Volume 131 — Massachusetts Reports

<p>Evidence that the amount of the premium on a policy of insurance was paid to the insurance company by the agent who took the risk, although the agent received from the assured only part of the premium and retained the policy in his hands until the time of the loss, will warrant a finding, in an action against the company on the policy, that it was duly issued and delivered.</p> <p>If, according to the terms of a policy of insurance, the representations in the application are to be regarded as warranties on the part of the assured, it is necessary, under the St. of 1864, c. 196, if the insurer proposes to rely upon them as such, that they should be stated in the body of the policy.</p> <p>A policy of insurance against fire provided that it should be null and void if, without the written consent of the company first obtained, the dwelling-house insured should become vacant by the removal of the occupant. An agent of the company, who took the risk, and whose commission authorized him to issue policies, make surveys, consent to the assignment of policies, receive premiums and " attend to all other duties and business of the agency,” wrote in the policy, after the house had been vacated by the tenant for several days, "permission granted to remain unoccupied until ” a certain day, which was after the date of the loss; and shortly afterwards notified the company of this act, but the notice was not received until after the loss. Held, in an action on the policy, that the evidence warranted a finding that the agent had authority to grant such permission.</p> <p>A mortgagor of buildings, the legal title to which stood in the name of his assignee in bankruptcy, and upon which there was a policy of insurance against loss by fire, payable to the mortgagee in case of loss, which provided that, “if there is other prior or subsequent insurance without written consent of the company, this policy shall he null and void,” without the knowledge or consent of his assignee or mortgagee, obtained from another company a policy on the same premises, in which he was represented to be the owner thereof and no mortgage was expressed, and which provided that, “if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, it must be so expressed in the policy, otherwise the policy shall be void.” Held, in an action by the mortgagee for a loss under the first policy, that the policy obtained by the mortgagor was not “subsequent insurance,” within the meaning of the policy in suit, and did not avoid it; and that, even if it were to be regarded as coming within the stipulation of the policy in suit, it would not avoid it, by reason of invalidity, in failing to state the true interest of the mortgagor in the premises.</p> <p>tf, after a loss under a policy of insurance against fire, the assured is induced to sign an agreement to submit the appraisal of the loss to arbitration, by the representation of the agent who took the risk that the policy requires such an appraisal, which in fact it did not require, but the representation is made without fraudulent purpose, and the assured has the opportunity to examine the policy before signing the submission, and neglects to do so, he is bound by the award made under the submission.</p>

<p>Contract for expenses incurred in the support of Alma Frye, a pauper, from June 6, 1875, to September 9, 1875, and from August 7, 1876, to June 18, 1877. Trial in the Superior Court, before Allen, J., who reported the case for the determination of this court in substance as follows:</p> <p>It was admitted that Alma Frye was the wife of Stephen Frye. It appeared that the support was furnished as alleged in the declaration, and that the prices charged therefor were reasonable and just.</p> <p>On July 20, 1875, the plaintiff sent to the overseers of the poor of the defendant the following notice, signed by one of its overseers of the poor: “To the Overseers of the Poor of the Town of Wareham. Alma Frye, wife of Stephen Frye, whose legal settlement is in your town, but now residing in this town, being in needy circumstances, has applied to this board for relief, which we have granted and charged to your town, and shall continue so to do until you remove or otherwise provide for her support.”</p> <p>On July 29, 1875, the plaintiff received the following reply signed by the overseers of the poor of the defendant: “ Overseers of the Poor, Easton. Tours of recent date at hand, and contents noted in regard to the circumstances of one Stephen Frye’s wife, residing in your town; under the circumstances, we decline to pay your bill, and shall continue so to do until we find that the law requires us to do so. At the time of the marriage, the woman, who is non compos mentis, was an occupant of your almshouse and under your charge. We have proof that the inhabitants of Easton winked at the performance, saying that this would take her from their town and throw her on this. Her mother says she will support her if she will go to her, but that is your concern, not ours. If you will please search the statutes, you will find that you have no claim that will stand law.”</p> <p>The plaintiff contended that the defendant was estopped, under its reply to the plaintiff’s notice, from contesting the settlement of Alma Frye. The judge declined so to rule, and directed the jury to return a verdict for the defendant.</p> <p>If the ruling was right, judgment was to be entered on the verdict; otherwise, the verdict to be set aside and case stand for trial.</p>

<p>A promissory note, delivered to a bank, concluded with the statement that the maker had pledged as collateral security certain shares in the capital stock of a corporation, with authority to the holder to sell the same “ on the non-performance of this promise, he giving me credit for any balance of the net proceeds of such sale, and paying all sums then due from me to said holder." Held, that, on tender of the amount due on the note at its maturity, the holder of the note had no right to retain the stock as security for other debts then due him from the maker.</p> <p>Shares of stock in a corporation were pledged for the payment of a promissory note, with authority to the pledgee to sell on the non-payment of the note. Subsequently, the maker assigned all his property to a trustee for the benefit of his creditors. On the maturity of the note the trustee tendered the amount of the note to the holder, and, on his refusal to deliver the shares, brought a bill in equity to redeem the same. Held, that, even if the trustee had no greater rights than an assignee in insolvency, the defendant could not, under the Gen. Sts. c. 118, § 26, set off other debts due him from the pledgor at the time the note matured; and that it was no defence to the bill that the defendant had applied the shares in payment of such debts.</p>

<p>The St. of 1871, c. 379, § 1, in amendment of the St. of 1868, c. 328, does not give a settlement by derivation to the child of an unsettled person who died tefore its passage.</p>

<p>A testator gave to his widow the use and improvement of certain real estate, together with his horse and carriages, and an annuity of one thousand dollars, “the same to be paid from the income of my property;” and devised to his daughter the residue of his estate, real and personal, after payment of debts, expenses and “the legacies hereinbefore mentioned.” No trustee was named in the will or appointed by the Probate Court. Held, that the annuity to the widow was a charge upon the whole estate; and that she could maintain an action for the annuity against the administrator de bonis non with the will annexed, while the estate wg.s in his hands unsettled, if the gross income of the estate was more than sufficient to pay the annuity, although the net income was not.</p>

<p>Tort for personal injuries occasioned to the plaintiff by falling through a trap-door in a room in a public building in the defendant city, known as the City Hall. Answer, a general denial. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the substance of which appears in the opinion.</p>

<p>Replevin of a stock in trade of groceries and provisions, and the fixtures and safe, in a certain shop, alleged to have been unlawfully and without justifiable cause taken by the defendant, and to be unlawfully detained by him. Writ dated February 19, 1880. The answer denied each allegation in the writ and declaration; alleged that the defendant, a constable of the city of Fall River, attached, on February 16,1880, the stock in trade in question, by virtue of a writ dated that day, and issuing out of the Second District Court of Bristol, in an action in which William Comoford was the plaintiff, and Joseph Ashton the defendant; denied that the defendant attached or took into his custody the fixtures and safe; and averred that the plaintiff’s title to the property attached was under a sale or conveyance to her from her son Joseph Ashton, made for the purpose of hindering, delaying and defrauding his creditors; and that the plaintiff knew and participated in this fraudulent and illegal intent and purpose.</p> <p>Trial in the Superior Court, before Baoon, J., who allowed a bill of exceptions, which, after stating the pleadings in the case, proceeded as follows:</p> <p>The plaintiff in his opening and during the whole of the trial did not contend that the defendant had wrongfully taken or detained the fixtures and safe, but contended that the defendant had wrongfully taken and detained only the stock in trade. There was no evidence tending to show that the defendant had wrongfully attached, taken or detained any of. the fixtures or the safe, but the evidence showed that he had not done so, and that he had no claim to any of the property named in the writ except by virtue of the attachment. There was no dispute that the defendant had attached and taken and detained the stock in trade.</p> <p>The plaintiff claimed title to the fixtures and safe, and to the stock in trade, under two bills of sale from Joseph Ashton, dated respectively April 10, 1879, and January 15, 1880; and it appeared that these bills of sale were duly executed and delivered, and that the plaintiff took possession of the shop soon after she received the second bill of sale, and retained Joseph Ashton for a time afterwards, and until the attachment was made, as her clerk or agent. There was other evidence not material to these exceptions.</p> <p>The defendant asked the judge to instruct the jury as follows: “Inasmuch as there is no evidence that the defendant has wrongfully attached, taken or detained the fixtures and safe described in the writ, the jury should render a verdict in behalf of the defendant for said fixtures and safe.”</p> <p>The judge declined so to rule, but instructed the jury that there was no evidence that the defendant had wrongfully attached, taken or detained said fixtures .and safe, and, if they should find for the plaintiff, their verdict could only be for her for the stock in trade, but not for the fixtures or safe.</p> <p>The jury returned the following verdict: “ The jury find for the plaintiff for the stock in trade of groceries and provisions, but not the fixtures and safe, and assess the damages in the sum of one dollar.” The defendant alleged exceptions.</p>

<p>A conversation between a husband and wife in the presence of a third person who hears part of it is not a private conversation within the St. of 1870, c. 393, § 1, cl. 1.</p> <p>In an action for breach of a contract to furnish a home and support to a person “ when he is sober and well-behaved,” evidence that he was drunk and violent at diffeient times before the breach alleged is not admissible in defence.</p> <p>When an action is brought in the name of one person for the benefit of another, testimony of the nominal plaintiff that the action was brought without his authority and against his will or consent, and that he did not want it prosecuted, will not entitle the defendant to a verdict.</p> <p>In an action for breach of a contract to furnish a home and support to a person “ when he is sober and well-behaved,” the damages are to be assessed to the date of the writ only.</p>

<p>If a person sells a promissory note, the maker of which at the time is insolvent, but has not stopped payment nor been adjudged bankrupt or insolvent, and the seller does not know of the maker’s actual insolvency, the seller does not warrant the solvency of the maker.</p>

<p>The provision in a policy of insurance against fire, that a loss under it shall not be payable until the assured produces the certificate of loss of a magistrate “not concerned in the loss as a creditor,” means a magistrate who is not concerned in the loss by reason of having an interest in the property insured or in the policy as security for an obligation to him, and does not disqualify a magistrate from acting who is a general creditor of the assured.</p> <p>The statement in a policy of insurance against fire issued in midsummer, that the building insured is “used for the storage of ice,” is not a warranty that ice is stored therein when the policy is written, but is descriptive of the business ordinarily done in the building.</p> <p>If an application for a policy of insurance is made in writing, the insurance company has no right to rely upon a verbal representation made to the agent of the company by a clerk of the broker who procured the insurance; and such representation, though false, will not vitiate the policy.</p>

Contract. The declaration, which contained three counts, alleged in substance that the defendant was the owner of the schooner Moses Knowlton, on which the plaintiffs held three liens; that they were about to institute proceedings to enforce the liens, when the defendant promised to pay the amount of the liens in consideration of their forbearing to enforce them; and that they did so forbear. Answer: 1. A general denial. 2. The statute of frauds.

<p>Replevin of seven eighths of a schooner, attached by the defendant, a deputy sheriff,'as the property of Valentine Doane, Jr., upon a writ against him in favor of D. Crowell and another. Trial in the Superior Court, before Gardner, J., who directed a ■verdict for the plaintiff; and reported the case for the determination of this court. If the plaintiff was entitled to recover, judgment was to be entered on the verdict; otherwise, the verdict was to be set aside and judgment entered for the defendant, or a new trial ordered, as the court might determine. The facts material to the point decided appear in the opinion.</p>

<p>Action on the St. of 1879, o. 237,* against Lott Carmody and Mary H. Carmody, to recover possession of a parcel of land in West Newbury. Writ dated July 7, 1879. Answer, a general denial.</p> <p>At the trial in the Superior Court, before Gardner, J., the plaintiff put in evidence a mortgage containing a power of sale, and offered evidence tending to show that the defendant Lott executed the mortgage, and that there had been a breach of the conditions of the mortgage, and a sale under th¿ power to the plaintiff.</p> <p>The defendants offered evidence tending to show that the mortgage was executed by the defendant Lott under duress.</p> <p>The plaintiff requested the judge to rule that such evidence would not be admissible under the answer without specially pleading the same; but the judge refused so to rule, and admitted the evidence.</p> <p>The evidence tended to show that the mortgage was given in settlement of several notes purporting to have been indorsed by Lott, and in settlement of a suit then pending in court on several other notes purporting to have been indorsed by Lott and duly protested, which notes Lott denied that he had indorsed, but contended that they had been forged by one of his sons and his son-in-law, and one of them by a man by the name of Costello, who was the plaintiff’s partner at that time and had one fourth interest in the notes and mortgage; that the settlement was made just before the case came up for trial; that the parties met, and, after some discussion, the defendant’s attorney proposed that Lott should give a note, with security, for $1000, the whole amount of the notes being over $2000; that the plaintiff expressed satisfaction with the offer, but the defendant objected to paying anything.</p> <p>There was also evidence tending to show that the mortgage and notes were on interest, payable semiannually, and that the female defendant paid the interest as it became due in six months and in one year after the execution of the mortgage, once in company with her husband. She stated at the trial that she paid it for her son.</p> <p>The plaintiff offered evidence tending to show that, after a discussion in which it was stated by the plaintiff’s attorney to the defendant’s attorney, not in the presence of the parties to the suit, that, if the defendant succeeded in his defence, the result would be that his son would be liable to prosecution for forgery and to sentence for ten years to the state prison, the defendant agreed to the settlement, and afterwards the note and mortgage were executed by him.</p> <p>The defendants offered evidence tending to show that the plaintiff, through his agent and attorneys, threatened Lott, that if he did not execute the mortgage and note, his son would be sent to the state prison for ten years, and that he finally gave the privilege to the plaintiff’s attorneys to sign his name to the mortgage and note, by reason of the threats made. •</p> <p>The judge instructed the jury, that the statement made by the plaintiff’s attorney to the defendant’s attorney would not be evidence of duress, and should not be considered by them; and also instructed the jury as to what was duress, to which no objection was made; and, further, that if Lott’s mind and will were overcome by the threats of the plaintiff’s agents, so that the execution of the note and mortgage were extorted from him by the fear of a prosecution of his son for forgery, or of his being sent to the state prison for ten years, and against his will, this would render the note and mortgage invalid, and of no force or effect; that if these threats were made as contended by the defendants, and constituted any part of the consideration of the note and mortgage, this would be sufficient to render them invalid, and of no force against the defendants. The case was submitted to the jury under other instructions not objected to.</p> <p>The jury found for the defendants, and, upon inquiry by the court, stated that they found that the notes and mortgage were executed by Lott under duress. The plaintiff alleged exceptions to the admission of the evidence objected to, and to the ruling above set forth.</p>

<p>If, after a mortgage of land in a city is given, the land is sold for a tax assessed to the mortgagor, and is conveyed by the collector of taxes to the city, under the St. of 1862, c. 183, and let to the mortgagor as a tenant at will, the mortgagee has no right, before redemption, to possession for breach of a condition in the mortgage.</p>

<p>A.t the time the lease of a shop was executed, there were in the shop two large cases, each ten feet high and between thirty and forty feet long, having shelves and drawers, and mirrors inserted, with a cornice on top and a moulding at the bottom, which had been put into the room by a former tenant of the shop. These cases occupied spaces for which they had been made, rested on the floor of the room, and were fastened- to the wall by nails driven through the backs of the cases into the plastering. The base-board round the room did not extend behind the cases, and the wall behind them was not painted. After they were put in, the woodwork of the room, the eases and the walls of the room, except behind the cases, were painted, to correspond with each other. Before the exe cution of the lease, the cases had been sold by the former tenant, and the purchaser, subsequently to such execution, removed them against the lessee’s objection. In consequence of the removal of the cases, the plaintiff had to expend the sum of $200 to paint the walls behind the places where the cases had stood, and the rental value of the shop was lessened. The lessee did not know of the sale when he took his lease, and nothing was then said about the cases. Held, in an action by the lessee against the lessor for breach of the covenant for quiet enjoyment in the lease, that the cases did not constitute part of the realty; and that, even if the cases were removed with the consent of the lessor, the act of removal was a trespass, and not an eviction; and that the action could not be maintained.</p>

<p>The St. of 1861, c. 186, relating to the forfeiture of policies of life insurance, applies, by force of the St. of 1872, c. 325, § 7, to foreign insurance companies doing business in this Commonwealth, without regard to the question whether the contract of insurance is made here or in the State where the company is incorporated.</p>

<p>H a person leaves a hatchway in the sidewalk connected with his premises in an unsafe condition, so that an injury to a traveller on the street is liable to happen in consequence of it, and another person so interferes with the hatchway as to cause it to be more dangerous, and a traveller is injured by the hatchway, the occupant of the premises is in pari delicto with the other person, and cannot recover indemnity of him, if compelled to pay damages recovered in an action by the injured person.</p>

Tort. The declaration contained eight counts. The second count was for libel in accusing the plaintiff of the crimes of murder and adultery, in a declaration filed in the case of Nancy D. Leggate against Elbridge Moulton, signed by the defendant in the case at bar as attorney for the plaintiff in that case. This count and the answer thereto are printed in full in 127 Mass. 316, 317. The third count was for an arrest and false imprisonment.

<p>On a writ of entry, it appeared that the owner of a large tract of land lying between 0 Street and P Street conveyed the lot bounded on 0 Street to A., the next lot to B. and the remaining land to C., who conveyed to D. a lot bounded by P Street, describing it of a certain width, to the tenant a lot of certain width bounded easterly by D.’s land, and to the demandant a lot also of a certain width, bounded easterly by the tenant’s land and westerly by B.’s land. It was found as a fact that the line of P Street had not been changed from its position since it was established, while the line of O Street had varied. Held, that the demandant, for the purpose of establishing his easterly line, was entitled to put in evidence the deeds to D. and to the tenant; and that the tenant was not entitled to put in evidence the deeds to A. and B.</p>

<p>A memorandum made by the holder on the back of a promissory note, to the effect that the rate of interest after a certain day will be less than that stated in the body of the note, is not an alteration of the note; and does not discharge a surety of the maker, although written in pursuance of an agreement between the -holder and the maker of the note without the knowledge of the surety.</p>

Contract against John J. Ridgway, as maker, and against Charles L. Ridgway and Harriet A. Ridgway, as indorsers, of a promissory note for $300, dated October 11, 1878, payable in three months after date to the order of the plaintiff. Writ dated January 21, 1879. Answer: 1. A general denial. 2. Failure of consideration.

<p>An agent of an insurance company gave a bond, with sureties, to the company, conditioned for the faithful performance of his duties as agent, according to the by-laws of the company. A by-law required that the agents of the company should render monthly accounts and pay each month the balance due to the company. The agent rendered his accounts regularly; but, one month, did not pay the whole balance due from him, and thereafter for more than a year his indebtedness to the company increased from month to month until it exceeded the penal sum in the bond, when, for the first time, the sureties were notified.- Held, that these facts did not discharge the sureties.</p>

<p>Tort for libel, in publishing in a newspaper an article charging the plaintiff, a Methodist minister, with abusing his wife generally,, and with whipping her. Answer: 1. A general denial. 2. That the alleged libel was true and was not published with malice. Trial hi the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff in rebuttal offered evidence tending to show that his wife had been at times insane and violent and dangerous; and that whatever force he had used upon her was restraining force to prevent her from doing injury.</p> <p>The defendant offered evidence tending to show that the plaintiff’s wife was not really insane, or, if so, was not violent and dangerous in her insanity, but was of fierce and excitable temper ; and that, although she had been duly committed as insane to the Northampton Lunatic Hospital, and had remained there one month, she was duly discharged, and resumed her duties at the head of the plaintiff’s household, and in. the care of his young children, for some months preceding the alleged act of cruelty.</p> <p>The depositions of Dr. Pliny Earle, superintendent, and Dr. Edward B. Nims, assistant, at the hospital, were offered by the defendant to support his view of the case. The plaintiff objected to the admission of these depositions, and offered to prove that, on September 25, 1880, he was duly notified, by notice dated September 23,1880, that the defendant would take certain depositions at Greenfield on Monday, October 4,1880, at nine o’clock in the forenoon, and at the same time he was also notified by notice dated September 24, 1880, that the defendant would take the depositions of Drs. Earle and Nims at Northampton on the same Monday at five o’clock in the afternoon; that the plaintiff’s counsel at once notified the magistrate at Northampton that he had been served with said notice to take depositions at Greenfield; that the plaintiff and his counsel were engaged in taking depositions at Greenfield until nearly ten o’clock in the evening of said Monday; and that the plaintiff needed the ser vices of his counsel at the taking of the depositions at Greenfield.</p> <p>The defendant thereupon offered to prove that the time for taking said depositions was on the last day before the sitting of the court in Boston, and no deposition could be taken after said Monday without special order of court; that the time was fixed in the morning at Greenfield, and in the afternoon at Northampton, to accommodate the plaintiff and his counsel coming from a distance; that the defendant was ready at nine o’clock, and the plaintiff was present, but without his counsel; that the defendant’s counsel informed the plaintiff that, if it would accommodate him, he would wait until the arrival of the train from Boston at eleven o’clock; that the plaintiff went away without informing the magistrate or any one that his counsel had stopped at Greenfield the previous night, and was then at the hotel, a few rods distant; that neither the plaintiff nor his counsel again appeared until after eleven o’clock; that, at the taking of said depositions in Greenfield, the plaintiff caused great delay in various specified ways, so that it was apparent that his object was to consume time; that the plaintiff stated on the following day that it was the plan of his counsel to occupy the whole day at Greenfield, so as to leave no time to go to Northampton; that, at about four o’clock in the afternoon of said Monday, and before the leaving of the train from Greenfield for Northampton, the defendant’s counsel showed to the plaintiff’s counsel a letter from Drs. Earle and Nims, stating what their testimony would be, and informed him that the object of the deposition0 was to put the statements of the letter in the form of evidence; and that the plaintiff’s counsel was also informed that said depositions would be taken at Northampton according to the notice.</p> <p>But the presiding judge being of opinion that, the provisions of the statutes having been complied with, it was not a matter within his discretion to admit or reject the depositions, refused to consider and determine the truth of' the respective allegations, and thereupon overruled the objection of the plaintiff, and admitted said depositions of Drs. Earle and Nims in evidence.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Tort for assault and battery. At the trial in the Superior Court, before Allen, J., it appeared in evidence that, on April 15, 1875, the plaintiff, a laboring-woman, called at the defendant’s house in Boston, and demanded of the defendant a sum of money, claiming it was due her as wages; and that, upon the plaintiff making such demand, the defendant became enraged and ordered the plaintiff to quit her house, and, while the plaintiff was leaving the house, she received…

<p>The acceptance by the grantee of a deed poll containing a covenant that the land conveyed is free from incumbrances except a mortgage previously made by the grantor, “ which the grantee assumes and agrees to hold the grantor harmless from,” constitutes a contract by the grantee, not merely to indemnify the grantor, but to pay the mortgage debt; and the measure of damages, in an action brought by the grantor against the grantee upon this contract after that debt has become payable, is the unpaid amount of that debt, although no part of it has been paid by the plaintiff.</p> <p>A., by a deed poll, conveyed land to B., and B. conveyed it to C. by a deed which recited that the premises were the same conveyed by A. to B. Held, in an action by A. against B. on a contract contained in their deed, that the deed from B. to C. was admissible to prove that B. had accepted the deed from A.</p>

<p>A grantee who has accepted a deed poll, by the terms of which he “ assumes and agrees to pay” a certain mortgage on the land “and save the grantor harmless therefrom,” cannot, in an action upon his agreement, no fraud in the execution or delivery of the deed being suggested, show by oral evidence that he never agreed to assume and pay the mortgage, nor authorized nor knew of the insertion of such an agreement in the deed.</p> <p>Id an action by the grantor against the grantee in a deed poll upon an agreement therein by which the grantee assumes and agrees to pay a mortgage on the land, nominal damages only can be recovered, after the mortgage has been paid out of the land, or extinguished by the act of the mortgagee.</p> <p>Land was sold under a power in a mortgage for a sum more than sufficient to pay the mortgage debt, and the mortgagee refused to execute a deed to the purchaser The only objection made to the validity of the proceedings was that the purchaser had not paid down fifty dollars in cash as required by the terms of sale. It appeared that the purchaser, when he bid off the estate, did not have that sum, but the auctioneer agreed to advance it, and told the mortgagee that the purchaser had paid it, and that the money was ready for him. Held, that, if such was the arrangement, and the auctioneer was ready to pay, and the mortgagee did not object, it had the same effect towards the payment or extinguishment of the mortgage debt as if the sum had been in fact paid by the purchaser to the auctioneer.</p>

<p>Parol evidence is admissible to show the real consideration of a contract.</p> <p>A contract is to be construed in the light of surrounding circumstances, and in view of the subject matter of the agreement, the acts of the parties and their relations to each other.</p> <p>A special partner in a firm, who is a party to a transfer of all the assets of his firm to one creditor for the benefit of the creditors of the firm, becomes liable to such creditors as a general partner, under the Gen. Sts. c. 55, § 7.</p> <p>H. agreed in writing with the plaintiff to “ assume and pay ” all the debts, notes and accounts due from a firm, of which the plaintiff was a member, and to “indemnify and save harmless ” the plaintiff and the firm against any claims, suits, costs and damages, by reason of the debts, notes and accounts set forth. Held, that these were independent stipulations, and that the agreement to pay was not merged in the agreement to indemnify; and that the plaintiff could maintain an action against a guarantor of the agreement before he had paid any of the debts. ; ■</p> <p>la an action on an agreement made by H. with the plaintiff, by which H. agreed “ to assume and pay all the debts, notes and accounts due from ” a firm, of which the plaintiff was a member, “ or which may have been incurred for their benefit,” and schedules of which were annexed, it appeared that one of the notes named in the schedule was made by a third person payable to H. and indorsed by him; that he gave it to the firm without consideration; and it was sold by the firm, without becoming liable upon it, and the proceeds received by the firm. It further appeared that the maker of the note had signed notes to a large amount for the accommodation of H., which fell due at the same time as the note in question. Held, that these facts would warrant a finding that the note, was included in the contract, and that a guarantor of the contract was liable to the plaintiff for the amount of it, although the plaintiff had not paid it.</p>

<p>Contract for breach of an agreement to pay a certain mortgage and mortgage note subsisting upon an estate conveyed by the plaintiff to the defendant. Writ dated September 16, 1878. Trial in the Superior Court, without a jury, before Brigham, C. J., who found for the plaintiff, and allowed a bill of exceptions, the material parts of which appear in the opinion.</p>

Contract on promises of the defendant to pay mortgages on lands conveyed to him by the plaintiff.

<p>Conteact, stated in the writ, dated December 23, 1878, to be brought in the name of the plaintiff, as administrator of Langdon Coffin, for the benefit of the Newbury port Five Cents Savings Bank, upon a promise of the defendants, in a deed of land from the intestate to them, to pay a mortgage thereon. Answer, a general denial, and payment. Trial in the Superior Court, without a jury, at January term 1880, before Allen, J.. who made the following report thereof:</p> <p>On June 14, 1871, Langdon Coffin, in consideration of $2631, conveyed to the defendants land in Newton by a deed describing the granted premises by metes and bounds, and as “ subject to a mortgage to Fanny S. Yeazie for $16,000 and accrued interest to this date, also to all taxes assessed for the current year, which mortgage, interest and taxes the grantees assume and agree to pay as their own debt.” The mortgage mentioned was given on January 2, 1871, by Langdon Coffin to Yeazie, to secure the payment of the sum of $16,000, and was assigned on September 4, 1874, to the Newburyport Five Cents Savings Bank; and on October 12, 1878, the bank, in execution of a power contained in the mortgage, sold the mortgaged premises by public auction for the sum of $12,000, and on the same day took a conveyance from the purchaser for the same sum, and continued to hold under that title.</p> <p>The plaintiff was the administrator of the estate of Langdon Coffin, which is insolvent. This action was brought by the bank in his name, under verbal authority from him, -for which authority the bank paid no consideration, to recover the balance due on the mortgage debt.</p> <p>On May 20, 1879, the administrator gave the bank and its attorneys notice in writing that this action “ was commenced by you in my name, without my consent, through a misunderstanding on your part or on mine. I am informed by counsel that I cannot with safety to myself, or without damage to the estate which I represent, permit said suit to be further prosecuted, that the suit should be for the benefit of the estate of my intestate. Therefore I demand that you discontinue said suit forthwith. I forbid the further use of my name as plaintiff therein. Your taxable costs I am ready to pay.”</p> <p>At October term 1879, the administrator presented to the Superior Court the following petition: “ Respectfully represents Lewis E. Coffin, the nominal plaintiff in the above-entitled action, that said action was brought without his consent; that the estate of his intestate is insolvent, and must be settled as an insolvent estate in the Probate Court; that the Newburyport Five Cents Savings Bank, for whose benefit said action is alleged to be brought, has refused to secure him against costs and damages that may arise from said suit; that he has long since notified said bank to discontinue said action; that he is instructed by his counsel that he cannot with safety permit said suit to be further prosecuted. Wherefore he prays this honorable court to order said action to be discontinued, or to order said bank to execute to your petitioner a bond with sufficient sureties with condition to save him harmless and indemnify him for all loss, damage and costs that may arise or happen to him from or on account of the use of his name in said action, both in his individual capacity and as administrator of the estate of his intestate, and such other and further relief as the court shall deem meet.”</p> <p>On that petition, Colburn, J., on November 13,1879, made the following order: “ The Newburyport Five Cents Savings Bank to execute and deliver to the plaintiff within ten days from this date an agreement in writing with sufficient sureties, under seal, to save him harmless, &c., as requested. But the court does not hereby determine the question whether or not the bank has the right to maintain this action in the name of the plaintiff.” The bank gave a bond in accordance with this order.</p> <p>At the trial of the action, the defendants called the administrator as a witness, and offered to prove by his oral testimony that he had revoked the authority of the plaintiff’s attorneys of record, and forbade the further prosecution of the action, at the same time offering to pay all costs and expenses incurred by the bank in the prosecution thereof; and moved that the action be dismissed. But the judge ruled that the evidence was not competent, and excluded it, against the defendant’s exception; and found for the plaintiff in the sum of $4555.05, being the amount remaining unpaid of the mortgage debt, and ordered judgment therefor; and, by consent of parties, reserved the case ' to be reported to this court.</p> <p>There was necessary delay in preparing the report,.and the case was continued nisi. At October term 1880, before a report was filed, the administrator asked to be further heard upon his petition filed at October term 1879, and for an order that the action be discontinued in accordance with the prayer of that petition, and offered the same evidence which had been offered by the defendants, and his verbal declaration in open court that he did not authorize, but forbade, the further prosecution of the action; and he asked the judge to rule that upon these facts he had a right, as matter of law, to an order upon his petition aforesaid that the action should be discontinued. But the judge declined so to rule, and ordered that petition, so far as it prayed for a discontinuance of the action, to be dismissed; and, with the consent of the parties, reported the whole case for the determination of this court.</p>

<p>A buyer of an interest in a stock of goods and in a business, who has ample opportunity afforded him to examine the goods and the books of the business, has no right to rely upon representations of the seller concerning the value of the goods or of the amount of business which the seller has previously done.</p> <p>No exception lies to the exclusion of evidence relating to the measure of damages, if the plaintiff is not entitled to maintain his action.</p>

Tobt for personal injuries occasioned to the plaintiff by a defect in Willard Street, formerly called Vernon Street, in Boston, alleged to be a public highway. Writ dated August 28, 1879. Answer, a general denial. At the trial in the Superior Court, before Dewey, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Replevin of twenty-nine interest coupons, payable to bearei, taken from five $1000 bonds of the Union Pacific Railway. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, upon an agreed statement of facts, in substance as follows:</p> <p>Each coupon had printed on the back the number of that coupon, and on the face the number of the bond to which it was originally attached. The coupons became due on March 1 and September 1 of the years 1876, 1877, and 1878. Prior to January 26, 1876, the plaintiff was the owner of the bonds to which the coupons in suit belonged, and had deposited the bonds with the coupons attached for safe keeping in a box in the vault of the Northampton National Bank of Northampton. They were stolen from this bank in the robbery which took place there on the night of January 26 and 27,1876. The bonds to which the coupons were attached originally were ordinary railroad bonds, payable to bearer and due in 1893.</p> <p>On January 10,1879, R. Raphael & Sons, bankers, of London, England, purchased the coupons, each being then detached from its bond, from Maurice Cohn & Company, money-changers, of London, who had bought them of their correspondent in Brussels, who had purchased them there on January 7, 1879. These purchases were all made in the regular course of business and in perfect good faith by the parties, all of whom paid full value for them, and neither of whom had any knowledge or suspicion that the coupons had ever been stolen, or that there was anything wrong about them. R. Raphael & Sons sent the coupons for collection to their agents in New York, who in their turn sent them to the defendant for collection. The statutes and judicial decisions of England and Belgium may be referred to by either party.</p> <p>It was further agreed that, if the question whether the plaintiff did or did not use due diligence in giving notice of his loss was material, the case was to stand for trial on that question; otherwise, the court was to render such judgment as the law required.</p>

<p>The declaration in an action of tort brought by A. against B. and 0. alleged that the plaintiff employed C. to buy goods for him; and that C. without authority sold the goods to B., and the same were wrongfully converted by the defendants to their own use. B.’s answer alleged that he bought the goods in good faith from C., who was authorized to sell them; and that the goods in question were seized by A., against whom he brought an action for the conversion of the goods, and recovered judgment. The answer of A. in the action brought against him by B. averred that the goods were purchased with his own money; that B. never had any title to them, and paid no money for them in good faith, but conspired with C. to defraud A. It appeared that the action of B. against A. was tried on these issues, and that a judgment was rendered for B. Held, that the judgment was a bar to the action by A. against B. and C., so far as B. was concerned.</p>

<p>In an action on a promissory note, transferred to the plaintiff after maturity and without consideration, the following facts appeared: The consideration of the note was a conveyance, by warranty deed, of a parcel of land, of which the grantor owned only three undivided fifths, he having forged the signatures of the owners of the other two fifths. This fact was not known to the defendant until June 1877, and he soon after informed the plaintiff, the widow of the grantor, of it. In August following, a writ of entry was brought against the defendant to recover these two fifths; the defendant notified the plaintiff, and she assumed the defence of the suit. In September 1880, the demandants recovered judgment. In December 1877, this action on the note was brought. The defendant, in January 1878, filed an answer setting up a partial failure of consideration; and, in February 1879, filed an amended answer setting up that the note was obtained by fraud, and offering to reconvey the land. Held, that the judge who presided at the trial properly refused to rule, as matter of law, that the defendant had lost his right to rescind by his delay to elect so to do beyond a reasonable time after he had full knowledge of the fraud. Held, also, that a tender by the defendant of a quitclaim deed of all his right, title and interest in the land was sufficient in form to enable him to rescind.</p>

Tort for personal injuries occasioned to the plaintiff, on Sunday, August 6, 1876, while a passenger in one of the defendant’s cars. The answer set up that the plaintiff was travelling on the Lord’s day in violation of law. At the trial in this court, before Ames, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion. The case was argued in November 1879, and reargued in March 1881.

<p>The lessee of an estate for a term of years, at a fixed rent payable quarterly, and who had covenanted to pay taxes, demised it to another for a. term equal to the whole of the unexpired term of the original lease, by a lease containing covenants by the lessee to pay rent monthly at an increased rate and taxes, and providing that the lessor might enter and take possession for breach of covenant, and that the lessee would quit and deliver up the premises to the lessor at the end of the term. Held, that this was a sub-lease and not an assignment of the original lease; and that the sub-lessee was not liable to the original lessor upon the covenant to pay taxes in the original lease.</p>

<p>Contract upon a policy of insurance against fire. Trial in the Superior Court, before Bacon, J., who ruled that the plaintiff was entitled to recover, and directed a verdict accordingly. The defendant alleged exceptions, which appear in the opinion.</p>

<p>If a policy insures the life of A. for the use of B., A. cannot maintain an action against the insurer for the premiums paid by him on the policy, although the policy never took effect by reason of fraud on the part of the agents of the insurer.</p>

<p>The fact that a person noticed, on entering a building, that there was ice and snow on a plank sidewalk in front of the door, is not conclusive evidence, in an action by him against the owner of the building for an injury sustained on his way out of the building in consequence of such snow and ice, that he was not in the exercise of due care in attempting to pass over the sidewalk.</p>

<p>If a policy of insurance against fire, payable in case of loss to a mortgagee of the premises insured, provides that it shall become void if the property insured shall “be sold," a conveyance by the heirs of the assured, after his death, to the mortgagee, by a deed absolute in form and containing no mention of the mortgage and no declaration of trust in favor of the grantors, avoids the policy; and the fact that the grantee, when he took the deed, orally agreed to sell the estate in a few months and account to the grantors for the proceeds after paying his mortgage, does not show an intention to charge the estate with a trust, or operate to prevent the whole title from vesting in him.</p>

<p>The charter of a corporation authorized it to purchase and hold “in fee simple or otherwise ” real and personal estate to the amount of $50,000, which was increased by subsequent statutes to $600,000; and provided that the corporation might appropriate its funds to charitable purposes, and that its annual income should be employed, among other purposes, “ to promote inventions and improvements in the mechanic arts, by granting premiums for said inventions and improvements.” Neither the charter nor the subsequent statutes directed the manner in which the provisions for granting these premiums should be carried out. Held, that the corporation might purchase land and erect a permanent building thereon in which to hold exhibitions and the meetings of the corporation.</p>

Petition to enforce a mechanic’s lien. Trial in the Superior Court, before Bacon, J., who reported the case for the determination of this court in substance as follows : The petitioner offered evidence tending to show that, previous to September 10, 1878, Walter D. Haynes contracted with the respondents to build for them two houses on the land described in the petition; that the petitioner performed the amount of labor alleged in his petition, and at the times set forth…

<p>A mortgagee of land, who has once entered to foreclose his mortgage, need not, in a writ of entry to recover the same, allege his seisin to be in mortgage; and the Gen. Sts. c. 129, § 3, and c. 140, § 3, do not apply.</p> <p>The term “ Junior ” is no part of a man’s name.</p> <p>If a son, who bears the same name as his father, buys land in his own name, with out the designation of “ Junior ” added thereto, there is no presumption of law that he intended that his father should take the title to the land.</p> <p>If land is conveyed to J. S. and there are two persons of that name, a father and son, there is no presumption that the father is intended; and evidence is admissible to show who is the grantee.</p> <p>A trustee holding the legal title to land need not in a writ of entry set forth that he is trustee.</p> <p>A writ of entry, to recover three parcels of land, to two of which the demandant claims title under a foreclosure of a mortgage, and to all as trustee under the will of the mortgagor, can he maintained as to the parcels included in his mortgage, through his title as mortgagee, and as to all the demanded premises through his title as trustee; and the mortgage and will are admissible in evidence.</p> <p>The declarations of a person while in possession of land, in disparagement of his own title, are admissible against one claiming under him.</p> <p>If a motion to have the deposition of a witness, taken in perpetaam under a commission from this court, under the Gen. Sts. c. 131, §§ 54-58, recorded in the registry of deeds, under § 57, is denied by the court, the deposition is inadmissible in evidence; and the subsequent recording of it, without the order of the court, does not give it any validity.</p>

<p>Two appeals, by the sole heir at law of Jonas Cowdrey, from decrees of the Probate Court. The decree in the first case accepted the report of commissioners assigning to Mary B. Cowdrey, widow of said Jonas, dower in the whole of the real estate of the deceased. The decree in the second case accepted the report of commissioners setting off to said widow an estate of homestead in said estate remaining after the assignment of dower. At the hearing, before JSndicott, J., the following facts appeared.</p> <p>Jonas Cowdrey owned and occupied as a householder, having a family, the land and buildings thereon out of which dower and homestead are claimed, from a period prior to the year 1854, to the time of his death in 1877. His wife, to whom he was married prior to 1854, died in 1868. The appellant became of age in 1861. In 1870, Jonas married the petitioner. The appellant assigned as one of his reasons of appeal that the petitioner was not entitled in law to an estate of homestead out of the estate of her deceased husband.</p> <p>The judge affirmed the decrees of the Probate Court, and reported the cases for the consideration of the full court. If, upon the above facts, these decrees were right, they were to be affirmed; otherwise, such decrees to be made as law and justice might require.</p>

<p>Tort for personal injuries occasioned to the plaintiff, on January 26, 1879, by a defect in Somerville Avenue in the defendant city. Answer, a general denial. Trial in the Superior Court, without a jury, before Pitman, J,, who allowed a bill of exceptions in substance as follows:</p> <p>Upon the question whether a sufficient notice was given to the defendant, under the St. of 1877, e. 234, the evidence was substantially as follows:</p> <p>John P. Couch, a physician, testified: “ I attended the plaintiff the evening of the accident. On the morning of the next day I called at the station. I think two policemen were there. I called the attention of one of them to the fact that I had been called to attend the plaintiff the evening before. I stated that she had fallen on the sidewalk on Somerville Avenue, which was said to be icy, and that she had fractured her arm. In a general way, I made some remarks as to the reason of giving this notice; that very often suits were brought by individuals against other individuals and corporations, and notice was given to the interested parties when it was too late for them to satisfy themselves of the condition of affairs at the time of the accident, or when the cause of the suit occurred. I put the name, age, accident and place where it occurred in writing for him to hand over to the reporter of the local paper. The matter of notice was optional with myself. I was not asked to give it. I gave it of my own will. I think I suggested to the family that I should give notice of when and where it occurred, for the general reason that the city might know when it occurred, and might have an opportunity to examine the premises before any change in the condition of things.” On cross-examination, the witness testified: “ I have no recollection that the plaintiff, or any one in her presence, said she should hold the city responsible. There was some general conversation to the effect that the city ought to pay my bill. No one asked me to notify the city.”</p> <p>John H. Roach, a son of the plaintiff, testified: “ I was present when the doctor first visited my mother after the accident. I said to the doctor that the city ought to be held responsible for his bills, and that he would have to look to the city for pay. We had talked about suing the city for damages. I and the doctor thought the sidewalk was in a bad condition and the city was liable for it. • I said he, or somebody, ought to notify the chief of police. He said he would call there when he went round in the morning. All the talk was in my mother’s presence.” On cross-examination, he testified: “ I had the impression then that the city was liable, and that some one should give that notice. But I did not know that it was necessary in order to sue the city.”</p> <p>The plaintiff testified: “ The doctor said that he would notify the city in the morning about the breaking of my arm. So he wrote it down and put it into his pocket.” On cross-examination, the witness testified: “ When I told the doctor that if he could get his fee out of the city I should be satisfied, I did not say I should be satisfied for myself. I thought I should get a little for myself for breaking my arm. I never thought of the city when I sent in the note. I took no notice of the conversation between my son and the doctor.”</p> <p>Upon being recalled, Dr. Couch testified that it was likely that he did tell the plaintiff that he was going to notify the city.</p> <p>Melville C. Parkhurst, the chief of police of the defendant-city, testified as follows : “ Dr. Couch came to the station the morning after the accident and stated to me that he had set an arm for the plaintiff on the night before ; that she fell on the" sidewalk on Somerville Avenue, between Ford’s and Cahill’s. That was all he said as to the accident. At another time I asked Dr. Couch if he was asked by the woman to give the notice, or whether he gave it on his own responsibility. He said it was on his own responsibility. I did not notify any other official that I recollect of.”</p> <p>Upon this evidence, the plaintiff asked the judge to rule that the notice was sufficient to satisfy the requirements of the statute. But the judge declined so to rule; ruled that “the notice itself should show affirmatively, either by a form of words or by the circumstances under which it is given, that it is intended by the party giving it as a notice for the purpose of fixing their right of action; ’’ and, upon the evidence, was of opinion that the plaintiff had not shown such a notice; and accordingly found for the defendant. The plaintiff alleged exceptions.</p>

<p>A mortgage was given by a husband and wife on her land to A., as security for sales of goods to be made by him to the husband. Held, that parol evidence was admissible to show that the liabilities which the mortgage was intended to secure were those to be incurred by the husband to a firm of which A. was a member; and that it was immaterial that the wife did not know of the existence of the firm when she executed the mortgage, or when the subsequent purchases of goods were made.</p>

<p>Notice must be given to the state board of health of an appeal from an order of that board, under the St. of 1878, c. 183, § 6.</p>

<p>A. in fraud of his creditors conveyed land by a quitclaim deed to B., who participated in the fraud, and who, by a deed in like form, conveyed the land to C. The land was then specifically attached by a creditor of A., under the Gen. Sts. c. 123, § 55. Held, on a writ of entry, by the purchaser at a sale on execution made under this attachment, against C., that the fact that the latter took his title by a quitclaim deed was not conclusive evidence that he was not a purchaser in good faith and without notice of the fraud.</p>

<p>Tort for personal injuries occasioned to the plaintiff, on August 27, 1877, by a defect in a highway in the defendant town. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiff testified that, while driving on Oak Street in the evening, his horse and carriage were thrown over the side of a bridge or culvert into the bed of a brook; and that he left his wagon there; that, on the day after the accident, a notice signed by him, and addressed to J. F. Leonard, chairman of the selectmen of the defendant town, was delivered to Leonard, and was as follows: “ I want to know if that portion of Oak Street between Jason Morse’s and David White’s is private way or public highway, for I was thrown out of my team last night, and came near getting killed, and broke my wagon and had to leave it there.”</p> <p>Leonard testified that on receipt of the notice he sent two men to the place of the accident, who reported to him the condition of affairs at the place of the accident within an hour and a half after he sent them.</p> <p>The plaintiff also signed and sent, on September 1, 1877, the following notice to Leonard: “ I want to know what you are going to do about that accident that happened to me on Oak Street; I have hurt my shoulder so I cannot use it.” Within three weeks after the accident, the plaintiff went and saw Newton Howard, one of the selectmen, and said to him, “ I got hurt down on Oak Street; ran off the bridge; hole is about two feet from wheel-rut; I got pretty well used up.”</p> <p>Oak Street is an old road in Foxborough; and, between the two houses mentioned in the first notice, is about half a mile in length with no curve in it, and with no other houses intervening ; there are also two culverts or bridges in that space within one hundred and fifty feet of each other, of the same general character, at one of which the wheel-ruts run in about the middle of the travelled part of the road, and at the other, where the accident occurred, the wheel-rut on that side is from nineteen inches to two feet from the edge of the travelled part of the road. The hole testified to by the plaintiff was the bed of a brook about three feet below the road-bed, running under the culvert or bridge mentioned by him.</p> <p>The plaintiff asked that the question of notice might be referred to the jury to say whether the defendant received such notice as the statute required; but the judge ruled that the plaintiff did not give sufficient notice to the town for the foundation of this action; and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Contract upon a poor debtor’s recognizance, entered into under the Gen. Sts. c. 124, § 10, by the defendant Cram as principal, and the other defendant as surety, and containing the usual conditions. The case was submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, upon an agreed statement of facts, in substance as follows:</p> <p>The plaintiff recovered a judgment against Cram, upon which execution issued. At the time of the recovery of the judgment, and ever since, Cram lived and had his usual place of business in Norfolk County, and has had no residence or place of business in any other county. After the execution was issued, the plaintiff, on June 6, 1879, applied to a master in chancery for Suffolk County, for a certificate authorizing the arrest of Cram on the execution, upon the first charge specified in the Gen. Sts. a. 124, § 5. The magistrate issued a notice, under the St. of 1877, o. 250, to Cram, to appear at his office in Boston, on June 16, 1879, at ten o’clock in the forenoon, and submit to an examination touching his estate. This notice was served by a deputy sheriff of Norfolk County on June 7, 1879, by delivering an attested copy thereof to Cram, in that county. Cram did not appear at the time and place fixed in the notice; and, on June 16, the magistrate made the certificate applied for as before stated, authorizing the arrest of Cram on said execution. On June 20, 1879, Cram was arrested on the execution by a deputy sheriff of Norfolk County in that county, and taken before a master in chancery for said county, and there entered into the recognizance sued on in this action. Cram caused the plaintiff to be notified of his desire to take the oath for the relief of poor debtors, at the office of the last-named magistrate, on July 19, 1879, at five o’clock in the afternoon. The examination was thence continued from time to time to November 22, 1879, at ten o’clock in the forenoon, at which time the plaintiff appeared, but Cram did not appear.</p> <p>If, upon the foregoing facts, the plaintiff was entitled to recover, judgment was to be entered for the plaintiff for the penal sum of the recognizance, the sum for which execution should issue to be afterwards determined by the court or by the agreement of parties; otherwise, judgment for the defendant.</p>

<p>In an action for tearing away the plaintiff’s dam, it appeared that the entire township, where the land on which the dam had been built was situated, belonged, between two and three centuries ago, to the town, and that the deeds put into the case by the plaintiff were dated within twenty years before the date of the writ. Held, that the defendant was not entitled to a ruling that the plaintiff must show either a title in his grantors from the town, or a title by adverse possession.</p> <p>Where there are many propositions of law and fact involved in a case, and a number of requests for instructions presented, the judge may disregard the words of the requests, and state the law applicable to the facts in his own 'mode and in his own order; and he is not required to state principles of law, even if correct and asked for, unless the condition of the case requires it.</p> <p>It is within the power of the Legislature to authorize such a use of a stream which is not navigable as will wholly destroy a public fishery.</p> <p>In an action by the owner of a cranberry meadow against a fish committee of a town, for tearing away the plaintiff’s dam, built, under the provisions of the St, of 1866, c. 206, across a stream not navigable, the defendant asked the judge to rule that, if the plaintiff could have constructed his dam or meadow so that his use of the water would not interfere with or injure a public fishery, he was bound to do it, and, if he did not, the committee had the right to reduce the dam to the point necessary to avoid such interference or injury. The judge declined so to rule; but instructed the jury that it was the duty of the plaintiff to use reasonable care, skill and prudence in building and maintaining his dam, in the preparation, by way of grading or otherwise, of his meadow before it was overflowed, and in raising and drawing off the water, so as to do the least injury to the fishery consistent with a reasonable exercise of his right to construct a dam, giving full instructions as to the meaning of the words “ reasonable care, skill and prudence; ” and that, if the plaintiff so exercised his right, and drew off the water at a proper time and only in a maimer necessary for the cultivation of cranberries, the plaintiff was not responsible for injury to the fishery by reason of the spawn of the fish being deposited in shallow water on the meadow and injured by the drawing off of the water; and that, upon such a state of facts, the defendant had no right to remove the dam. Held, that the defendant had no ground of exception.</p> <p>In an action by the owner of a cranberry meadow against a fish committee of a town, for tearing away the plaintiff's dam, built, under the provisions of the St. of 1866, c. 206, across a stream not navigable, the defendant requested the judge to rule that, if the dam was built, without permission of the town, on land of the town, or against a bridge forming part of a highway, or on land of the town, or under the bridge, the defendant had the right to remove it. The judge declined so to rule, hut instructed the jury that the plaintiff had no right to build his dam in the highway, with or without the consent of the town, nor to build it on land of the town without the consent of the town; and that, if it was so built, the defendant had the right to remove it. Held, that the defendant had no ground of exception.</p> <p>In an action by the owner of a cranberry meadow for the removal of Ms dam, the jury were instructed not to regard the injury caused by frost and insects, after the date of the writ, as distinct and independent grounds of damage, but that the true measure of damages was the diminution in value of the land for cranberry culture caused by the act of the defendant. Held, that the defendant had no ground of exception.</p>

<p>A. brought a bill in equity against B. praying for an injunction to restrain the latter from selling certain real estate, under a power of sale contained in a second mortgage, and upon which interest was overdue to a certain amount, until it should be ascertained what sum, if any, was due on the mortgage. A temporary injunction was granted, upon the execution by A. of a bond to B., conditioned that, in case it should be determined in the suit that B. was entitled to hold the premises chargeable for the payment of his mortgage in full, A. should pay the overdue interest thereon with interest on that sum, and “ keep down all interest accruing or accrued ” on the first mortgage. On motion of A., the injunction was dissolved; the case was heard on the merits, and the bill dismissed with costs. B. thereupon sold the premises under the power for a sum sufficient to pay the first, but not the second, mortgage in full. Held, in an action against A. on the bond, he having paid the interest on the second mortgage, that B. was entitled to recover of A. the interest accrued on the first mortgage at the time the injunction issued, as well as the interest accruing thereon from that time to the dissolution of the injunction.</p>

Contract upon a promissory note for $2500, dated October 29,1874, payable in five years from date to the plaintiff or order, and signed by the defendants. At the trial in the Superior Court, before Pitman, J., the jury returned a verdict for the plaintiff in the sum of $276.44; and the defendants alleged exceptions, which appear in the opinion.

Bill in equity to restrain the defendants from cutting ice in Spy Pond. Hearing before Ames, J., who reserved the case for the consideration of the full court; such judgment to be entered as justice might require. The facts appear in the opinion.

<p>At the trial of an indictment on the Gen. Sts. c. 165, § 2, for enticing a woman of chaste life and conversation to a house of ill fame for purposes of prostitution, the burden is on the government to prove the chastity of the woman; and a ruling that, “ in the absence of evidence to the contrary, it is a presumption of law that she was of chaste life and conversation,” is erroneous.</p>

<p>The hoard of park commissioners, appointed under the St. of 1875, c. 185, has power to amend its record of an order laying an assessment, if at the time of the amendment the board consists of the same persons who were members at the time of the making of the order, although one of them has been meanwhile reappointed upon the expiration of his first term of office.</p> <p>The St. of 1875, c. 185, authorized a board of park commissioners to locate and lay out within the city of Boston a public park, to take such lands as the board should deem desirable therefor, and to assess upon any real estate in Boston, which, in the opinion of the board, should receive any benefit and advantage from such location and laying out, beyond the general advantages to all real estate in the city, “ a proportional share of the expense of such location and laying out,” the entire amount so assessed upon any estate not to exceed one half of the amount adjudged by the board to be the whole benefit received by it. Held, that the statute authorized an assessment only for expenses either actually paid or incurred, and not for estimated expenses.</p>

<p>In a trustee process, the plaintiff may put interrogatories to the trustee calculated to elicit facts which will tend to charge him, but not to contradict or impeach him.</p> <p>In a trustee process, the trustee answered denying funds of the principal defendant. In answer to interrogatories, the trustee stated that he was a lessee of the principal defendant, and that an instalment of rent was due under the lease; and further stated that, after adjustment of all mutual demands between the defendant and the trustee, a certain balance was due the trustee from the defendant at the time of service of the writ. Held, that the plaintiff might file further interrogatories to the trustee for the purpose of ascertaining the state of the accounts between the parties; and might ask him whether he had not assigned his claims against the principal defendant before service of the writ; but could'not ask whether he was not aware of this when he answered the preceding interrogatories.</p>

<p>After the incorporation of the south part of the town of M. as the town of E., the owner of land therein, upon which he lived, mortgaged it by a deed which described him as of M. and the land as situated in the south part of M., and which contained a power authorizing the mortgagee, upon breach of condition, and upon publishing a notice of the sale in a newspaper published in the county, to sell the land by public auction “in said M.” Upon breach of condition, the mortgagee published a notice of sale in a newspaper within the county, which stated that the sale would take place on the premises, in the south part of M., and described the land by metes and bounds, gave the date of the mortgage and the book and page in the registry where the mortgage was recorded. The sale took place on the premises. Held, on a bill in equity to redeem the land from the mortgage, that the notice of sale sufficiently described the land, and that the sale was made at a place authorized by the mortgage.</p>

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

<p>If a ship suffers damage by perils insured against, sufficient to justify an abandonment, the assured may abandon and recover for a constructive total loss, although the damage is caused by successive perils, and there is no evidence that the damage caused by any one peril is sufficient to justify an abandonment.</p> <p>The constructive total loss of a whaling ship at a port where whaling outfits are bought and sold, and where the outfits are in safety, is not a constructive total loss of the outfits; and evidence of a usage to regard it as such at the port from which the ship sailed is inadmissible.</p> <p>If the assured in a policy of marine insurance presents to the underwriter a state- ' ment in proper form of a constructive total loss which the underwriter makes no objection to, and suggests no modification of, the fact that the loss is not also stated therein as a partial loss will not prevent the assured from recovering for a constructive total loss, although the policy provides that, “in case of loss, such loss shall be paid in sixty days after proof and adjustment thereof,” and that “ the assured shall not have the right to abandon the vessel for the amount of damage merely, unless the amount which the insurer would be liable to pay under an adjustment as of a partial loss shall exceed half the amount insured.”</p> <p>When a vessel has been so injured by perils insured against as to become a constructive total loss, yet if she is in a safe port and in no danger of further injury before communication can be had with the insurer, a sale of the vessel by the master will not dispense with the necessity of an abandon ment.</p> <p>A delay of two months in making an abandonment, after knowledge of the condemnation of a vessel by a board of survey, in the absence of evidence that the delay was necessary to enable the assured to ascertain the real extent of the injuries to the vessel, prevents the assured from relying upon the abandonment, although the insurer has not been prejudiced by the delay.</p>

<p>It is beyond the powers of a railroad corporation chartered by the Legislature, or of a corporation organized under the St. of 1870, c. 224, for the manufacture and sale of musical instruments, to guarantee the payment of expenses of a musical festival; and no action can be maintained against either corporation upon such a guaranty, although it was made with the reasonable belief that the holding of the proposed festival would be of great pecuniary benefit to the corporation by increasing its proper business, and the festival has been held and expenses incurred in reliance upon the guaranty.</p>

<p>A mortgagee of land, whether in possession, before foreclosure, or out of possession, who purchases the land at a sale thereof for nonpayment of taxes, is entitled, under the St. of 1862, c. 183, § 6, to have the purchase money repaid him in case the sale is invalid.</p> <p>A mortgagee of land, who has, after the assessment of a tax, become the absolute owner by purchasing at a sale under a power in his mortgage, and who buys the land at a sale thereof for nonpayment of taxes, is not entitled, under the St. of 1862, c. 183, § 6, to have the purchase money repaid him, although such sale is invalid.</p> <p>In an action, under the St. of 1862, c. 183, § 6, by the purchaser of land sold for nonpayment of taxes, against a city, for breach of the special warranty in the collector’s deed, the defendant cannot set off its claim for the taxes, although the plaintiff, being a mortgagee in possession, is liable to pay the same.</p>

<p>The maker of a check, obtained from him by fraud, and payable to an existing firm, is not liable to an innocent indorsee holding the check under a forged indorsement of the payee’s name.</p>

<p>A contract between A. and B. set forth the sale by A. to B. of the good will of the entire interest of A.’s business “of manufacturing and selling machinery and apparatus, belonging or appertaining to presses for hot-pressing textile fabrics by means of hollow or chambered plates,” and an agreement not to engage, within the United States, in the business of manufacturing or selling machinery or apparatus for hot-pressing textile fabrics by means of hollow or chambered plates or especially belonging or appertaining to the same. Held, that the right of A. to manufacture and sell presses passed to B. Held, also, that the contract was not void for uncertainty.</p> <p>In an action for damages for manufacturing machinery covered by letters patent, in contravention of an agreement between the parties, the answer set up that the defendant had paid a license for the machinery manufactured by him; and a supplemental answer averred that a certain person gave the defendant a license to manufacture and sell under said contract, a copy of which was annexed. Annexed to the answer was a written contract from a joint owner with the plaintiff of the patent. Held, that evidence of a parol license from such joint owner was not admissible under the answer.</p> <p>A party to an action, who has not .complied with the requirements of the St. of 1869, c. 425, cannot contradict a witness called by him, who is not a party, by showing that he has made previous statements inconsistent with his present testimony.</p> <p>No exception lies to the exclusion of a question, put to a witness who is a party to the action, the answer to which necessarily involves his opinion upon the existence and effect in law of a license to him.</p> <p>A contract between A. and B. of the one part, and O. and D. of the other, whereby A. and B. conveyed to C. and D. the right to manufacture machinery, under letters patent, contained a clause beginning, “It is hereby mutually agreed between the parties hereto,” followed by several mutual agreements, and concluding with an agreement by D. to pay to A. a certain sum in settlement of a former account between them. Held, that this was an independent stipulation, the non-performance of which would not prevent 0. from maintaining an action, after the death of D., against A. and B. for breach of the agreements to be performed by them.</p>

<p>A bill in equity alleged that the plaintiff lent money to a partnership, of which the defendant and another person were members; that, on the dissolution of the firm, it was agreed between the partners that the defendant should take the assets of the firm and pay all the liabilities, and indemnify his partner against them; and that the" plaintiff’s debt was still due. Held, on demurrer, that the other partner was a necessary party to the bill.</p>

Bill in equity, filed September 27, 1879, alleging that the defendant owed the plaintiff $248.40, for use and occupation of a dwelling-house and land in Boston; that on July 16, 1878, certain letters patent of the United States were granted to the defendant, which he still owned; that the patent was of great value; that the defendant had no other visible property which could be applied to his indebtedness, and refused to apply this patent, or any of the proceeds thereof, to…

<p>Bill in equity against an insurance company established by law in this Commonwealth, Susan S. S. Bowser, widow of William L. Bowser, and their four minor children. The case was heard, upon bill and answers, by 'Morton, J., and was reserved for the consideration of the full court as follows:</p> <p>William L. Bowser in his lifetime had obtained a policy of insurance from the company on his life, payable to him, his executors, administrators or assigns, but expressed to be for the benefit of Susan S. S. Bowser, his wife, and the amount of which was due and payable, and was ready to be paid her by the company when this bill was filed. The plaintiff was a simple contract creditor of Mrs. Bowser and had possession of the policy, it having been delivered to him, without assignment, to hold as collateral security for the payment of his debt. The defendants contended that, under the Gen. Sts. e. 58, § 62, and the St. of 1864, c. 197, and the terms of the policy, the widow was entitled to the money for her own benefit and that of her minor children, free from the interference of her creditors.</p> <p>If the plaintiff was entitled to maintain his bill, the case was to be sent to a master to determine the amount of the plaintiff’s debt; otherwise, the bill to be dismissed.</p>

<p>A person hired of a common carrier a hack and driver to take himself and two trunks to a house on a certain street, at each end of which posts were placed so that the hack could not enter it. Upon the carrier proposing that the driver should take another man to assist him in carrying in the trunks, the hirer said that he would help him. When they arrived at the entrance to the street, he went to the house with a valise, leaving the driver to unload the trunks; he then returned and suggested that they take the heavier trunk first, to which the driver assented, saying, “ I will set the other in here,” putting the smaller trunk inside of the posts. They then went to the house with the larger trunk; and, upon their return, the other trunk was gone, and has never been found. Held, that these facts would warrant a finding that the hirer had waived a delivery of the trunks at the house.</p>

<p>In an action on a policy of insurance on “ stereotype, electrotype and steel plates and cuts,” the issue was whether brass plates cut with designs and letters, and used for making impressions on the covers of books, were “ cuts ” within the meaning of this term in the policy. Held, that the defendant was entitled to a ruling that, if the word “ cuts ” had, among persons in the trade in which the plaintiff was engaged, a technical meaning universally so understood, the jury might presume that such was its meaning in the policy.</p>

<p>The owner of a vessel chartered it for a round sum, for a voyage to a foreign port and back, reserving a portion of the vessel for the use of the officers and crew. A part of the charter money was payable at the outward port, and the remainder on the return of the vessel and proper delivery of the cargo. The consignee of the charterer at the foreign port refused to receive certain packages which formed a part of the outward cargo, and the master placed them in that part of the vessel reserved for his use, and did not include them in the bill of lading given for the return cargo. Proper delivery of the return cargo was made, but on arrival at the home port one of the packages was found to be broken open, and a portion of the contents gone, without negligence on the part of the officers or crew of the vessel. Held, in an action for the charter money, that the packages formed no part of the return cargo; that as to them the master of the vessel was an involuntary bailee; and that, on the facts of case, the charterer could not recoup the value of the missing goods.</p>

<p>The St. of 1873, c. 340, authorizing the city council of Boston to order the owners of lands situated in a certain district “ to raise the grade of their said lands, filling up the same with good materials to such permanent grade as may be deemed necessary by the board of aldermen in order to secure a complete drainage thereof, so as to abate and prevent nuisances, and to preserve the public health of the city,” and, if the owner of such lands fails to comply with the order, to fill up the land, “and all necessary expenses incurred thereby shall constitute a lien upon the lands filled,” is constitutional; and, under it, the ■whole expense of filling the land is to be borne by the owner, without regard to the question whether the land is benefited by such filling.</p> <p>In pursuance of the St. of 1873, c. 340, authorizing the city council of Boston to order the owners of lands within a certain district, “ or any of such owners,” to raise the grade of their lands "to such permanent grade as may be deemed necessary by the board of aldermen,” the board of aldermen passed an order, “that the grade of the cellars, back yards and vacant lots of land included within the district” named in the statute “is hereby established at twelve feet above mean low water; ” and the city council passed an order that the owners of land within the district raise the grade of their lands, “or such portions thereof as are below the grade established by the board of aldermen,” to the grade as established by the above order of that board. Upon the land of a person in this district there was a stone building used as a factory, which was built on piles and had no cellar under it. The grade of the lower floor of the building and of the land under it was below the grade established by the above order. The city filled his land outside of the building, but did not fill under or raise the building. Held, that the order of the city council did not include the land upon which his factory stood; and that he had no legal ground to complain of the assessment. Held, also, that it was no objection to the validity of the assessment that it was made upon each of three distinct lots of land separately for the expense of filling that lot, instead of a single assessment upon all of the petitioner’s land in the district.</p>

Tort for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant’s servants. Answer, a general denial. Trial in the Superior Court, before Allen, J., who allowed a bill of exceptions, in substance as follows: James Douglas was a material witness for the plaintiff, and, on his direct examination, was asked by the plaintiff’s counsel if the defendant had come to him and asked him to go to his counsel’s office. Douglas answered that he had.

<p>A partner of a firm formed for an indefinite time may withdraw when he pleases, and dissolve the partnership, if he acts without any fraudulent purpose; and he is not liable to his copartner for damages caused by such withdrawal.</p> <p>A firm, consisting of A. and B., had, under an agreement with C., the exclusive right of selling in certain States articles for which C. held patents, and undertook to form a corporation in one of the States for the purpose of carrying on the business there. The firm accordingly sold to D. and E. in that-State for a certain sum an undivided half interest in the rights it had under its agreement with C. At a meeting of the parties, at which B. was present, but without authority to act for A., it was voted to assess a certain sum upon the parties according to the stock each was to have. D. and E. paid their part, and B. paid his part; but no corporation was ever formed. After the dissolution of the firm, A. paid to D. and E. the amount they had paid, and bought, through F., the patents of C. for the State in which the corporation was to have been formed; but A. made no profit out of the transaction. Held, on a bill in equity by A. against B. to settle the affairs of the partnership, that A. should not be charged with the amount paid to D. and E.; and that B. should not be allowed the amount of the assessment paid by him.</p> <p>A partner, to whom the firm is indebted for advances made by him, is entitled, in a settlement of its affairs, to charge the firm with the amount paid by liira as discount on notes payable to the firm, and is not chargeable with the amount of a premium received by him on a draft payable in gold, if he has' credited the firm with all he received on the draft.</p> <p>If an exception to the report of a master in chancery shows merely that a question to a witness was excluded, and the materiality of the question does not appear in the record, the exception will be overruled.</p>

<p>Bill in equity, filed October 14, 1879, to reform certain indorsements made by the plaintiff upon two policies of insurance issued by it to Emma L. Putney. Hearing before Soule, J., who, at the request of the parties, reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>By the terms of a policy of life insurance, the insurer promised to pay a certain sum to the assured on a day named, or to his children within sixty days after due notice and proof of loss. Held, that the promise to pay to the children took effect only in case the assured should die before the day named; that, before that time, the assured had a valuable interest in the policy, which passed to his assignee in bankruptcy; and that the assignee could maintain a bill in equity to recover possession of the policy from the insurance company, to whom it had been surrendered and discharged by the assured after his bankruptcy, and by whom it was secreted and withheld, so that it could not be replevied.</p>

<p>In a marriage settlement made in 1830 between A., B. his intended wife, and C. as trustee, A. covenanted that he would stand seised of one undivided third part of all the lands of which he was then seised and possessed, “ to the sole use and behoof of A. during his natural life; and after his marriage with B. and after his decease, to the sole use and behoof of B. during her natural life, for her jointure, and in lieu and satisfaction of her whole dower in all the land and real estate of which A. is now seised or may at any time be seised during his coverture with B., and also in lieu and satisfaction of B/s whole claim to the thirds of the personal estate of A.; and after the decease of B., to the use of D. and E. (B.’s daughters by a former marriage) during their natural lives and the life of the survivor of them; and after the decease of D. and E., to the use of the heirs and assigns of A. forever.” Held, that the concluding words of the covenant, “ to the use of the heirs and assigns of A. forever,” were intended as words of limitation, and not of purchase.</p> <p>The fact that neither a vessel, in which a person went to sea forty years ago, nor the person, has been heard from since, will warrant the inference that such person is dead.</p>

Bill in equity, filed February 19,1881, by Mary E. Brown and Frank Brown, to compel the specific performance by the defendants of an agreement to purchase certain real estate in Boston.

<p>A party to a submission to arbitration, under the Gen. Sts. c. 147, cannot, after his motion to have an award made thereunder set aside has been overruled, assign the same reasons in support of a motion to have the submission set aside.</p>

<p>Contract. The declaration contained two counts. The first count was to recover $60.42, being one half the amount paid by the plaintiff to the state lunatic hospital at Worcester for the board and other expenses there of the defendant’s insane minor daughter from September 1, 1877, to July 1, 1878, and alleged an express contract on the part of the defendant to pay the same, made at the time of the commitment of the daughter to the hospital. The second count was to recover the sum of $47.91, paid by the plaintiff for the support of the same child at the same place from July 8 to October 1, 1879. Both counts alleged that the defendant’s daughter was insane, and was properly committed to said hospital; that the defendant had a settlement in the plaintiff town; and that due demand was made by plaintiff for payment of the above sums, and that the same remain unpaid. Trial in the Superior Court before Brigham, C. J., who allowed a bill of exceptions, in substance as follows</p> <p>It was in evidence, on the part of the plaintiff, that the defendant had a legal settlement in Arlington; that he had a family consisting of seven children, besides himself and wife, one of whom,. Margaret Lyons, was on May 4,1877, duly committed to the lunatic hospital at Worcester by order of the Judge of Probate for Middlesex County, where she remained until July 1878, when she was taken by the defendant to his house, and was again committed on July 8, 1879, by the Judge of Probate, to the said hospital, where she still remains; and that she is now under twenty-one years of age. It was also in evidence that the sums sought to be recovered in this action were duly paid by the plaintiff to the lunatic hospital, and that the same have not been paid to the plaintiff, although demanded of the defendant.</p> <p>The only evidence of the contract alleged in the first count came from John Schouler, and was in substance, that, in May 1877, he was chairman of the board of selectmen in the town of Arlington; that he was sent for to see the defendant’s daughter, and, upon seeing her, told the defendant that she ought to be sent to the asylum; that the defendant said he was unable to pay for her; that he, Schouler, said the town would pay one half the expense while she remained there, and that the defendant should pay the other half, and if she did not get well they could have her sent to the state almshouse; and thereupon, upon Schouler’s suggestion, the application for commitment was made by the defendant. The plaintiff here rested its case. There was no evidence that the witness Schouler was authorized by the plaintiff or by the selectmen to make any agreement with the defendant.</p> <p>The defendant offered no evidence, and requested the judge to rule as follows: “ 1. The plaintiff cannot recover upon the first count of the declaration, for the reasons that the agreement declared on in said first count was an agreement not to be performed within a year, and was not in writing. 2. The witness Schouler had no authority to make such an agreement. 3. Upon the evidence the plaintiff is not entitled to recover upon the first count. 4. The plaintiff cannot recover against the defendant in this form of action under the second count of said declaration. 5. Upon the evidence the plaintiff cannot recover against the defendant under the second count of the declaration. 6. The only means of enforcing the liability against the kindred under the Gen. Sts. c. 73, § 25, is by petition, as provided in the Gen. Sts. e. 70, § 5. 7. The plaintiff must prove, in order to recover</p> <p>under said count, that the lunatic was a pauper at the time of commitment to said asylum.”</p> <p>The judge refused to rule as requested, and instructed the jury that, upon the evidence, if they found that the lunatic was not of sufficient ability to pay for her own support in said hospital, they must return a verdict for the plaintiff for the amount claimed in both counts. The jury returned a verdict for the plaintiff; and to the foregoing ruling and refusals to rule the defendant alleged exceptions.</p>

<p>In an action for the conversion of chattels, the plaintiff is not precluded from putting in evidence of their value by the fact that he offered no evidence on this point before an auditor, to whom the case had been referred.</p> <p>In an action of tort for the conversion of the contents of a country store, against the assignee in insolvency of a person who had mortgaged the articles to the plaintiff, in order to show what the goods were and their value, the plaintiff called as witnesses the appraisers appointed by the court of insolvency, who testified that they prepared a schedule of the goods and of their value; and that they could not then remember what the articles were or their value, but that they were correctly stated in the schedule. The defendant admitted that he had the schedule, but refused to produce it. Held, that the plaintiff could put in evidence a copy of the schedule.</p> <p>A power to a mortgagor, in a mortgage of a stock of goods, to sell the goods in the regular course of trade, does not of itself avoid the mortgage.</p> <p>A mortgage of “ groceries,” contained in a “ country and village grocery store,” does not include pails, shovels and the like, although such goods are usually kept in such a store.</p>

Indictment for rape on Clarissa M. Robinson. At the trial in the Superior Court, before Aldrich, J., the defendant offered to show by a witness that, before the time of the alleged rape, the woman had committed adultery with the husband of the witness and with others. This evidence was excluded. The jury returned a verdict of guilty; and the defendant alleged exceptions.

<p>Pending a complaint under the Gen. Sts. c. 149, for flowing land by a mill-dam, the parties entered into an agreement under seal by which all past and future claims for rompensation for flowage were released, and the complaint was entered “ neither party.” After the entry of the complaint, and before the execution of the agreement, the complainant mortgaged his land; the mortgage was subsequently foreclosed and the land sold. Held, that the purchaser could not maintain a complaint under the mill act, although neither he nor the mortgagee had knowledge of the agreement when each acquired his title.</p>

<p>The guardian of an insane person, who had been engaged in a manufacturing business, ccctmued to carry on the business, either at the request or with the</p> <p>' concurrence of all parties interested in the ward’s estate, the result of which was advantageous to the estate. The business required storage room, and the guardian erected a building for such purposes on land of the ward’s wife, and charged the cost of the building to the ward’s estate; but this charge was disallowed by the Probate Court, and he was required to account to the estate in money for the amount so charged. Held, that the guardian was entitled to charge the estate a reasonable rent for the building.</p> <p>A question, not specified as one of the reasons of appeal from a decree of the Probate Court, is not open at the hearing of the appeal in this court.</p>

<p>A certificate of the entry of a mortgagee, for the purpose of foreclosure, under the Gen. Sts. c. 140, §§ 1, 2, sworn to before himself as a justice of the peace, is invalid.</p>

<p>Petition to the county commissioners for a jury to assess damages for the taking of the petitioner’s land for the construction of two highways in Montague. The Superior Court accepted the verdict of the jury in favor of the petitioner; and the respondent appealed to this court. The facts appear in the opinion.</p>

<p>Petition filed April 4,1879, by the present trustee under the will of Cotton Smith, to the Probate Court, under the Gen. Sts. c. 97, § 8, to order Sophronia Granger and John W. Smith, administrators with the will annexed of Lorenzo 1ST. Granger, to retain in their hands sufficient funds to satisfy the petitioner’s claim against his estate. The Probate Court dismissed the petition, but, on appeal to this court, its decree was reversed, and the case remitted for further proceedings. 128 Mass. 272. The Probate Court thereupon decreed that the respondents should retain in their hands assets in the sum of $12,000, and from this decree the respondents appealed to this court, assigning as a reason of appeal that they had no assets in their hands. At the hearing of this appeal, the parties agreed upon a statement of facts, the material parts of which were as follows:</p> <p>The original trustees under the will of Cotton Smith were George C. Smith and John W. Smith, who, in February 1861, gave bonds for the performance of their trust, with Thaddeus Smith and Lorenzo N. Granger as sureties. In March 1879, they were removed by the Probate Court, and this petitioner appointed in their stead, and they refused, upon his demand in writing, to deliver to him the trust fund in their hands, the present amount of which is admitted, for the purposes of this case, to be $10,000.</p> <p>Lorenzo N. Granger died in March 1876, seised of real estate of the value of $40,000 and of an equal amount of personal prop erty, and by his will gave certain portions of the residue of his estate real and personal to his wife and sister. Hone of his real estate has been sold to pay debts. In May 1876, the respondents Sophronia Granger and John W. Smith gave bond as administrators of the will annexed of Lorenzo H. Granger, and forthwith published notice of their appointment, and his estate has not been fully administered. Their first and second accounts as such administrators have been allowed by the Probate Court, the second showing a balance in their hands of personal assets exceeding $12,000. Before the commencement of any proceedings by this petitioner, they paid out to their testator’s wife and sister personal property to the amount of $3995. On September 26, 1879, they filed a third account, on which no proceedings have been had, purporting to show a balance remaining in their hands of $1518.60. It is agreed that, if the sums distributed as aforesaid to the wife and sister are to be considered as in the hands of the administrators for the purpose of paying debts, the personal property now in their hands is $5513.60. They have never charged themselves in their accounts with any debt or any sum as due from John W. Smith by reason of his default as trustee under the will of Cotton Smith. Ho change has been made in the estate of Lorenzo H. Granger since the commencement of proceedings by this petitioner; and no one interested in the estate has offered to give the bond provided by the Gen. Sts. a. 97, § 8.</p> <p>If, upon these facts, or so much thereof as would be competent evidence, the petitioner was entitled to a decree, the decree of the Probate Court was to be affirmed; otherwise, that decree was to be reversed and the petition dismissed, or such other decree entered as to the court should seem meet. Lord, J. affirmed the decree of the Probate Court, and the respondents appealed to the full court.</p>

<p>Bill in equity by Alfred Jenkins, Jr., of Baltimore in the State of Maryland, against Rhoda Ann Lester, of Amherst in the county of Hampshire, and Caroline Mitkiewicz and Eugene Mitkiewicz her husband, both of Baltimore aforesaid.</p> <p>The bill alleged that the plaintiff had advanced to said Caroline and Eugene large sums of money (the particulars of which were set forth) upon the faith and credit of her sole and separate estate, and had received their promissory note therefor, by the terms of which she “ charges her separate estate with the payment of this note,” and upon which the sum of $20,950, with interest from November 26, 1879, was still due; that the estate of Caroline, which she had so charged with the payment of the debt to the plaintiff, consisted of a life interest in a legacy left in trust for her benefit under the will of her father, Ralph Lester, of Rochester in the county of Monroe and State of New York, (a duly certified copy of the probate of which in the Surrogate’s Court of that county was annexed to and made part of the bill,) by which he appointed his wife, Rhoda Ann Lester, his “ sole executrix, without security,” and made to her for the benefit of his daughter Caroline the bequest which is printed in the margin,* and, after sundry other bequests and legacies, provided that, in case of a surplus of his estate after payment of funeral expenses and of all just debts, bequests and legacies, “ there shall be a pro rata addition to the said bequests and legacies of such surplus; ” that Rhoda Ann Lester took out letters testamentary in said Surrogate’s Court, “ and accepted the trust, and has continued to act as trustee under the terms of said will, though she has never filed any inventory or accounts as executrix, and has never reported to any court in what manner or what sums she has invested under the directions of said will; ” that there was so large a surplus of the estate that the principal sum to the income of which Caroline was entitled was about $40,000; that Rhoda Ann, with notice of the charge created by Caroline on her said estate in favor of the plaintiff, and colluding with her and her husband to evade the operation and satisfaction of her obligation to the plaintiff, and in fraud of his rights, had continued, and declared her intention to continue, to make pay ments to Caroline on account of the income thereof.</p> <p>“ Under these circumstances, and considering further the fact that said Rhoda Ann Lester is under no bond for the faithful administration of her trust,” the bill prayed for process, discovery, an injunction, a receiver, an account, payment of the income of the life estate of Caroline to the plaintiff until his claim be wholly discharged and satisfied, and for further relief.</p> <p>The defendant Rhoda Ann Lester demurred to the bill, for want of equity and for want of jurisdiction; upon a hearing before Lord, J., the demurrer was sustained, and the bill dismissed, with costs; and the plaintiff appealed to the full court.</p>

Contract. The writ, returnable to the Superior Court, described the defendant as of Derby in the county of New Haven and State of Connecticut.

<p>If, by the contract between a street railway corporation and a person in its employ as conductor, he is to account for the tickets entrusted to him to sell in the settlement for Ms wages, and, at the time of the service of the writ in a trustee process upon the corporation, he has in his hands money received from the sale of tickets and tickets of a certain value, which together exceed the wages then earned by him, there is nothing due him “ absolutely and without any contingency,” within the Gen. Sts. c. 142, § 24, so that the corporation can be charged as trustee.</p>

<p>A policy of marine insurance was effected on a vessel and outfits “ on a whaling voyage in the Atlantic, Pacific and Arctic Oceans,” which provided that the policy attached “on provisions, oil casks, iron boilers and whaling apparatus generally outward, and on oil, bone and other taking, empty casks and whaling apparatus generally homeward;” and that, "as fast as oil, bone and other articles of cargo are procured, this insurance is to attach.” The holder effected a subsequent policy on eatchings, which contained a clause that, if the insured had made any prior insurance upon the eatchings, then the insurer “ shall be answerable only for so much as the amount of said prior insurance may be deficient toward fully covering the property at risk.” At the time of the loss the amount of eatchings on board was less than the amount insured upon them in the first policy. Held, that the first policy applied to eatchings as soon as they were taken on board, without reference to the fact whether the vessel was on her outward or homeward voyage, and did not cover the outfits and catchingspro rata; and that the second policy did not attach.</p>

<p>Under the Gen. Sts. c. 39, and the St. of 1873, c. 315, the stock of a national bank, belonging to an inhabitant of a school district in a town other than that in which the bank is situated, cannot be taxed for the purpose of defraying the expense of building a school-house in the district.</p>

<p>A passenger in a car of a railroad corporation, on the train approaching the station to which he was going, which was a flag station, and at which the conductor had promised him to stop the train, left his seat and tried to make his way to the door of the car, in order to leave the train at the station. It was a day of great public excitement, and the train, which was a very long one, was overloaded with people, who filled all the seats, passageways, and platforms, and even occupied the roofs of the cars. The train did not come to a full stop on reaching the station, and the passenger, in making his way through the crowd, reached the platform, and, in the surging of the crowd, fell, or was pushed out on the platform and down the steps of the car; and, after holding on with one hand for a short distance, he finally fell to the ground and was injured. Held, in an action by him against the railroad corporation, that the question whether the plaintiff was in the exercise of due care, and whether the defendant negligently and improperly managed its train so that the plaintiff’s injury was caused thereby, should have been submitted to the jury.</p>

<p>A guardian is entitled in equity to have securities, given by a former guardian to Ms sureties to indemnify them against their liability for Ms debt to the ward's estate, sold and the proceeds applied to the payment of that debt, the former guardian and the sureties having become insolvent, and a portion only of the debt having been paid by the sureties; and the sureties are not entitled to have the amount so paid allowed to them out of the proceeds of the securities before the claim of the guardian is satisfied, but only to the balance remaining after payment of such claim.</p>

<p>Under the St. of 1876, c. 197, an unmarried woman is not entitled to he examined for admission as an attorney and counsellor of tills court.</p>

<p>A. and B. entered into a written contract, which mentioned B. in several places as the agent of A., and by which he assumed some duties of agency; it also recited that A. agreed to sell his goods to B., who was made absolutely liable to pay for all goods delivered under it. C. made a written agreement by which he guaranteed to A. “the full performance of the foregoing contract by B., and the payment by B. of all indebtedness to A. for property sold to B. under this contract.” Each contract was dated May 8, but the first named contract was not delivered until June 8, and the contract of guaranty was not delivered until June 25. Held, in an action on the guaranty, that, by the contract between A. and B., the latter was the purchaser of all goods delivered under it; that, by the terms of the guaranty, C. was not liable for goods sold by A. to B. before June 8, but was liable, not only for goods sold after June 25, but also for goods sold between June 8 and that date, C. knowing that the contract between A. and B. had been delivered previously, and that the parties were transacting business under it. Held, also, that oral evidence was inadmissible to show that the parties understood that the contracts were to have the same effect as if they had been delivered on the day of their date.</p>

Petition to the county commissioners for a jury to assess damages caused by the respondent in laying out and maintaining a sewer under and through the land of the petitioner.

<p>If a legatee is not described in a will with exact accuracy, and the description may in some respects be applicable to different persons, each of whom claims the legacy, the executor may maintain a bill of interpleader for the determination of the person to whom the legacy is payable.</p> <p>Extrinsic evidence of the conduct and the declarations of a testator is admissible to show his relation to, and state of feeling towards, any of the respective claimants of a legacy, where the legatee is not described with entire accuracy, and the description is in some respects applicable to each of the claimants.</p> <p>A woman who had two nephews, one named Joseph White Sprague, and the other Joseph Sprague Stearns, by her will bequeathed a legacy “to my nephew J. S. Sprague.” Held, that the inference was that she intended Joseph White Sprague; and that, in the absence of extrinsic evidence sufficient to control this inference, he was entitled to the legacy.</p> <p>If the ambiguity of a will renders it doubtful to which of two persons a legacy shall be paid, the costs as between solicitor and client of all parties to a bilL of interpleader by the executor are to be paid out of the general estate of the testator.</p>

Bill in equity, filed June 1, 1880, for an injunction to restrain the defendants from taking down certain fences erected by the plaintiff on each side of its tracks in the town of Ayer, on December 6, 1879. The answer alleged that the fences were erected across a public way in said town, called Forrest Street, which the public had the right to use, and were an obstruction thereto and a nuisance.

<p>If, after a loss by fire has happened through fraud of the assured, and been adjusted by the insurers, he assigns his claim under the policy to a creditor of his to secure a debt, and the insurers, at the request of the assured, pay to the creditor the amount so adjusted, both the insurers and the creditor being ignorant of the fraud, the insurers may recover from the assured the sum so paid, notwithstanding his subsequent discharge in bankruptcy. But they cannot recover it back from the creditor, if it does not exceed the amount of the debt so secured, whether contracted before or at the time of the assignment. Nor, even if it does exceed that amount, can they maintain an action against the assured and the creditor jointly. And it makes no difference, that the form of the assignment is of the assured’s interest in the policy, that the assured as well as the creditor gives the insurers a receipt for the money, and that it is paid by the insurers to the creditor by check payable to him and the assured.</p> <p>If a transitory action is brought by a foreign corporation against several defendants, in a county where only one of the defendants resides, and the action is fully tried on its merits, without objection being taken to the venue, the plaintiff, if he subsequently discontinues against such defendant, is entitled, on a new trial being granted, to prosecute the action against the other defendants in the same county.</p> <p>The court, on ordering a new trial, may direct that issues which were fully tried or conceded at the previous trial shall not be tried again.</p>

Contract under the Gen. Sts. c. 101, §§ 31, 32, for the benefit of Nathaniel Bemis, Jr., against the devisees under the will of George T. Rice, to enforce the liability of the latter upon a probate bond executed by George W. Richardson as principal and by George T. Rice and George Bowen as sureties, and conditioned for the faithful performance by Richardson of the duties of executor of the will of John H. Richardson. Writ dated July 18, 1879.

Coktkact. Writ dated September 10, 1879. The declaration alleged, that on February 10, 1876, the plaintiff executed and delivered to the defendant a deed of certain real estate, in the town of Mashpee, of the value of $1000; that the defendant, in consideration of said conveyance to him by the plaintiff, agreed to provide the plaintiff with proper food and clothing and a comfortable home so long as he, the plaintiff, should live, and a decent burial after death; that the…

Complaint, under the Sfc. of 1878, c. 172, addressed to a trial justice, and alleging that, on August 1, 1879, at Montague, the defendants “did unlawfully and wilfully use a sweep seine in the waters of the Connecticut River, said seine having a mesh which stretches less than five inches, against the peace,” etc. The defendant, being convicted before the trial justice, appealed to the Superior Court.

<p>An indictment alleged that the defendant “feloniously did break and enter a certain building, to wit, the store of A., with intent then and there in said store to commit the crime of larceny.” The evidence was that A. occupied a building, in which were a saloon, a kitchen, two dining-rooms and a bedroom, and in one of the dining-rooms, which was a front room into which a door opened from the street, there was a bar; that he kept and sold lager beer, cigars and oysters, and cooked meals for customers; and that the defendant entered by a back door which opened directly into the kitchen, one of the dining-rooms and the bedroom being between the kitchen and the bar-room. Held, that there was evidence for the jury that the building was a “ store," within the ordinary meaning of that word as used in this Commonwealth; and that the defendant had no ground of exception to a ruling that he was not entitled, as a matter of law, to an acquittal on the ground of a variance between the allegation and the proof.</p>

<p>An indictment on the Gen. Sts. c. 161, § 1, for burning the dwelling-house of another, is not sustained by. proof that the defendant burned the house by the owner’s procurement, to enable him to obtain money from an insurer.</p>

<p>At the trial oí an indictment for the manslaughter of G., by shooting him with a pistol, there was evidence that G. made an attack upon the defendant, giving him some serious blows about the head and face, and that during the encounter the defendant shot G. with a pistol. The defendant asked the judge to rule that, “ if the defendant had reason to believe that G. intended to do him great bodily harm, and had reason to believe he was in danger of great bodily harm, he would be justified in defending himself by shooting his assailant.” The judge gave the instruction requested, but inserted before the words “he would be justified ” the words “ which no other means could effectually prevent.” Held, that the words “ if the defendant had reason to believe ” qualified the whole of the instruction, and that the defendant had no ground of exception.</p>

<p>Petition for a writ of certiorari to quash the proceedings of the county commissioners of Berkshire in abating a tax assessed by the town of Lanesborough upon the estate of John L. Colby. Hearing before Colt, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

Tort for the conversion of cattle. Answer, a general denial. At the trial in the Superior Court, before Brigham, C. J., the following facts appeared: The defendant was a field-driver of Otis, and took the plaintiffs cattle in the highway where they had been driven by the agent of Abigail Humphrey, upon whose land they were trespassing, and drove them to the town pound, and delivered them to the pound-keeper.

<p>It is within the discretion of the judge presiding at a trial, to the exercise of which no exception lies, to put inquiries to the jury as to the grounds upon which they found their verdict; their answers may be made a part of the record, and will have the effect of special findings of the facts stated by them.</p> <p>At the trial of an action against a town, for injuries occasioned to the plaintiff’s horse by falling into a ditch outside of the travelled part of the highway, it appeared that the horse left the wrought and travelled part of the highway, and, after proceeding twenty-five or tliirty feet along a ditch outside of the highway, fell into the ditch and was injured. The jury found for the defendant, on the ground that, on account of the nature of the land and the distance of the ditch from the travelled way, no railing was necessary. Held, that this finding rendered the question of the correctness of a ruling immaterial that, if no railing was reasonably required at the place where the horse left the travelled way, the town would not be liable for the want of a railing at the place where the accident happened.</p>

Contract on the Gen. Sts. c. 25, § 4, to recover double the value of a partition fence, which the declaration alleged the plaintiff had rebuilt, and the defendant was bound to maintain; and double the amount of the fees of the fence-viewers for their services in relation thereto. Answer, a general denial.

Tort for slander. The declaration alleged that the defendant, on November 10, 1879, at Springfield, “ publicly, falsely and maliciously accused the plaintiff of the crime of adultery, by words spoken of the plaintiff to one Mrs. William Brown, substantially as follows, to wit: ‘ Mr. Harvey Adams was intimate with his brother’s wife for a number of years; ’ (meaning thereby that the plaintiff had committed adultery with his brother’s wife for a number of years, meaning the…

<p>Writ of entry to recover four parcels of land in Belchertown. Plea, nul disseisin, and a disclaimer as to one undivided half of the premises demanded. Trial in the Superior Court, without a jury, before Brigham, C. J., who found for the demandant for one undivided moiety only; and the demandant alleged exceptions. The facts appear in the opinion.</p>

Contract for money had and received. The answer set up that the defendant was an attorney at law, and as such was employed by the plaintiff to collect certain sums of money from certain insurance companies, “ that the plaintiff agreed, in consideration of the defendant acting for him in the premises, that said defendant should, out of any and all moneys received by him from said insurance companies, retain one half of the amount received after payment of proper costs and…

Coetbact to recover $25. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on the following agreed facts: The defendant was, at the time the alleged cause of action accrued, a member of the New England Pigeon and Bantam Society, a voluntary association organized in Springfield and not incorporated under any general or special law of this Commonwealth.

<p>Tort for personal injuries occasioned to the plaintiff by a defect in a highway in the defendant city. Answer: 1. A general denial. 2. That no notice of the injury was received by the defendant as required by law. Trial in the Superior Court, before Gardner, J., who reported the case for the determination of this court, in substance as follows:</p> <p>It appeared that, on April 23, 1879, at noon, the plaintiff, who was then six years and nine months old, fell, in consequence of a defect in Main Street in the defendant city, at a point where two rails in the street railway unite, and broke her arm.</p> <p>There was no evidence that her mind was affected by the accident, or that there was any substantial difference in her mental or physical condition from the day of the accident to June 13 following.</p> <p>On that day the following notice was served upon the defendant’s city clerk: “ To the city of Springfield. Please take notice that, on the 23d day of April, A. D. 1879, Mary Madden, my daughter, received an injury by reason of a defect in the highway in said Springfield, known as Main Street, upon the crosswalk therein between Elm and Sanford Streets; that said Mary Madden was incapable, from physical and mental incapacity, of giving notice within an earlier period, and I hereby give this notice in behalf of said Mary Madden, being thereto duly authorized. John Madden. Springfield, Mass., June 13, 1879.”</p> <p>The plaintiff asked the judge to rule that, upon the evidence, it was not necessary that the plaintiff should give any notice to the defendant. The judge refused so to rule; ruled that the plaintiff could not recover; and directed the jury to return a verdict for the defendant. If the rulings were correct, the verdict was to stand; otherwise, a new trial was to be ordered.</p>

<p>Tort for personal injuries occasioned to the plaintiff by a defect in a sidewalk of a street in the 'defendant town. Trial in the Superior Court, without a jury, before Allen J., who reported the case for the determination of this court, in substance as follows:</p> <p>The evidence showed that the plaintiff was coming out of a store, on November 24, 1880, and stepped upon ice upon the sidewalk and fell; that upon a portion of the sidewalk was a depression, about an inch in depth at the deepest part and running out to a level with the rest of the walk in a distance of four feet in length and three feet in width ; that water collected in this depression, and froze there, and remained while the rest of the walk was clear. The judge found that the ice was smooth and did not of itself constitute a defect, but that the depression naturally collecting the water, and causing the ice to remain in it, did constitute a defect.</p> <p>On December 6, 1880, the plaintiff gave the following notice in writing to che town: “ Respectfully represents Catherine E. Spellman, wife of Melden W. Spellman, both of said Chicopee, residing in a tenement No. 36 Perkins Street, that on the 24th day of November, A. D. 1880, about five o'clock in the afternoon, while she was walking on the sidewalk on the southerly side of Exchange Street, near the store occupied by H. Coggswell as a stove store, she was injured; that the causes of her injury and the circumstances are as follows: She had just left the said store and stepped on the sidewalk, that the walk was out of repair, and was coated with ice in front of the store, and was very slippery and unsafe, by reason of which she fell; that the injuries consist of a sprained and bruised foot, ankle and leg, and internal injuries, and injuries to her head, wherefore she claims of the said inhabitants Compensation in damages.</p> <p>“ Catherine E. Spellman,</p> <p>By H. W. Ely, her Attorney.”</p> <p>The defendant asked the judge to rule that the notice was not sufficient, and did not set forth or give notice of any defect in the way for which the town was liable; that it contained no sufficient notice that the depression was a defect. The judge ruled that the notice was sufficient, and found for the plaintiff.</p> <p>• If the ruling was correct, judgment was to be entered on the verdict; otherwise, a new trial to be ordered.</p>

<p>If a chattel is sold and delivered upon condition that it shall be paid for on a certain day, and shall remain the property of the seller until paid for, the seller has not such possession or right to immediate possession as will support an action of tort in the nature of trover, against an officer who has attached the chattel as the property of the purchaser, brought before the day named for payment.</p>

Petition, under the Gen. Sts. c. 104, § 9, by the widow of William Weller, against the sole heir at law of said Weller, for partition of certain land in Westfield, by setting off to the petitioner an estate of homestead therein. Trial in the Superior Court, without a jury, before Bockwell, J., who ordered commissioners to be appointed to set off the homestead, as prayed for in the petition; and reported the case for the determination of this court.

<p>A testator gave to his son G. the income of certain stocks during his life, “the principal of said stocks to be held by my executors during his life, and at his decease I give the same to his child or children who shall survive him, provided that, if my said son shall leave his wife surviving him, then his said wife shall be entitled to her support out of the same so long as she shall remain his widow.” G. died after the testator, leaving a widow and infant child, of whom she was appointed guardian and gave bond. The executors declined to act as trustees, and trustees were appointed. Held, that they had the right to ask the instructions of the court as to the construction of the will and their duties under it; that the trust terminated by the death of G.; and that the trustees had no interest in the questions of the fitness of the widow as guardian, or the sufficiency of her bond, or as to the amount which should be allowed her for her support, and had no right to ask the instructions of the court thereon.</p>

<p>A city is not bound to erect barriers to prevent travellers from straying from a highway, although there is a dangerous place twenty-eight feet from the highway, which they may reach by so straying.</p>

<p>In an action by one town against another for the support of a female pauper, it appeared that, prior to the St. of 1874, c. 274, under which it was contended that she had acquired a settlement in the defendant town as an unmarried woman, she had resided there for five years without receiving aid as a pauper. There was evidence that she married a person thirty years ago and lived with him in the defendant town about three months, and he then went to another State and died; but there vras no evidence of the time of his death. Held, that the action could not be maintained.</p>

Tort for the conversion of a quantity of coal. Answer, a general denial.

<p>A married woman, the holder of a promissory note, died in 1875. Her husband took out letters of administration on her estate in 1878. In 1876, an indorser of the note became bankrupt, and entered into a composition with his creditors under the U. S. St. of June 22, 1874, § 17. The schedule of liabilities filed by him gave the date and amount of the note, the place where made, the name of the maker and the time when due, and gave the husband’s name as that of the holder, and did not give the name of the payee. The husband had no notice or knowledge of the proceedings in bankruptcy. The bankrupt sent to the person who usually acted as the husband’s attorney a check for the amount due on the note under the composition, together with a form of a receipt in full for the claim on the note. The attorney reduced the check to money, did not sign the receipt sent, but signed the husband’s name to a receipt on account of the note. The husband, when informed of this, refused to take the money, but did not direct its return. Held, in an action on the note, by the husband, as administrator of his wife’s estate, against the indorser, that the plaintiff was not the holder of the note in 1876; that the defendant had not complied with the provisions of the bankrupt act; that the plaintiff had not, as matter of law, waived his rights against the defendant; and that the action could be maintained.</p> <p>In an action brought by an administrator, an objection to the validity of his letters of administration, not taken at the trial, is not open in this court upon exceptions.</p>

Writ oe entry, under the Gen. Sts. c. 140, § 8, by John M. Cochran and Daniel M. Chamberlain, against Eliza C. Goodell and Lorenzo Plimpton, to foreclose separate mortgages held by the plaintiffs upon certain land in Southbridge. The defendant Goodell made no answer, and was defaulted; and the defendant Plimpton pleaded nul disseisin.

<p>Writ oe entry, by the administrator de bonis non with the will annexed of the estate of Nathaniel Dodge, to recover a parcel of land in Millbury, mortgaged on April 1, 1856, to Dodge by Harold Whittemore, who conveyed the same, on April 16, 1866, subject to the mortgage, to Jason Emerson, by whom, on November 1, 1875, it was conveyed to the tenant. Plea, nul disseisin, with a specification of defence that the debt secured by the mortgage had been paid. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the demandant; and the tenant alleged exceptions to certain instructions of the judge, which, together with the facts not above recited, appear in the opinion.</p>

Tort for the destruction of the plaintiff’s property at Sterling Junction, by fire alleged to have been communicated from a locomotive engine of the defendant, on Saturday, June 29, 1878. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions to the exclusion of certain evidence, the nature of which appears in the opinion.

<p>Tort for breaking and entering the plaintiff’s close in Leominster, and tearing away and removing a part of a dwelling-house standing thereon. The defendant justified as surveyor of highways in Leominster. Trial without a jury, in the Superior Court, before Colburn, J., who found for the plaintiff; and, at the defendant’s request, reported the case for the determination of this court. If the defendant’s act was not justifiable, judgment was to be entered on the finding ; otherwise, judgment for the defendant. The facts appear in the opinion.</p>

<p>Tort for cutting holes in the ice in Chauneey Pond in West-borough, and interfering with the plaintiffs’ right of harvesting the ice. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court on appeal, upon an agreed statement of facts, in substance as follows:</p> <p>The plaintiffs are milk-dealers, who supply the Boston market. In carrying on their business they use large quantities of ice. Chauneey Pond is a great pond, situated in Westborough, covering about 180 acres, and for a considerable distance is bounded by the highway. The plaintiffs have, for a number of years, leased a tract of land bordering on the pond, with an ice-house upon ifc, and have stored ice therein. On February 4 and 5, 1880, the plaintiffs removed the snow from a sufficient area of ice to enable them to fill their ice-house, situated most conveniently to their ice-house, thus clearly designating and marking out the ice they were about to cut; and, on the afternoon of February 7, they proceeded to plough out the ice in preparation for gathering on the following week. In this work they diligently used the usual and reasonable method of harvesting ice, the clearing off of snow being a large portion of the expense of getting ice.</p> <p>On April 1, 1875, Chauncey Pond was leased to the inhabitants of Westborough for a term of fifteen years, in accordance with the provisions of the St. of 1869, e. 384, § 9, for the purpose of taking and cultivating fishes. The lease contained the following covenant on the part of the lessees: “ that they will not avail themselves of the privileges of this lease to the prejudice of any right of individuals or public right, other than the taking and cultivation aforesaid.” On January 31, 1878, permission was given by the Fish Commissioners to said inhabitants to fish in the pond on Wednesdays and Saturdays.</p> <p>On February 7, which was Saturday, the defendant, who is an inhabitant of Westborough, went to the pond from the highway about the middle of the forenoon for the purpose of fishing. He knew that the snow had been cleared from this ice by the plaintiffs, and the purpose with which it was cleared by them, and knew the usual manner of gathering ice. Pie cut several holes about a foot in diameter through the ice which had been cleared by the plaintiffs, for the purpose of fishing through the same. Neither the plaintiffs nor their agents were present at the time to prevent the defendant’s acts, nor did they know of them. The cutting of these holes in the ice is an actual interference with and damage to the cutting and harvesting of ice.</p> <p>If, on these facts, the plaintiffs were entitled to recover, judgment was to be entered for them with nominal damages ; otherwise, judgment for the defendant.</p>

<p>Under the Gen. Sts. c. 117, § 2, the Probate Court has jurisdiction, upon the petition of a creditor, to grant administration of the estate of a person who dies a resident of another State, leaving only real estate in this Commonwealth, although his estate is solvent, and an administrator has been appointed in the State where he resided.</p>

<p>An assignment in insolvency, made since the St. of 1880, c. 246, § 7, took effect, does not dissolve an attachment of the debtor’s property made more than four months before the first publication of notice of the issuing of the warrant, although such notice was published before the enactment of the statute. Whether a continuance of an action shall be granted, so as to enable the defendant to obtain and plead a certificate of discharge in insolvency, is within the discretion of the court in which the action is pending.</p>

Petition for partition of certain land in Taunton. Trial in the Superior Court, without a jury, before Knowlton, J., who reported the case for the determination of this court, in substance as follows: On March 17, 1871, Charles Husband bought the land described in the petition, and on June 20, 1871, sold an undivided half thereof to the petitioner.

<p>Petition in equity, under the Gen. Sts. e. 18, § 79, by ten taxable inhabitants of the city of Lawrence, for an injunction to restrain the mayor of said city from drawing his order on the city treasurer authorizing him to pay from the funds of the city certain sums of money to twenty-two persons claiming to be police officers, to restrain the treasurer from paying said sums, and the twenty-two persons from receiving them. The case was heard on the petition, answer, agreed facts and evidence, by Morton, J., who reported, for the consideration of the full court, and for the entry of such decree as might be deemed proper, the following case:</p> <p>In 1881, the municipal year began on January 3. There was then on duty a police force of twenty-eight regular police officers and night watchmen, who had been duly appointed at the commencement of the preceding municipal year.</p> <p>On said January 3, the mayor and aldermen duly held a meeting, at which police officers could have been legally appointed or removed. At this meeting, the mayor presiding and putting the vote, an order was introduced and acted upon, as appears by the following copy of the record: “ City of Lawrence. In board of aldermen, January 3, 1881. ‘ Ordered, that the police force</p> <p>including all regular officers be and are hereby discharged. This order to take effect twelve o’clock, noon, January 4, 1881.’ In receiving the order, the mayor stated that he should not present the order to be voted on to take effect, but if the board desired to arrive at an expression of opinion he would offer the order for that purpose, and desired the board to carefully consider its action, as from it might follow litigation. The order was then adopted by a yea and nay vote. Aldermen Dyer and Smith voting ‘ no,’ and Aldermen Danforth, Doe and Saunders voting ‘ yea,’ Alderman Dolbier not voting. The mayor then announced that the adoption of the order had no effect upon the police force, who would remain upon duty until properly removed, as I refuse to concur in your action. The creation of an officer requiring coordinate action of the mayor and aldermen and the discharge of an officer would require the same action of a coordinate authority.”</p> <p>At the same meeting the mayor nominated and the aldermen confirmed one hundred and three special police officers, who were called “ special officers ” by the mayor at the time of their nomination, and were named “ special police officers ” on the record. Under the ordinances of the city, the mayor had the power to order such of these officers as qualified to regular police duty, with their consent. Between January 4 and 17, 1881, sixty-six of these special police officers were duly qualified. These officers were not appointed with any regard to their qualification for regular police officers and night watchmen ; and it was not the intention of the power appointing them that they should be called into such service except temporarily in case of a legal vacancy upon the police force.</p> <p>At a meeting of the mayor and aldermen held on January 17, 1881, the mayor presiding and putting the vote, the following order was adopted: “ Ordered, that the pay of the police appointed by his Honor, Mayor Webster, and confirmed by the board of" aldermen for the current year, or who may be hereafter during the current year so appointed and confirmed, shall be two dollars and twenty-five cents for each day’s service of ten hours, performed by them when assigned to duty, and at the same rate for any extra time in which they shall be employed ; and that no person, except those appointed and confirmed as above, shall be entitled to receive any pay for services rendered by them in the performance of police duty.” At the time of the passage of this order, the mayor neither concurred nor non-concurred therein, deeming it a matter upon which he could not vote.</p> <p>The persons whose pay is in question in this case were duly appointed regular police officers in 1880, and were serving as such on January 3, 1880. On January 4, 1881, the mayor requested these persons to continue to serve the city in the capacity of regular police officers and night watchmen, with which request they have faithfully complied down to 'the filing of this petition. Previously to such request the mayor "had not nominated either of said persons for regular or special pólice officersj- and, at the time of such request, he contended that they held over as police officers, and that the orders of January 3 and 17,■ 1881, (which were communicated to them,) so 'far' as' they aimed at the removal of said officers, or the depriving them of ; compensation for services as police officers, wetA inoperative, and void. '</p> <p>At the meeting of January 17, the person who was city marshal in 1880 was nominated and confirmed as city marshal for 1881, and between January 17 and the date of the filing of the petition, the mayor has nominated and the aldermen confirmed five regular police officers, all of whom the mayor assigned to duty, and these were the only regular police officers nominated down to the filing of the petition. None of them were nominated in the' place of any of the persons whose pay is in question in this case.</p> <p>The mayor, at the time of the filing of this petition, had issued his order on the city treasurer to pay the officers in question the amounts claimed by each, the same being for services rendered as regular police officers and night watchmen in said city during the entire month of January 1881, and the treasurer of said city intended to pay the same at the date of filing this petition. These claims were approved by a majority of the committee on accounts, the proper committee of the city government for approving claims of this class; and the sums charged were customary and reasonable. It was admitted that they were in any event entitled to be paid for the first four days in January.</p> <p>The following provisions of the city charter, St. 1853, c. 70, were relied on by the parties at the hearing:</p> <p>“ Sect. 2. The administration of all the fiscal, prudential and municipal affairs of the said city, with the government thereof, shall be vested in one municipal officer, to be styled the mayor; one council of six, to be called the board of aldermen; and one council of eighteen, to be called the common council; which boards, in their joint capacity, shall be denominated the city council, and the members thereof shall be sworn to the faithful performance of their respective duties.”</p> <p>“ Sect. 7. The mayor, thus chosen and qualified, shall be the chief executive officer of the city: it shall be his duty to be vigilant in causing the laws and regulations of the city to be enforced, and to exercise a general supervision over the conduct of all subordinate officers, and to cause their neglect of duty to be punished; he may call special meetings of the board of aider-men and common council, or either of them, when necessary in his opinion, by causing notices in writing to be left at the places of residence of the several members; he shall communicate, from time to time, to both of them, such information, and recommend such measures, as, in his opinion, the interests of the city may require; he shall preside in the board of aldermen, and in convention of the two boards, but shall have a casting vote only.”</p> <p>“Sect. 8. 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 aider-men 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. And the mayor and aldermen may require any person, who may be appointed marshal or constable of the city, to give bonds for the faithful discharge of the duties of the office.”</p> <p>“ Sect. 9. In all cases in which appointments are directed to be made by the mayor and aldermen, the mayor shall have the exclusive right to nomination, being subject, however, to confirmation or rejection by the board of aldermen; and no person shall be eligible to any office of emolument, the salary of which is payable out of the city treasury, who, at the time of such appointment, shall be a member of the board of aldermen or of the common council.”</p> <p>The following provisions of the ordinances passed by said city in 1879 were also relied upon:</p> <p>“ The mode of electing all city officers for which provision is not otherwise made, either by the laws of the Commonwealth or by some other ordinance of the city, shall be as follows, to wit: they shall first be elected by the mayor and aldermen, and sent down to the common council for its concurrence, rejection or amendment. And unless by law or ordinance otherwise specially determined, all officers shall be removable at pleasure, by the authority conferring their appointment or election, and shall hold office until their successors are chosen and qualified, unless removed from office.</p> <p>“ The pay of the assistant marshals, captain of the night watch and members of the police force shall be fixed by the mayor and aldermen.</p> <p>“ No policeman shall receive any pay for service as such, unless detailed thereto by the mayor of the city, or the city marshal; or the bill for such service is approved by the committee on police.”</p> <p>The case was argued at the bar in March 1881, and after-wards submitted on briefs to all the judges.</p>

Contract upon an alleged promise of the defendant to pay a debt of his father to the plaintiff. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.

<p>The declaration in an action of tort against a mill corporation and a railroad corporation alleged that the plaintiff was the owner of a parcel of land with buildings thereon; that the mill corporation, in order to form a reservoir for its own use, constructed and maintained a dam across a natural stream, whereby water was dammed up and accumulated, which flowed back into a pond; that the railroad corporation constructed an embankment for its railroad through said reservoir, and between the dam of the mill corporation and the plaintiff’s land, said embankment being solid, except that two small culverts were inserted in it to permit the flow of water from one side of the embankment to the other; that the natural banks of the pond near the plaintiff’s land were not of sufficient height to hold the waters of the pond as raised by the dam and the embankment, and the mill corporation raised the banks so that they were higher than the raceway of the dam over which the surplus water passed; that the embankment was carelessly constructed and maintained by the mill corporation, and was insufficient in height and strength; that the culverts built by the railroad corporation were carelessly and improperly constructed, and were insufficient in size and improperly placed, so that they would not permit the water to pass freely through the embankment, so as to pass over the raceway of the dam; that both the defendants had knowingly and carelessly permitted said culverts for a long time to be partially filled up with sand and stones, and had knowingly and carelessly permitted deposits of sand and other material to accumulate near the entrances to and exits from said culverts, whereby they had become choked and in a great measure filled up and insufficient to permit the water to pass through; that, in consequence of said dam of the mill corporation and the ill-placed and insufficient culverts, and the choked up condition thereof, as well as of the entrances and exits thereof, the waters on the side of the railroad embankment nearest to the plaintiff’s land were on a certain day, in a season of rain, raised to a great height, and higher than the raceway of the dam, and were kept and maintained by both defendants negligently and at an improper and dangerous height; in consequence of which, and of the careless manner in which the embankment on the shores of the pond was maintained, the waters broke through said embankment and washed away the plaintiff’s buildings. Held, on demurrer, that the declaration set forth a good cause of. action against both defendants.</p> <p>A corporation authorized by the Legislature to construct and maintain a railroad or a mill-dam is liable in an action of tort to a person injured by the negligent construction of its railroad or dam.</p> <p>A railroad corporation, authorized to construct its railroad across a pond of a mill corporation, through which a natural stream flows, is bound to build its road in such a way as will allow, not only the water of the stream to pass through, but also the water which has been accumulated by the dam of the mill corporation.</p> <p>If an injury is caused by the combined acts of negligence of two corporations, a joint action may be maintained for the entire injury against both.</p>

<p>A., a citizen of this Commonwealth, who was a creditor of the firm of B., whicn was a limited partnership composed of B. as general partner and C. as special partner, brought an action against B. in another State and summoned as trustee there a person who was indebted to the firm of B. B. was soon after adjudged insolvent upon involuntary proceedings, in which C. was not mentioned and of which he was not notified; and an assignment of B.’s estate was duly made to assignees, who undertook the settlement of the affairs of the firm of B. Subsequently the action of A. against B. was prosecuted to final judgment, and A. received the amount of his claim from the trustee. Held, in an action by the assignees of B.’s estate against A. to recover the sum so received by the latter, that it was not necessary to have joined C. as a co-defendant in the action of A. against B.; and that this action could not be maintained.</p>

<p>If a lease, containing a covenant for the payment by the lessee of the taxes assessed upon the demised premises, is assigned without any covenant on this subject, the assignee is liable to his assignor for the amount of taxes accruing during his term and paid by the assignor, but is not so liable for taxes accruing after he has parted with his possession by assignment to another; although the lease was for more than seven years and the second assignment was not recorded.</p>

<p>Appeal by the administrator of Prescott Jones from a decree of the Probate Court disallowing in part an account filed by him in behalf of said Prescott Jones as executor and trustee of Bradley Jones. The case was heard by Ames, J., and reserved for the determination of the full court on the following agreed facts.</p> <p>Bradley Jones died in 1852, leaving a will, which was duly admitted to probate. The will appointed his brother his executor, and contained the following clause:</p> <p>“ After payment of my just debts and charges, I dispose of my estate as follows: I give and devise unto my said executor eight hundred dollars in money, to have and to hold the same to the use of my sister Sarah J. Smithson, wife of Daniel Smithson, of said Dracut, as follows, I desire that in case my sister Sarah aforesaid should at any time need assistance or come to want, that my said executor should expend such part of said eight hundred dollars as will make her comfortable and keep her so during her lifetime. The remainder, if any, of said eight hundred dollars, at the time of the decease of said Sarah, I give and devise to my brother, said Prescott Jones, and his heirs.” Then followed certain legacies in money, and a bequest of the residue of his estate to his brother. Letters testamentary were issued to Prescott Jones, but he never qualified as trustee of Sarah J. Smithson under the will. Prescott Jones died on December 21,1878, and the appellant was appointed administrator of his estate.</p> <p>On January 6, 1880, William H. Anderson was appointed trustee for Mrs. Smithson; and the administrator filed an account of his intestate as executor and trustee under the will of Bradley Jones, in which he charged for services as trustee, and for sundry sums paid to Smithson, but made no allowance for interest on the $800. The Judge of Probate ordered that interest be added, and entered a decree that the balance due from the accountant was $896.36.</p> <p>If interest should not have been charged, the amount to be paid by the appellant to the appellee was agreed to be $277.10. If interest was properly charged, the decree of the Probate Court was to be affirmed, with interest from the date of the decree.</p>

<p>A person injured by a defect in a bridge, forming part of a highway, which a railroad corporation is bound to keep in repair, cannot maintain an action against the corporation without giving the notice required by the St. of 1877, c. 234, § 3, to be given to the “persons” obliged to keep the same in repair; and an omission in the declaration to allege the giving of such notice may be availed of by demurrer.</p> <p>A notice to a railroad corporation, bound by law to keep in repair a bridge forming part of a highway in a town, that a person has been injured by “ a defect in the bridge,” does not sufficiently designate the cause of the injury, within the St. of 1877, c. 234, § 3; and, in an action by the injured person against the corporation, a declaration alleging such statement of the cause of the injury in the notice is bad on demurrer.</p>

<p>Payment of an execution issued upon a judgment charging a trustee in foreign attachment is no bar to an action brought against him, by an assignee of the debt, in the name of the principal defendant, if the judgment charging him as trustee was obtained upon his wilful default, after he had notice of the assignment.</p>

<p>Petition for a writ of mandamus to compel the respondents to construct a town way laid out by them in Wilbraham.</p> <p>The petition alleged that the petitioner and others, then inhabitants of Wilbraham, in the spring of 1874, requested in writing the selectmen of that town to lay out and build a certain town way therein, which the selectmen refused to do; that the petitioners, being aggrieved by such refusal, presented a petition in writing to the county commissioners, at a regular meeting of that board on the fourth Tuesday of June, 1874, to lay out said way; that the county commissioners, after due notice, full hearing of all parties in interest and upon view of the premises, adjudged that the selectmen had unreasonably neglected and refused to lay out said way, and that common convenience and necessity required that the prayer of the petition should be granted; that the commissioners then appointed a time and place when and where they would meet and proceed to locate said way; that, after due notice, they met at the time and place appointed, and on December 26, 1876, located said way, as fully described in their report; that, on that day, the commissioners further ordered that the town cause said way, as specified in the location, to be made and completed in accordance with their order and to their acceptance, on or before October 1, 1877; that the town had not made and completed said way in the manner prescribed by the commissioners, but had refused and neglected to cause any part of the same to be made and completed, and still refused and neglected so to do; and that, although a reasonable time had elapsed since the date the commissioners ordered said way to be completed, the commissioners had refused and neglected to cause said way to be completed, as was their duty under the statutes of the Commonwealth.</p> <p>The answer stated, among other things, that on November 7, 1876, the town of Wilbraham accepted a report of the selectmen of the town, made on October 27, 1873, laying out and altering a road between the same terming nearly identical with the road referred to in the petition, and designed for the same uses and answering the same purposes of convenience and necessity; that thereby said way was legally laid out by said town, “ and can legally and properly be constructed by the town of Hampden in which the same is, and thereby the occasion for the construction by the county commissioners of the said road named in this petition ceased to exist; ” and that the public convenience and necessity for a road would be fully satisfied by the construction of said way laid out by the selectmen of, and duly accepted by, said town.</p> <p>Hearing before Soule, J., who, at the request of the parties, reported the case, upon the petition and answer and the facts proved before him, for the consideration of the full court; according to whose opinion the writ was to issue, or the petition be dismissed.</p>

Contract to recover $500, alleged to have been voted to the plaintiff by the defendant town. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>A town passed a vote “ to take measures to let out the building of sewers in W., F. and R. Streets,” and afterwards voted to take land for a sewer at the junction of R. and F. Streets, “thence to the river,” of a certain width. A sewer was subsequently built through the entire length of F. Street, and also through a portion each of W. and R. Streets; and plans made at the time of the construction of the sewers, showing their size and location, were.placed on file with the proper officials of the town. Three years after the passage of the first order, the town having in the mean time received a city charter, a resolution was passed by the board of aldermen “that the superintendent of streets be directed to proceed to build the sewer in W. Street;” and, after this order, some change in grade in the sewer before built in W. Street was made, and the sewer extended in length. Held, that the original location of the sewers was invalid by reason of uncertainty; that such uncertainty was not aided by the second vote of the town, by the plans filed, or by the order of the town or that of the city, so as to authorize an assessment upon the abutters on the streets named.</p> <p>An abutter on a street in a town through which a sewer is constructed, who enters the sewer with his private drain by license from the town clerk, by which he agrees to make no claim for damages on account of the work, is not estopped to contest the validity of the order laying out the sewer, under which an assessment is levied upon him.</p>

Tort for cutting and carrying away pine wood and timber. Writ dated January 17, 1880. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court, on appeal, upon an agreed statement of facts, the material parts of which appear in the opinion.

Contract against the executor of the will of Marshall Williams, for the services of the plaintiff’s wife and minor children from November 21, 1873, to June 27, 1876, the date of the writ.

<p>Money due for board furnished to sailors by a debtor, under an agreement with a third person, is “ earnings,” within the meaning of the St. of 1865, c. 43, § 2, which declares an unrecorded assignment of future earnings invalid against a trustee process.</p>

Writ of dower. After trial and verdict in favor of the demandant, and an assessment of damages for the detention of dower up to the date of the verdict, a warrant was issued to commissioners in the usual form, directing them to set out to the demandant her dower in the premises described in the writ, and report was made to the court by the commissioners of their doings under the same.

Contract, against John J. Sullivan, Daniel J. Sullivan and Michael M. Sullivan, for the balance due on a promissory note for $1800, dated June 24, 1879, payable six months after date to the plaintiff or order, and signed by the first-named defendant as principal, and by the other defendants as sureties. At the trial in the Superior Court, without a jury, before Allen, J., John J. Sullivan was defaulted, and the sureties alone defended.

<p>Contract upon a joint and several promissory note for $5000, dated February 2, 1874, payable to the plaintiff or order, “ with interest at the rate of twelve per cent per annum, payable semiannually in advance,” and signed by Philip S. Walsh as principal and by the defendants as sureties. The defence relied upon was that the defendants had been discharged from their liability as sureties by an instrument, dated July 5, 1877, and signed by the plaintiff, the material part of which was as follows: “ And I hereby agree to continue or extend the time of final payment for three additional years, or until February in the year of our Lord 1880. The conditions as expressed in said mortgage deed to be complied with. That is also required that the said Walsh shall pay when requested all interest now due and continue to pay at the rate of seven and three tenths per cent interest semiannual after February 1877, and an addition to be applied to the principal of per cent as aforesaid.”</p> <p>After the former decision, reported 130 Mass. 127, the case was tried in the Superior Court before Allen, J. There was evidence tending to show that the instrument was under seal when delivered. The plaintiff contended that the instrument was delivered to Walsh as a proposal merely, and that it was not to take effect as a contract until assented to by the sureties. The jury returned a verdict for the plaintiff, and found specially that the instrument was not delivered as a completed agreement; and the defendants alleged exceptions to the admission of certain evidence, bearing upon this issue, which appears in the opinion.</p>

<p>If a deed of a house conveys “ all steam-heating apparatus and its connections,” the question whether iron screens, placed in front of the steam-radiating pipes, resting on the floor and kept in position by their own weight, with marble slabs upon them, pass by the deed, is a question of fact for the jury, if the evidence is conflicting on the points whether the screens and slabs formed part of the steam-heating apparatus and its connections; whether the apparatus would be complete without them; whether they were fitted to their places having regard to the walls near which they stood and the apparatus itself; whether they could be arranged for any other place without disproportionate expense; and whether, if removed, they were worth more than their value as marble and old iron.</p> <p>On the issue whether a grate and front-piece passed by a deed of a house, there was evidence that the grate and front-piece formed a portion of the fireplace, which consisted of an iron frame fixed in masonry; that the front-piece was adapted to this frame by being cut and notched, although it could be removed, and the grate could be moved by raising the front side of it and thus unhooking the horizontal bars which projected into the masonry. Held, that the party contending that the articles in question did not form part of the realty "had no ground of exception to the submission of this question to the jury.</p> <p>The enumeration, in a deed of land with the house thereon, of certain articles in the house, which would not pass by a grant of the realty, does not make personal property other articles not included in the enumeration, which, as between grantor and grantee, might be treated as part of the realty.</p> <p>If a grant in a deed is in prcesenti, and, by the terms of the deed, the grantor is to have the right to occupy the premises until a certain day, his removal before that day of a fixture for the purpose of appropriating it to himself makes it the personal property of the grantee, who may at once maintain an action of replevin for it.</p>

Contract, on the St. of 1862, c. 176, for compulsory pilotage fees.

Appeal by the heirs at law of John Martin from a decree of the Probate Court, allowing his will, which appointed Joseph Martin the executor, and contained the following clause: “ In consideration of being taken good care of and being well treated during the remainder of my life by my nephew Joseph Martin and his wife, I give, bequeath and devise unto Mary B. Martin, wife of said Joseph Martin, all the estate, both real and personal, of which I shall die possessed, to have…

<p>A testator devised a certain sum of money in trust for the benefit of his granddaughter during her life; and upon the further trust that, on her death, after arriving at the age of twenty-one years, the trustee should transfer the fund to such persons as she should by deed, writing or will appoint; and if she should die before the age of twenty-one years, or in default of such appointment if she should attain the age of twenty-one years before her decease, then upon the further trust, that upon her decease the trustee should transfer the fund to her child or children; and if she should leave no child, then the trustee should transfer the fund to the heirs of the testator’s brother. She married and died after coming of age, without issue, and having executed the power of appointment. Held, that her appointees were entitled to the fund.</p>

Tort for personal injuries occasioned to the plaintiff by a defect in a highway in the defendant city. Answer, a general denial.

<p>A notice, to a town bound to keep a bridge in repair, that a person was injured through a defect or want of repair in the bridge, and that the cause of the injury was the breaking and falling of a certain span in the bridge, sufficiently states the cause of the injury, within the St. of 1877, c. 234.</p> <p>In an action against a town for an injury sustained by the falling of a bridge which the town was bound to keep in repair, evidence is admissible to show that the cause of the falling of the bridge was an accumulation of snow on the roadway, or the excessive weight of the planking thereon, or the defective condition of the iron-work, or all of these combined.</p> <p>An action against a town for personal injuries caused by a defect in a highway or bridge, since the St. of 1877, c. 234, is not prematurely begun, although brought so soon after notice is given that an opportunity is not afforded the town to call a town meeting to see if the town will pay the amount of the injury.</p> <p>The St. of 1870, c. 219, authorized county commissioners “ to lay out a highway and construct a bridge and suitable draw across the M. River in the towns of G. and H.and provided that the commissioners were “to determine and award what cities and towns receive particular and special benefit from the construction and maintenance of said road and bridge, and to apportion and assess upon said county and such cities and towns, and in such manner and amount as they shall deem equitable and just, the cost of construction and maintenance of such road, bridge and draw.” The commissioners duly proceeded to locate the highway and bridge; ordered the same to be constructed, assessing the expense thereof on the county, the towns of W. and G., and the city of H.; and awarded “that the city of H. and the town of G. shall each maintain and keep in repair one half of the bridge and one half of the draw, each maintaining that part contiguous to the highway leading on to the bridge from their own city and town.” Held, that the award was valid ; and that an action might be maintained against the town of G. for personal injuries caused by a defect in that portion of the bridge which the town was by the award bound to keep in repair, although such portion was outside the limits of the town of G.</p>

Contract against a surety in a bond given to dissolve an attachment in an action of contract brought by the plaintiff against John Wilder. The declaration inserted in the writ in the former action contained three counts: 1st. Upon a promissory note not payable before the action was commenced. 2d. Upon another promissory note already due and payable. 3d. For goods sold and delivered.

<p>Scire facias, sued out from the Superior Court, on a bond executed by the defendant Bird as principal and the other defendants as sureties, upon the appeal by Bird from a judgment for possession and for costs rendered in the Municipal Court of the city of Boston in an action brought against him by the plaintiff under the Gen. Sts. c. 137, and conditioned that he should enter the action in the Superior Court, and prosecute his appeal, and pay all rent due, and all intervening rent and damages, with costs, in case the judgment should be affirmed. The writ of scire facias was dated May 28, 1880, and alleged that the judgment had been affirmed at April term 1880 of the Superior Court, and as so affirmed was for possession and for $51.93 costs.</p> <p>Answers: 1st. A denial of all the plaintiff’s allegations. 2d. That on April 1, 1880, Bird filed a petition for the benefit of the insolvent laws, and the first publication of notice of the issuing of a warrant thereon was made on the same day, and he had thence hitherto in all respects conformed to those laws. 3d. That, before the rendition of the judgment counted on, the plaintiff had assigned all his interest in the estate of which he demanded possession to Samuel M. Quincy, and in relation to the estate had since acted as Quincy’s agent.</p> <p>Trial by jury in the Superior Court, before Allen, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiff, in proof of the judgment coimted on, produced a docket of the .Superior Court containing these entries in that case: “ January term 1880. February 18. Verdict for the plaintiff. February 20. Proposed exceptions. April term 1880. May 20. Exceptions disallowed. Judgment. May 26. Costs taxed by clerk at $51.99. Defendant appeals. Appeal waived.”</p> <p>The defendants, for the purposes of this trial, admitted that a judgment for possession and for costs was entered at April term, to wit, on May 20,1880; and that no costs of that action, nor any rent since its commencement, had been paid; but did not admit, and said they should contest, the validity of that judgment.</p> <p>After the plaintiff had rested his case, the defendants offered in evidence the docket of October term 1880, in which the entries in the case as of April term 1880 were as follows: “ Exceptions disallowed. Judgment. Costs taxed. Defendant appeals. Appeal waived. Disposed of at April term 1880.” The defendants contended that these minutes showed that no legal judgment had ever been entered in that action. But the judge required an extended record to be produced, and excluded the docket entries offered by the defendants.</p> <p>The allegations in the answers of the insolvency of the defendant Bird were admitted to be true.</p> <p>The defendants called Quincy as a witness, and asked him to produce the lease from himself to the plaintiff of the estate, and, on his answering that he had not the lease with him, proposed to ask him whether the plaintiff had assigned to him the lease of the estate, whether he had made the plaintiff his agent in relation to the estate, and whether the plaintiff had brought this and the former action as his agent. But the questions were objected to by the plaintiff, and excluded by the court.</p> <p>The defendants requested the following instructions: “ 1. A writ of scire facias cannot be legally sued out, nor, if sued out, sustained, upon a bond given, as in this case, under the provisions of the St. of 1877, c. 236. 2. If the jury find that the allegations of the defendants, as to the insolvency of Bird, have been proved as laid, the judgment counted on is insufficient, as a matter of law, to sustain this action. 3. If the allegations of the defendants as to the position of this plaintiff in relation to the property are found to have been established on the trial, this plaintiff is not, as a matter of law, entitled to recover in this suit; and he is not entitled to constructive damage, but to real damage by him actually sustained, if any. 4. As a matter of law, the judgment offered in evidence was not a final judgment, on account of the appeal from the taxation of costs and non-action after by the plaintiff, looking to a final judgment in the cause, thereby raising a variance between the pleadings and evidence as to the judgment. 5. If this plaintiff assigned his interest to Quincy on March 1, 1880, or before, the judgment shown cannot be legally a judgment for possession, for, on May 20, 1880, in that event, the plaintiff was not entitled to any such judgment, as matter of law.”</p> <p>There was no evidence admitted to which the third request would apply. The judge declined to give either of these instructions ; and instructed the jury to return a verdict for the plaintiff for the amount of the penalty of the bond, $4,500. The jury returned a verdict accordingly, and assessed damages in the sum of $1224.62; and the defendants alleged exceptions.</p>

<p>Petition to establish the truth of exceptions alleged by Benjamin Gage in an action brought against him by William W. Campbell, and disallowed, by Bacon, J., who presided at the trial in the Superior Court.-</p> <p>The petition was referred by this court to a commissioner to hear the parties, settle the truth of the exceptions, and report thereon. The bill of exceptions, as tendered by the petitioner, (except the figures at the beginning of the paragraphs, which are added for convenience of reference,) was as follows, the words printed in italics being those which the commissioner reported should be stricken out:</p> <p>“ This was a landlord and tenant process to obtain possession of a lot of land, and buildings thereon, situated on Pearl Street, in the city of Somerville, which lot of land the defendant bought in 1855, and erected the dwelling thereon, and has lived there ever since, and was in possession thereof at the time of trial. The trial was by jury, and verdict for plaintiff on June 17, 1880.</p> <p>“ The plaintiff claimed title by a written lease from one’ Daniel K. Wakefield, who in turn claimed title from the receivers of the Mercantile Savings Bank of Boston by a quitclaim, deed; and the receivers claimed title through one Charles S.^ Johnson, who, as their agent and regularly employed by them as their clerk, was sent by said receivers for the purpose, bid off said property at an auction had for the purpose of foreclosing a power-of-sale mortgage upon said property for $5000 and accrued interest, which mortgage this defendant had executed to said Mercantile Savings Bank; said Charles S. Johnson had received from said receivers as aforesaid a deed of said land in the usual form, and at the same time delivered his deed to said receivers of the same property as aforesaid. The lease in this case was given merely for the purpose of dispossessing the defendant.</p> <p>“ There was no claim that the defendant was ever a tenant of this plaintiff, but the plaintiff claimed, and offered evidence, which was denied by the defendant’s evidence, that the relationship of landlord and tenant existed between his lessor and the defendant at the date of the said lease.</p> <p>“ 1. In the course of the trial the defendant, on cross-examination of Daniel K. Wakefield aforesaid, drew from said Wake-field the admission that, when he first obtained his deed of the property from the receivers aforesaid, he executed and delivered to this defendant an obligation to sell said property to this defendant for the sum of $4200 in seven days from its date, which was some time in September 1878, and that thereafter he extended the time for paying said sum until the following May, as he said, upon the defendant agreeing to pay him rent meanwhile. But the defendant claimed that he agreed to pay said Wakefield interest on his $4200 only meanwhile, and that he never agreed to nor contemplated the relationship of landlord and tenant between himself and said Wakefield.</p> <p>“ 2. In the course of the trial the defendant offered evidence to show that he deposited $1250 of the stock of the Eastern Slate Company, of Monson, Maine, with the Mercantile Savings Bank, as collateral security for his interest accruing upon his said mortgage, and that the bank accepted said stock; and, upon the consideration of said deposit of stock, duly and regularly extended the said mortgage; and that at the time of said pretended foreclosure, the extension aforesaid had not expired by its own limitation, and therefore said pretended foreclosure was null and void. This evidence was excluded by the court.</p> <p>“3. The defendant also offered evidence to prove that the pretended foreclosure and sale was null and void from the fraud of the receivers and their agents, even if the jury should find no extension of the mortgage. This evidence the court also rejected.</p> <p>“4. The defendant also offered evidence to prove that at the date of the suit he was the owner of an equity of redemption in said premises, and thereunder entitled to the possession. This evidence was rejected by the court.</p> <p>“5. The court for the purposes of the present case ruled ‘ that a man, if he claims title and refuses to move, is not entitled to a reasonable time after notice to move, nor a notice even.’’</p> <p>“ 6. The defendant offered evidence to prove that the violence of plaintiff exercised upon himself and family from the date of his lease to the date of this suit was such that defendant had no reasonable time to move.</p> <p>“ 7. A notice to produce certain receipts given by said Wake-field to this defendant, in relation to said property, was given by the plaintiff to the defendant’s present counsel, P. H. Hutchinson, and during the trial the defendant testified that, before he ever heard of this suit or knew the plaintiff at all, he had placed these receipts in the hands of a third party for certain reasons which he stated, and that, although he had tried his best to obtain them to use at this trial, he had been hitherto unable to repossess himself of them. The plaintiff was then allowed by the court to produce oral and secondary evidence of the contents of said receipts. Afterwards the defendant offered to show that said receipts read for interest upon the purchase money, and not for rent, as the plaintiff had attempted to show. At this stage the court heard the defendant and one of his, defendant’s, witnesses, as to the efforts made to repossess himself of these receipts and produce them at the trial, and then, upon the statements made by the defendant and his witness as aforesaid, found that the defendant before this suit was commenced, and all along up to the time of trial, suppressed the receipts aforesaid, and excluded all evidence of the defendant as to the contents of said receipts. The court also found that it was no fault of the defendant’s counsel then trying his cause that the receipts were not produced according to the notice.</p> <p>“ To all the aforesaid rulings of the court in the exclusion of defendant’s evidence, and the other rulings mentioned in this bill of exceptions, the defendant duly excepted, and, being thereby aggrieved, prays that his exceptions may be allowed.”</p> <p>At the request of the petitioner’s counsel, the commissioner reported the evidence on the question whether the petitioner had proved the truth of the words “ nor a notice even ” at the close of the paragraph marked 5, as follows:</p> <p>“ Both of the plaintiff’s counsel testified that they put their case upon the ground that the defendant, Gage, was the tenant of Wakefield named in the petition; and this was not disputed. The plaintiff’s counsel, it was admitted, put in evidence of notice to the tenant to quit. It was also admitted that defendant’s counsel was offering evidence as to whether reasonable time, after the alleged notice, was given the tenant to move. The petitioner’s counsel testified that his minutes taken at the trial, which were exhibited before the commissioner, stated that the court ruled as stated in the petition; that the court did so rule, and he seasonably excepted. The son of the petitioner’s counsel testified that he was in court during most of the trial, that the court ruled as I have found proved, and further, that,' under the circumstances stated in the petition, no written notice was necessary. Both of the plaintiff’s counsel testified that the court did not rule as stated in the petition, but only as I have found proved. One of the plaintiff’s counsel testified that this matter came up at the hearing upon the exceptions by the court, that, although the counsel for the defendant then claimed that the court ruled as stated in the petition, both the court and the witness then repeatedly and very positively stated, in presence of the counsel for the defendant, that the court did not rule as stated in the petition, but that the court did rule as I have found proved; and this was not denied.”</p>

<p>Petition to establish the truth of exceptions alleged at the trial by jury, in the Superior Court, before Wilkinson, J., of an action brought by the petitioner against the respondent.</p> <p>The petition, which was duly sworn to, alleged that the bill of exceptions, a copy of which was annexed, was filed with the clerk, presented to the presiding judge, and notice thereof given to the respondent, within three days after the verdict; “that said bill is in conformity to the truth, and should have been allowed by said presiding justice; or if erroneous in any respect or incomplete, a hearing should have been had or allowed upon the same between the parties and before the said presiding justice, or at least the same should have been submitted to the opposite counsel for examination and opportunity afforded to be heard and object; or if the court had objections thereto in any particular, the same should have been made known to said petitioner or her counsel and an opportunity given for a hearing or the making of such changes, alterations or additions as might be proper or necessary. But your petitioner avers that said presiding justice, without any hearing or opportunity for a hearing, and without making known any objection thereto or what there was objectionable in said bill, disallowed said bill upon the 11th day of May aforesaid, and returned it to the files of said Superior Court. Wherefore your petitioner requests leave to establish the truth of the said exceptions as filed and presented as aforesaid, as by law and the rules of this court provided.”</p>

<p>If exceptions are taken by the respondent to rulings of the Superior Court at the trial of a complaint under the mill act, Gen. Sts. c. 149, which are overruled by this court after the verdict of a sheriff’s jury assessing the complainant’s damages in accordance with that act has been returned into and accepted by the Superior Court, the verdict is not “ allowed and recorded,” within the meaning of the Gen. Sts. c. 149, § 21, until after the overruling of the exceptions; and, after judgment by the Superior Court for the complainant for past damages and costs, an election by him to take damages in gross, although made more than three months after the acceptance of the verdict, is not too late, and he is entitled to judgment on the verdict.</p>

Tort for seduction. Writ dated March 2, 1880. The declaration was as follows: “ And the plaintiff says that the defendant assaulted, debauched and carnally knew one Cora Hatch, then and from thence hitherto the servant of the plaintiff, whereby the said Cora Hatch became sick and unable to render service to the plaintiff so being her master as aforesaid, and thereby the plaintiff was deprived of the services of his said servant.” Answer, a general denial.

Indictment alleging that the defendants, Isaac Bakeman and Margaret Brooks, a married woman, on July 5, 1880, at Northampton, “ did commit the crime of adultery with each other, by then and there having carnal knowledge of the bodies of each other.” Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions in substance as follows: The government introduced evidence tending to show that on the day named in the indictment Bakeman was seen dragging Brooks…

Indictment, at common law, for collecting together, at a time and place mentioned, large quantities of manure, dead horses and filth “ near to the dwelling-houses of divers persons then and there inhabiting the same houses, and also near to a certain public road and highway there,” and for suffering them “ to lie and remain near to the said dwelling-houses and near to the said public road and highway for a long space of time,” whereby noisome and unwholesome smells arose,…

Indictment for breaking and entering a certain building, at Danvers, on April 11, 1881, with intent to commit larceny, and with the larceny of certain property therein. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict of guilty; and the defendant alleged exceptions to the admission of certain evidence, which appears in the opinion.

Indictment alleging that the defendant on June 18, 1881, at Lawrence, “ with force and arms, in and upon the body of one Catharine McCarthy, otherwise called Katie McCarthy, in the peace of said Commonwealth then and there being, violently and feloniously did make an assault, with intent then and there feloniously to ravish and carnally know, by force and against her will; against the peace of the Commonwealth aforesaid, and contrary to the form of the statute in such case…

Indictment charging the defendant, on February 24, 1881, at Boston, with an assault on George F. Malcolm, a police officer, with a dangerous weapon.

<p>On the issue whether a mortgagee had reasonable cause to believe the mortgagor to be insolvent or in contemplation of insolvency, within the Gen. Sts. c. 118, §§ 89, 01, evidence that the mortgagee, before he took the mortgage, was himself indebted to other persons, who were pressing him for payment of their debts, and that he exhibited the mortgage to them and offered it as collateral security for those debts, is inadmissible.</p>

<p>If the payee of a draft presents and surrenders it to the drawee, and receives during business hours the latter’s check for the amount thereof, which is not presented to the bank on which it is drawn until the next day, and payment is then refused, the drawer of the draft is discharged from liability thereon.</p> <p>A. sold to B. the note of a third person, and received therefor from B., after bank hours, his draft, payable at sight, on C., a banker, with whom B. had funds on deposit sufficient to pay it. On the next day, within an hour after the opening of C.’s banking-house, A. presented the draft to C. and received the latter’s check on a bank for the amount thereof, and within an hour afterwards deposited the check for collection to his credit in another bank in which he kept his account. On the following day, the check was presented by the latter bank to the bank on which it was drawn and payment was refused, 0. having failed and suspended payment on that day, before the check was presented; and the check was returned, through his bank, to A. about noon. A. immediately filled out ready for signature a note for the amount of the draft, called on B., told him that the check which he received for the draft was not paid, but did not tell him that C. had failed, although he knew it, obtained B.’s signature to the note, and, after erasing his own indorsement on the check, delivered it to B. B., at the time he signed the note, did not know of C.’s failure, or that the check was not presented for payment until the day after it was received, and supposed he received his draft from A. instead of the check B. at once called on C. and learned these facts, and then tendered the check to A. and demanded the note, but A. refused to receive the one or give up the other. Held, in an action on the note by A. against B., that a finding that B. gave the note voluntarily, and with full knowledge and under no mistake, was unwarranted.</p>