Volume 133 — Massachusetts Reports

<p>A conveyance of a lot of land was subject to the “ conditions” that “no dwelling-house or other building except necessary out-buildings shall be erected or placed on the rear of the said lot,” and that “ no buildings which may be erected on the said lot shall be less than three stories in height, exclusive of the basement and attic, nor have exterior walls of any other material than brick, stone or iron, nor be used or occupied for any other purpose or in any other way than as a dwelling-house for the term of twenty years ” from a certain day. Held, that these were to be construed as restrictions, and not as conditions, and constituted a breach of a covenant against incumbrances in a subsequent deed.</p> <p>On a bill in equity involving the construction of a deed of land containing certain “ conditions ” so called, there was evidence from a plan annexed to the deed, and from other deeds of adjoining and neighboring estates, that the conditions were a part of a general plan of improvement, and they were construed as restrictions. In a subsequent action involving the construction of the same deed, at the argument on the defendant's exceptions, the defendant contended that the judge who tried the case erred in giving the same construction to the deed as this court had formerly given, on the ground that the deeds of the adjoining and neighboring estates were not put in evidence. Held, that, as he had not called the attention of the judge to this omission in the evidence, the point was not open to him.</p> <p>In an action for a breach of the covenant against incumbrances in a deed of land, evidence of the original agreement of the owner to convey the land to a person who assigned the agreement to the grantor of the defendant, the deed to such grantor having been given in pursuance of the agreement, is inadmissible.</p>

<p>At the trial of an action of contract for a breach of the agreement of a railroad corporation to carry the plaintiff as a passenger on its railroad from S. to N., it appeared that he bought a ticket at S. which entitled him to be carried to N.; that the defendant’s conductor refused to receive the ticket, and, when the train arrived at an intermediate station, the conductor, who was a railroad police officer, arrested the plaintiff for evading his fare, and delivered him into the custody of two police officers, who detained him during the night in the place provided for arrested persons. Held, that the detention of the plaintiff during the night, his discomforts in the place of detention, illness produced by the dampness of the cell in which he was confined, and the indignities which he suffered at the hands of the police officers, were not elements of damage, which he could recover in this action.</p>

<p>The by-laws of a savings bank, incorporated subject to the general laws of this, Commonwealth relating to savings banks, made it the duty of the treasurer to enter deposits and payments in the books of the bank, and a duplicate of each entry in the book of a depositor; gave him charge of the books of account; and contained the following clause: “He shall draw all necessary papers and discharge all obligations of the corporation; and his signature shall be binding on the corporation.” The treasurer, in some instances, borrowed money, representing that it was for the benefit of the bank, and gave his individual notes therefor, and, as collateral security for the notes, deposit-books of the bank, originally genuine and issued to himself or others, which showed certain sums to be still due from the bank, but which the bank had in fact paid to the original depositor in full; or gave as security books which contained entries in whole or in part fictitious. Some of the books which were originally genuine contained assignments purporting to be signed by the depositors, but their signatures were either forgeries, or were procured by the fraud of the treasurer to assignments in blank, on his representations that the assignments were receipts. In other instances, third persons obtained money on such deposit-books, the treasurer fraudulently stating in writing over his signature, or orally, that the books were genuine, and that the bank owed the money to the persons appearing as assignors of the books. The persons lending the money acted in good faith; but none of the transactions appeared on the books of the bank, or were authorized by its trustees; and none of the money came into its possession. Held, that none of the acts of the treasurer were binding upon the bank, although it was the practice of savings banks in this Commonwealth to recognize in some form on their books assignments of deposit-books and the rights of the assignees.</p> <p>Upon an application made by the commissioners of savings banks, under the St. of 1866, c. 192, § 5, the Reading Savings Bank had been enjoined from the further continuance of its business, and receivers had been appointed to take possession of its property and effects, for the purpose of settling its affairs.</p> <p>The receivers filed a petition in the case, alleging that certain persons and corporations named had presented claims, to the amount of $24,900, against the bank, by virtue of certain deposit-books, purporting to be issued by the bank, and to' be held by said persons and corporations by assignment; that there was no evidence upon the books of the bank, that any sum was due upon any of the claims; and praying that all said persons and corporations be ordered to appear and submit their claims to be determined in such manner as the court might order.</p> <p>The court referred the petition to a special master, to hear the parties, and ascertain and report to the court the facts with regard to each claim.</p> <p>On the coming in of the master’s report, the case was reserved by Colt, J., upon said report, for the consideration of the full court. ,The facts appear in the opinion.</p>

<p>Two debtors made an assignment of all their property in trust, for the security of new notes to be given by them to such of their creditors as should become parties to the assignment within two months from the date thereof. By the terms of the assignment each creditor was to receive four new notes, payable at different times, the last being payable in thirty months, and covenanted not to sue his original demand except on default in the payment of the new notes. The trustees paid only a dividend on the new notes. After the last of the new notes matured and one debtor had received a discharge in bankruptcy and the other had ceased to be a resident of this Commonwealth, a creditor brought a bill in equity seeking to become a party to the assignment. Held, that, although the trustees had funds sufficient to pay him the same dividend which the creditors who signed had received, and although he had accidentally failed to be a party to the assignment, and would have been one had he known of it in time, the bill could not be maintained.</p>

<p>The representation of a dramatic work, which the proprietor has never caused to be printed and has not obtained a copyright of, if made without license of the proprietor, is a violation of his right, and may be restrained by injunction, although such representation is from a copy obtained by a spectator attending a public representation by the proprietor for money, and afterwards writing it from memory.</p>

<p>The St. of 1861, c. 164, provides that a widow may waive the provisions made for her in her husband’s will, and shall in such case be entitled to such portion of his real and personal estate, (with certain limitations as to the personal estate,) as she would have been entitled to if her husband had died intestate. The St. of 1880, c. 211, provides that " whenever any person shall die intestate, without leaving issue living, and shall leave a husband or wife surviving, such husband or wife shall take in fee the real estate of such deceased to an amount not exceeding five thousand dollars in value.” Held, that the widow of a man dying, after the passage of the latter statute, testate, and without leaving issue living, is entitled, on waiving the provisions of her husband’s will, to the benefit conferred by this statute.</p>

<p>Insurance against fire was effected on goods contained in the chambers of A. in brick, stone and iron building No. 117 Franklin Street. A. was the proprietor of a printing establishment and occupied chambers in buildings owned by four different persons, all of which fronted on Federal Street. The entrance to the upper stories of one of them was at 117 Franklin Street, and the other three had entrances to their upper stories on Federal Street. The one having its entrance on Franklin Street and the two others adjoining were built at the same time, and were known as the Franklin Buildings. There were party-walls between them. The fourth building was put up soon after, with distinct walls and with floors at a different level, and was known as the M. Building. Doors were cut through the walls of all the buildings, so that A.’s chambers were connected with each other, and the public entrance to all of them was at 117 Franklin Street, though they were accessible by the staircases leading from Federal Street. At the time of a loss by fire, some of the goods destroyed were in one of the Franklin Buildings, the entrance to the staircase of which was on Federal Street; and other goods destroyed were in the M. Building. Held, that the former were covered by the insurance, and that the latter were not.</p>

<p>The St. of 1877, c. 100, authorized a city to widen, deepen and straighten the channel of a certain brook, in any portion thereof between its source and its outlet in a certain river in said city, and to drain the lands abutting thereupon and adjacent thereto. The city passed an order that the superintendent of streets, under the direction of the highway committee, be authorized to construct a drain on and from a certain street, thence through another street to the brook in question at another street; and that a certain sum be appropriated for said work, to be charged to appropriation for sewerage and drainage. The drain ordered to be constructed did not include within its limits any part of the channel of the brook. A person, through whose land the waters of the brook passed, and above whose land the drain in question emptied into the brook, brought a petition for an assessment of damages caused by the construction of the drain; and offered evidence of the manner in which the drain was constructed until it entered the brook. He also offered to show, by the assistant superintendent of streets of the city, that in building this drain, and in order properly to construct the same, he and the men under him, without the petitioner’s consent, entered upon his land, and removed a part of the bed of the brook; and that, in order to make the drain of any practical use, as directed by the city to be made, it was necessary to enter said land and to do what was done. No evidence was offered to show that these acts were done by the witness under the direction of the committee on highways mentioned in the order. The petitioner further offered to show that the city solicitor, in another proceeding, contended that the drain was built under the St. of 1877. Held, that there was no evidence that the city, in constructing the drain, acted under the St. of 1877, c. 100.</p> <p>A petition to the mayor and aldermen of a city, for the assessment of damages occasioned to the petitioner’s land by the construction of a drain, contained no reference to any statute, except that it prayed that the damages should be assessed and paid over according to the provisions of a certain statute. Held, on a petition to the Superior Court, for the assessment of damages, in the nature of an appeal from the action of the mayor and aldermen, that the court had power to allow the petition to be amended, if the petitioner could maintain the petition under any statute applicable to the proceedings.</p> <p>A petition, undpr the St. of 1869, c. 111, for the assessment of damages for the making of a drain, in the city of Newton, must be addressed, under the charter of that city, St. 1873, c. 326, § 24, to the city council; and, if addressed to the mayor and aldermen, the petitioner cannot maintain a petition to the Superior Court, in the nature of an appeal from the order of the mayor and aldermen, giving him leave to withdraw.</p>

<p>The St. of 1879, c. 45, authorized a town to make the necessary improvements for the preservation and taking of alewives in a great pond and the waters connected therewith; enacted that the town should pay “ all damages that shall be sustained in any way by any persons in their property, in carrying into effect this act; ” and provided that any fishery so created should be the property of the town. Held, that a person whose land on both sides of a non-navigable stream, connecting with the pond, was taken under this act, could recover compensation only for the land taken, and not for the value of the fishery to him as a riparian owner.</p>

Appeal by George R Smith from a decision of the Court of Insolvency, disallowing a claim against the estate of John Martin.

Contract. The declaration alleged “ that the defendant, in consideration of the conveyance by the plaintiff to the defendant of certain real estate in Deerfield, promised and agreed to support and maintain the plaintiff, furnishing him with all things necessary and convenient in sickness and in health, during the natural life of the plaintiff; that the defendant accepted said conveyance, and has occupied and used said estate, but has refused and neglected, and still neglects…

<p>Contract for money had and received by the defendant to the plaintiff’s use. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court, on appeal, on an agreed statement 'of facts, in.substance as follows:</p> <p>On June 12, 1880, Robert P. Jordan of Worcester made a mortgage of his stock in trade and the fixtures of his shop to the plaintiffs, to secure the payment of his promissory note for $315, which mortgage was duly recorded. Subsequently, and while Jordan was in possession of said stock in trade and fixtures, and the plaintiffs held the mortgage, George Bassett, on July 31, 1880, brought an action against Jordan to recover the amount of a debt due him from Jordan, and the defendant in this action, a constable of Worcester, made an attachment of said stock and fixtures, and summoned the plaintiffs in this action as trustees and mortgagees of said Jordan. This trustee writ was in the usual form, and was returnable on August 7, 1880. The authority of the defendant to make said attachment and to summon said mortgagees as trustees, and the validity of said mortgage, are not questioned. Said mortgage remains unpaid and is overdue.</p> <p>During the pendency of the action of Bassett against Jordan, the stock and fixtures so attached were on August 19, 1880, duly sold on mesne process by said attaching officer for $410; and the net proceeds of said sale were held by said officer upon said attachment. On August 21, 1880, Bassett obtained judgment against Jordan in said action, execution issued thereon on August 30, 1880, and said officer levied upon the proceeds of sale, and, after deducting his fees, paid over to Bassett’s attorney the sum of $305.48; and on September 13, 1880, returned said execution in part satisfied, a balance being still due on said judgment. The regularity of the proceedings of said sale is not questioned.</p> <p>On August 7, 1880, the return day of the writ in said action, the plaintiffs in the present action, knowing that the property of said J or dan covered by said mortgage had been attached in said action and was held upon attachment therein by the defendant, appeared by counsel and filed their answer under oath, setting forth that at the time of the service of the plaintiffs’ writ upon them, they had no goods, effects or credits of Jordan in their hands or possession. No other or further answer was made by. said mortgagees, and no questions were put to them by the court or by the plaintiff touching the consideration of the mortgage or the amount due thereon. On August 21, 1880, on motion of the attorney for said mortgagees and trustees, which was not opposed or consented to by Bassett’s attorney, these plaintiffs were discharged upon their answer, with costs. After the officer had made his levy on said execution, and had paid over the proceeds of said sale as aforesaid, said mortgagees, on September 13, 1880, first demanded of the attaching officer the amount claimed by them to be due upon their mortgage note, by serving upon Mm a demand therefor in writing, stating therein that they held a mortgage from Robert P. Jordan upon said property attached by said officer to secure said note.</p> <p>On July 31, 1880, Habecker and Killain brought an action against Jordan to recover a debt due them from him, by writ returnable on August 7, 1880. Upon this writ, a second attachment was made by the defendant upon said mortgaged property, and the plaintiffs in the present action were summoned as mortgagees and trustees of Jordan. They appeared by counsel in said action, and, knowing of the attachment of the mortgaged property, filed an answer similar to that in Bassett against Jordan, not disclosing their mortgage or the amount claimed to be due thereon, or any claim upon the property attached. On September 15, 1880, said mortgagees filed an amended answer, after this action was brought, disclosing their mortgage and the amount alleged to be due thereon, and thereupon said action, as between said Habecker and Killain and these plaintiffs, was, on October 26, 1880, continued to await the result of the case at bar, judgment having been entered in favor of Habecker and Killain against Jordan for the amount declared for.</p> <p>If, on these facts, the plaintiffs were entitled to recover, judgment was to be entered for them in the sum of $315, and interest from the date of the writ; otherwise, judgment for the defendant.</p>

Contract on a policy of insurance on the life of Ellen McCoy payable to the plaintiff, with a count for money had and received by the defendant to the plaintiff’s use.

Tort, under the St. of 1879, c. 297, against Harriet Tidgewell and Thomas Allen. 'Writ dated February 7, 1880. The declaration contained two counts.

<p>A testator named R. executor of his will, and R. and D. trustees thereof, and gave full power to them or the survivors of them to deal with the trust estate. He also gave to the trustees specific sums to hold on separate trusts for the benefit of three persons named, and also created a residuary trust fund. R. was duly appointed executor, and subsequently sole trustee. D. was never appointed trustee, and filed in the Probate Court a resignation of his trust. On the same day that R. was appointed sole trustee, his first account, filed some time before, was allowed by the Probate Court, at the request of persons other than the three beneficiaries, and without further notice, in which he credited himself as executor with moneys paid to the trustees of the beneficiaries equal in amount to the sums named in the will. At that time R. had funds in his hands sufficient for this purpose. On the same day, three other accounts, signed by R. and D. as trustees, and containing items of income paid over to the three cestuis que trust at different times, were allowed by the Probate Court with the assent of the cestuis que trust. A second and final account of R. as executor was subsequently allowed by the Probate Court, showing his disbursements of all the assets in his hands as executor when the first a'ccount was rendered, in which he credited himself with a certain sum paid to himself as trustee of the residuary trust fund. He also filed an account as trustee of the residuary trust fund; and was subsequently removed by the Probate Court from the offices of executor and trustee. Held, on a bill in equity, by his successor in the trusts, to determine whether, as between the specific and the residuary cestuis que trust, E. as executor had paid to himself as trustee the moneys specifically left in trust, that the accounts filed by him warranted a finding that he had so paid them.</p> <p>If a person, who is a legatee and also cestui que trust under a will, fraudulently receives from the executor of, and trustee under, the will, property which forms part of the principal of the trust fund, and converts it to his owfi use, a person subsequently appointed trustee may retain, out of the income afterwards coming to the cestui que trust, the amount so converted.</p> <p>Objections to a bill in equity that the plaintiff has an adequate remedy at law, and that the bill is multifarious, are waived by answering and submitting to the jurisdiction of the court, and going to hearing on the merits.</p>

<p>A child, who is excluded from a public school in a city by a teacher acting without authority from the school committee, cannot maintain an action against the city, under the Gen. Sts. c. 41, § 11, without first appealing to the school committee.</p>

<p>A number of persons associated themselves together for the purchase of several tracts of upland and flats situated on the sea-shore, for the purpose of improvement and subsequent sales, and took a deed of the premises running to three of their number as trustees, and containing a detailed statement in fifteen articles of the trusts upon which the premises should be held. In these articles, the names of the purchasers and their respective interests were mentioned. It was then provided that the “ trustees shall and may pay all lawful taxes and assessments thereon; represent the parties interested in all suits and legal proceedings relating to the premises in any court, and commence the same when necessary; make and execute all necessary agreements relating to said granted premises; employ counsel, and do all acts and things, and pay out all sums of money necessary and proper in the due execution and management of said property; 1 and, in particular, may provide for proper drainage, and may determine all questions relative to the proper laying out of streets and ways, or building-lots, subject to the instruction hereinafter provided for.” A subsequent article provided that the interest of the purchasers should be divided into sixty thousand transferable shares of the nominal value of a certain sum each; and that the beneficiaries should be styled "The B. Company.” Another article provided that, in case the trustees should find it necessary to raise and expend money before they should receive sufficient funds from sales, they should have authority to collect all necessary sums by assessment upon the shareholders of not more than two dollars per share; with authority to make sales of shares for non-payment of assessments. The last article was as follows: “ Said trustees shall not, in behalf of the shareholders, incur liabilities which will not be covered by said assessment of two dollars per share and receipts from sale of company property.” Held, that, by the true construction of the articles, the trustees were authorized to incur liabilities on behalf of the shareholders to the amount of at least one hundred and twenty thousand dollars.</p> <p>Three persons holding land as trustees of an association composed of themselves and several other persons, called “ The B. Company,” entered into two contracts with the plaintiff, which, by the articles of the trust, they were authorized to make on behalf of the shareholders. Both of these contracts stated on their face that they were made by the trustees “ as trustees of the B. Company; ” and were both signed by these persons “as trustees” of the same company. By the first contract, the plaintiff was to construct a wharf “for said company on their land,” on the line of a dock or canal “to be excavated for sail, company;” and “payments shall be made” at stated times. The second con tract recited that the plaintiff agreed to construct a canal or dock “for said company on the company’s land;” and the provision as to payments was substantially like that in the first contract. Held, that it was intended by these contracts to bind the company, and not the trustees personally, and that they were sufficient in form for that purpose; and that the addition of seals, being unnecessary, might be disregarded as surplusage.</p> <p>If a person, who performs work for another under a special contract and is paid in part only for such work, is justified in abandoning the contract, he may recover the value of his work on a quantum meruit.</p>

<p>An administrator cannot maintain a bill in equity to obtain the instructions of this court as to the distribution of the proceeds of real estate, sold by him under a license from the Probate Court, until the surplus remaining on the final settlement of his accounts in that court has been ascertained.</p>

<p>The condition of a mortgage of land contained the provisions that the mortgagor should pay to the mortgagee a certain sum in five years, with interest at a certain rate, payable semiannually; that the mortgagor should also pay all taxes and assessments upon or on account of the mortgaged premises; that the mortgagor might at his option pay the whole or any part of the mortgage debt at any time within the five years; and that the mortgagee would at any time release to the mortgagor any portion of the premises upon payment of a certain sum per foot for the portion so released, which amount should be indorsed upon the mortgage note. After default, not only as to the payment of the interest and taxes, but also of the principal, a person, who bought the land subject to the mortgage, brought a bill in equity against the mortgagee to compel the release of a portion of the mortgaged premises. No demand for such release, nor tender of the stipulated price per foot for the same, was made until more than two years after the expiration of the time for the payment of the principal ; and the mortgagee had not by any act waived or deprived himself of any rights under the mortgage. Held, that the bill could not be maintained.</p>

<p>If a railroad corporation so constructs a private crossing over its track, at grade, in a city, that it is held out as a suitable place for foot passengers to cross, it is liable in damages for an injury sustained by a person, using due care, who is thereby induced to enter upon the crossing, and is injured by the negligence of the corporation or its servants. And if the plaintiff at the time he was injured was on that part of the crossing so constructed, it is no defence to an action by him against the corporation for such injury, that he entered upon the crossing at a place not so constructed.</p> <p>A refusal to give an instruction based upon a part of the evidence only, affords no ground of exception.</p> <p>H a railroad corporation so constructs a private crossing over its tract, at grade, in a city, as to hold it out as a suitable place for foot passengers to cross, it is bound to use reasonable precautions to protect them while so crossing.</p>

Charges of fraud, filed under the Gen. Sts. c. 124, § 31, upon the defendant’s application to take the oath for the relief of poor… Held: and if chips redeemable in money were used by the players in place of money, then it was gaming prohibited by the laws of this Commonwealth; and if they found that since the debt was contracted, or the cause of action accrued, the defendant had hazarded and paid money to the amount of $100 or more in such gaming, then they might find…

<p>Contract in two counts, with a count in tort. The first count alleged that the plaintiffs, at the defendant’s request, purchased for him ten horses and delivered them to him at Glasgow, but the defendant refused to pay the plaintiffs the amount of the prices paid by them for the horses, with charges and commissions, as he had promised. The second count was on an account annexed. The third count was in tort for the conversion of the horses. Trial in the Superior Court; before Putnam, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiffs are copartners doing business in Boston, and the defendant is a resident of Glasgow, Scotland. The plaintiffs offered evidence tending to show that on June 5, 1880, they received from the defendant, at Glasgow, a telegram, signed “ Wilson, 130 London Street,” directing them to send ten horses at once; that the plaintiffs immediately began purchasing horses for the defendant, and on June 18 they had ten horses ready to ship to the defendant at Glasgow; that on that day Bernard McKinney, one of the plaintiffs, went to the National Bank of Brighton, and told one Kingsley, the president, that he wished to draw a draft on the defendant for the price which he had paid for the horses; that Kingsley asked him if he had authority so to do, and he showed Kingsley the defendant’s telegram ; that Kingsley then asked him if the defendant kept at 130 London Street; that he told Kingsley that he did not know; that he went away, soon returned, and informed Kingsley that one Alexander McKinley kept a stable at 130 London Street, and that his firm had had dealings with him; that Kingsley then advised him to ship and bill the horses to McKinley, and to draw on him; that Kingsley thereupon made out a bill of the horses, which began with the words, “ Alex. McKinley bought of D. McKinney & Sons,” and amounted with charges and commissions to the sum of 2080; that the plaintiffs assigned and delivered this bill to the National Bank of Brighton; that Kingsley drew a draft on McKinley for $2080, payable to the order of the bank; that the plaintiff Bernard then went with Kingsley and obtained a bill of lading for the horses from a steamship company, in which the plaintiffs were named as the consignors and the National Bank of Brighton as the consignee; that this bill of lading was indorsed by the bank to “ Alexander McKinley, or order, 130 London Street, Glasgow, for our account,” and was enclosed with the bill in the following letter, addressed to McKinley, and signed by the president of the bank: “ Enclosed find a bill for ten horses bought by D. McKinney & Sons for your account, the same being assigned over to this bank. We also inclose to you bill of lading of the same shipped on steamer Lucerne for Glasgow, by D. McKinney & Sons to the order of this bank, and by the bank indorsed over to you for our account. You will please deposit the amount of the bill, $2080, with Messrs. Blake Bros. & Co., bankers, of London, to our credit, to be cabled and paid to us here in settlement of the account. You will also have ¿68 per head freight to pay there. Should there be any loss, you will forward the proofs of loss to us here, and we will collect payment here for your account.” The plaintiffs objected to the admission of this letter, on the ground that it was not authorized by the plaintiffs; but the judge admitted it, and the plaintiffs excepted.</p> <p>McKinney testified that he left the bill of the horses and the bill of lading with Kingsley to send to McKinley; that he said he would send them; and that he took full charge of the matter; that he never notified the defendant that he had purchased the horses, or that he had shipped them to Glasgow, and that he never requested McKinley or Kingsley so to do; and that he employed one Mcllvain to take charge of the horses to Glasgow.</p> <p>McIlvain, who, at the plaintiffs’ request, went to Glasgow with and took charge of the horses, testified, that, on the night the steamer arrived in the Clyde, he went to McKinley’s house and told his servant to notify McKinley that he had some horses which had been shipped to him for the defendant; that on the following morning the defendant came to the wharf with some men; that the witness pointed out the horses to the defendant; that the latter left him, saying he wanted to see the captain; that he soon returned and told the witness he had paid the freight on the horses; that he superintended the removal of the horses to the wharf and led some of the horses away from the wharf, while the other men, at the same time, led the others, and that he told him he would send a cab for the balance of the grain and the blankets ; that one of the plaintiffs, two or three days after the arrival of the horses, came to Glasgow; and that, in a conversation between him and the defendant, the plaintiff asked the defendant if he had got his horses, and the defendant replied, “ Yes.”</p> <p>Bernard McKinney, one of the plaintiffs, testified that the bank had received from McKinley, as the proceeds of the sale of the horses, a certain sum, leaving the balance claimed in this action.</p> <p>The defendant testified that he wrote the telegram and letter to the plaintiffs on the same day in Glasgow; that he resided two or three miles out of the city, and that he added “ 130 London Street,” in order that any reply sent by the plaintiffs might be sent there, and save the expense of forwarding it to his house; that he never received any information from any source that the horses had been forwarded or shipped on his account, or that any draft had been drawn on account of any horses purchased or shipped on his account; that he assisted in removing the horses from the ship at the request of McKinley, whose foreman was sick; that the horses were taken to McKinley’s place, and that a few days after one of the plaintiffs came to Glasgow, took charge of the horses, and sold them to McKinley at an agreed price; that neither the plaintiffs nor McKinley ever offered the horses to him at Glasgow, or notified him that they had been shipped on his account; and that he was never asked to pay for them until he came to this country in the following August, or ever asked if he had received them.</p> <p>The defendant offered in evidence the deposition of McKinley. The commission was directed “to any commissioner appointed by the Governor of the Commonwealth of Massachusetts, or to any justice of the peace, notary public, or other officer legally empowered to take depositions or affidavits in Glasgow, Scotland.” The certificate annexed to the deposition was headed, “ State of Massachusetts, Suffolk ss.,” and was signed, “ D. D. Balfour, Sheriff Substitute of the County of Lanark, an officer legally empowered to take depositions.” The plaintiffs objected to the competency of the deposition, on the ground that it was not duly authenticated and taken by a competent officer, and on the ground that it was not taken in Glasgow, Scotland, as the commission directed. The judge sent for the envelope in which the commission came, from which it appeared that it was addressed to “Jos. A. Willard, Esq., Clerk of Superior Court, Boston, Mass., U. S. ”; that it was postmarked “ Glasgow, Feb. 19, 1881,” and had on it an English postage-stamp. On examination of this envelope and the other papers, the judge, being satisfied that the deposition was in fact taken in Glasgow, admitted it; and the plaintiffs excepted. The plaintiffs further contended that the envelope was not evidence to which the judge had any right to refer.</p> <p>McKinley testified in the deposition that he received the horses, with the invoice, the bill of lading and the letter annexed, and paid the freight thereon; that, upon being notified that the horses had arrived for him, his foreman being sick, he requested the defendant to superintend their unloading, as he was familiar with that work; that the horses were brought directly to his place from the steamship; that he did not know that they were intended for the defendant; that he never notified the defendant that the horses were for him, and never offered or tendered them to him, or requested him to take them or pay any draft on their account; that, a few days after the horses arrived, one of the plaintiffs came to Glasgow, and he asked him if the horses were intended for the defendant; that McKinney said the defendant had nothing whatever to do with them; and that the horses were under his custody and control until about the 5th or 6th of July, when he purchased them of McKinney at an agreed price, and sent the proceeds to the Brighton Bank, as directed in the letter.</p> <p>The plaintiffs requested the judge to instruct the jury as follows : “1. No specific tender was necessary; if, in any form or way, the defendant had reason to know that these horses had arrived, and were for him, and that he. could have had them, it was enough. 2. The transaction at the bank, as explained by the plaintiffs, if believed by the jury, is no bar to the maintaining of this action by the plaintiffs against the defendant, and no notice from the bank to the defendant was legally essential. 3. No assent of the bank to a tender to the defendant was essential, provided the jury are satisfied the bank was willing the defendant should have and receive the horses under the order of McKinney.”</p> <p>The judge declined to give these instructions, and instructed the jury “ that, in order to entitle the plaintiffs to recover, they must show that the horses were purchased and shipped to the defendant, or shipped in such a manner as to give him the possession or control, or the right to the possession or control, on their arrival at Glasgow, on paying the draft; that the plaintiffs, having shipped the horses in the name and under the control of the bank, were bound to show that they or their agents offered or tendered them to the defendant at Glasgow; that the bill of lading taken by the bank, and the invoice assigned and delivered to the bank by the plaintiffs, vested the property in the horses in the bank, and the indorsement of the bill of lading to McKinley gave him control of the property in Glasgow; that the jury must be satisfied that the property was afterwards tendered or offered to the defendant by McKinley, or some one authorized by the plaintiffs; that if the defendant never had any notice that the horses had been purchased or shipped for. him, or on his account, and after their arrival they were not offered to him by McKinley, or the plaintiffs, or their agent, upon the payment of the costs and charges, then the plaintiffs could not recover; that a mere willingness on the part of the bank, or their agent McKinley, that the defendant should have the horses, was not sufficient to make the defendant liable; that no specific tender was necessary; that if there was an offer to deliver by McKinley on payment of the draft, it was sufficient; or if, in any way, the horses came into the possession or under the control of defendant, with the understanding that they were for him, it was sufficient.”</p> <p>The jury returned a verdict for the defendant; and the plaintiffs alleged exceptions.</p>

<p>A mortgagor, who has conveyed his equity of redemption, but remains personally liable upon the mortgage note, and who has been compelled to pay the balance due thereon, after the proceeds of a sale by the mortgagee under the power of sale contained in the mortgage have been applied upon the note, may maintain an action against the mortgagee for misconduct in conducting the sale, by reason of which a smaller sum was obtained than otherwise would have been.</p>

<p>A wife’s release of dower in her husband’s land, at his request and for his benefit, in consideration of an agreement by him to make a transfer to her of shares of stock in a corporation, which are no more than a fair equivalent for the value of the dower, he being solvent at the time of making such agreement, vests in her such an equitable title to the shares agreed to be transferred, that his assignees in insolvency cannot, on a bill in equity, avoid a subsequent transfer of the shares to her, made by him when insolvent, under such circumstances that it would be in fraud of the Gen. Sts. c. 118, § 91, if the property then belonged to him.</p>

<p>A corporation, having large tracts of unimproved lands, for the purpose of borrowing money to discharge existing liens upon the lands and to make them available for sale, issued bonds, the interest on which was payable semiannually, and, as security for the payment of principal and interest, conveyed its lands to trustees on the following trusts : 1. To permit the corporation to remain in possession, improve and sell the lands, until default should be made in the payment of the bonds, or the interest thereon. 2. To release from time to time from the lien created by the conveyance such portions as, in the opinion of the trustees and of the president of the corporation, might be safely released without impairing the security for the payment of the bonds. 3. To receive and invest the moneys received from the proceeds of sales of said lands, and to pay therefrom interest due on the bonds and the expenses of the trust, and to apply the residue to the purchase and cancellation of the bonds. The deed further provided, that, in case default should be made in the payment of the bonds or of the interest thereof, and for six months thereafter, all the bonds should become payable; that the trustees then might, and, upon the request of a certain number of the holders of the bonds, should, enter and take possession of the granted premises, and should thereafter, as attorneys of the corporation, so long as the default should continue, so manage and dispose of the same as to carry out the purposes of the trust, by sales of the lands from time to time. The corporation covenanted that, in case of default continuing for six months, it would on the request of the trustees deliver up possession of the granted premises, and make any further conveyance required. Held, that until entry by the trustees on default in the payment of the principal or interest of the bonds, they had no power to make a contract to sell any portion of the lands.</p>

<p>Contract upon a promissory note for $300, dated August 12, 1878, signed by the defendants, payable to the order of Sallie McCushing, “ on demand or in three years from this date,” with interest at six per cent “during said term or for such further time as said principal sum or any part thereof shall remain unpaid;” and by McCushing indorsed to the plaintiff. Writ dated August 3, 1880. Trial in the Superior Court, before Pitman, J., who ruled that the action could not be maintained; ordered judgment for the defendants; and reported the case for the determination of this court. If the ruling was erroneous, the judgment was to be set aside and the case to stand for trial; otherwise, the judgment to be affirmed.</p>

<p>The transfer and delivery of an inland hill of lading of goods, by the consignee to a person who advances money upon them, is not in form or effect a mortgage, but vests in such person a property in the goods, which entitles him to maintain an action against one who wrongfully converts them.</p> <p>A delivery of an inland bill of lading for a valuable consideration is in law the delivery of the property itself; and it is not necessary for the person to whom it is delivered to take possession of the property upon its arrival, or to give notice to the carrier or warehouseman who has the actual possession of the property.</p> <p>The delivery of goods by a common carrier to a person unauthorized to receive them, without requiring the production of the bill of lading, but relying upon his representation that he is the holder of it, is a conversion, for which an action will lie against the carrier by the person entitled to the possession of the goods, without regard to the question of the carrier's due care or negligence.</p> <p>If a usage exists for railroad corporations in a certain city to deliver to a consignee goods consigned to him by a bill of lading, not containing the words “ or order,” without requiring the production of the bill of lading, such a delivery is good as against a person to whom the consignee has previously delivered the bill of lading as security for an advance made by him to the consignee.</p> <p>In an action against a common carrier for the conversion of goods delivered to a person unauthorized to receive them, who pays the freight upon them, the measure of damages is the market value of the goods, less the freight, with interest from the date of the conversion.</p> <p>By the usual course of business in forwarding grain from C. to B., it is sent by water from C. to an intermediate point, and is thence taken by railroad to B. A bill of lading is given at C., making the grain deliverable to the shipper at the intermediate point, and there a railroad receipt is given, with a memorandum upon it showing that the grain was received from a vessel and that a bill of lading is outstanding. The bill of lading is regarded as transferring the property, and is alone used in procuring the goods from the carrier at B. Held, that the bill of lading is the representative of the grain during the whole of the transit from C. to B.</p> <p>The owners of grain stored, according to the usual course .of business, in an elevator of the railroad corporation transporting it, are tenants in common in proportion to their respective interests; and a delivery by the corporation of the quantity of grain belonging to one of such owners to a person unauthorized to receive it, is a conversion, for which an action of tort in the nature of trover will lie by the owner against the corporation.</p>

<p>The St. of 1880, c. 227, imposing upon every corporation and association engaged within the Commonwealth in the business of life insurance an annual excise tax, "to be determined by assessment of the same upon a valuation equal to the aggregate net value of all policies in force on the thirty-first day of December then next preceding, issued or assumed by such Corporation or association, and held by residents of the Commonwealth, at the rate of one half of one per centum per annum,” is constitutional.</p>

<p>After a railroad corporation had filed a location of its railroad over A.’s land, A. conveyed a portion of the land to B. by a warranty deed containing a covenant against incumbrances. Both A. and B. filed petitions against the corporation for the assessment of damages for the land taken; and, B. having become insolvent, his assignee assigned to the corporation the claim of B. under his petition for the land taken and damages caused by the laying out of the railroad, with full power to prosecute the petition to final judgment, and to avail itself of all remedies both in law and in equity in relation to said claim. A. subsequently recovered judgment against the corporation for damages for all the land taken. Held, on a bill in equity by the corporation against A., to restrain him from enforcing his judgment so far as the damages sustained by B.’s land were concerned, that the claim of B. against A. for breach of the covenant of warranty did not pass by the assignment to the corporation; and that the bill could not be maintained.</p>

<p>A person having the entire right to dispose of property may settle it in trust in favor of another, with the provision that the income shall not he alienated by the beneficiary by anticipation, or be subject to be taken by his creditors in advance of its payment to him, although there is no cesser or limitation of the estate in such an event.</p>

<p>A person cannot settle his property in trust to pay the income to himself for life, with a provision that it shall not be alienated by anticipation, so as to prevent his creditors from reaching the income by a bill in equity under the Gen. Sts. c. 113, § 2, cl. 11; and this rule applies to a married woman settling her separate property after marriage, where she has by law the right to make contracts as if she were sole.</p> <p>If a person, having made a settlement in trust of his own property by which he is entitled to the income, assigns his interest under the settlement as security for a debt, he cannot, as against the creditor, subsequently modify the terms of the trust, so as to make the payment of the income discretionary with the trustee.</p>

<p>The interest of a person in a trust fund created for his benefit by the will of another, which provides that the trustees may in their discretion pay or apply the income to the benefit of such person, or the members of his family, as the trustees may think proper, and that the income shall not be subject to his debts or assignable by him by way of anticipation, cannot be reached by a creditor of such person by a bill in equity, under the Gen. Sts. c. 113, § 2, cl. 11.</p>

<p>A testator gave the residue of his property to trustees upon the trusts, first, to pay all the income to his widow during her life; second, upon her death, to divide the trust estate into as many parts as there were children of him and his wife then living, and deceased leaving issue then living; and third, to hold one of said parts in trust for his son T. and to pay him semiannually the net income arising therefrom to a certain amount annually, and, in the discretion of the trustees, to further pay him the excess of the net annual income above the amount named; with a limitation over, upon the death of T., of the principal and accumulated income. Within a month after the will was proved, before the estate was settled and before any property was transferred to the trustees, and while the widow was living, a creditor of T. brought a bill in equity, under the Gen. Sts. c. 113, § 2, cl. 11, to reach and apply to the payment of his claim the interest of T. in the trust fund. Held, that the bill could not be maintained.</p>

<p>A., a citizen of this Commonwealth, brought a bill in equity against B., a citizen of another State, and C., a citizen of this Commonwealth. B. filed a petition for the removal of the case into the Circuit Court of the United States, under the act of Congress of March 3, 1875, which was denied, on the ground that, as A. and C. were botli citizens of this Commonwealth, and as the controversy between A. and B. could not be fully and finally determined as between them without the presence of C., B. had no right to remove the case. B. then filed an application for a rehearing upon his petition for removal, alleging that, after the filing and service of the bill, and before the filing of the petition for removal, C. wholly released all his interest in the subject matter of the controversy to A., and ever since such release A. and B. had been the only parties interested in the cause; and that B. had no information or suspicion that the release had been executed before the decision denying the petition for removal, and A., although cognizant thereof, did not disclose the fact to B. or to the court. A. admitted that the facts alleged in the application for a rehearing were true. Held, that the former rescript and order should be vacated; and that the petition for removal should be allowed.</p>

<p>The charter of a railroad corporation provided that, if the railroad should cross any highway, the railroad should be so constructed as not to impede or obstruct the safe and convenient use thereof; that the corporation should have the power to raise or lower such highway, and, if it should do so, and should not so raise or lower the same as to be satisfactory to the selectmen, the latter might require in writing of the corporation such alteration or amendment as they might think necessary; and that, if the required amendment or alteration was reasonable and proper, and the corporation should unnecessarily and unreasonably neglect to make the same, the selectmen might proceed to make such alteration or amendment, and might recover the cost thereof from the corporation. Held, in an action for personal injuries, occasioned by the defective construction of a bridge built and maintained by the corporation over a highway, at a place where the highway had not been raised or lowered, that, under its charter, the corporation was bound so to construct and keep its railroad as not to impede or obstruct the safe and convenient use of the highway; and that, even if the bridge was adequate for such use when built, and an increased use rendered it inadequate, the corporation must alter the bridge.</p>

<p>Complaint under the mill act, Gen. Sts. c. 149, for flowing certain meadow lands on the Neponset River. The ease was submitted on agreed facts to the Superior Court, which ordered judgment for the respondents; and the complainant appealed to this court. The facts, so far as material to the point decided, appear in the opinion.</p> <p>The case was argued at the bar in January 1881, by L. M. Child, for the complainant, and by W. Gaston & A. Churchill, for the respondents ; and was reargued in March 1882, by B. F. Butler & Child, for the complainant, and by Gaston & Churchill for the respondents.</p>

<p>The first case was a complaint to the District Court of East Norfolk, alleging that the defendant, on May 19, 1881, at-Quincy, being then and there licensed according to law to sell spirituous and intoxicating liquors, in two certain rooms, to wit, one rear room on the ground floor, and one room on the second floor directly above said first-mentioned room, in a certain building, which said rooms were then and there used by the defendant for the sale of spirituous and intoxicating liquors, under the provisions of his said license, “ unlawfully did place and maintain, and authorize and permit to be placed and maintained, upon said premises used by him as aforesaid, certain blinds, and ground glass in the door, and curtains and partitions, So that said blinds, ground glass in the door, curtains and partitions, then and there interfered with a view of said business, conducted upon his said premises under the license aforesaid by him,” &c.</p> <p>In the District Court, the defendant, before trial, moved to quash the complaint, assigning the following reasons therefor:</p> <p>“ 1. Because said complaint sets out no offence under the laws of this Commonwealth in apt and proper words. 2. Because in said complaint it is averred and set out that said defendant has been and is duly licensed to sell spirituous and intoxicating liquors, in, on and upon the premises described in said complaint; and there is in said complaint no averment that he has in any way violated the terms and conditions of his said license. 3. Because it is nowhere averred in said complaint that said defendant has sold, or offered for sale, any spirituous or intoxicating liquors in violation of any law of this Commonwealth. 4. Because said complaint is inconsistent, contradictory and uncertain, in that it is averred, set forth and alleged in said complaint that the said defendant used the premises therein described ‘for the sale of spirituous and intoxicating liquors under the provisions of his said license,’ and thereafter sets out certain acts, which, if they are unlawful, are unlawful only because they are inconsistent with, and in violation of the provisions of, the license. 5. Because no crime or offence against the laws of the Commonwealth is described, set forth or contained in said complaint.”</p> <p>This motion was overruled; the defendant was tried, and found guilty; and appealed to the Superior Court.</p> <p>In that court, the defendant, before the jury were empanelled, renewed his motion to quash, and the motion was overruled by Gardner, J. The defendant was then tried and found guilty; and a bill of exceptions was allowed, which, after stating the facts above set forth, proceeded, in substance, as follows:</p> <p>A witness for the government testified that the lower back '.room had a bar and beer-pump; that he was there on May 16, 1881; that the defendant and his bar-tender were in this room; that persons were in there drinking, calling for lager beer; that -on the day set forth in the complaint he visited the defendant’s place of business in Quincy; that it was a rear room on the ;ground floor; that there was a door leading into it from a private yard, and the panels of the door were of ground glass, "through which no one could see; that there were two windows «opening into the room, one on the side and the other on the rear ; that there were on the outside of the building, attached to tthe window frames, slat blinds that were closed so that he could .not see in; that he stood at a distance of six to ten feet away .from the windows, and could not see into the room ; that when ¡he went there it was in the evening, and he saw that the room "was lighted; that he heard people in the bar-room, but did not .see.any one in the room, nor any one going in or coming out; .that the room was connected by doors with another front room ; ¡.and that he heard voices of persons in the building, which he «believed to be in the bar-room described in the complaint. It was admitted that the defendant held a first-class license, authorizing him to sell spirituous and intoxicating liquors on the premises described in the complaint, but that he used only the lower •room. On this testimony, the defendant asked the judge to ■instruct the jury to render a verdict for the defendant. The judge declined so to rule; and the defendant excepted.</p> <p>The defendant introduced evidence tending to show that the blinds were old-fashioned slat blinds, with a wide space between the slats, so that any one standing within two or three feet of the windows could readily look between the slats and see the persons in the room, and. all that was being done in there. Some of defendant’s witnesses testified that they stooped in order to get a view of the room. At the conclusion of the testimony, the defendant asked the judge to rule that, upon the whole evidence in the case, the government had not sustained the averment in the complaint; and that the defendant was entitled to a verdict. The judge declined so to rule.</p> <p>The defendant then asked the judge to instruct the jury as follows : “ 1. There is no evidence that the defendant was carrying on business on the premises described in the complaint. 2. There is a variance between the complaint and the evidence, in that the blinds were not in the room described in the complaint and the license, but were on the outside of the building. 3. If one, by approaching nearly to the defendant’s windows, could see what was going on in the licensed premises, notwithstanding the blinds were closed, then the closing of the blinds would not, as matter of law, interfere with a view of the business carried on upon the premises licensed. 4. The government must prove beyond a reasonable doubt that the business of selling intoxicating and spirituous liquors was being carried on at the time, to wit, the evening of May 19th, set out in the complaint, and stated by the government witnesses, and this is not to be presumed from the fact that the defendant had received a license to sell spirituous and intoxicating liquors. 5. In order to convict the defendant, the government must prove that the closing of the blinds prevented a view; that is, prevented one by reasonably approaching the windows from seeing the business carried on in the licensed room.”</p> <p>The judge declined to give the first instruction requested, but left the question to the jury under instructions not objected to; refused to give the second; declined to give the third, but left it to the jury to determine whether the blinds interfered with a view of the business conducted upon the premises; gave the fourth, and added, “the jury must be satisfied that the defendant was carrying on the business described in the complaint, that is, using the premises for the sale of intoxicating liquors,” to which no objection was made by the defendant; and also gave the fifth, and added, “ but if this could only be done by stooping down and peering through the slats of the blinds, the jury would be warranted in finding that the blinds did interfere with a view of the premises; ” and the defendant excepted.</p> <p>The second case was a complaint to the District Court of East Norfolk, alleging that the defendant, on June 25, 1881, at Quincy, being licensed to sell spirituous and intoxicating liquors in certain rooms of a building described, which rooms were used by him for the sale of such liquors under the provisions of his license, “ unlawfully did place and maintain, and authorize and permit to be placed and maintained, upon said premises used by him as aforesaid, certain shutters, so that said shutters then and there interfered with a view of said business, conducted then and there upon the said premises used by him as aforesaid, under the license aforesaid,” &c.</p> <p>In the District Court, the defendant moved to quash the complaint, assigning the same reasons as those set forth in the first case. This motion was overruled ; the defendant was tried and found guilty; and appealed to the Superior Court.</p> <p>In that court, the defendant, before the jury were empanelled, renewed his motion to quash, which was overruled by Gardner, J. The defendant was then tried, and found guilty, and a bill of exceptions was allowed, which, after stating the facts above set forth, proceeded, in substance, as follows:</p> <p>It was admitted that the defendant had received a first-class license to sell spirituous and intoxicating liquors on the premises described in the complaint.</p> <p>The government called two witnesses, one of whom testified that he had been in the defendant’s bar-room in the forenoon of May 25, 1881; that there was a bar there, and that persons were drinking lager beer. These witnesses testified that on the evening of the day named in the complaint, it being on Saturday, between ten and eleven o’clock, they drove by the defendant’s place, both of them being in the same vehicle, twice or three times, the first time twenty minutes before the second time; that the windows opening from the licensed room were closed by wooden shutters nearly close, having only slight cracks between the boards, caused apparently by the shrinking, but that they could not see into the room; that there were windows in the top of the door, but so high up that persons could not see into the room through them; that they saw light in the room, and some persons on the street near the building and coming out of the door; and, at one time, they saw a man coming out of the door; that the shutters were put on the outside of the building, and were so tight as to prevent them from seeing through into the interior of the room. This was the only testimony introduced by the government.</p> <p>At the conclusion of this testimony, the defendant asked the judge to instruct the jury that there was no evidence to convict the defendant under this complaint. The judge declined so to rule; and the defendant excepted.</p> <p>The defendant introduced evidence tending to prove that, on the Saturday night named in the complaint, the shutters were put up at the close of the business for the day; that the defendant went out of the door for the purpose of putting up the shutters some time between ten and eleven o’clock; and that, after they were put up, no business of any kind was done, and no person allowed to be in the place until the following Monday. The defendant was called as a witness, and, on cross-examination, testified that, on the day and evening of the day named in the complaint, he was occupying this place for selling spirituous and intoxicating liquors; that he kept open as late as ten to eleven or half-past eleven o’clock at night; and that Saturday was his best night.</p> <p>The defendant, at the conclusion of the whole evidence, renewed his request for a ruling, that the government had failed to introduce any evidence that, at the time testified to by the government witnesses, the defendant was doing any business on the licensed premises; and that the jury should render a verdict of not guilty.</p> <p>The judge declined so to rule as a matter of law, but submitted it to the jury under instructions not objected to; and the defendant excepted.</p> <p>The. defendant asked the judge to rule that there was no evidence that the defendant was carrying on business on the premises described in the complaint, and as therein set out; and that there was a variance between the complaint and the evidence, in that the shutters were not in the room described in the complaint and the license, but were on the outside of the building. The judge declined so to rule; and the defendant excepted.</p> <p>The two cases were argued together.</p>

<p>A guardian, who had misappropriated money belonging to his ward, being insolvent, within six months before the filing of a petition in insolvency against him, and with a view to give a preference to his ward, deposited his own money in a savings bank in his name as guardian of the ward. Held, that his assignee in insolvency could maintain a bill in equity to recover the amount so deposited, although the ward was ignorant of the misappropriation and of the fact of the guardian's insolvency.</p>

<p>If a waiver, by all persons interested in land sold by a collector of taxes, of an' informality in the sale, after the bringing of a writ of entry by the purchaser at the sale against a person claiming title to the land as a disseisor, will operate by estoppel to make good the demandant’s title as against such persons, it will not have that effect as against the tenant.</p>

<p>The election of a water commissioner of a town was required by statute to be by ballot, and at the annual town meeting for the election of town officers. The moderator of the meeting at which such officer was to be voted for appointed a committee of five citizens to count the ballots cast, who reported to him, and he announced the vote, and a certain person was declared elected by a majority of one vote. A motion was thereupon made and carried that the votes be recounted by a new committee. The moderator then appointed a new committee, who recounted the votes and reported that another person was elected by a majority of, one vote, and the moderator so declared the vote, stating that it so appeared by the recount. No objection was made to this declaration. The ballots were not preserved, and it did not appear where the ballot-box was during the time that elapsed between the first declaration and the recount. Held, on a petition for a writ of mandamus by the person declared to be elected on the recount, that he was entitled to the office; and that mandamus was the proper remedy.</p>

<p>The St. of 1851, c. 290, reenacted in the Gen. Sts. c. 43, §§ 17, 18, and providing for the apportionment of damages awarded for the taking for a highway of land in which there are distinct or separate interests, is not unconstitutional so far as it affects the parties to a lease made after its passage; such parties must be deemed to have taken their title subject to these provisions; and if gross damages have been paid to a trustee appointed by the judge of probate, under said statutes, the lessee, or those claiming under him, cannot maintain a bill in equity against such trustee and the general owner of the land, to compel a different distribution of the damages from that provided for in the statutes, even if the appointment of the trustee was irregular or invalid.</p>

<p>Tort for obstructing the plaintiff’s right of way over the defendant’s land in Hudson. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the plaintiff ; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>The St. of 1872, c. 343, authorized a town to take, hold and convey, for neces- ' sary uses, the waters of a river, to a certain amount daily, and for this purpose to take and hold lands, build reservoirs, aqueducts and dams; and provided that it should pay all damages sustained by any person in his property by such taking of water, or of any land, rights of way, water rights or easements, and that the owner of any property taken as aforesaid, or other person “ sustaining damages as aforesaid,” should recover damages in a mode pointed out. Held, that if a person on the river, above the place where the town took water, had acquired the right to foul the stream, there was no taking by the town of such right by implication.</p> <p>Since the passage of the St. of 1878, c. 183, forbidding the discharge into any river or stream, used as a source of water supply by any city or town, within twenty miles above the point where such supply is taken, of any sewage, drainage, refuse or polluting matter of such quality or amount as to be deleterious to health, a person cannot acquire by prescription the right so to foul a stream within such distance, as against a city or town using the stream as its source of water supply.</p> <p>A town, authorized by statute to take water from a river, acquired land on the bank of the river, and took the water by percolation into a filtering- gallery. Four thousand feet above its works, A. carried on the business of wool-pulling, and cast daily into the stream, in the process of such business, animal matter in a state of decomposition, together with a small amount of arsenic. The quantity so cast into the river made no perceptible difference in the quality of the water at the point where,the town took its supply, and no trace of arsenic could be there discovered by chemical analysis. H the town should take its water directly from the river, there would be a possibility, especially in times of freshets, that some arsenic would be carried into the water used by the town. A/s factory was not run to its full extent, and the danger from arsenic would be increased by any increase in the use of the factory. A. could not acquire a prescriptive right to pollute the river. Held, that the town could not maintain a bill in equity against A. to restrain him by injunction from continuing his business.</p>

<p>An owner of land on a natural stream may maintain a bill in equity to restrain another owner of land on the stream from carrying on business on his land in such a way as to pollute the waters of the stream to the material injury, of the plaintiff; and such right is not taken away by the St. of 1878, c. 183, which confers certain powers over streams upon the State Board of Health.</p> <p>An order in equity refusing a motion for issues to the jury, and which is excepted to, is subject to revision on a report of the case.</p> <p>On a bill in equity by a riparian proprietor of land on a natural stream to restrain another proprietor from so conducting his business as to pollute the waters of the stream, and to cause disagreeable odors at the plaintiff's land, the answer denied that the stream was polluted or disagreeable odors produced at the plaintiff’s land, or that the plaintiff intended to use his land as a residence, and alleged that the defendant had a prescriptive right to carry on his business in the manner he was carrying it on. The defendant filed a motion for issues to a jury. This motion was overruled by the judge before whom the case was heard. Held, on a report of the case, that the motion should have been granted.</p>

<p>If a town offers a reward for the detection and conviction of an incendiary, and information which leads to the discovery of the criminal is first obtained by a state detective, (who is prohibited by the St. of 1875, c. 15, § 6, from claiming any part of the reward,) and he communicates such information to another person, upon whose advice the criminal confesses his guilt to him and to the officer together, and conviction is secured upon proceedings founded on the confession, such person is not entitled to maintain an action against the town for the recovery of the reward.</p>

<p>The sureties on a general bond given by an executor, who has also given a special bond with sureties to account for, and dispose of according to law, the proceeds of a sale, under a license of the Probate Court, of the real estate of his testator, remaining after payment of debts, legacies and charges of administration, are not liable for the neglect of the executor to pay over to the residuary legatees entitled thereto the balance of the proceeds of such sale, although the executor charges himself in his general account with the whole of such balance.</p>

<p>Tort for the shooting by the defendant of the plaintiff’s dog. Trial in the Superior Court, without a jury, before Mason, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff’s dog was duly licensed, was not dangerous or mischievous, and was not guilty of any of the acts mentioned in the Gen. Sts. c. 88, § 60, but his head was so small and tapered from the neck so greatly that no collar would stay upon his neck. On June 14, 1881, the dog, without any collar on, while passing the residence of the defendant, was attacked by a dog belonging to the father of the defendant and severely injured, and was shot and killed by the defendant, without the knowledge and against the will of the plaintiff.</p> <p>The defendant justified the killing under the provisions of the St. of 1867, o. 130, § 7, by which he contended that any person may kill all dogs, whenever and wherever found, not wearing a collar and being off from the premises of such dog’s owner, and not under the care of his owner or keeper.</p> <p>The plaintiff contended that the statute did not authorize or justify the killing, against the owner’s will, of a dog not dangerous or mischievous, nor guilty of any of the acts mentioned in the Gen. Sts. c. 88, § 60, and which was licensed and without a collar, until the warrant mentioned in the St. of 1867, e. 130, §§ 7, 8, 9, had been issued; and that the right then to kill existed only from the issue of the warrant in July until its return in October of the same year; and asked the judge so to rule. But the judge declined so to do, and ruled that any person was justified in killing a dog without a collar upon the highway, whenever and wherever found; and ordered judgment for the defendant. The plaintiff alleged exceptions.</p>

Contract for support furnished from June 1, 1878, to July 5, 1879, to Sarah Beals, whose settlement, through her husband, John Beals, was alleged to be in the defendant town.

<p>Interest received by a national bank upon a promissory note, greater than the rate allowed by the laws of the State where the note was made, in violation of the U. S. Rev. Sts. § 5197, cannot be set off, in an action by the bank upon the note, against the amount due thereon; but the bank is entitled to recover only the face of the note, without interest.</p>

Petition to the county commissioners for a sheriff’s jury, to assess the damages sustained by the taking by the respondent of the petitioner’s land in Deerfield for a railroad location. The jury awarded the petitioner a certain sum, which verdict was accepted, and confirmed by the Superior Court; and the respondent appealed to this court. The facts appear in the opinion.

Charges of fraud, filed under the Gen. Sts. c. 124, § 31, upon the defendant’s application to be admitted to take the oath for the relief of poor debtors. At the trial in the Superior Court, before Dewey, J., the jury returned a verdict of guilty on the first charge, and not guilty on the second charge; and the defendant alleged exceptions. The facts appear in the opinion.

<p>If a wife pays, with money earned by her own labor, since the St. of 1874, c. 184, a promissory note made by her husband and the principal and interest of a mortgage on land owned by him, a conveyance of the land by him to her through a third person, made in connection with such payments, is not in fraud of his creditors.</p>

<p>The entering upon land and cutting timber by the agent of a person, under a claim of right, operates to put the latter into possession of such timber as is severed, and gives him sufficient title to maintain an action for the conversion of the timber as against a person having no right in it.</p> <p>A declaration, alleging an interference with the plaintiff’s right to cut and remove standing timber, is not sustained by proof that he had the seisin or the possession of the timber, without proof that he had the right to cut and remove it.</p> <p>In an action for interfering with the plaintiff’s right to cut timber, which right he was exercising in good faith and under claim of title under a deed, the defendant may show that the plaintiff’s grantor had, previously to the deed to the plaintiff, conveyed all his right in said land, although the defendant does not claim under the last-named deed.</p>

<p>A person, who hires a horse of its owner to drive to a particular place, and in returning unintentionally takes the wrong road, and, after travelling on such road a few miles, discovers his mistake and takes what he considers the best way back to the place of hiring, which is by a circuit through another town, is not liable in trover for the conversion of the horse.</p>

<p>Tort. The declaration as amended was as follows; “ The plaintiff says Stephen K. and Frank Edwards were copartners, residing and doing business as traders and commission merchants in Southbridge under the firm name of Wm. Edwards’s Sons ; that the defendant was and is cashier of the Southbridge National Bank in said Southbridge, and said Edwards’s Sons did their banking business through and at the said bank; that said Edwards’s Sons in August 1880, and for a long time before, were heavily indebted to divers persons in large sums of money, and were insolvent; that the said bank, from time to time and continuously, discounted commercial paper, notes, drafts, &c., for the said Edwards’s Sons, on a large amount of which paper were borne the names of William Edwards of said Southbridge and Jacob Edwards of Boston, the father and uncle respectively of said Edwards’s Sons, as indorsers, sureties, or in some other relationship to the paper making them liable thereon; that the said Edwards’s Sons had not, for a long time prior to the said August, been able to meet their current obligations when due by payment, and had procured extensions by new discounts of their paper from time to time with the aforesaid and other indorsers or sureties, and had met maturing obligations by using money procured on new loans for the purpose of increasing their deposits, all or a large portion of" which transactions were at the said bank, and passed through the hands of, and were fully and intimately known to, the defendant, the cashier of said bank; that before, during and about the time of the transactions hereinafter set forth, the said Edwards’s Sons were more than ever troubled to meet their maturing obligations at said bank, which the defendant well knew, and that during the same time said Edwards’s Sons were buying goods in the market in quantities larger than usual and were disposing of them at prices below their market value, making drafts for the price of such sales and procuring them to be discounted by said bank through the hands of the defendant in irregular and unbusinesslike ways and On insufficient and unusual security, were putting goods bought by them in consideration of advances on them into the hands of third persons, to hold in trust as security for the advances, and were, by deposits of money thus obtained in said bank, managing to pay off the accruing liabilities on which their said father and uncle were holden; that the defendant received merchandise to hold as security for advances, and well knew and had reasonable cause to know the above-recited unusual, risky and deceptive manner in which said Edwards’s Sons were transacting their business, that they were of doubtful standing and responsibility, and were likely to fail, and were insolvent.</p> <p>“ And the plaintiff further says, that, in June and July 1880, the said Edwards’s Sons applied to the plaintiff, who is a wholes sale coal merchant in New York City, for a sale of a large amount of coal; that said Edwards’s Sons had never before traded with the plaintiff and were strangers to him, and referred him for reference as to their standing and credit to the said bank; that the plaintiff applied in writing to the said bank, addressing the cashier thereof, for information as to the responsibility and financial standing of said Edwards’s Sons, by letter as follows: ‘New York, Aug’t 3d, 1880. Cashier Southbridge Nat’l B’k, Southbridge, Mass.: Dear Sir, — The Messrs. Wm, Edwards’s Sons of your town have referred me to your bank for information as to standing and responsibility. I shall esteem it a favor to receive from you anything bearing on same that you can give. With respect, yours, &c. Fredk. A. Potts, G. M. W.’ And said defendant represented in writing to the plaintiff by letter on the 5th day of August, 1880, on the bottom of the above set forth letter from the plaintiff, regarding the standing and responsibility of said Edwards’s Sons, in words and figures as follows: ‘Not familiar with detail of their business; they have paid all paper with their name upon maturity without protest promptly since my acquaintance with them from 1865 to 1880. Yours Respty, F. L. Chapin, Ca., 8—5, 1880.’ Intending thereby to give and giving the plaintiff to understand that they, the said Edwards’s Sons, had met their paper at maturity by payments in money, or with funds on hand the proper property of said Edwards’s Sons, or money or funds owned and obtained by them in the usual and ordinary course in which solvent men conduct their business, and not by the unusual and irregular methods of doing business set forth above, nor by renewals; and were so far as said defendant knew in good financial condition, standing and responsibility, whereas said defendant knew the said Edwards’s Sons were heavily indebted as aforesaid, did not meet their paper at maturity by payments of money, or with funds on hand the proper property of said Edwards’s Sons, or money or funds owned and obtained by them in the usual and ordinary course in which solvent men conduct their business, and not by the unusual and irregular methods of doing business set forth above, nor by renewals; and were practising the irregular and unusual methods of doing business set forth above. And plaintiff says the defendant in making such representation to the plaintiff did not deal fairly with the plaintiff, and give him honestly such information as he had relative to the subject matter of the inquiry, but intended to and did deceive the plaintiff and mislead him into confidence in the said Edwards’s Sons, and gave said Edwards’s Sons a false and fictitious credit which he well knew they were not entitled to. And the plaintiff says that, relying on and deceived by the said representations of the defendant, he sold and delivered to the said Wm. Edwards’s Sons a large quantity of coal of the value in all of three thousand four hundred thirty-seven ^-2_ dollars, except a small part thereof stopped in transitu; that, at the time of such sale and delivery, said Edwards’s Sons were insolvent, did not expect or intend to pay for said coal, were utterly unable to pay for the same, and, before the delivery was completed as to so much thereof as was stopped in transitu by the plaintiff, they failed, stopped payment, took the benefit of the insolvent law of Massachusetts, and refuse and neglect to pay the plaintiff for said coal. Whereupon the plaintiff says he has a cause of action against the defendant for damages resulting to the plaintiff from the false and deceitful representations aforesaid made by the defendant to the plaintiff.”</p> <p>The defendant demurred to the declaration, on the ground, among others, that it did not state a legal cause of action. The Superior Court sustained the demurrer, and ordered judgment for the defendant; and the plaintiff appealed to this court.</p>

<p>The defendant in an action, after he had filed an answer to the declaration, which contained two counts, on the plaintiff’s filing a third count, filed, by leave of court and the consent of the plaintiff, an answer containing a demurrer to the whole declaration. The plaintiff gave his consent, supposing that it was an answer to the third count only; and it did not appear that the judge understood that it was an answer and a demurrer to all the three counts when he gave leave to file it. The judge ordered the demurrer to be confined to the third count. Held, that the defendant had no ground of exception.</p> <p>An agreement to forbear bringing suit for a debt due, for an indefinite time, if followed by actual forbearance for a reasonable time, is a good consideration for a promise to pay the debt by a person other than the debtor.</p> <p>A person, by signing a promissory note after it has been delivered, although for a distinct consideration sufficient to support his contract, does not become a joint and several promisor with the maker, if the original obligation of the latter on the note is not destroyed.</p>

<p>The ringing, at an early hour in the morning, (for the purpose of arousing the keepers of boarding-houses where operatives in a mill live, or for the purpose of arousing the operatives themselves,) of a bell weighing two thousand pounds and set in an open tower forty feet from the ground, and so situated with respect to the residences of persons, owned and occupied by them before the erection of the bell, that they receive the full force of the sound, such persons being thereby deprived of sleep during hours usually devoted to repose, and personally annoyed and disturbed, and the quiet and comfort of their homes impaired, is a private nuisance to them; the owner of the mill may be restrained by injunction from ringing the bell for such purposes, the ringing not being shown to be necessary or reasonable; and evidence of a custom to ring the bells in other places for similar purposes is inadmissible.</p>

Bill in EQUITY against the executor, heirs and next of kin of Stephen Richardson, for the settlement of a copartnership for buying and selling real estate, which the bill alleged existed between the plaintiff and Stephen Richardson.

<p>A declaration alleged that the plaintiff and defendant entered into a written contract, a copy of which was annexed; that the plaintiff was induced to execute it by fraudulent misrepresentations of fact by the defendant; that the plaintiff was not bound by it, but was entitled to recover what the labor performed and furnished was reasonably worth; and concluded witli an allegation like that contained in an account annexed. Held, that it was a good declaration on an account annexed; and that the unnecessary averments might be rejected as surplusage.</p> <p>A declaration alleged that the plaintiff and defendant entered into a written contract, a copy of which was annexed; that the plaintiff .entered upon the performance of the contract, but the defendant neglected to perform his part of the contract, and prevented the plaintiff from performing the contract, whereby the plaintiff was greatly injured and damaged; and concluded with an allegation like that contained in an account annexed. Held, that the count contained two inconsistent causes of action, and was bad.</p> <p>If a written contract for work to be done is fully performed, the stipulated price may be recovered in an action upon a common count or an account annexed.</p> <p>If a plaintiff, after doing work under a written contract, has the right to avoid or rescind the"contract, he may recover what his labor is reasonably worth, under a common count or an account annexed.</p> <p>In an action on an account annexed for work done and materials furnished, it appeared that the plaintiff had performed work and furnished materials, during the times stated in the account, under two proposals and a subsequent contract. Neither of the proposals was identical in terms with the other, or with the contract, though they had many things in common. They all referred to plans and specifications, which did not appear in the defendant's exceptions on which the case came before this court. There was oral evidence that the plans and specifications referred to in the proposals and the contract were the same, and that the parties intended to reduce their contract to -writing, but delayed it until the contract in question was made. There was evidence that the plaintiff had been prevented from performing the final contract by the act of the defendant. The jury were instructed, at the request of the defendant, that the plaintiff could not recover for work done and materials furnished, not done and furnished under the final contract, and were further instructed, against the defendant’s objection, that whether the work done and materials furnished prior to the date of that contract were done and furnished under that contract, was for the jury to determine on all the evidence in the case. Held, that the defendant had no ground of exception to the admission of the evidence, or to the instructions given.</p>

<p>A testator gave to his wife real and personal property for life, which on her death was to he equally divided between his son and his daughters B. and M.; and the will further provided as follows: “ The part coming to E., I wish placed in trust, and at her decease, if she leaves no children, paid to her sister M." After the death of the widow, the executor settled his account in the Probate Court, showing a balance of personal property in his hands to be divided. Held, that the will created a valid trust; and that a trustee should be appointed for tlie personal property only.</p>

<p>A declaration alleged that the defendant agreed to pay the plaintiff a certain sum, in consideration that the plaintiff would assent to the election of a certain person as manager, in the defendant’s place, of a corporation of which the plaintiff and defendant were hotli members. The evidence introduced at the trial showed that the consideration of the defendant’s promise was that the plaintiff would vote for the person named as manager, and would also vote to increase the salaries of the officers of the corporation. Held, that there was a variance between the declaration and proof in regard to the consideration.</p> <p>A contract between two stockholders in a corporation, by the terms of which one, in consideration of a sum of money paid to him by the other, agrees to vote for a certain person as manager of the corporation, and also to vote to increase the salaries of the officers of the corporation, including that of the manager, is void as against public policy, unless it is assented to by all the stockholders of the corporation; and whether it is valid if so assented to, quaere.</p> <p>A declaration alleged that, in consideration that the plaintiff would do a certain act in relation to a corporation, of which the plaintiff and the defendant were both members, the defendant agreed to pay the plaintiff a sum named when certain bonuses were paid to the defendant by the corporation; that the plaintiff did the act, and the bonuses were paid to the defendant by the corporation; and that the defendant refused to pay the plaintiff the sum promised. The evidence introduced at the trial showed that the defendant assigned the bonuses to a person, to whom the corporation paid a portion of the amount due thereon; that the assignee sold the bonuses remaining for a sum less than the balance due; and that the purchaser was paid the full amount of such balance by the treasurer of the corporation, to whom, according to a previous agreement between them, the purchaser paid the difference between the total value of the bonuses and the whole amount paid to the assignee. The judge instructed the jury, that, if they found that the corporation actually paid the whole amount of the bonuses to any assignee of the defendant, this was such a payment of the bonuses to the defendant that the action could be maintained; but that, if they found that the corporation had not paid the bonuses in full, but had succeeded by any means in purchasing them for a sum less than was due upon them, then that would not be such a payment of them as would sustain the action. Held, that the defendant had no ground of exception.</p>

Bill in equity, by the executors of the will of Tobias Roberts, against the Eastern Railroad Company and the trustees of the same, appointed under the St. of 1876, c. 236, to compel the issue and delivery to the plaintiffs of certificates of indebtedness, as provided in that statute. Hearing upon bill and answer before Meld, J., who reserved the case for the determination of the full court; such decree to be entered as justice might require. The facts appear in the opinion.

<p>Tlie 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 locating 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. The board purchased a large tract of flats, over part of which the tide flowed, the rest being marsh, and proceeded to lay out avenues and to fill them with gravel; and, when but a small portion of the area was filled, and none of the avenues were completed, passed an order declaring that they had taken, and did thereby take and create, as a public park, certain land, being in fact that already purchased, and also passed a further order reciting that, whereas by the previous order a park was located and laid out, they laid an assessment upon certain lands benefited thereby. This assessment was im fact less than the sums which had then been expended for the purchase of the land and for the filling already done. Held, on a petition for a writ of certiorari, by the owners of estates so assessed, to quash the assessment, that the park was laid out, within the statute; and that the court could not say, as matter of law, that the estates of the petitioners had not been benefited by what, had been done-at the time the assessment was made.</p>

<p>Contract against Daniel S. Burnham as indorser of a promissory note, for $200, dated Boston, October 20, 1879, payable three months after date, at-, to the order of the plaintiffs, and signed “ Webster C. Langmaid, Brighton District.” The name of the defendant appeared on the back of the note. The answer admitted the indorsement of a certain note by the defendant, which he stated he believed was signed by said Lang-maid, and that, when the original note which he so indorsed should be produced at the trial, his signature would be admitted ; and alleged want of demand on the maker and of notice to the defendant. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, which, after stating that the pleadings formed part of the exceptions, was in substance as follows:</p> <p>The plaintiffs are the owners and holders of said note, and the name of Burnham, the indorser, was on the note before it was delivered to the payee. The bookkeeper of the plaintiffs testified that the words “Brighton District” were written by the maker at the time the note was given, but the defendant was not present.</p> <p>A notary public testified that, at the maturity of the note, on the last day of grace, he went to the Brighton District in Boston, and, upon inquiry for the place of business of the maker, Langmaid, was shown a store in a block nearly opposite the hotel, which store was at that time closed; that he looked through the window and saw that it had the appearance of a grocery from which the stock had been removed; that he made inquiries at the hotel, but could find no other place of business of Langmaid, and that he could get no other trace of Langmaid; that he had the note with him, but could find no one in or at the store upon whom to make demand; that he mailed to the indorser on that evening, prepaid, a notice of demand and nonpayment. The notarial protest set forth that the notary “.demanded payment at the last place of business of the promisor. No person there was authorized to pay.”</p> <p>One of the plaintiffs testified that he knew Langmaid’s place of business; that it was the only grocery in a block nearly opposite the hotel, in the Brighton District, Boston; that he was so informed by Langmaid at or before the time the note was given, and had been at the store several times, the last time some weeks before the note fell due, the store being then open; that he had no other means of information; but he testified, just before he left the stand, that he knew this was Langmaid’s place of business at the time the note fell due.</p> <p>No other evidence of demand was introduced, and the judge ruled that the plaintiffs could not maintain their action upon this evidence, and directed the jury to return a verdict for the defendant. The plaintiffs alleged exceptions; and the judge reported the case for the determination of this court.</p> <p>If on the foregoing evidence there was a question for the jury, the plaintiffs were to have a new trial. If the ruling of the court was correct, judgment on the verdict was to be entered.</p>

Tort. The declaration contained two counts: the first for the conversion of certain shares of stock in two mining companies, and the second for negligence in the sale of the same. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions in substance as follows: The plaintiff was a dealer and speculator in stocks, and the defendant a money-lender.

Tort for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant. Answer, a general denial. At the trial in this court, the plaintiff offered evidence tending to prove the following facts: The defendant was engaged in the work of lowering and putting in position certain large iron pipes upon the margin of Chestnut Hill reservoir. Fourteen men were employed in said work, including the plaintiff.

<p>At the trial of an action upon a promissory note made by the defendant’s intestate, the issue was whether the signature of the intestate was genuine or forged. The payee of the note testified that the intestate was financially embarrassed, and applied by letter to the witness for a loan of the money for which the note was givenwhich letter was in evidence. The defendant offered the evidence of the cashiers of two banks, that the intestate could have borrowed money at each bank; which evidence was excluded. Held, that the defendant showed no ground of exception.</p> <p>On the issue whether the signature of the maker to a promissory note was genuine or forged, in an action on the note, the plaintiff put in evidence two letters, with proof, not by experts, that they were in the handwriting of the maker. The defendant called experts, who testified that, in their opinion, the letters were not in the maker’s handwriting. The plaintiff was then allowed to call an expert to testify that, in his opinion, the letters were in the maker’s handwriting. Held, that the admission of this testimony was within the discretion of the judge.</p> <p>Where the genuineness of a signature of a person is in issue, a paper containing another signature of such person? may be admitted in evidence, as a standard of comparison, if its genuineness is found as a fact by the presiding judge upon clear and undoubted testimony, before it is submitted to the jury; and that finding cannot be revised or set aside by this court, unless it is founded upon error in law or improper or insufficient evidence.</p> <p>At the trial of an action by the executor of the payee of a promissory note against the alleged maker, the defence to which was that the signature of the maker was a forgery, a master in chancery was allowed to testify, against the plaintiff’s objection, to declarations made by the plaintiff’s testator as to his property and means when offering himself as bail for his son in a criminal case. This son had indorsed to his father another note purporting to be signed by the same person as the note in suit. The evidence was admitted for the sole purpose of showing the circumstances under which the declarations were made, and the authority of the magistrate. Held, that the plaintiff did not show any ground of exception.</p> <p>In an action by a payee against the alleged maker of a promissory note, the defence to which was that the signature of the maker was a forgery, the defendant, for the purpose of showing that the payee did not have the means of advancing the money which he alleged was the consideration of the note, was allowed to show that the plaintiff did not use means which he did possess. Held, that if there was evidence that the plaintiff had no other means, the evidence admitted was competent; and that if there was no such evidence, the evidence was immaterial, and the plaintiff could not be prejudiced by it.</p> <p>If incompetent evidence, admitted under objection, is withdrawn by the judge with instructions to the jury to disregard it, the objecting party has no ground of exception.</p> <p>If a witness, on looking at an entry in a book made by him at the time, is able from it to testify to the delivery of articles, his testimony is admissible, although he has no present memory of the transaction; and if he cannot, from recollection, fix the date, that being a material fact, the entry itself is admissible for that purpose.</p>

<p>In an action against D. and M. the writ described them as “laté copartners under the firm name and style of D. & Co.,” and the declaration alleged that they made a promissory note signed “D. & Co.” D. alone appeared, and filed a general denial. Held, that the signature to the note was alleged to be that of D.; and that, under the St. of 1877, c. 163, the genuineness of the signature was admitted, and it was not necessary for the plaintiff to prove that D. was a member of the firm of D. and Company.</p>

<p>The St. of 1881, c. 113, providing that, when it appears from the pleadings in any suit that either party sues or is sued as a corporation, such fact shall be taken as admitted, unless the party controverting it shall file in court, within ten days from the time allowed for answer, a special demand for proof of the fact, does not apply to an action in which the plaintiff sues as a corporation, and in which an answer denying each and every allegation in the writ and declaration has been filed, and more than ten days have elapsed, after the time allowed for answer, before the passage of the statute; but it is incumbent on the plaintiff to prove the existence and organization of the alleged corporation.</p>

<p>Property was devised to trustees in trust to invest and hold it and pay over the net income to the testator’s widow during her life, and on her decease to pay over the principal to the children of the testator, the issue of any deceased child to take by right of representation. While the widow was living, the trustees allowed a son of the testator to appropriate to his own use a portion of the income. This son died before the widow. Held, that, in settling their account in the Probate Court with the remaindermen, the trustees could not credit themselves with the sum thus appropriated by the son, as part of the estate coming to his children.</p>

<p>An information in equity, in the name of the attorney general, will lie against a quasi public corporation doing and contemplating acts which are ultra vires and illegal, the necessary effects of which are not only to impair the rights of the public in the use of one of the great ponds of the Commonwealth for the purposes of fishing and boating, but to create a nuisance by lowering the pond and exposing upon its shores slime, mud and offensive vegetation detrimental to the public health.</p> <p>Under the St. of 1868, c. 182, authorizing the corporation therein named, for the purpose of better supplying fresh water and of saving and restraining the water that might percolate from a certain great pond into another pond named, in land owned by the corporation, to take, hold or purchase any land near or adjoining said land, and to enlarge the last-named pond and to raise a dam on said land, and providing that the water of said pond should never be drawn down lower than a certain depth, except for the purpose of repairing the dam or clearing out the pond, the corporation has no right to sink wells on the land so taken, for the purpose of intercepting the underground currents as a source of water supply; and such acts are ultra vires and illegal.</p>

<p>Petition to the Superior Court for the assessment of damages by the taking by the respondent, under the St. of 1872, c. 177, of land of the petitioner, and of a certain right to take water from the land of another person. Trial before Gardner, J., who allowed a bill of exceptions, in substance as follows :</p> <p>On October 26, 1852, John W. Olmstead conveyed to Albert Ballord, the right to maintain a dam, then built across a small brook running into Stony Brook, and also a well already sunk below the dam, and an hydraulic ram, by the means of which and of pipes water was forced and conveyed to the land of Ballord. Ballord afterwards conveyed his land and the easement annexed thereto to the petitioner.</p> <p>Before July 28, 1876, the county commissioners of Middlesex County, at the request of the respondent, laid out a highway across land adjoining the petitioner’s, and through the place where the well and ram were situated, but below the dam. The petitioner, after the laying out of the highway, by the oral consent of one Lewis, removed the ram from the limits of the highway, and placed it upon the land of Lewis in a well sunk to receive it, at a point forty feet distant from where it formerly stood. Lewis derived his title to this land from said Olmstead.</p> <p>On July 28, 1876, the respondent took, under the St. of 1872, c. 177, a portion of the land of the petitioner, and also lawfully flowed the land of Lewis where the ram and well were, so that the ram would not work, and the petitioner was thereby deprived of the use of the water at his house and barn, which stood upon land not taken by the respondent.</p> <p>The judge, at the request of the respondent, ruled that the petitioner was not entitled to recover any damages for the destruction or interference with the right or easement in the water. The jury were also instructed to assess the petitioner’s damages, for the taking of his land and for the taking of the water right, separately. A verdict was returned accordingly. The respondent paid the damages found for the land; and, by agreement of parties, if the petitioner was entitled to recover for the loss of his water right, judgment was to be entered for him in a certain sum; otherwise, the exceptions to be overruled.</p>

Contract. The declaration contained seven counts, to which the defendants demurred. The Superior Court sustained the demurrer, and ordered judgment for the defendants; and the plaintiffs appealed to this court. The allegations of the declaration and grounds of' demurrer, so far as material to the points decided, appear in, the opinion.

Contract to recover 100, the amount of one month’s pay for services rendered by the plaintiff as engineer of a steam fire engine belonging to the fire department of the defendant city. The case was submitted to the Superior Court, and,, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.

<p>Writ of entry, in two counts, to recover two parcels of land in Braintree. Plea, nul disseisin. After the former decision, reported 131 Mass. 200, the case was tried in the Superior Court, before Colburn, J., who allowed a bill of exceptions, which, so far as material to the points decided, was in substance as follows:</p> <p>The demandant claimed title to the two parcels of land by virtue of a special attachment, made on September 13, 1875, on a writ in which he was the plaintiff and Warren Mansfield the defendant, a levy, on an execution issued in that action, made November 8, 1877, and sheriff’s deeds given December 29, 1877.</p> <p>Warren Mansfield, the judgment debtor, on August 26, 187.2, conveyed the parcels in controversy, with other lands, to Edward Potter. At the time the deed was given, the first parcel was subject to a mortgage for $3500, which was paid by Potter, and discharged of record on October 15, 1872. The second parcel, known as the Pond lot, was, at the time of the conveyance to Potter, subject to a mortgage for $1392, given by Mansfield on this lot and on another lot which he had, prior to the conveyance to Potter, sold to one Safford. Both of these lots were sold subject to this mortgage, which was still outstanding in 1880.</p> <p>Potter conveyed to various persons portions of the first lot of land, and on June 26, 1874, conveyed the residue of it to the tenant, being the first parcel now in controversy, and also conveyed to him the whole of the second lot.</p> <p>The officer’s return, as amended, on the execution, so far as relates to the seizure and the notices, set forth that on November 8, 1877, he “seized and took all the right in equity or otherwise, which the within named Warren Mansfield had on September 13, 1875, the time when the same was attached on mesne process, of redeeming the following described real estate.” Then followed a description of the land. “ Said seizure being made by posting up a notice stating the time and place appointed and designated by me for selling said real estate, viz.: At my office in Weymouth, in the county of Norfolk, on Saturday, the twenty-second day of December next, at four o’clock in the afternoon, said notice being dated November 8, 1877, and containing a description of said real estate, in the post-office, a public place in the town of Weymouth, one of the towns in said county of Norfolk adjoining the town of Braintree aforesaid. And on the twentieth day of said November, being thirty days before the time appointed for said sale, I gave notice in writing in hand to said Warren Mansfield, of the time and place appointed for said sale, said notice containing a description of said lands, and on the same day I posted like notices at the store of Bates and Bowditch, a public place in said Braintree, the town in which said land lies, and at the post-office, a public place in the town of Quincy, another town in said county adjoining said town of Braintree, and caused a like notice to be published once a week for three weeks successively before the time appointed for said sale in .the Quincy Patriot, a public newspaper published at said Quincy, in said county of Norfolk.”</p> <p>The return also recited that the officer, on December 22,1877, at four o’clock in the afternoon, at his office in Weymouth, being the time and place appointed for said sale, offered the first lot for sale by public auction, and as no one made a bid for the same, he, deeming it expedient and for the best interest of all concerned, adjourned said sale by giving public proclamation of the same, for one week, namely, to the 29th of said December, at the same time of day and place, at which time and place he sold the right in equity (or otherwise) said Warren Mansfield had “ at the aforesaid time ” in and to the lots described, &c.</p> <p>The demandant offered to prove that the deed from Warren Mansfield to Potter was given in fraud of Mansfield’s creditors, and that the tenant, when he took his conveyance from Potter, had notice of the fraud.</p> <p>The judge ruled that the attachment, levy and sale gave the demandant no title on which he could maintain this action ; and directed a verdict for the tenant, which was rendered. • At the request of the demandant, the judge reported the case for the determination of this court.</p>

<p>A complaint for keeping- a disorderly house may he maintained by proof that only one person in the neighborhood or community was disturbed or annoyed, if the acts done were of such a nature as tended to annoy all good citizens.</p> <p>A married woman may be convicted of keeping a disorderly house, if she acts of her own free will and without any coercion by her husband.</p>

Indictment, in four counts, on the St. of 1874, c. 372, §§ 163, 164, to recover, for the use of the widow and only child of Sherburne T. Sanborn, a fine, by reason of the loss of his life, from being run over, on September 22, 1880, at a place in Wilmington where the defendant’s railroad crosses a highway at grade. At the trial in the Superior Court, before Gardner, J., the judge submitted the case to the jury upon the third -and fourth counts only.

Indictment for perjury. At the trial in the Superior Court, before Knowlton, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.

Complaint to a trial justice, by “ Austin W. Thayer,” alleging that the defendant, “ on the twenty-fifth day of May,” 1882, at Ware, unlawfully kept intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth; was dated “this twenty-fifth day of June,” 1882; and was signed by “ Austin W. Kellogg, complainant.” It was sworn to by Austin W. Kellogg; and the jurat was dated “ this twenty-fifth day of May,” 1882.

Indictment for assault and battery upon Eveline M. Manchester.

<p>Indictment, on the Gen. Sts. c. 178, § 46, alleging that the defendant, on August 6,1881, being lawfully imprisoned in the jail established by law in Springfield, did break therefrom and escape, and go at large. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The defendant was arrested and held on mesne process in a civil action, at the suit of Montraville Ackert. He was immediately admitted to bail, and was afterwards surrendered by his bail to the keeper of the jail, and a copy of the bail bond delivered to the keeper, with the following indorsement, signed by a deputy sheriff, thereon: “ By virtue of the within precept, I have this day arrested and delivered to A. M.. Bradley, the keeper of the jail in said county, the body of Alfred R. Barker.” After the defendant had been so committed to jail, he escaped therefrom. It was admitted that he had never been taken before any magistrate, and that he had not been committed to jail by any magistrate or court.</p> <p>The defendant asked the judge to rule as follows: “ 1. Unless it appears that the defendant had been technically committed to jail, his breaking therefrom would not constitute jail breach. 2. The surrender of the principal by the bail to the keeper of the jail does not of itself amount to such a commitment as is essential to lawful imprisonment in jail, and as is essential to render breaking therefrom punishable under the statute. 3. The surrender of the principal by the bail does not of itself impose a greater liability or disability on the defendant than he was under when in the hands of the officer who arrested him on the original writ. 4. The officer who arrested the defendant on the original writ could not technically commit the defendant to jail, so that he would he therein lawfully imprisoned within the meaning of the statute, and so ?that breaking therefrom would be punishable, as herein charged. 5. Unless it appears that the defendant was committed to jail by some magistrate or officer having judicial authority to commit, he was not lawfully imprisoned in jail within the meaning of the statute under which the prisoner is being tried. 6. The forcibly breaking from jail of a person confined therein on mesne process in a civil cause does not constitute an offence against the statute under which the indictment is drawn.”</p> <p>The judge declined so to rule. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Indictment for inciting one Elvira Makely to burn the defendant’s dwelling-house in Brimfield, with intent to injure and .defraud an insurance company. Makely was indicted for the same burning, and was also jointly indicted with the defendant for burning the said dwelling-house, with intent to injure and defraud an insurance company.</p> <p>At the trial in the Superior Court, before Rockwell, J., Makely was introduced by the government as a witness, and testified in substance that she burned said dwelling-house, knowing it to be insured at the time alleged, having been incited and persuaded so to do by the defendant, to injure and defraud the insurance company; that the defendant, for more than a year, “ had been at work upon her ” to induce her to do the act; that, on the night of the burning, the defendant had arranged to be and was away; and that she set the fire in the manner directed by him before he went away.</p> <p>Upon cross-examination, she testified that, at the time of her arrest, she made a true confession of what she had done to one Jason A. Palmer, a deputy sheriff, who had her in custody, and before her examination in the District Court; that she was induced to make such confession by reason of promises of protection and favor given by the officer to her, and because of representations made by him that “ it would be better for her to put the whole thing upon Ackert, and then she would get clear; ” that, among other things, the officer promised her that, if she would confess, he would be her bail; that, at the time she made the confession, she was agitated and frightened, and did not know what to do, and had no counsel or opportunity to procure counsel; that the confession made to Palmer was in all respects true, and was just what she had testified to in this case; and that she had only made up her mind to make her present confession about an hour before she was called to the stand. It also appeared, on cross-examination, that Makely had been convicted of burning said house, she not testifying; but said verdict was set aside, and a new trial granted. See 131 Mass. 421.</p> <p>The government, after Makely had been cross-examined, called the officer as a witness, who testified that the confession made at the time of the arrest was not made to him by.reason of any representations or promises of favor or protection, or of his promise to go bail for her ; that he made her no such promises; but that the confession was a voluntary one. The defendant objected to this testimony; but the judge admitted it.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Complaint to the Police Court of Holyoke, alleging that the defendant, on March 5, 1882, at Holyoke, being then and there duly licensed according to law to sell intoxicating liquors in a certain building, “did then and there wilfully and unlawfully place and maintain, and authorize to be placed and maintained, upon said premises used by him for the sale of intoxicating liquors under the provisions of his license as aforesaid, certain screens, blinds, shutters, partitions and…

<p>Indictment under the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining a common nuisance, to wit, a certain tenement in Abington, used for the illegal sale and illegal keeping of intoxicating liquors, on May 1, 1881, and on divers other days and times between that day and October 26, 1881. Trial in the Superior Court, at October term 1881, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:</p> <p>The government called one Andrew J. Dunham as a witness, who testified that he did not think he had bought any intoxicating liquor at the defendant’s place between May 1 and October 1, 1881.</p> <p>The government then asked him if he did not tell one Nash, (an officer, who had previously testified in behalf of the government,) “ a week ago last Monday,” that he had bought rum or whiskey there since May 1; to which the witness replied that he told him something to that effect, but that he could not tell whether it was before or since that date. Upon the question being repeated, the witness denied that he had made such statement to Nash.</p> <p>The government then recalled Nash, and asked him, “if, a week ago last Monday in the cars, Andrew J. Dunham said anything about purchasing whiskey or rum since May 1, and prior to October 21, 1881.” To this question the defendant objected. The objection was overruled, and the witness replied that Dunham stated in the cars that he had bought rum or whiskey of the defendant, that he could not tell what date it was, but it was since May 1, and the last purchase was less than a month ago.</p> <p>Dunham was then asked by the government, “ if a week ago last Monday'he did not tell Nash in the cars that the defendant had offered him money, if he would not testify against him in this case.” To which he replied, that he did not tell Nash, a week ago last Monday in the cars, that the defendant had so offered him money; “ I told him that he would rather give me back some money which I claimed belonged to me, than have me testify against him.” On cross-examination, he testified, “ I did not tell Nash that the defendant had paid me a cent. He had not offered to pay me a cent.”</p> <p>The government then recalled Nash, and asked him, “if, a week ago last Monday in the cars, Andrew J. Dunham said anything to him about the defendant having offered to pay Dunham money, if he would not testify against the defendant in this case.” To this question the defendant objected. The objection was overruled, and the witness replied that “ Dunham said the defendant had offered to give back money he had got of his, if he would not testify against him.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Contract in two counts, under the Gen. Sts. c. 129, § 4, by the executors of William Pollock against Edward Learned and Theodore Pomeroy. The first count of the declaration was as follows:</p> <p>“ And the plaintiffs say that they are the executors of the last will of William Pollock, late of Pittsfield, in said county, deceased, and that in his lifetime the said Pollock loaned to the Niwat Mining Company, upon the twenty-fifth day of July, A. D. 1865, fifteen thousand dollars, to be repaid to said Pollock in three months from that date, and in consideration that said Pollock would make said loan, the said Learned and said Pomeroy and Pollock, at the time said loan was made, severally executed a contract in writing, a copy whereof is hereto annexed. And the plaintiffs say that upon the sixteenth day of December, A. D. 1865, the sum of five hundred and twenty-five dollars was paid upon said loan, and that the balance of said loan remains unpaid and is still due, with interest, notwithstanding the time for the payment of said loan has long since elapsed.</p> <p>“ And the plaintiffs say that, by virtue of said written contract, the said Learned assumed and guaranteed to said Pollock the payment of one third part of said loan, with interest, if not paid by the said Niwat Mining Company at the time when payable as aforesaid; and the plaintiffs say that no part of said loan has been paid by said company, or other person, except as aforesaid, and that the said Learned owes the plaintiffs in their said capacity one third part of the aforesaid balance, with interest.”</p> <p>The second count declared against Pomeroy in the same terms as the first count.</p> <p>The copy annexed was as follows: “ Pittsfield, July 25th, 1865. William Pollock having this day loaned the Niwat Mining Company fifteen thousand dollars, payable three months from this date, we, for value received, hereby jointly and severally guarantee the repayment of said loan and interest at the time the same shall be payable as aforesaid. Edward Learned, Theo. Pomeroy, Wm. Pollock.”</p> <p>The defendant Pomeroy died on September 26, 1881, and his death was suggested on the record; and his executors, who were duly appointed on November 9, 1881, were summoned to appear at the February term' 1882 of the Superior Court, to answer to and defend the action as against Pomeroy. They appeared specially at said term, and filed an answer setting up “ that they ought not to be compelled to appear and take upon themselves the defence of said suit, because the statute in such cases made and provided requires that, upon the death of said Theodore Pomeroy, said action shall proceed against the surviving defendant, and does not provide that, in case one of the defendants survives, the action may be prosecuted against the executors or administrators of the deceased defendant, and the said executors aver that said defendant Edward Learned still survives, and that the court has no power, jurisdiction or authority to summon in said executors to defend said action.”</p> <p>At the hearing upon this answer, Blodgett, J. ruled in accordance with the claims therein set up, and ordered the action dismissed as against the executors of Pomeroy; and the plaintiffs alleged exceptions.</p>

<p>A commissioner, appointed by the Probate Court to make partition of land between two tenants in common, who has not been paid for his services, is not entitled, under the Gen. Sts. c. 136, § 69, to recover, as money received to his use, one half of the amount of the charges for his services, from the tenant collecting of the other tenant, upon an execution issued therefor, one half of the expenses and charges allowed by the court, although the amount sued for is included in the sum collected.</p>

<p>An agreement by a grantee, in consideration of the conveyance of land, to support the grantor during his life, is not a contract for the sale of land or any interest therein, within the statute of frauds.</p> <p>If a grantee, in consideration of the conveyance of land, agrees to support the grantor during his life, and breaks the contract, the grantor may maintain an action to recover damages for the breach, and is not obliged to declare for the value of the land.</p>

<p>If the treasurer of a savings bank is instructed by a vote of the finance committee to sell certain rights to take stock in a corporation, the property of the bank, for not less than a sum named, and undertakes to do so, he acts as an agent of the bank, and not as a trustee, although he is also a trustee of the bank and a member of the finance committee; and if he immediately sells the rights to himself and other members of the committee for the price named, which is less than the market value of the rights, without making any attempt to procure purchasers at a higher rate, and pays to the bank the money so obtained, the bank may, without returning the money, maintain an action at law against him to recover the difference between the market value of the rights and the price obtained, but is not entitled to dividends paid on the stock represented by the rights.</p> <p>The finance committee of a savings bank instructed, by vote, the treasurer of the bank to sell certain property of the bank at not less than a price named. The treasurer sold the property to himself and other members of the finance committee, for the price named, which was less than the market value of the property, and entered the amount on the cash-book of the bank. The vote was afterwards approved by the trustees. Held, that this approval was not a bar to an action by the bank against the treasurer to recover the difference between the market value of the property and the price paid, it not appearing that the attention of the trustees was called to the entry in the cash-book.</p>

Contract for a breach of warranty in the sale of a horse, with a count in tort for fraudulent representations. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, in substance as follows: There was evidence tending to show that the defendant purchased a horse, at the request of the plaintiff, of one Warner, of the State of New York.

Tort for malicious prosecution. At the trial in the Superior Court, before Bacon, J., the jury returned a verdict for the plaintiff, in the sum of $750; and the judge reported the case for the determination of this court. The facts appear in the opinion.

<p>Contract by “ Georgie A. Buckland, administratrix of the estate of J. P. Buckland, late of Holyoke in said county, deceased,” on an account annexed, for services alleged to have been rendered by the plaintiff’s intestate. The writ was dated March 30, 1881, and alleged that “this action is brought for the benefit of William G. White, of Chicopee, in said county, the equitable owner of said claim.” The answer denied each and every material allegation in the plaintiff’s declaration, alleged payment, and contained the following: “ And the defendant for further answer says, that, prior to the commencement of this action, the plaintiff, as administratrix of said estate, under license granted by the Probate Court in and for the county of Hampden, duly sold or assigned the demand or claim against the defendant on which this suit is founded.”</p> <p>In the Superior Court, the plaintiff offered the following amendment: “ And now comes the plaintiff, and moves to amend the writ in said action by striking out the words ‘ Georgie A. Buckland, administratrix of the estate of J. P. Buckland, late of Holyoke, in said county, deceased. * This action is brought for the benefit of William G. White, of Chicopee, the equitable owner of said claim,’ and inserting the following : 6 William G. White, of Chicopee, in said county, the claim for which this action is brought having been sold and assigned by Georgie A. Buckland, administratrix of the estate of J. P. Buckland, by authority and license of the Probate Court, on the 19th day of March, 1881, and purchased by said William G. White.’ ”</p> <p>Putnam, J. allowed this amendment, against the objection of the defendant.</p> <p>It was agreed that said claim was duly sold, as alleged, prior to the commencement of this action; and that all the formalities required by the Gen. Sts. o. 98, § 4, had been complied with. At the hearing, without a jury, the judge found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort for the conversion of fifty hides of leather, with a count in contract for money had and received. The case was submitted to the Superior Court upon agreed facts, in substance as follows:</p> <p>Charles Byrt died intestate on March 25, 1881, and the plaintiff was appointed administrator of his estate on October 4,1881. The defendant is the surviving partner of the firm of T. H. Allen & Brother.</p> <p>The plaintiff’s intestate was a tanner and currier, and, in February 1881, the defendant’s firm sent to him fifty hides to be by him tanned, curried and sold, and, out of the proceeds derived from the sale of the hides he was to pay the firm the sum at which they were charged to him, namely, $117.61, and to retain the balance of the proceeds of such sale for his labor and for selling the same. It was stipulated that, until thus tanned, curried and paid for, the title to the hides should remain in the firm. The process of tanning and currying was not quite completed when the plaintiff’s intestate died, and, within two days after his death, the defendant’s firm took possession of the hides and finished and completed this process. Five days after his death they sold the hides for $132.81; and this was their value when the firm took possession of and sold them. In order to prevent damage to the hides, it was necessary to complete this process of tanning and currying without delay. The authority of the plaintiff’s intestate to tan, curry and sell these hides was never revoked during his life by the defendant’s firm, and he was never paid for performing this service.</p> <p>If, upon the above facts, the plaintiff could recover, judgment was to be entered for him for such sum as he was entitled to recover; otherwise, judgment for the defendant.</p> <p>Bacon, J. found that the plaintiff was entitled to recover 4 $132.81, and ordered judgment for him for that amount; and the defendant appealed to this court.</p>

Tort for assault and battery. Trial in the Superior Court, without a jury, before Bacon, J., who allowed a bill of exceptions, in substance as follows: The plaintiff was in the occupation of a tenement belonging to the defendant, which the plaintiff’s husband occupied under the plaintiff’s brother, who rented it from the defendant, and who had, up to a short time before the alleged assault, occupied it himself, together with the plaintiff and her family.

<p>On the issue whether the execution of a will was procured by the undue influence of a third person, evidence was admitted, for the purpose of showing the state of the testator’s feelings towards such third person, of conversations between the testator and his only son and son’s wife, at different times during the eight years preceding the date of the will, in which the testator said that he was so under the influence of the third person that he could not resist her when he was in her presence. Evidence was further admitted, for the same purpose, and to show his state of mind towards his son, of a conversation between the testator and another person, on the night before he died, in which he said that he wished to see his son, and that he did not know but he had been deceived. Held, that the evidence was competent for the purpose for which it was admitted.</p> <p>If no instructions are asked as to the use and effect of evidence admitted under objection at the trial, it is not open to the objecting party to contend in this court that the evidence was not limited by the judge in his instructions to the only purpose for which it was competent.</p>

Replevin of certain' personal property. The writ, dated March 5, 1881, and returnable to the Superior Court, alleged the goods to be of the value of $100. At the trial, it appeared that the value of the property when replevied was $28.65; and thereupon, on motion of the defendant, Putnam, J. dismissed the action for want of jurisdiction. Judgment was entered for the defendant; and the plaintiff appealed ■to this court.

<p>Where a statute authorizes a work for public use, and the work is executed in a reasonably proper and skilful manner, any damage necessarily caused to any person by taking his property can be recovered only in the manner pointed out by the statute.</p> <p>If the Legislature gives a town authority to construct a dike, to dig a channel in a. river, to cut down and remove any trees or brush, and to remove and. carry away any logs, stones or earth which hinder the passage of the water,, and the town by vote appoints a committee to do the work, and authorizes it to cause all trees and brushwood to be cut down and removed, and all the logs,, drift wood and other obstructions to be removed and carried away, and to remove the material excavated to or beyond the dike, the committee may cause-the logs to be burned, if that is the most convenient and prudent way of disposing of them, and may use the material excavated in the construction of the-dike. •</p>

<p>Contract upon an account annexed. 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:</p> <p>The action was commenced on August 13,1879, and an attachment of real estate made upon the original writ. In September, 1879, the defendant- was adjudged by the Court of Insolvency an insolvent debtor upon involuntary proceedings. On March 21, 1881, an order was issued for the third meeting of the creditors of the defendant, returnable April 26, 1881, on which day the meeting was held. That meeting, by three successive adjournments, was adjourned to September 27, 1881, on which day the assignees of the defendant made application to the Court of Insolvency to order the lien created by the attachment to continue as provided by the Gen. Sts. o. 118, § 45; which application was granted, and the assignees were subsequently admitted as parties in the Superior Court to prosecute the action.</p> <p>Upon these facts, the judge ruled that the action could not be maintained under the provisions of said section; and found for the defendant.</p> <p>If the ruling was correct, judgment was to be entered thereon for the defendant against said assignees; otherwise, judgment was to be entered in their favor for the full amount claimed in the writ; or such other order to be made as law and justice might require.</p>

<p>In an action upon a promissory note, if the answer sets up a release under seal, and the release is put in evidence, the plaintiff may show that the release was obtained by fraud, although no replication is filed by him.</p> <p>A party cannot put in evidence a letter containing declarations of a stranger to the action, not under oath, and not shown to be connected with the adverse party in any such way as to make his statements admissible.</p>

<p>If two persons, as copartners, make a special contract to do work for another, they must join as plaintiffs in an action for the money due thereunder, although the partnership is dissolved before the work is completed; and if the contract has been fully performed on their part, and nothing remains but a mere duty of the defendant to pay money, a count on an account annexed will lie.</p>

<p>A written agreement provided that the defendant should work for the plaintiff for one year from a date named; that the plaintiff should pay the defendant for such labor a specified sum per month; that any inventions made by the defendant “while in his [the plaintiff’s] employ” should be the plaintiff’s property; and that the defendant should assign them accordingly. The defendant remained in the plaintiff’s employ after the expiration of the year, and certain inventions were made by him afterwards. Meld, on a bill in equity to enforce specific performance of this agreement, that the words “ while in his employ ” must be construed with reference to the duration of the agreement; and that the defendant was not bound to assign to the plaintiff inventions made by him while employed by the plaintiff after the expiration of the year.</p> <p>A written contract, which by its terms has expired, cannot be considered as existing afterwards from the fact that it has been so treated by the party against whom it is sought to be enforced, or from the fact that he has made oral statements that he was bound by it.</p>

<p>In an action of replevin, if the plaintiff claims title to the property replevied under a bill of sale given to him by a third person, which is contended by the defendant to be fraudulent as against the creditors of such person, the defendant is not entitled to introduce evidence that a mortgage, given by the third person to the plaintiff more than a year after the date of the bill of sale, is also fraudulent as to creditors, no connection being shown between the two transactions.</p> <p>That a person receipted for property, attached as the property of another, under a bill of sale from whom the former claimed title, will not prevent him from maintaining an action of replevin against the purchaser of the property at a sale by the attaching officer.</p> <p>If a person, acting as the agent of another, buys at a sale property which has been attached as the property of a person other than the owner, and takes possession of and claims to hold it for his principal, no demand upon him by the owner is necessary before commencing an action of replevin therefor.</p>

Contract for the benefit of Elizabeth L. Corey, against a surety on a bond given by Jonas Corey, the executor and residuary legatee of Polly Corey. Trial in this court, without a jury, before C. Allen, J., who allowed a bill of exceptions, in substance as follows: Polly Corey died on April 24, 1865, leaving a will, which was duly proved and allowed, and also leaving as her heirs two sons, Jonas Corey and Charles A. Corey. Jonas Corey was nominated executor of the will.

<p>If a tenant at will of the mortgagor of land, after notification by the mortgagee, who enters upon the premises after condition broken, that he enters under his mortgage and to collect the rents and profits, makes no answer and continues to occupy the land, he is liable to the mortgagee for use and occupation of the land subsequent to the entry.</p> <p>The facts, that a tenant at will of the mortgagor of premises had been notified by a purchaser of the equity of redemption of the mortgagor that he owned the premises, and requested to hold possession for him and to pay rent to him, which he agreed to do, and that, after an entry upon the premises by the mortgagee for condition broken and notification to the tenant to pay rent to him, the tenant, without replying to such notification, continued to occupy the premises and paid rent to such purchaser after the mortgagee’s entry, it not appearing that the purchaser claimed adversely to the mortgagee, nor that, in paying rent to the purchaser, the tenant asserted any title adversely to the mortgagee, do not show that the tenant occupied adversely to the mortgagee.</p>

<p>A mortgagee of personal property may maintain an action for conversion, without proof of a demand and refusal, against an officer who sells the mortgaged property on an execution against the mortgagor, although the mortgagor was the purchaser at the sale, and then received and has since retained the possession of the property; and the measure of damages is the same as if the purchaser had been a stranger.</p> <p>If an officer levies an execution on personal property which is subject to a mortgage, and afterwards sells the same on the execution, it is no defence to an action against him by the mortgagee for conversion, that after the seizure and before the sale he attached the property on a writ in favor of a third person, and the mortgagee made no demand upon him for the property.</p>

<p>A description, in a policy of insurance, of the ownership of property as “ his frame dwelling-house," by an assured whose only title thereto is under a quitclaim deed from a second mortgagee of the property, avoids the policy under a clause providing that, “if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the benefit of the assured, the policy shall be void.”</p> <p>If a second mortgagee of property, who is also a co-assignee in bankruptcy of the estate of the mortgagor, makes a quitclaim deed of the property to a third person, this constitutes the latter an assignee of the second mortgage, and does not pass the interest of the grantor as co-assignee in bankruptcy; and the equity of redemption remains in the assignees in bankruptcy.</p>

<p>Under a single mortgage of three distinct parcels of land, situated respectively in three different towns in the same county, containing a condition that, on default in the payment of the sum secured thereby, the mortgagee might “ sell the granted premises, or such portion thereof as may remain subject to this mortgage, in case of any partial relief therefrom, in said town, on the premises,” a sale by him of one of the parcels, by public auction, for breach of the condition, in accordance with the terms of the power in the mortgage, and in form legally conducted, is valid, although the amount realized from the sale, which is indorsed on the mortgage note, is less than the amount of the debt secured by the mortgage.</p>

Contract on a bond, dated January 31,1881, executed only by James Stewart and John H. Autcliff, “ as sureties,” and reciting that whereas the plaintiff “ has caused the goods and estate of P. T. Walsh, to the value of one hundred dollars, to be attached on mesne process, in a civil action, by virtue of a writ, bearing date the seventeenth day of January, A. D. 1881, and returnable to the First District Court of Southern Worcester, to be holden at Southbridge, within and for…

<p>If a party who appeals from a judgment of an inferior court does not file a bond with surety to the adverse party, as required by the Pub. Sts. c. 154, § 52, and the St. of 1882, c. 95, § 1, conditioned to enter and prosecute his appeal, and to ' satisfy any judgment which may be entered against him in the Superior Court, on the appeal, for costs, the Superior Court has no jurisdiction of the action, and it may be dismissed at any time before judgment, although the appellee has entered a general appearance in the Superior Court.</p>

<p>'Tort, under the Gen. Sts. c. 85, §§ T, 2, to recover of the defendant,’,as the owner of a certain building on Hanover Street in Boston, .in the county of Suffolk, treble the amount of a sum of money alleged to have been lost and paid by one John Morris to 'the winners thereof, by playing at cards in said building, with the knowledge or consent of the defendant, on May 21, 1881-. The writ, dated October 14, 1881, was returnable to •the Superior Court for the county of Worcester. The answer contained -a general denial, and alleged that the action was not brought in accordance with the statute.</p> <p>At the trial, before Mason, J., after the plaintiff had read the pleadings, and before any further proceedings in the case, the defendant moved that the action be dismissed, for the reason that the -court had no jurisdiction of 'the subject matter, and that the action was not in accordance with the Gen. Sts. c. 123, § 8. The judge overruled this motion.</p> <p>The defendant asked the judge to rule that, if there was any covin or collusion, at any time previously to the date of the writ, between the plaintiff and the alleged loser of the money, or any agreement between the plaintiff and any person by which the alleged loser was to receive any benefit from an action brought against this defendant, the jury must render a verdict for the defendant. The judge refused so to rule; but instructed the jury that they must be satisfied that there was no fraudulent agreement, between the plaintiff and the person who lost the money sought to be recovered, that he should delay bringing an action, and that the delay, of the person who lost the money sought to be recovered, to bring an action within three months was without covin or collusion between himself and the plaintiff.</p> <p>During the trial, the plaintiff, on cross-examination, asked the defendant if there had been any change in the occupancy of the premises or business, referring to the room where the alleged gaming took place. The defendant objected to this question. But the judge permitted it to be answered, and the witness answered that no change had occurred.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Appeal from a decree of the Probate Court, allowing the will of Joseph Ellis.</p> <p>At the hearing, before Devens, J., the-will was contested, on the grounds that the testator was not of sound and disposing mind, and was under influence at the time the will was executed. It appeared in evidence that, about a year before the will was executed, the testator had been prostrated by a shock of paralysis ; and it was contended by the appellants that the testator’s mental incompetency was mainly occasioned by such shock. A witness called by the appellants testified that he saw the testator a short time before, and again after, the shock. For the purpose of showing the testator’s mental and physical condition after the shock, and shortly before the time of the execution of the will, the appellants’ counsel put to the witness the following question: “ What was the testator’s condition and appearance, as regarding his conduct and conversation at the latter interview, as compared with his conduct and conversation at the former interview ? ” This question was objected to by the appellee, and excluded by the judge, in. this form, the judge stating that, though any facts observed by the witness before or after the shock might be stated, having relation to the condition of the testator, the question as proposed called for an expression of opinion and comparison of opinion, and not a comparison of facts. To this ruling the appellants alleged exceptions.</p>

The jury returned a verdict for the plaintiff in the sum of $20, with interest from the date of the writ, $1.16, making a total of $21.16. Judgment was ordered for the plaintiff upon the verdict, and costs were taxed for him by the clerk; from which taxation the defendant appealed to the court. The court affirmed the taxation; and the defendant appealed to this court.

<p>In an action for a libel published in a newspaper, the defendant is not entitled, for the purpose of showing that he had no malicious intention, to prove that there were reports in circulation, similar to those contained in the newspaper, before the publication of the libel, without showing that he knew of such reports.</p> <p>In an action»for libel, in charging the plaintiff with ill-treating his family, there was evidence that the plaintiff had, on a certain occasion, kicked a daughter. The wife of the plaintiff, who testified for him, denied the kicking. On cross-examination, she was asked by the defendant whether her son was present on the occasion, and answered that he was. The defendant then asked her whether the son had subsequently been asked by the plaintiff what he should say if asked if his father kicked the daughter. The witness answered in the affirmative. Held, that the judge, before whom the case was tried, might in his discretion allow the plaintiff to ask the witness what the son said in reply, although the son was present at the trial, and was not called as a witness.</p> <p>In an action for libel, in charging the plaintiff with cruelly treating one of his children, the defendant put in evidence that the plaintiff had whipped a daughter. The plaintiff then testified that he whipped her because he believed that she had been stealing. Held, that the defendant had no ground of exception to the refusal of the judge to allow him to show that the daughter had not in fact been guilty of stealing.</p> <p>Under the Gen. Sts. c. 129, § 77, which provide that, in a civil action for libel, the defendant may upon the trial give in evidence the truth of the matter charged as libellous, “and such evidence shall be deemed a sufficient justification, unless malicious intention shall be proved,” if a libel is published in a newspaper owned by copartners, all the partners are responsible for the express malice of one of them.</p> <p>If a newspaper publishes a statement that, at the trial of A. before an ecclesiastical tribunal, the testimony showed certain facts, which are set forth, and which are libellous in their character, and A. brings an action against the owner of the newspaper for libel, declaring upon the statement so published, and the answer sets up the truth of the statement, the defendant is not entitled to a ruling that he is not called on to show that the plaintiff was not guilty of the matters alleged.</p> <p>Although a newspaper has the right to publish a fair report of the proceedings before an ecclesiastical tribunal, yet if a report in a newspaper contains defamatory matter, and does not purport to be a full report of the proceedings, and the answer to an action of libel' based upon such report does not set up the defence of privilege, the jury cannot treat it as privileged.</p> <p>In an action for libel, the defendant asked the judge to instruct the jury that, if the charges proved were of such a nature or character that the existence of those not proved, if any, would not affect the plaintiff, he could recover only nominal damages. The judge instructed the jury that, if they should find that some of the charges were true and some not true, they should give the plaintiff only such damages as he had proved that he had sustained solely by reason of those that were not true. Held, that the defendant had no ground of exception.</p>

<p>A number of persons associated themselves together to purchase of a-corporation a large parcel of flats. As part of the consideration, the flats were to be filled by the corporation within seven months. The conveyance was made to trustees of the associates; and the interests of the latter were divided into, shares, and the trustees issued to each associate a certificate of the number of shares belonging to him. Each associate paid to the corporation in money ten per cent of his proportion of the entire consideration, and executed to the corporation his personal bond for the payment of the remaining ninety per cent of his proportion, payable one half in two years and one half in three years, with interest semiannually, and transferred to the corporation his certificate of shares, as collateral security for the payment of the bond. The bond also contained a clause, by which it was agreed that the whole or any part of it might’ be paid, when interest was payable, and that when paid either by advance payments, or by the regular payment of instalments, the shares pledged should be released. By the terms of the transfer, tiie corporation was authorized to receive any dividends which might be made by the trustees, and, on payment of the bond “ by • said dividends or otherwise,” the certificate was to be reassigned to the owner Each certificate contained this clause: “ Said share is transferable by assignment in writing on this certificate, recorded on the books of the trustees, and not otherwise, except when the share is pledged; in which case the interest of the general owner therein may be assigned in writing, approved by the trustees, and recorded in the books.” By the terms of a declaration of trust, the trustees were to manage and dispose of the property from time to time, and to divide the net proceeds of sales among the general owners of the shares at the time of declaring dividends, or as such owners might order in any assignment of their shares as collateral security ; and that, unless expressly provided in the instrument creating the pledge, the pledgor should alone be entitled to vote or to receive dividends. Held, on a bill in equity, that the corporation, taking one of these certificates as collateral security for the payment of a bond, was not obliged to hold it until paid by dividends arising from the proceeds of the sale of the land, but was entitled, upon default in payment of the bond, to foreclose the pledge by a sale of the certificate.</p>

<p>Bill in equity, filed June 21, 1880, to enjoin the defendant corporation from doing certain acts on land taken from the plaintiffs under the St. of 1868, c. 182. The defendant demurred to the bill, assigning for grounds of demurrer: 1. That the plaintiffs had a plain, adequate and complete remedy at law. 2. Want of equity. Hearing before Colt, J., who sustained the demurrer, and dismissed the bill; and the plaintiffs appealed to the full court. The facts appear in the opinion.</p> <p>The case was argued in November 1880, by M. Williams, Jr., for the defendant, and by A. D. Chandler, for the plaintiffs; and was reargued in November 1881, by the same counsel.</p>

Toet for personal injuries. The declaration was as follows: “ And the plaintiff says that the defendant, at the time hereinafter mentioned, owned and operated a railroad running from said Boston to Albany, in the State of New York; that there is a public highway extending from Washington Street to Federal Street, in said Boston, called Kneeland Street; that the defendant’s track, locomotive and cars cross said highway at grade; that on October 15,1880, while the plaintiff…

<p>A agreed to sell, and B. to purchase, A.’s milk route in certain towns, delivery to be made on a day named. In an action by A. against B. for breach of the agreement, in refusing to take the route and pay the consideration, A. testified, on cross-examination, that after he made the agreement, and before the day fixed for delivery, he bargained with C. to purchase his milk route, intending to run the same after B. took his route; that C.’s route comprised a portion of the same territory which he sold to B.; that he was not to disturb any of the customers of the route sold to B., but he considered he had a right to obtain new customers on the same route; that he told B. he had bargained for C.’s route, and also told him he could not hold the customers in one of the towns unless he got there early in the morning. Held, on this evidence, that the judge, before whom the case w-as tried, rightly directed a verdict for the defendant.</p>

<p>It is no defence to a complaint for drunkenness, under the Pub. Sts. c. 207, §§ 26, 27, which alleges two previous convictions of a like offence within the next preceding twelve months, that the first conviction relied upon by the government was also previously relied upon to aggravate the second offence.</p> <p>At the trial of a complaint, under the Pub. Sts. c. 207, §§ 26, 27, for drunkenness by the voluntary use of intoxicating liquor, and alleging two previous convictions of a like offence within the next preceding twelve months, evidence that “ the defendant was found in the streets behaving in a drunken manner, staggering, and with a large crowd around him, and that his breath smelled of liquor,” together with evidence that he had been twice within a year convicted of drunkenness by the voluntary use of intoxicating liquor upon his pleas of guilty, may rightly be submitted to the jury to determine whether the drunkenness of the defendant was caused by the voluntary use of intoxicating liquor.</p>

<p>A partner, who retires from the partnership before the first day of May, and thereafter takes no part in the management of its affairs, and retains no interest in its property, is not liable, under the Gen. Sts. c. 11, § 15, for a tax assessed on that day upon the personal property of the partnership; and the fact that no notice was given by the retiring partner of the dissolution of the partnership does not affect his liability.</p> <p>In an action for taxes assessed by a city upon the personal property of a partnership, evidence that the defendant had retired from the firm before the tax was assessed, and thereafter retained no interest in the firm or in the property taxed, is admissible under a general denial in the answer.</p>

Tort, for personal injuries received by the plaintiff while in the defendant’s employ. Answer, a general denial.

<p>Contract in three counts. The first count was for professional services rendered by the plaintiffs, as attorneys at law, to Kate A. Burnham, the defendant’s wife, at her request, according to an account annexed, containing four items amounting to $47; and alleged that the services were necessary. The second count alleged that the defendant committed a serious assault and battery upon the person of his wife, the said Kate A.; that she employed the plaintiffs, as attorneys at law, to make a complaint and to prosecute the defendant for said offence; that the plaintiffs made such complaint, upon which the defendant was convicted and sentenced; that for said services the defendant owed the plaintiffs the sum of seven dollars; that the services were rendered on or about October 3, 1881, and “ were necessary for the safety and protection of the said Kate A.; this count being for the same cause of action as the first item in the first count.” The third count alleged that, on October 3, 1881, the defendant made a complaint against his wife, the said Kate A., charging her with the offence of being a common drunkard, before a trial justice; that she employed the plaintiffs as attorneys to conduct her defence upon the trial of said complaint; that they appeared and acted for her at the trial, and she was there convicted and sentenced to one year’s imprisonment; that the plaintiffs entered an appeal for her to the Superior Court; and that the defendant owed the plaintiffs the sum of five dollars for the services so rendered; that in the Superior Court, on November 22, 1881, said appeal was tried, and said Kate A. was duly acquitted; that the plaintiffs made preparation for the trial, saw a large number of witnesses, took the deposition of a certain person, and procured the affidavit of a physician named, and did other acts to make ready the defence, and the defendant owed them the sum of ten dollars for said services; and that the plaintiffs tried the case in the Superior Court, wherein the said Kate A. was found not guilty, and the defendant owed them the sum of twenty-five dollars for services at said trial, “ and for other services in said case not otherwise embraced in the foregoing items; ” that “ said services were so rendered by the plaintiff at the request of the said Kate A., and were necessary for the safety and protection of the said Kate A. and for the vindication of her good name, this count being for the same cause of action as the second, third and fourth items in the first count.”</p> <p>In the Superior Court, the parties agreed that the statements set forth in the declaration might be taken to be true. Upon this agreed statement, the court ordered judgment for the plaintiffs ; and the defendant appealed to this court.</p>

Tort, by the administratrix of George Corcoran, for personal injuries sustained by her intestate in his lifetime, while a brakeman upon a freight train of the defendant corporation. The declaration alleged that the injury was caused by the intestate being knocked from a ladder on the side of a car, (upon which it was his duty to go while the train was passing through a rocky cut,) by an accumulation of ice and snow, which the defendant had negligently suffered to be there.

Contract upon a promissory note for 1500, dated July 13, 1875, payable on April 1, 1876, to the order of the plaintiff, and signed by the defendant.

<p>A. lent money held in trust by him for C., and took therefor a note and a mortgage of land, the note being payable to A. personally, and the mortgage, which was recorded, reciting that the consideration was paid by A., “trustee of C.,” and conveying the land to A., “ trustee as aforesaid.” A. afterwards borrowed money of B. and assigned the note and mortgage to him as security therefor; and the assignment of the mortgage was recorded. The note was delivered, but not indorsed, to B.; and the words “ trustee of C.” were erased by A. before the mortgage was delivered to B. B. did not examine the record, and his attention was not attracted to the words “ trustee as aforesaid,” and he had no actual knowledge of their existence, or of the fact that both note and mortgage represented trust funds held by A., but he knew that the money lent to A. was for his personal use. . Held, that B. was charged with constructive notice of the trust under which A. held the note and mortgage.</p> <p>A person who accepts an assignment of a mortgage, without reading the mortgage, is conclusively presumed to know its contents, and is bound by them.</p>

<p>Bill in equity, filed October 7, 1879, against the Quinsigamond National Bank, a corporation having its place of business in the city of Worcester in this Commonwealth, Daniel A. Hawkins, and Charles A. Hill, the assignee in insolvency of the estate of said Hawkins, to compel the transfer to the plaintiff of seven shares of the capital stock of the defendant bank.</p> <p>The case was heard upon the pleadings and agreed facts, before a single justice of this court, who ordered a decree to be entered for the defendants. The plaintiff appealed to the full court. The facts appear in the opinion.</p> <p>The case was argued at the bar in October 1880, by F. T. Blackmer, for the plaintiff, and by F. B. Stoddard, for the defendants ; and was afterwards submitted on briefs by the same counsel.</p>

<p>Tort for personal injuries occasioned to the plaintiff by an alleged defect in a highway in the defendant town. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:</p> <p>On the night of May 9, 1879, the plaintiff, while walking on the sidewalk, in the exercise of due care, on the east side of North Main Street in the defendant town, struck her foot against a pine stump, and was thrown down and injured.</p> <p>On the 16th of that month, she gave a notice in writing to the town, in which she stated that she, “ while passing along and over that portion of North Main Street, in said Clinton, lying between the residences of C. C. Stone and Ethan A. Currier, was tripped up and thrown down, thereby causing a severe injury to her right knee,” “ and that the cause of her falling was a defect or want of repair in said street, to wit, a stump projecting four inches above the surface of the sidewalk on the east side of said street, between the residences aforesaid.”</p> <p>The plaintiff’s evidence tended to show that there was a sidewalk on the east side of the street, which extended all the way between the houses of Stone and Currier; that the sidewalk was of natural soil, not finished with granite curbing, and was in some places six or seven feet wide, and in other places of less width, but was a walk for foot-passengers in constant use for years; that the houses of Stone and Currier were fifty rods apart, and on opposite sides of the street; that between these houses, on the east side of the street and nearer to Stone’s than to Currier’s, were the houses of one Creamer and of one Powell, and that there was a third house nearer to Currier’s; that in the sidewalk, two and a half feet from the fence, between the houses of Creamer and Powell, was a hard-pine stump, about the size of a broomstick on top, which projected two and a half inches above the surface of the walk, and from this stump roots extended both easterly and westerly, which were distinctly traceable by the eye, and were worn by footsteps, but which were not materially above the level of the sidewalk; and that this was the only stump within the fifty rods of walk between the houses named in the notice.</p> <p>When the plaintiff’s evidence was put in, the judge, at the request of the defendant, ruled that the notice was defective in not setting forth the place of the accident with sufficient certainty ; and directed a verdict for the defendant. The plaintiff alleged exceptions.</p>

Tort for personal injuries occasioned to the plaintiff by a defect in a highway in the defendant town. At the trial in the Superior Court, before Knowlton, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Contract, upon an account annexed, for necessaries furnished • by the plaintiff to the defendant. Writ dated April 29, 1880.</p> <p>The case was referred to an auditor, who reported that the plaintiff was the mother of the defendant, who was a minor, and of whom the plaintiff was appointed guardian in March 1875, the defendant being then eleven years old; that the defendant’s father died intestate on January 14, 1875, seised and possessed of both real and personal property, and the plaintiff was appointed administratrix of his estate; that no inventory was filed by the plaintiff, either as administratrix or as guardian; that, in May 1880, the plaintiff filed an account as guardian of the defendant in the Probate Court, charging the defendant with precisely the same items and the same prices as were charged by the plaintiff in her account annexed to the writ in this action; and that such account was disallowed by the Probate Court. The auditor found that a certain sum was due from the defendant to the plaintiff, with interest from the date of the writ, if, as matter of law, the plaintiff was entitled to maintain her action, which question was reserved for the opinion of the court.</p> <p>At the trial in the Superior Court, without a jury, Brigham, C. J., ruled that, upon the facts stated in the auditor’s report, which was the only evidence offered, the action could not be maintained; and ordered judgment for the defendant. The plaintiff alleged exceptions. ,</p>

The case was submitted to the Superior Court, and, after judgment for the appellee, to this court, on appeal, upon an agreed statement of facts, in substance as follows: The appellant recovered judgment against one Lothrop Thomas and Lloyd Perkins, at June term 1880 of the Superior Court, for $1210.34, debt or damage, and $17.04 costs of suit.

<p>It is within the power of the Superior Court, after a rescript has been sent down by this court, ordering judgment for the defendant in an action at law pending in that court, and an entry has been made by the cleric on the docket of that court, in accordance with the rescript, to suspend the judgment, and to allow an amendment changing the action at law to a suit in equity, during the first term and before any final judgment has been entered by that court by a special or general order; and the exercise of such power is a matter of discretion, to which no exception lies.</p>

<p>Under the St. of 1877, c. 133, which provides that in each of the cities of the Commonwealth, except Boston, the mayor and aldermen shall appoint two persons, “ who together with the city physician shall constitute the board of health of such city,” and under the St. of 1878, c. 21, which provides that, “ in the cities of the Commonwealth where the city physician is ex officio a member of the board of health, said city physician shall be appointed by the mayor, with the approval of the board of aldermen, for a term of three years,” the office of city physician is established in a city whose charter and ordinances make no provision in terms for such an office.</p> <p>If a statute fixes the term of office of an officer of a city, who is to be appointed by the mayor with the approval of the board of aldermen, it is unnecessary that the term of his office should be expressed either in the nomination of the mayor or in the approval by the board of aldermen.</p> <p>Where a city physician is ex officio a member of the board of health, his title to his office may be tried by an information in the nature of a quo warranto.</p> <p>If a person is wrongfully holding a public office, he may be ousted on an information in the nature of a quo warranto, although the term of the person who was entitled to the office when the information was filed expires before judgment is rendered.</p>

<p>An executor of a will, by which the testator gives to his daughter H. certain real and personal property absolutely, and the rest and residue of his property for the support of his daughter C., cannot maintain a bill in equity to obtain the instructions of the court, if the only conflict between the persons interested in the estate, and the only question presented by the bill, is whether, at the death of 0., the property is to belong to H., or is to be divided among the heirs at law of the testator.</p>

<p>Trustee process. The writ was dated June 7, 1880, and was served the next day. The city of Fall River, summoned as trustee, answered that, at the date of service upon it, it had in its hands the sum of $135, money earned by the defendant. Thomas Fanton appeared as claimant of the funds in the hands of the trustee. At the trial in the Superior Court, without a jury, Brigham, C. J., ruled that the plaintiff was entitled to recover $56.55, the amount found due by an auditor to whom the case had been referred; that the claimant was entitled to the money in the hands of the trustee, $135; and that the trustee was entitled to be discharged; and ordered judgment accordingly. The plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Contract to recover the value of a cargo of ice, and demur-rage for delay in receiving it. The case was sent to an auditor, who found that the defendant had paid for the ice all that was due, except the sum of $99.84, which sum he found to be due, together with $192, as demurrage. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the plaintiff in the sum of $109; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>The St. of 1863, c. 163, gave a city the right to construct a reservoir and dam for the storage of water, and provided that the owner of any land taken by the city for the purposes of the act, or other person, who should sustain damage by the construction of any dam or reservoir, might apply by petition, for the assessment of his damages at any time within three years from the taking of said land or sustaining damage as aforesaid, and not afterwards; and that whenever any damages were sustained as above set forth, the city might, in case of neglect by the person damaged to institute proceedings for twelve months, commence such proceedings, which should be determined as if commenced by such person. Held, that a petition could not be maintained, after the expiration of three years from the construction of the dam and reservoir, by a person whose land was injured by water percolating through his land from the reservoir, although such percolation did not take place until after the expiration of the three years.</p>

<p>Bill in equity to settle the affairs of a partnership. The case was referred to a master, who found for the plaintiff, and the defendant alleged an exception, which was overruled at the hearing before a single justice; and the defendant appealed to the full court. The facts appear in the opinion.</p>

<p>A refusal of the Superior Court to confirm and to render judgment upon the report of commissioners appointed to make partition, on the ground that it is invalid in law, is an interlocutory and not a final decision, and exceptions thereto are prematurely entered in this court.</p>

The eirst CASE was a petition to the Probate Court by the widow of Isaac B. Elliott, who died testate on January 17, 1881, leaving no issue living, alleging that, having waived the provisions of her husband’s will, she was, under the St. of 1880, c. 211, entitled in fee to real estate of her husband to the amount of $5000, and praying that it might be assigned to her according to law.

<p>Tort against a constable of the city of Boston, for conversion of the goods and chattels of the plaintiff, by having taken the same on an execution against his son.</p> <p>The cause was tried, before a jury, at January term 1881 of the Superior Court, and a verdict was rendered for the plaintiff. Subsequently, on February 28, 1881, and before judgment, the defendant duly filed his petition in insolvency, and the first publication of the warrant was made on said date, and notice of the insolvency proceedings was noted on the docket of the Superior Court; and on that day, on motion of the defendant, the cause was continued to await the result of said insolvency proceedings. On October 14, 1881, the defendant received his discharge in insolvency, and pleaded the same in this cause as a bar to the entry of any judgment against him.</p> <p>On November 21, 1881, the cause was heard by Bacon, J., on the motion of the defendant, that judgment be entered for the defendant, without costs, on account of the defendant’s discharge in insolvency, and on the plaintiff’s motion for judgment on the verdict. It was admitted that, at the time of the rendition of the verdict, the debt or claim sought to be secured by the plaintiff would be barred by a discharge in insolvency, as the law then stood. It was also admitted that, subsequently to the publication of the notice of the issuing of the warrant in insolvency, and while these insolvency proceedings were pending, namely, on May 11, 1881, the Legislature amended the law relating to the discharge of insolvent debtors by inserting in the fourth line of section 79 of chapter 118 of the General Statutes the words, “ or .a claim against a debtor for goods attached on mesne process or taken on execution by him as an officer, or for misfeasance in office.” The validity of the insolvency proceedings was not contested, and the single issue was on the effect of the discharge.</p> <p>The defendant asked the judge to rule that the discharge took effect, not from its date, but from the commencement of the proceedings in insolvency; and that the subsequent change of the law by the Legislature did not affect this case.</p> <p>The judge declined so to rule; but ruled that the change in the law operated to bar the effect of the discharge in this case, and ordered judgment on the verdict. The defendant alleged exceptions.</p>

Complaint under the bastardy act, Gen. Sts. c. 72. At the trial in the Superior Court, before Gardner, J., the complainant introduced evidence tending to show that, on November 6, 1881, she was delivered of a child, which was begotten by the respondent on or about March 6, 1881; and that she never saw the child, and was unconscious at the time of the delivery.

Contract, on an account annexed, for goods sold and delivered. Writ dated November 26, 1880. The case was- referred to an auditor, whose, report was in substance as follows : The plaintiffs are furniture-dealers in Boston, and the defendant is the owner of a summer hotel in Maine.

<p>In an action against a corporation for an assault and battery and false imprisonment by its agents and servants, the plaintiff’s evidence showed that a certain machine bought by him of the defendant was replevied upon a writ, in favor of the defendant, brought by one S., an attorney, who, in its service, committed the torts sued for; and that the replevin bond was signed by the defendant, by G. manager. The plaintiff also offered to show that, at the trial of the replevin writ, G. testified that he was the manager and agent of the defendant; and further offered to prove that, before that writ was sued out, G., as such manager and agent, employed an attorney to sue out the writ; that the writ was placed in the hands of a person for service; and that, upon the refusal of this person and the attorney to serve the writ by committing a breach of the peace, G. said “ he would find some one to obtain the machine; ” and then followed the employment of, and service by, S. Held, that this evidence should have been submitted to the jury upon the question of S.’s agency.</p>

Contract upon a promissory note for $100, dated October 19, 1869, payable on demand to the plaintiff, or order, signed by the defendant, and witnessed. Writ dated September 28, 1878. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows: The plaintiff offered the note in evidence; and the signatures of the defendant and of the attesting witness were proved.

<p>If a person makes a sidewalk about four feet wide in the street in front of his land, marking the outer line by trees, posts and stones, and at one end the walk touches the line of his land and at the other end is about eight feet from the line of his land, it is error ’to rule, at the trial of an indictment for obstructing the highway, that the walk is an illegal structure, and not in accordance with the Gen. Sts. c. 45, § 6; but it is a question of fact for the jury whether the walk is an unreasonable obstruction.</p>

<p>An indictment on the Pub. Sts. c. 202, § 19, alleging that the defendant, at a time and place named, “ with force and arms, with malicious intent one A. then and there to maim and disfigure, in and upon the said A. feloniously did make an assault,” and that he “ a portion of the nose of the said A. then and there feloniously and maliciously did bite off,” is a good indictment for assault and battery; and a motion to quash the indictment, on the ground that it does not properly set forth the oSenee described in the statute, and a motion that the defendant be allowed to plead specially to the charge of assault and battery, are rightly overruled.</p>

<p>At the trial of an indictment against A. and B. jointly, for an assault upon a police officer while in the discharge of his duty, another officer testified that, on the morning after the assault, he went to B.’s house, and B. related to him where he had been the night before, and stated that he was with A. and another man; that, when they were on a certain street, A. was making a noise; that an officer came up to them and asked them to stop their noise; that A. made an offensive remark to the officer, who was about to arrest him, whereupon B. asked the officer to make some allowance for A. as he was intoxicated, and said that he would take A. home; that the officer then let them pass on, and they walked down the street; that, when they had gone a short distance, A. turned and struck the officer; and that, when he saw this, B. left. The conversation testified to took place in the absence of A. The judge admitted it as affecting B.’s connection with the assault only, and so ruled; but gave no specific direction to the jury in relation to the evidence. Held, that the evidence was competent against B.; and that A., not having requested an instruction limiting its effect, had no ground of exception to the admission of the evidence.</p>

Complaint to the First District Court of Eastern Middle-sex, for keeping and maintaining a common nuisance, to wit, a certain tenement in Stonekam used for the illegal sale and illegal keeping of intoxicating liquors, on March 1, 1881, and on divers other days and times between that day and July 11, 1881. At the trial in the Superior Court, before Brigham, C. J., the government proved sales of whiskey in said March, and sales of beer during the time covered by the complaint.

Complaint to the District Court of Central Middlesex, alleging that the defendant, on September 23, 1881, at Concord, unlawfully kept intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth. At the trial in the Superior Court, before Brigham, C. J., it was in evidence that a quantity of bottled lager beer was found on the premises of the defendant. The question whether it was kept for sale was not contested by the defendant.

<p>The Gen. Sts. c. 88, § 69, as amended by the St. of 1880, c. 94, providing that a license, granted to a person to keep a table for playing at pool for hire, “ may be revoked at the pleasure of the authority granting it,” is constitutional.</p> <p>A licensee of a table kept for playing at pool for hire is liable, under the St. of 1880, c. 94, to the penalty prescribed by the Gen. Sts. c. 88, § 70, if he allows such table to be used for hire on his premises, after he has been informed, by the clerk of the town whose selectmen granted the license, of the contents of a certificate of a vote of the selectmen revoking the license, although he had no notice of their intention to revoke it; and the St. of 1876, c. 147, does not apply.</p>

Complaint alleging that the defendant, at Somerville, on October 30, 1881, unlawfully sold to Thomas Casey one gill of whiskey.

<p>Contract, against William Fullam and F. G. Zeigler, described in the writ as “late copartners in business,” upon an account annexed, for work and labor. Trial in the Superior Court, without a jury, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:</p> <p>Zeigler was defaulted; and it was admitted that the action could not be maintained against Fullam, unless it could be shown that, as to third parties, there was a partnership existing between him and Zeigler at the time the labor was performed by the plaintiff.</p> <p>The plaintiff testified in substance as follows: “ I work in a brickyard. I worked for the defendants in June 1881. The balance due me is $25.08, for fourteen and a half days’ labor. Zeigler engaged me to work there. Fullam was there very often. He had a good deal to say about the business. He had three horses there and a man. He gave direction to the help about the work. Sometimes he came two or three times a week, sometimes only once. I have seen him around the kiln, and he always said he wanted the bricks set pretty good. I have seen him give them an order to come after some brick. I have seen him furnish some money to pay for the help.” On cross-examination he testified: “At the time of hiring, Zeigler said nothing about working for any one else than himself. He told me what to do. I worked till Zeigler ran away. He paid me on the fifteenth of every month, that was what the agreement was; he gave me $20 on June 19, and $24 on July 16, making $44 in all. I was to have $2 per day and board. After he left, I did not make a bargain about working, and continued on working for Fullam. While Zeigler was there, Fullam told me to set the bricks good. I saw Fullam give Zeigler money to pay the help on July 16, at Zeigler’s house. I saw Fullam’s team come down to get bricks. Never saw him come himself.”</p> <p>Fullam was called by the plaintiff, and testified as follows: “At the time the plaintiff worked there, I owned one half of the brickyard; I and my son bought it in February 1881. We never expected to manufacture bricks there. Zeigler gave the deed to me. It was a foreclosure sale. He had been there two years, and had manufactured bricks there two years. He came to me and wanted to make arrangements for making bricks. We told him if he wanted to hire the yard he could. He said he had not the money to put the yard in condition. We told him that, if we could put it into condition so that he could go on and manufacture as he had been doing, and give us a share of the brick for it, he might have it. He wanted it put into condition to make machine brick, which he thought could be done for $600. We estimated it at $1000. He proposed to us that, if we would furnish him the house and the yard, and firewood for burning the bricks, three horses, and one man to grind clay, he would take the yard and furnish all the labor and pay his own help and give us half the bricks. We agreed to this arrangement. After this bargain was made, he came to me and said that he had some little money of his own, but did not think that he had enough, and should need some to pay his help along until he got his part of the first kiln of bricks into the market. We asked him how much he thought he should need. He answered about $300. We told him we would lend him that amount, and he might pay us when he sold his half of the bricks. He worked fixing up the yard till about the middle of May, and I paid him for his work, and took his receipt. I had no men in the yard. I had one man and a horse working there after he began making bricks, but at night the man came home. He began manufacturing about the middle of May. Some time in the month of June, he burned a kiln of bricks. About the middle of June, he came to us, and we lent him $350, and took his receipt. On July 1, we lent him $50 more. About the middle of July, he said he had had bad luck and wanted $400. We let him have some money, less than that, and took a bill of sale from him of one undivided half of the bricks. I did not know a single man of all those that he hired. I was not a brickmaker. After the yard was finished, I went there occasionally. Zeigler sold some of his bricks, and I sold mine. He did not sell any of my bricks. His contract was not complete until he had counted out to me in the yard one half of the bricks. I never authorized Zeigler to use my name in any way in the business, and never heard that he did. I do not think that he did use it. I never thought of a partnership between us, and nothing was ever said about one. My son is in partnership with me in the carpenter business, and we together owned the brickyard premises. After we let Zeigler have the last money, and took his bricks, he ran away, and we have not seen him since.”</p> <p>There was evidence in the case that Zeigler had failed in business at some time before this arrangement. It appeared that, up to this time, the business of manufacturing had been going on from the time it began, and there were bricks in the yard in all stages of the process of manufacture; that, from the time of taking the bill of sale, Fullam continued the business of manufacturing on his separate account from the point where Zeigler left it, and disposed of the bricks which he had completed and the material which he left in the process of manufacture ; and there was no evidence that any division or counting out of the bricks ever occurred between the parties.</p> <p>On this evidence, Fullam asked the judge to rule that the relationship of Fullam and Zeigler did not in law constitute a partnership as to third persons. The judge declined so to rule; and found as facts that each of the defendants agreed with the other to furnish, and pay for on his own account, those things which he undertook to contribute for the purpose of carrying on the manufacture of bricks; that Zeigler agreed to furnish and pay for all the labor except that of one man who-worked with a horse; that, under the contract between the parties, it was the duty of Zeigler to pay the plaintiff from his own private funds; that Fullam did not intend to make himself liable for debts contracted for those things which Zeigler had agreed to furnish, but that he and Zeigler agreed to share equally the profits of the business; that these profits were to come in the .form of manufactured bricks; and that both parties intended and arranged that their interest and ownership in the bricks should be equal; and, upon these facts, found for the plaintiff against the defendant Fullam for the amount claimed. Fullam alleged exceptions.</p>

<p>A. brought an action of contract against B., who filed an answer containing a general denial, and also filed a declaration in set-ofE. Subsequently B. was defaulted, and judgment was rendered against him on his default for more than $1000 and costs. He then brought a writ of review, and, upon the trial, A. recovered a verdict of one dollar. Held, that, under the Pub. Sts. c. 187, §§ 34, 35, B. was entitled to costs, even if the sum recovered by A. in the original action was reduced by set-ofE upon the trial on the review.</p>

Tort, under the Gen. Sts. c. 88, § 59, to recover double the amount of damage sustained from the bite of a dog on November 15, 1880. At the trial in the Superior Court, before Wilkinson, J., the jury returned a verdict for the plaintiff in the sum of $100; and the defendant alleged exceptions, which appear in the opinion.