-in-law residing in Charles-town, this, in the absence of any further testimony showing, or tending to show, the call to have been one of necessity or char ity, would be a travelling within the prohibition of the statute relating to the Lord’s day, and the plaintiff cannot recover.”</p> <p>The judge declined to rule as requested; explained to the jury the meaning of the words “charity” and “necessity,” in the Lord’s day act, to which no objection was taken; and instructed the jury as follows: “ It must appear that the plaintiff was travelling lawfully at the time when the accident occurred. The plaintiff could lawfully travel for the purpose of going to or returning from a funeral on the Lord’s day; and if, in fact, he was returning from a funeral, though by a different route, he was not travelling unlawfully, unless the route taken by him was so unreasonable and inconvenient as to show that his purpose was not to return, but to do something else not a work of necessity or charity. The fact that the plaintiff took a route back from Mount Auburn different from that by which he went, and that he took that route for the purpose of enabling the lady with him to make a call upon her sister-in-law, are facts to be considered by the jury, bearing upon the question whether he was travelling for any other purpose than that of going to and returning from the funeral, or for the purpose of doing anything not a work of charity or necessity. But these facts are not conclusive evidence, so that the court can say to the jury that, as matter of law, they ought to return a verdict for the defendant, on the ground that the plaintiff was travelling in violation of law, but only evidence proper to be submitted to the jury as bearing on the question to be determined by them, whether the plaintiff was at the time of the alleged injury travelling in violation of law.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Tobt, under the Gen. Sts. c. 88, § 59, to recover double the amount of damage alleged to have been caused by the defendant’s dog. Answer, a general denial.

<p>Replevin of goods alleged to be $100 in value, and appearing by the appraisers’ certificate to be $22 in value. Writ dated October 14, 1879, returnable to the Municipal Court of Boston.</p> <p>On the third day after the entry of the action in that court, the defendant filed the following answer: “ And the defendant comes and says that his name is Francis W. Bird, and not Frank W. Bird, and therefore he ought not to be held to answer to the plaintiff’s writ; and further answering says that the actual value of the whole property described in the plaintiff’s writ, at the suing out thereof, did not exceed $20, and that the appraisal of said property at $22 was procured by the fraud and collusion of the plaintiff and the constable who served the writ, and therefore he ought not to be held to answer to the plaintiff’s writ.</p> <p>“ And still further answering, the defendant says that he defies each and every allegation contained in the plaintiff’s writ and declaration, and alleges that the property replevied belonged to the defendant, and not to the plaintiff, at the time the plaintiff sued out the writ aforesaid.”</p> <p>The record of that court showed that issue was joined on the answer in abatement, and found for the plaintiff, and judgment rendered for him for one cent damages and costs, and the defendant appealed to the Superior Court.</p> <p>Upon the entry of the action in the Superior Court, the defendant filed this answer: “ And now comes the defendant and denies each and every allegation contained in the plaintiff’s writ and declaration; ” and claimed a trial by jury as follows : “ And now comes the defendant and claims a jury trial in the above-entitled cause.” The plaintiff moved that judgment be entered for him. The court allowed this motion, and entered judgment for the plaintiff for one cent damages and costs. The defendant appealed to this court.</p>