Volume 135 — Massachusetts Reports

<p>Replevin of 497 slabs of tin. Writ dated September 29, 1880. The case was submitted to this court on agreed facts, in substance as follows:</p> <p>The plaintiffs at the times hereinafter mentioned were bankers, and one Lissberger was a dealer in metals, all doing business and domiciled in the State of New York. Lissberger was largely indebted to the plaintiffs for advances of money made in New York; and, as security therefor, the plaintiffs held merchandise, warehouse receipts, and other property, deposited with them in New York by Lissberger.</p> <p>On or about May 8,1880, Lissberger applied to the plaintiffs, in New York, for a release of security to the amount of $11,000, so held by them, and offered to substitute therefor a warehouse receipt and weigher’s certificate for certain tin of the same value, then, and until service of the writ in this action, stored in a warehouse belonging to one Damon, on Damon’s Wharf, in the control of Gardner Prouty, in Boston, the receipt and property to be held as security in like manner with the securities for which it was substituted. The receipt, signed “Gardner Prouty, wharfinger,” was as follows: “ No. 919. Boston, April 26, 1880. Received on storage, at Damon’s Wharf in store No. 8, for H. Lissberger, the following-described merchandise from bark Mohican, which we promise to deliver to him upon the payment of charges. Marks: Four hundred and ninety-seven (497) slabs tin.” Prouty had received the tin at Boston, and there signed the receipt, and delivered it and the weigher’s certificate. The plaintiffs assented to Lissberger’s proposition, received, in the usual course of business from Lissberger, the weigher’s certificate and receipt duly indorsed in blank by Lissberger, and delivered to him the property for which he had applied. This transaction took place in New York. No record of this transaction, or of any part of it, was made on the records of the city of Boston, and the tin was not delivered to the plaintiffs, except so far as what is above stated constituted a delivery. The warehouse in which the tin was stored had been largely and exclusively used for the storage of property belonging to others than the owners of the warehouse for more than twenty years preceding this transaction, and the form of warehouse receipts given during that period by Prouty was like the one in this case, with this qualification, that, about eleven years before this transaction, there was introduced into the receipt, after the word “ deliver,” the word “ to ” followed by a blank space for the insertion of the word “him” or “them,”, this addition not having previously formed a part of the receipt.</p> <p>The warehouseman who issued the receipt in this case was not a public warehouseman, appointed under the provisions of the St. of 1860, c. 206, and the acts amendatory thereof. The debt of Lissberger for said advances is still unpaid, and exceeds the value of all the securities. The plaintiffs retained the receipt and certificate without action until August 7, 1880, when they gave notice to the warehouseman that they held the receipt, having first learned on the previous day of the issuing of the attachment hereinafter mentioned.</p> <p>On June 15, 1880, the defendant, a deputy sheriff for Suffolk county, attached the tin as the property of Lissberger, upon a writ sued out of the Superior Court by Cyrus Wakefield and others against Lissberger, to recover a debt. The writ was returnable at July term 1880, and was entered°at that term; and at April term 1881 judgment thereon was rendered for Wakefield and others in the sum of $27,000 and upwards, which judgment is in no part satisfied.</p> <p>The tin was held by the defendant under the attachment until the service of the writ in this action. There is no fraud or bad faith imputed to the plaintiffs in any of their dealings, or in their omission to give notice as aforesaid; and neither of the plaintiffs in the action of Wakefield and others against Lissberger, nor the defendant in this action, had, until after August 7, 1880, any notice or knowledge of the transaction between Lissberger and the plaintiffs, or of any interest or claim of the plaintiffs in or to the tin, unless they are affected with notice by reason of the matters hereinbefore stated.</p> <p>The plaintiffs made due demand on the defendant for the amount of their debt, and otherwise complied with the provisions of the Gen. Sts. c. 123, § 63, and the debt was not paid or tendered; and, after the expiration of ten days from the demand, they brought this action.</p> <p>The law of New York, if material, is as stated in the judgments of its courts in the cases of Wilkes v. Ferris, 5 Johns. 335, and Yenni v. McNamee, 45 N. Y. 614, which cases may be referred to.</p> <p>If the plaintiffs were entitled to recover, judgment was to be entered for them, with damages in the sum of one dollar, and costs; otherwise, for the defendant, for a return, damages to be assessed, and costs,</p>

<p>Writ oe entry, dated December 18, 1880, to recover a parcel of flats in that part of Boston formerly Charlestown. At the trial in the Superior Court, without a jury, before Aldrich, J., it appeared that the flats in question were originally flowed by tide water, and that they now lay under and on the easterly side of a tide-mill pond. It was admitted that the pond was originally a cove, across the mouth of which, as early as 1645, a dam had been built.</p> <p>The demandant claimed title to the land by virtue of a lost grant of the fee from the rightful proprietor, either the Colony or the town of Charlestown, to grantees whose title had become vested in the demandant; and also by virtue of an exclusive, notorious and adverse possession thereof, continued for more than twenty years, by itself and by those under whom it claimed.</p> <p>The tenant, who owned the upland adjoining the pond, claimed title in fee to the land under the colonial ordinance of 1647, contending that the ancient mill proprietors and their successors had only an easement in the land of flowage for mill purposes, and that this easement had ceased by reason of an abandonment of the mill in 1872.</p> <p>The judge found, upon evidence documentary and oral, that there was an original grant in fee of the demanded premises by the rightful owners thereof, and that the title of the original grantees was vested in the demandant; and that, if the evidence did not authorize the finding of an original grant, the demandant and its grantors had acquired title to the demanded premises by adverse possession continued for more than twenty years before the date of the writ. The judge reported the case, with the evidence, for the determination of this court. The nature of the evidence, so far as it relates to the question of adverse possession, appears in the opinion.</p>

<p>A., the agent of a corporation, had been in the habit of buying a certain kind of goods for the corporation through a broker, but had never bought on his own account. On one occasion, he told the broker that he would take a certain quantity of the goods at a price named. He intended to make this purchase on his own account, but the broker assumed that, on this occasion as on others, he was buying for the corporation, and the order was transmitted to and accepted by the seller as the order of the corporation. The broker’s note named the corporation as buyer, the bill was made out to it, and the goods were stored and insured in its name. A. did not know this until it was done, but did before payment. He paid the bill with his own check, but did nothing else to assert his claim as owner until he sold portions of the goods; and he did not change the name in which the goods were stored and insured. The goods were afterwards attached upon an execution against the corporation. Held, that A. could maintain an action against the attaching officer for the conversion of the goods. Held, also, the defendant having brought out, on cross-examination, that the plaintiff, when he sold portions of the goods in question, gave orders on the warehouseman in the name of the corporation, that the plaintiff was properly allowed to show, on reexamination, that the broker’s notes and the bills for such goods were for sales by him personally, and that the checks for the price were drawn payable to his order. Held, also, that the fact that one of such checks was made out after the date of the attachment was immaterial, it having been made by a third person in pursuance of a sale in the plaintiff’s name before that date. Held, also, that the plaintiff was properly allowed to show that the books of the corporation contained no record of the purchase in question, or entries concerning it, and that the proceeds of sales were deposited with the funds of the corporation and credited to the plaintiff. Held, also, that the conversation between the plaintiff and the broker concerning the purchase was admissible to show what the plaintiff ordered, and what authority he gave on behalf of the corporation.</p> <p>The fact that a plaintiff testifies that he will not swear that he did not authorize a broker to make a certain purchase, but that he has no distinct recollection of it, is not sufficient evidence of authority to the broker to warrant the defendant to put in evidence a telegram from the broker to an agent of his, concerning the subject matter inquired of.</p>

Tort for personal injuries. Trial in the Superior Court, before Mason, J., who ruled that the action could not be maintained, and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>The files and docket entries of the Superior Court in an action, the judgment in which is pleaded in bar of another action, are admissible in evidence, the record not having been extended, although a certified copy of the same is obtainable.</p> <p>In an action of tort, in which the writ set forth the first name and middle name of the plaintiff in full, the answer averred that the plaintiff had recovered judgment, which had been satisfied, against another person named. The defendant offered in evidence the record of an action in which judgment had been recovered against the person named, by a plaintiff described in the writ by the same first name and súmame, and by the initial letter of the middle name. Held, that there was no material variance.</p> <p>At the trial of an action for assault and false imprisonment against an officer fof arresting the plaintiff on a writ in favor of A., which did not contain a declaration, the defendant put in evidence the record of a former action by the same plaintiff against A., in which the plaintiff obtained a judgment, which was satisfied, and the declaration in which alleged that A. swore out an affidavit, maliciously setting forth that he had reason to believe, and believed, that the plaintiff intended to leave the State; that a magistrate thereupon authorized the arrest of the plaintiff; that the plaintiff was arrested and imprisoned for a certain time ; that the affidavit was falsely made; that the defendant’s object was to harass and imprison the plaintiff; that the plaintiff, after being imprisoned for a certain time, was discharged from custody; and that the defendant afterwards boasted that he knew the plaintiff did not intend to leave the State, and he only intended to have him imprisoned. Held, that the judgment in the former action was a bar to the present action.</p>

<p>An affidavit, which has been used in evidence at a hearing in the Superior Court, upon objections to an award made pursuant to a submission to arbitration, under the Gen. Sts. c. 147, if sent up with the record, upon an appeal from an order overruling the objections and entering judgment on the award, forms no part of the record, and cannot be considered by this court.</p> <p>It is no objection to the acceptance of an award made pursuant to a submission to arbitration, under the Gen. Sts. c. 147, that it does not appear on the face of the award that the parties were heard, or had opportunity to be heard, by the arbitrator.</p> <p>In the absence of a provision concerning costs and expenses in a submission to arbitration, under the Gen. Sts. c. 147, the arbitrator has authority by § 11 to award compensation for his own services and the costs of court, but has no authority to award that the losing party shall pay the counsel fees of the other party; and such erroneous part may be stricken out, without invalidating the rest of the award.</p>

<p>A motion to discharge an agreement waiving trial by jury, and to strike the agreement and the finding under it from the record, is addressed to the discretion of the Superior Court, to the exercise of which no exception lies.</p> <p>The answer, signed by attorney in an action against a constable for the conversion of goods, is not admissible in evidence in a subsequent action, brought for the benefit of the same plaintiff, against the same defendant and the sureties upon his bond as constable, to enforce payment of the judgment recovered in the former action.</p>

<p>Judgment was entered for the plaintiff in an action in the Superior Court. The defendant took out a writ of error from the Supreme Court of the United States; and, while the case was pending in that court, he was duly adjudicated • a bankrupt, and obtained his discharge, the plaintiff not proving his claim in the bankruptcy proceedings. This discharge was pleaded in the Superior Court. Subsequently, the Supreme Court of the United States issued a mandate affirming the judgment of the Superior Court, giving judgment for costs accruing in error, and ordering execution therefor. Held, that the defendant was not entitled, on motion of the plaintiff in the Superior Court, that the judgment be affirmed in accordance with the mandate, to try the question of the effect of th# discharge in bankruptcy.</p>

<p>A foreign construction company cannot maintain a bill in equity in this Commonwealth against a foreign railroad corporation and a citizen of this Commonwealth, to enforce specific performance of a covenant in a contract for the delivery of bonds and certificates of stock in payment of work to be performed by the construction company in a foreign state, and to restrain by injunction the citizen of this Commonwealth from disposing here of shares of stock and bonds of the railroad company, alleged to have been delivered to him in violation of the plaintiff’s rights, although the railroad corporation has an office in this Commonwealth for the transfer of shares of its capital stock, and has appeared by attorney in the suit.</p>

<p>Tout, for the conversion of twenty-five shares of the capital stock of the Manhattan Elevated Bailway Company. Trial in the Superior Court, without a jury, before Blodgett, J., who allowed a bill of exceptions, in substance as follows :</p> <p>There was evidence tending to show, and the judge found, the following facts: The defendants, who were stock-brokers, doing business in Boston, bought for the plaintiff, on his order, on February 12, 1881, the stock in question, at $43.50 per share. The plaintiff, at the time of purchase, paid the defendants $250 on account of the stock, and they agreed to carry the stock for him, charging him interest on the balance of the purchase money due to them; and the plaintiff agreed to pay to them such other sums of money as might be needed, in case the stock fell in the market, to make a margin of $10 per share in excess of the market price of the stock. There was no agreement to carry the stock for any definite time. Soon after the purchase, the stock began to decline, and the plaintiff, at the request of the defendants, paid them the further sum of $50. The stock continuing to depreciate in value, the defendants, on April 11, 1881, requested the plaintiff to make his margin good by the payment of more money. The plaintiff did not do so, and told the defendants that he could pay them no more money, and asked them to do the best they could for him; to which they replied that they would. A few days after said April 11, the stock having continued to decline, and having fallen to $21.50 per share, the defendants, without notice to the plaintiff, sold the stock at the brokers’ board in New York at $21.50 per share, which was its market price at the time of sale; and, after crediting the plaintiff with the proceeds of the sale, there remained due from the plaintiff to the defendants, on account of said stock, a balance of about $285. No notice was given to the plaintiff of the sale of the stock, and no request was made for the payment of the balance due to the defendants until about December 7, 1881, when the plaintiff, the stock then being of the value of $57 per share, demanded it of the defendants, and offered to pay them the balance of the purchase money and interest.</p> <p>There was also evidence tending to show, and the judge found, that, at the time of the purchase of the stock by the defendants, there was a uniform and well-established usage among the stockbrokers of Boston, known to the plaintiff, to sell stock at the brokers’ board which was being carried on a margin, as soon as the margin was exhausted, and without notice to the parties for whom the stock was being carried. The plaintiff knew the market price of the stock in question from April 11 until December 7,1881, during which time he did not see the defendants, or communicate with them in any way.</p> <p>The defendants asked the judge to rule that, upon these facts, this action could not be maintained. The judge declined so to rule; ruled that, after the purchase of the stock, the legal relation between the parties was that of pledgor and pledgee, that the sale of the stock without notice to the plaintiff was a conversion by the defendants of the property of the plaintiff; that the usage of brokers to sell stock so held without notice was illegal; and that the plaintiff was entitled to recover of the defendants, as damages, the value of the stock at the time of the demand, less the balance due to the defendants on account of their advances and interest; and found for the plaintiff in the sum of $605.25. The defendants alleged exceptions.</p>

<p>Replevin of four cases of skins. At the trial in the Superior Court, before Knowlton, J., without a jury, the following facts were proved:</p> <p>On or about April 20, 1881, George T. Clark, the defendant in this action, was the plaintiff in a writ of replevin against one Holt for the goods in controversy. The evidence tended to show that Clark had no lawful right to interfere with said goods in the possession of Holt, and that the plaintiff had a title whereby he could properly control them. On that writ, the goods were duly replevied from Holt and delivered to Clark, and remained in the possession of Clark until taken from him on the plaintiff’s writ. No demand for said goods was made by the plaintiff before service of his writ.</p> <p>On this evidence, the defendant contended that the taking by him was not unlawful, and that the plaintiff should have made a demand for the goods before service of his writ; and asked the judge to rule that the action could not be maintained, for want of such demand. The judge refused so to rule, but ruled that no demand by the plaintiff was necessary; and found for the plaintiff. The defendant alleged exceptions.</p>

<p>Contract. Trial in the Superior Court, before Gardner, J., who ruled that the action could not be maintained, because it was brought prematurely; ordered a verdict for the defendant ; and reported the case for the determination of this court. If the ruling was correct, the verdict was to stand;.otherwise, to be set aside and a new trial granted. The facts appear in the opinion.</p>

<p>The Pub. Sts. c. 218, §§ 12-14, providing that, in any case in which the Governor is authorized by the Constitution to grant a pardon, he may, with the advice of the Council, upon the petition of the person convicted, grant a conditional pardon, and that, where the conditions of the pardon are violated, he shall be arrested, and the Governor and Council shall “ examine the ease of such convict, and, if it appears by his own admission or by evidence that he has violated the conditions of his pardon, the Governor with the advice of the Council shall order the convict to be remanded and confined for the unexpired term of his sentence,” are constitutional; and the Governor and Council may order the convict to be so remanded and confined without notice to him, and without giving him an opportunity to be heard.</p>

<p>In 1827, a highway was laid out by the county commissioners. In 1849, the city council of the city in which the highway was situated passed a resolution defining the line of the street. In 1850, the city presented a petition to the county commissioners representing that the boundary lines were in dispute, and requesting that the street might be located anew and the boundary lines established. The county commissioners thereupon, in 1852, established the lines, and determined that these lines were the original location of the street. An owner of land filed a petition to the county commissioners representing that by the location anew they had changed the line established by the location of 1827, and had taken part of his land, and praying for a jury to assess his damages. The commissioners refused to order a jury. The landowner then filed a petition to this court for a writ of mandamus to compel the commissioners to issue a warrant for a jury. After a hearing, the writ was ordered; and a warrant was issued by the commissioners for a jury. The jury changed the line from that established in 1852, and awarded no damages. This verdict was accepted by the court in 1855, and a copy of the verdict was sent to the commissioners, who thereupon passed an order declaring that the highway as altered and described by the verdict be established as a public highway. In 1877, the city passed an order defining and locating the line of the street, carrying the line as established by the jury to the line fixed by the commissioners in 1852. The same landowner filed a petition for a jury to assess his damages for the land so taken. Held, that, for the purpose of showing the line of the street at the time of the taking, the petitioner was entitled to put in evidence the proceedings of the commissioners in 1852, the petition and warrant for a jury, the verdict of the jury, and its acceptance; and that the respondent was not entitled to put in evidence the records of the laying out of the way in 1827, the resolution of the city council in 1849, and that portion of the records of the commissioners, in 1852, relocating the line of the street, with evidence tending to show that the line established in 1827, defined in 1849, and relocated in 1852, was identical with that established in 1877.</p> <p>A deed of land described it as “ beginning at the northwesterly corner of a piece of land conveyed to me by C.,” thence by various courses and distances to a certain road, “thence southwesterly by said road" a certain distance “to a stone wall, thence southerly by said wall” a certain distance “to land of said C., thence easterly on said C.’s land ” a certain distance “ to the point of beginning.” It appeared that the wall mentioned in the deed terminated at the southeasterly line of the road. Held, that the deed passed the fee to the middle of the road.</p>

<p>The treasurer of a savings bank, by virtue of his office merely, has no implied authority to assign to a purchaser a mortgage belonging to the bank; and the fact that, by verbal consent and under direction of the investment committee of the bank, he had assigned other mortgages relating to other estates, is not suf. ficient to give him a general authority to assign mortgages, or to entitle the assignee to infer that he had such authority, even if this fact was known to the assignee.</p> <p>A bill in equity may be maintained, by the receivers of a savings bank, the treasurer of which has, without authority, assigned a mortgage owned by the bank, to restrain the assignee, who was a depositor in the bank, from enforcing a power of sale in the mortgage, and to compel him to surrender and cancel the assignment, although, upon receiving the assignment, he released the debt of the bank to him as such depositor.</p>

Writ oe entry, dated August 8, 1881, to recover a parcel of land in South Framingham. Plea, nul disseisin. The case was submitted to the Superior Court, and, after judgment for the demandant, to this court, on appeal, on agreed facts, in substance as follows: From January 1, 1861, to August 31,1861, inclusive, the demandant was the owner of the demanded premises, which were subject to a mortgage in common form.

Contract, for the benefit of the guardian of two minors, upon a bond given to the judge of probate by the defendant Tobin as their former guardian, containing the condition that, at the expiration of her trust and on the settlement of her accounts, she should “ pay over and deliver all the estate and effects remaining in her hands, or due from her on such settlement, to the person or persons lawfully entitled thereto.” The case was submitted to this court-upon agreed facts,…

<p>A person died seised of a parcel of land, with a house thereon in which he lived. He left a widow and two minor children, a son and a daughter. The real estate was subject to a mortgage, on which a portion of the principal was due. The personal estate was only sufficient to pay the debts, not including the mortgage. The widow's dower was not assigned to her. She continued to live on the land with her children for three years after her husband’s death, when she married again. Before her second marriage, she conveyed to her intended husband, by quitclaim deed duly executed, one undivided half of said real estate, also the other undivided half, “to revert to him” when her children became of age. After the second marriage, they continued to live in the house, the children being supported by their mother and her husband until the son became seventeen years of age, when he left the premises and ceased to have his home there, and has since taken all his earnings and contributed nothing to the family. The husband afterwards erected a new dwelling-house on the land, the old house having gone to decay ; and, by his own labor and means, greatly improved the land after he moved upon it. After her first husband’s death and before her second marriage, the widow paid the interest and part of the principal due on the mortgage, and the second husband paid the balance of the principal and the interest, and took and still holds the mortgage and note; and, when the last payment was made, there was written on the mortgage, signed, sealed and acknowledged by the assignee of the mortgage, the following: “ The within mortgage is hereby discharged by me; ” and this instrument was duly recorded. The taxes on the estate have always been paid by the husband and wife. The son afterwards applied by petition to the Probate Court, not making his stepfather a party, for an assignment of dower to his mother and for partition of the real estate between himself and his sister, and procured decrees from that court for such assignment and partition, from which his mother and sister appealed, and the appeals qre still pending. Held, on a bill in equity by the step-father, mother and daughter against the son, that the step-father was not entitled to an allowance for the improvements made by him upon the estate, or for the taxes paid by him; that the mortgage should be treated as assigned to him for his benefit and that of his wife against the children, who were entitled to redeem upon payment of their proportions of the mortgage debt; and that the children were not chargeable with interest.</p>

<p>If a person buys a horse, in reliance upon false representations by the seller that the horse is safe and not afraid of the cars, and is injured by reason of the horse being frightened by the cars, and running, he may maintain an action against the seller for such injuries; and the facts that the accident did not occur until five weeks after the sale, during which time the horse had been driven safely on several occasions, and that the horse, after being frightened, ran three fourths of a mile, and then turned from the highway towards a place where it had been accustomed to stand, and in so doing overturned the vehicle in which the buyer was riding, are not, as matter of law, conclusive that the vice of the horse did not cause the injury, but are for the jury.</p>

Contract. The declaration alleged that the defendant, by deed dated in April, 1869, and containing full covenants of warranty, conveyed… Held: Wilcox and Lucas together negotiated a sale of an undivided third part to Alden, and on April 1, 1869, Wilcox executed a deed of warranty, with the usual covenants to Lucas and Alden, purporting to convey to them two undivided third parts of all the rights, privileges and easements described in the second deed; that this deed was, as…

Contract for commissions and services in the purchase of a house for the defendant. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows: The defendant is the Catholic bishop of the diocese in which the city of Worcester is situated, and holds in his name the title to all the church property.

<p>This court has jurisdiction of a libel for divorce, brought by a husband residing in another State, for the cause of adultery occurring in this Commonwealth, where ' both parties then resided, and where the wife has since remained.</p>

<p>Bill in equity, filed January 24, 1880, against Elbridge Torrey and George E. Fowle, alleging that the plaintiff is the wife of George E. Fowle, who, with Torrey, formed a copartnership under the style of Fowle, Torrey & Company, as dealers in carpets in Boston; that she deposited with or lent to said firm different sums of money, all from her separate estate, at different times, from September 1, 1869, until the dissolution thereof, taking generally, at the times of such loans, the notes or receipts of the firm for the money, the firm promising to pay her back the same, or any portion thereof, on demand, with interest thereon at eight per cent per annum; that an account of said dealings with the firm, including debits, credits and interest, up to April 27, 1876, was furnished by Torrey to the plaintiff, showing a balance due to her on that date of $2881.79, and interest from June 30, 1875, which she believes to be correct; that, at the dissolution of the firm, Torrey took all the assets thereof, which he told the plaintiff were largely in excess of the liabilities; that she is informed that all the liabilities of the firm, excepting her claim, have been paid; that, after the dissolution of the firm, she requested Torrey to pay her claim; that he admitted his liability to pay her claim, and at no time refused to pay the same, and requested her to give her notes tq George E. Fowle for the purpose of payment, which she did, believing that Torrey would pay them; that subsequently Torrey said he had the notes, that they had been paid and allowed in his settlement with George E. Fowle, who was largely indebted to the firm and to Torrey individually, and that all Torrey’s liability to the plaintiff had been discharged by George E. Fowle, who had appropriated the money due to the plaintiff in the settlement of his liability to Torrey, all of which was without the plaintiff’s consent or knowledge; that the plaintiff has since repeatedly demanded of Torrey her notes, or the payment of her claim; which he refuses, on the ground that he, has settled and paid the same.to George E. Fowle, and is under no liability to the plaintiff; that the plaintiff is informed and believes that, in the settlement claimed to have been made between Torrey and George E. Fowle, it was agreed between them that Torrey should assume and pay all the liabilities of the firm, and indemnify and hold George E. Fowle harmless against them, and Torrey should have as his own property any assets there might be over and above the liabilities, in which assets George E. Fowle should have no interest whatever; and that George E. Fowle has now no interest whatever in the assets of the firm.</p> <p>The prayer of the bill was that the defendants might be ordered to state a full and correct account of the moneys received by them, either alone or as members of the firm of Fowle, Torrey & Company, from the plaintiff; and that Torrey be ordered to pay the amount due, with interest, to the plaintiff; and for general relief.</p> <p>The defendant Torrey demurred to the bill, assigning as grounds of demurrer: 1. That the plaintiff has a complete and adequate remedy at law. 2. Want of equity. The defendant Fowle answered, admitting that all the allegations of the bill were true. Hearing upon bill, demurrer and answer before W. Allen, J., who reserved the case for the consideration of the full court.</p> <p>The case was argued in March 1882, by J. Nickerson, for the plaintiff, and by A. S. Wheeler & J. H. Young, for Torrey ; and was afterward submitted on briefs to all the judges.</p>

<p>Under an answer to a declaration for goods sold and delivered, alleging that, if the defendant bought such goods of the plaintiff, “ he did so through the false and fraudulent representations made by the plaintiff,” but containing no allegation as to what constituted, or what were the circumstances of, the alleged fraudulent representations, evidence of such representations is admissible.</p>

<p>Contract upon covenants in leases of two stores in Boston. The case was referred to an auditor, who reported the following facts:</p> <p>The plaintiffs seek to recover money paid for extra insurance occasioned by the use to which the demised premises were put by the defendants under certain indentures of lease. The clauses in the leases upon which the plaintiffs seek to recover are the same in each lease, and are as follows:</p> <p>“ And said lessees, for themselves and those having their estate in the premises, hereby covenant with the said lessor and his heirs and assigns that they will, during said term, .... pay all extra insurance upon the demised premises occasioned by any use to which the same may be put by the lessees or those claiming under them.</p> <p>“ And the lessor covenants for himself and his heirs and assigns, with the lessees and those having their estate in the premises, that he will keep the premises well insured, the lessees as hereinbefore provided, paying for extra insurance occasioned by the use to which the premises may be put by them or those claiming under them.</p> <p>“ It is further mutually agreed that in case the building now standing on the demised premises shall be destroyed or damaged by fire or other casualty, during the aforesaid term, the rent herein reserved to be paid, or a reasonable portion thereof, shall abate until the buildings shall be rebuilt, or said damage shall be repaired, or this lease shall then determine at the election of the lessor or those having his estate in the premises, unless the said lessees or those having their estate in the premises shall elect to rebuild or repair the same, and in case they shall do so, they shall have the right to use, on such rebuilding or repairing, so much of the money for which said buildings shall be insured as shall be needful therefor.”</p> <p>The leased premises were used by the lessees partly in grinding paint and partly as a grist-mill, which use compelled the lessors to pay extra insurance thereon. The lessees had paid the extra insurance up to January 1, 1870. In April 1871, five years’ policies of insurance were taken upon the leased premises, running from April 1, 1871, to April 1, 1876.</p> <p>Upon the taking of these policies the defendants paid to the plaintiffs the sum of $1846.45, being, as estimated by the parties, the sum of $1355.38 for “ extra insurance ” under the leases paid on the five years’ policies, and the sum of $491.07 for such “ extra insurance ” of the preceding year; and they then took from the plaintiffs the following receipt: “ Boston, April 21, 1871. Received of Carpenter, Woodward and Morton eighteen hundred and forty-six and dollars, being in full settlement of all extra insurance .on stores Nos. 73 and 75 and Nos. 77 and 79 Clinton Street, to April 1,1876, in accordance with my leases of said stores to Messrs. Banker and Carpenter. $1845.45. Josiah Quincy.”</p> <p>All the insurance companies in which said five years’ policies were taken failed at the time of the great fire in Boston in 1872. The plaintiffs thereupon reinsured the demised premises, and for the time between the failure of said companies and November 27, 1875, paid, as extra insurance, named in the leases as insurance which the lessees were to pay, sums amounting to the sum of $1624.82.</p> <p>The auditor found that the defendants owed the plaintiffs said sum of $1624.82, and the sum of $642.38, interest on said sum from the times of payment to July 27, 1880, the date of the report, being in all the sum of $2267.20, unless the court should be of the opinion that the above receipt was, as the defendants contended, a full discharge to the defendants from the payment of any further “ extra insurance ” named in the leases between the date of said receipt and November 27, 1875.</p> <p>At the trial in the Superior Court, before Aldrich, J., the plaintiffs put in evidence the original leases and the auditor’s report. No other evidence was put in by either side. The judge ruled, against the plaintiffs’ objection, that the receipt was a full discharge to the defendants from the payment of any further extra insurance named in the leases between the date of said receipt and November 27, 1875; and, upon the evidence, directed the jury to return a verdict for the defendants ; and reported the case for the determination of this court. If the ruling and direction were correct, judgment was to be entered on the verdict; otherwise, a new trial to be ordered.</p>

<p>Tort, for obstructing a right of way. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff offered to prove that, in the year 1848, the Norfolk County Railroad, whose successor the defendant is, located its road-bed over lands of the plaintiff; that, in 1849, he conveyed the lands over which the location ran to said railroad corporation; that, in consideration thereof, the railroad corporation paid him a certain sum of money, and agreed to bridge over a private roadway, which crossed the location, and which connected the plaintiff’s remaining land on each side of the location, and to give him and whoever might become the owner of the land a right of way forever under the bridge; that he then entered upon the actual use of the roadway, and had used the same as of his own right, uninterruptedly, for nearly thirty-two years; and that the defendant and its predecessors had maintained the bridge from the time of its building until 1881, when the defendant, for the purpose of making a double track upon its road, filled up the space under the bridge.</p> <p>The defendant asked the judge to rule that these facts, if proved, would not entitle the plaintiff to maintain his action. The judge so ruled; the jury returned a verdict for the defendant ; and the plaintiff alleged exceptions.</p>

<p>Tort for personal injuries received by the plaintiff on February 8, 1881, by reason of an alleged defect in the sidewalk of Hanover Street, a public highway in Boston. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows :</p> <p>The defect consisted of an accumulation of ice on the sidewalk in front of 371 Hanover Street, said number being the number on the fifth door from Fleet Street. A written notice, dated February 16, 1881, and signed by the plaintiff, was given to the defendant within thirty days after the accident, as follows : “ To the City of Boston: You are hereby notified that on the eighth day of February, 1881, while in the use of due care, and walking on Hanover Street between Clark and Fleet Streets, on the southerly side of said street, the sidewalk was so rough, hobbly and slippery that, with the utmost care I could use in walking over said sidewalk, I went down and broke my arm.”</p> <p>It appeared in evidence that Hanover Street is a much frequented thoroughfare, and the distance between the two nearest corners of Fleet Street and Clark Street is between one hundred and seventy-nine and one hundred and eighty feet; and that there are fifteen doorways between said streets, and the numbers run from 365 to 385. There are no cross streets or passageways leading from Hanover Street between Clark Street and Fleet Street. The defendant contended that said notice was insufficient, and not in conformity with the statute, in that it did not sufficiently designate either the time, place or cause of the accident; and asked the judge to rule that the notice was insufficient, and that the plaintiff could not maintain her action. But the judge refused so to rule. The defendant introduced evidence tending to show that it was misled by the notice; that neither by searching the locality nor by inquiry of the plaintiff could it ascertain the locality of the alleged defect, and that it was ignorant of the place of the accident until the plaintiff testified; but the judge ruled that the question of the sufficiency of the notice was a question entirely for the court, and that the notice was sufficient.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort for personal injuries occasioned, on Sunday, June 20, 1880, to the plaintiff, a conductor in the employ of the Metropolitan Railroad Company, while standing on the step on the side of an open street car, and leaning into the car for the purpose of collecting fares, by being struck by a car of the defendant corporation passing on a parallel track. At the trial in the Superior Court, before Staples, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p> <p>The case was argued in March, 1882, by G. F. Verry, (J. Hewins with him,) for the defendant, and by S. B. Allen, ( W. B. Allen with him,) for the plaintiff; and was afterwards submitted on briefs by the same counsel.</p>

<p>Under the St. of 1872, c. 260, § 5, providing that the openings of any hoistway, elevator or well-hole in any building in a certain city shall be protected by a railing and trap-doors, a police officer who enters a building, the doors of which are found open in the night-time, for the purpose of inspecting the premises, in accordance with a rule of the police commissioners, and falls down an unguarded elevator well, may maintain an action against the owner or occupant of the building for injuries sustained thereby, although the statute also imposes a penalty for a violation of its provisions.</p>

<p>A policy of insurance against loss by fire was issued, for the term of one year, upon a building described as occupied principally for making certain articles named, and contained a written clause stating that, in consideration of a sum named, “ extra premium, permission given to work nights for four months from date; ” and also contained a printed condition that, if the property insured “be a manufacturing establishment, running in whole or in part over or extra time, or running at night without special agreement indorsed on this policy,” the policy should be void. In an action on the policy, it appeared that the building was destroyed by fire, in the night-time, within the term ; and that, after the expiration of four months from the date of the policy, the plaintiff had run his manufactory at night as well as by day. Held, that the action could not be maintained. Held, also, that oral evidence to show that similar establishments were usually run at night, that the plaintiff could not successfully and profitably carry on his business without working at night, and that the defendant’s agent, who fixed the premium, knew these facts, was incompetent.</p>

Petition to the Superior Court, filed December 7, 1881, alleging that the respondents, on December 30, 1879, brought an action against the petitioner, returnable at April term 1880 of the Superior Court, to recover a claim they had against him for SI30; that on January 26, 1880, the petitioner, being insolvent, filed his petition in insolvency in the county of Middlesex, and due proceedings were had thereon; that on February 12, 1880, the respondents proved their claim in…

Contract for money had and received, with a count in tort. After the decision of this court overruling the defendant’s exceptions, 122 Mass. 163, the case came on to be heard in the Superior Court, before Staples, J., on the plaintiff’s motion for judgment on the verdict. The judge denied the motion; and the plaintiff alleged exceptions, which appear in the opinion.

<p>Contract upon the following agreement in writing:</p> <p>“ Mr. Thomas McCormick, 29 Fleet Street, Boston, Mass.: We agree to sell you three hundred barrels E. L. Miles & Co. Bourbon whiskey, distilled by E. L. Miles & Co., New Hope, Nelson county, Ky. 100 bbls. in the month of November, 1881. 200 bbls. in the months of March, April, May, or June, 1882. One hundred barrels each month; should prefer May and June, and to have those months, if possible. If the month of November is already full, or nearly so, then give him what you can of the hundred, and the difference deduct from this contract for one hundred November. Write him about it at forty cents per proof gallon, original gouge in bond. Storage at the rate of five cents per barrel per month, from the date of the original inspection into bond. Insurance at cost, not exceeding one per cent per annum. We guarantee the shrinkage shall not exceed upon an average the allowance for shrinkage provided for in the Carlisle bill. The whiskey when withdrawn for shipment to be delivered on board the cars free of drayage. In the event of the destruction of distillery by fire or other casualty, this contract to be void in so far as it shall at that time be unexecuted. T. H. Sherley & Co., by I. W. Kingman.</p> <p>“ Boston, Mass., March 18,1881. We accept the above agreement and promise to pay the cash upon delivery of warehouse receipts for the whiskey. The guaranty as to shrinkage in this contract is to be made good on the basis of cost to the purchaser. Thomas McCormick.”</p> <p>Trial in the Superior Court, before Mason, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The plaintiffs put in evidence the written contract declared on; and it appeared that the contract had been executed in Boston, by I. W. Kingman on behalf of the plaintiffs, and by the defendant himself.</p> <p>The plaintiffs also put in evidence twenty warehouse receipts signed by E. L. Miles & Co., each dated November 30,1881, and acknowledging the receipt in the distillery bonded warehouse of E. L. Miles & Co., No. 146, Fifth District of Kentucky, of five barrels of “Nelson county Fire Copper Bourbon Whiskey,” “for account and subject to the order of Thomas McCormick or assigns, deliverable only on return of this receipt, properly indorsed, and on payment of government tax due thereon, and storage at the rate of five cents per barrel per month from ” a certain date, being the date of manufacture of the respective lot of five barrels. One receipt stated that date to be November 18; three receipts, November 19; twelve, November 29; and four, November 30 ; all in the year 1881.</p> <p>It appeared in evidence that, on December 1,1881, William C. Johnson, one of the plaintiffs, offered the defendant in Boston to deliver, under the contract, one hundred barrels of E. L. Miles & Co. Bourbon whiskey, distilled in November, 1881, and that the defendant declined to receive the same ; that the twenty warehouse receipts before named were tendered to the defendant by the plaintiffs at Boston on December 12, 1881, and that the defendant has never requested the plaintiffs to deliver the whiskey or the warehouse receipts therefor; but there was no evidence offered of a tender of said receipts, by or in behalf of the plaintiffs, during the month of November, 1881.</p> <p>The defendant offered evidence that neither the plaintiffs nor their agent Kingman had authority, license or appointment under any statute of Massachusetts to sell, or expose, or keep for sale, spirituous or intoxicating liquors in Boston, in this State, in the year commencing May 1, 1880, and terminating May 1, 1881, or in the year commencing May 1, 1881, and ending May 1, 1882. The judge excluded the evidence offered, and ruled that the written contract declared on was a contract for a sale to be made in Kentucky, and not in Massachusetts ; and the defendant excepted. It appeared that the plaintiffs had the usual license to sell spirituous liquors under the laws of the United States.</p> <p>The defendant requested the judge to rule that the contract called for one hundred barrels of Bourbon whiskey to be delivered in November, 1881; and that, as no tender of the warehouse receipts was shown to have been made in November, 1881, the plaintiffs were not entitled to recover. The judge declined so to rule, and ruled that the true construction of the contract was that the plaintiffs agreed to furnish the defendant with one hundred barrels of Bourbon whiskey, to be distilled in November, 1881; and to this the defendant excepted.</p> <p>The defendant also requested the judge to instruct the jury that the tender by the plaintiffs of the goods mentioned in the warehouse receipts was not a tender of the goods contracted for. The judge refused to give this instruction, the defendant excepting; and instructed the jury that, if the goods made and offered were what is ordinarily known as Bourbon whiskey of E. L. Miles & Co.’s manufacture, it would be immaterial that they were also designated as “ Fire Copper Bourbon,” or by other designation indicative of the process of manufacture.</p> <p>In the course of the trial, the plaintiffs offered as evidence of the laws of Kentucky, in relation to warehouses and warehouse receipts, a report of a decision of the Court of Appeals of Kentucky in the case of Cochran v. Ripy, 13 Bush, 495. The defendant excepted to the admission of this evidence.</p> <p>The jury returned a verdict for the plaintiffs for $1904.56, being the full value of the one hundred barrels of whiskey at the price set forth in the written contract, together with interest thereon from the date of the writ.</p> <p>If the rulings and refusals to rule were erroneous, a new-trial was to be had; otherwise, judgment to be entered on the verdict.</p>

<p>If, by the law of the State under which a corporation is organized, the corporation has a lien on the stock of any shareholder for a debt due from him to the corporation, such lien is a good defence to an action in another State against the corporation by a person to whom the shareholder has transferred the stock.</p> <p>If the by-laws of a corporation require a transfer of stock to be under seal, a transfer signed in blank by the stockholder, with the word “ seal ” enclosed in brackets is of no effect.</p> <p>If a corporation has_ a lien on stock for a debt due the corporation from a stockholder, it is not estopped to assert such lien by the fact, that, on the stockholder’s presenting the certificate for transfer to the person in charge of the transfer-book, the latter promised to make the transfer and issue a new certificate as soon as a certain officer returned.</p>

<p>Bill in equity, by the executor of and trustee under the will of Henry Bartlett, to obtain the instructions of the court as to the construction of the will. Hearing before 0. Allen, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>If several persons associate themselves together with A. for the purchase of a mine, with a view to the profit to be made from it by organizing a corporation to work it, which corporation is subsequently organized, they may maintain a bill in equity against A. for an account of his dealings in the purchase of the mine for their common benefit, he having deceived them as to the sum paid for the mine.</p>

Contract for breach of the covenants against incumbrances and of warranty in a deed of land from the defendant to the plaintiff. 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.

Contract for $875, money had and received. The defendant admitted that this amount was due, and filed a declaration in set-off, in which he alleged that this sum was due him for his services as superintendent of the plaintiff corporation from December, 1880, to March, 1881. Trial in the Superior Court, without a jury, before Rockwell, J., who found and ordered judgment for the plaintiff for $125; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Land was conveyed to a school district, in 1804, by a deed containing the following provisions : “ The said land to be held by said district for the purpose of building a schoolhouse thereon, and to be improved for the benefit of schools, and for no other use; and when said district shall cease to improve the said land for the purposes aforesaid, for two years in succession, then the said land shall revert back to” the grantor. The district soon afterwards built a schoolhouse on the land; and, upon the abolition of the school district in the town, the title of said district passed to the town. A school was kept in the schoolhouse by the district and the town from the time the schoolhouse was built until 1872.</p> <p>■ After that, no school was kept there, the scholars having been transferred to another schoolhouse where they could be graded. The land and schoolhouse were not taxed to any one, but were always treated by the town and school committee as a part of the school property of the town. In 1881, under a vote of the school committee, a new fence was built around the land; the schoolhouse and fence have since remained, and the land has never been used for any other purpose. Held, on a writ of entry, brought in 1881, by the grantor against the town, that there was no breach of the condition of the deed, or forfeiture of the estate.</p>

<p>Tort for injuries caused by the excavation of land adjoining that of the plaintiff. Trial in the Superior Court, without a jury, before Mason, J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was evidence tending to show that the plaintiff owned a tract of land in Dudley; that he had planted a grove of pine trees in a circular form near one side of it, which he designed for a burial-place. There was no evidence that the defendant knew of this design. The evidence further tended to show that the land adjoining the plaintiff’s land was owned by the New York and New England Railroad Company, which gave the defendant an oral license to go upon it and dig sand for making brick; that the defendant, in pursuance of said license, went upon the land, by his servants and agents, and excavated the sand over a considerable area; that at one point he excavated so near to the line of the plaintiff’s land, that a part of a common farm wall between two and three feet high, fell down for a distance of about .twenty feet, and a portion of the surface of the earth on the plaintiff’s side of said wall, namely, the surface of a piece of land about three feet wide at the widest place, and coming to a point at either end, and being about twenty feet long, also fell down.</p> <p>The evidence showed that the plaintiff’s land was worth from $25 per acre up to $500 for the whole six acres of which the lot consisted. The plaintiff testified that he had a conversation with the defendant after the wall and land fell down, and the defendant said he would fix it, and he did afterwards put up a board fence at the point, which the plaintiff claimed to be wholly insufficient. The evidence showed that the surface of the plaintiff’s land, which fell as aforesaid, fell from three to eight feet. The whole depth of the excavation made by the defendant on the adjoining land was about twenty feet. There was evidence tending to show that, after said land and wall fell, and after this action was brought, the defendant continued to dig sand on the adjoining lot at a point farther north than the point where said land fell, and the defendant at that point dug so near to the plaintiff’s land that the earth fell away to within a foot and a half of the plaintiff’s line at one point, and to within two feet and a half and three feet and a half at several other points, leaving the surface a ragged edge, but no part of the plaintiff’s land or fence fell except as before stated. The defendant testified that he did not dig within five feet of the plaintiff’s line at the point where the plaintiff’s fence and land fell, and that it fell owing to the nature of the soil and other natural causes. The land of the plaintiff had only been used as pasture and farming land, except that he had planted the grove of pines, as before stated. The plaintiff offered evidence that the land would be in danger of washing down and injuring said grove unless protected by a retaining wall, and also offered evidence of the cost of such a retaining wall. The soil of the plaintiff’s land and that adjoining was sandy.</p> <p>The defendant asked the judge to rule as follows : “There is no evidence of any wanton or wilful conduct or gross negligence on the part of the defendant, and nothing to warrant finding an aggravation of damages or any injury to the plaintiff’s feelings.”</p> <p>The judge declined so to rule; found that the defendant’s violation of the plaintiff’s right of lateral support occurred through gross carelessness and want of ordinary attention to the rights of the plaintiff, and that the plaintiff’s premises could not be restored to their condition before the injury with reasonable expense; ruled that the measure of damages might include the actual and natural injury to the feelings of the plaintiff as well as the injury to his property; that the measure of damages to his property was the difference between its value before and its value after the injury, and that the cost of restoring the property was not applicable as a measure of damages; and found and assessed damages for the plaintiff in the sum of $100. The defendant alleged exceptions.</p>

<p>The defendant agreed in writing to convey to the plaintiff “ a certain parcel of real estate situated in D., known as the A. farm, and bounded as follows, namely, as is bounded in a deed from ” a person named to the defendant. On a bill in equity for specific performance, it appeared that the deed to the defendant included seven parcels of land separately described, none of which was designated in the deed as the A. farm; that A. died, many years before, seised of land which included six of the seven parcels; that three of these formed part of his homestead, and the other three were about a mile off, and that the seventh parcel was not shown to have belonged to A.; that the deed to the defendant was made at the request of the plaintiff, and for his benefit, he paying part of the consideration; and that the defendant paid the remainder of the consideration, and orally promised the plaintiff, upon the payment of this sum and interest, to convey the premises to him, and to give him a bond for a deed. Held, that these facts were admissible in evidence; and that the defendant was bound to convey all the land conveyed to him by the deed of the third person.</p> <p>C. conveyed to J. “ a tract of land called the T. lot, and described in two deeds, one from A. to S., dated June 23, 1862, and recorded book 656, page 146, the other in a deed from said S. to said A., and dated October 17, 1862, and recorded book 665, page 564.” At the time of the conveyance, C. owned six acres of the T. land, which was wild land. It had been conveyed to her in two parcels, which abutted on each other, with no fence between them. C.’s title to the first parcel was by deed from A. to S., dated June 23, 1862, and recorded book 656, page 145, and by deed from S. to C., dated October 17, 1862, and recorded book 655, page 564. C.’s title to the second parcel was by deed from A. to C., dated June 23,1862, and recorded book 656, page 146. Held, that both parcels passed by the deed of C. to J.</p>

<p>A. made and delivered Ms promissory note, secured by a mortgage of land, to B., who had the mortgage recorded. There was no consideration for the note, and the mortgage was made by A. and received by B. with intent to defraud A.’s creditors and on a secret trust for A. B. afterwards returned the mortgage to A. and offered to return the note soon. A. told him to destroy the note, and he promised to do so. The mortgage thereafter remained in A.’s possession; and, upon B.'s death subsequently, the note was found among his papers by his administrator, who demanded payment of A. and threatened to foreclose the mortgage. A., to protect himself against the mortgage and to have it set aside by proceedings in equity, borrowed a sum of money of C. and gave his promissory note therefor, secured by a mortgage upon the same premises. C., when he lent the money and took the mortgage, knew of the mortgage to B., and of A.’s purpose in borrowing the money, and participated therein, and did so with the belief that the first mortgage was invalid, and in order that A. might have such benefit as he could derive from the enforcement of the second mortgage against the first. Held, that C., to the extent of his debt, stood in the position of a bona fide purchaser with notice; and that his mortgage was entitled to priority over the first mortgage. Eield & Dbvens, JJ., dissenting. •</p>

<p>The provisions of the Gen. Sts. c. 43, § 65, requiring a report of the laying out or altering of a town way to be filed in the town clerk’s office seven days before a meeting of the voters to take action thereon, are not applicable to ways laid out by the authorities of a city.</p> <p>It is no objection to the validity of the laying out of a way by a city, that the lines and measurements of the way are left to the city surveyor by direction of the mayor and aldermen.</p> <p>If the record of the laying out of a way by a city shows that it was accepted by •the two branches of the city council, but fails to show that it was presented to the mayor for bis signature, an abutter who had notice of the laying out and of its acceptance, and made no effort to invalidate the proceedings, cannot maintain an action against the city, two years afterwards, to recover the amount of a betterment tax assessed upon him for such laying out.</p>

<p>A declaration in an action against a city contained three counts, the first of which alleged that the defendant broke and entered the plaintiff's close and tore down and destroyed a certain wooden building thereon; the second count alleged a conversion of the building ; and the third count alleged a conversion of a lot of lumber. The answer contained two paragraphs, the first of which denied that a part of the close described in the declaration was the soil and freehold of the plaintiff, and alleged “ that the same is within the limits of a town way,” which it was the defendant’s duty to keep in repair; that “ the plaintiff had erected on said way a wooden building obstructing said way,” which was a public nuisance ; and that the “ defendant by its agents entered upon said way and removed said building.” The second paragraph of the answer denied that the defendant broke and entered the plaintiff’s close, and converted to its own use the goods and chattels of the plaintiff, as alleged in his writ. Held, that it was open to the defendant, under the pleadings, to contend that the acts of its superintendent of streets, in forcibly entering with Ms men upon the plaintiff’s close in pursuance of a vote of its board of aldermen, even if the acts constituted a trespass by these persons, did not constitute a breaking and entering by the defendant.</p> <p>In an action against a city for breaHng and entering the plaintiff’s close, the answer to which alleges that a part of the close is within the limits of a town way, the plaintiff is not estopped by deeds put in evidence by the defendant, under which the plaintiff’s title is derived, from showing where the location of the way is, there being no privity of title between the plaintiff and the defendant.</p> <p>If, in an action for breaking and entering the plaintiff’s close, the plaintiff relies on a possessory title merely, and the defendant puts in evidence the deeds of the plaintiff’s land, the latter is not entitled to a ruling that those deriving their title through a deed to one of the predecessors in title to the plaintiff took no more than was conveyed to such predecessor.</p> <p>If the superintendent of streets of a city, with men in the employ of the city, enters upon a person’s close, pursuant to a vote of the board of aldermen, but the act is not done under any vote of the city council, or in reference to any property which the city claimed to own, or in performance of any work which the city was specially authorized to do, or in which the city had a corporate interest distinct from that of the inhabitants generally of the Commonwealth, the city is not liable to an action by the owner of the close.</p>

Tort, .against William H. Hervey and Charles H. Pray, co-partners doing business under the firm name of William H. Hervey & Company, for the conversion of certain personal property.

<p>Contract against the owners of a vessel for pilotage. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, upon an agreed statement of facts, in substance as follows:</p> <p>The plaintiff was a duly commissioned pilot for the port and harbor of Boston, and was acting as such on May 8, 1880. The defendants were then the owners of a certain bark, of four hundred tons burden and sixteen feet draft of water, and the defendant Smith was master of the vessel. The plaintiff, on the above date, offered his services as pilot to Smith, who was then on board and in command of the vessel, then lying at a wharf in Boston, and about to start on a voyage from that port to a foreign port, Trinidad, to pilot said vessel out of the harbor of Boston on her departure therefrom for said voyage, which offer was refused by Smith. Thereupon the plaintiff informed Smith that the vessel would be held to pay the regular fees for pilotage, whether his services were accepted or not; and afterwards, on the same day, the vessel started on her voyage, and left the port and harbor of Boston, Smith acting as pilot. The bark was a vessel liable, by the laws of this Commonwealth and the regulations then in force in relation to pilotage in said harbor, to pay compulsory pilotage when bound into the harbor as a port of destination. The plaintiff made effort and occupied some time in going to the bark and offering his services. The plaintiff piloted the bark into the harbor and port of Boston upon her arrival thereat on her voyage next preceding her departure, for which service the defendants have paid the plaintiff.</p> <p>If the plaintiff was entitled to recover outward pilotage fees, on the above facts, judgment was to be entered for him in the sum of $36, and interest thereon from said May 8; otherwise, judgment for the defendants.</p>

<p>A partnership made an agreement with its creditors, by which all creditors whose claims exceeded a certain sum extended the time of payment of their claims by accepting therefor the notes of the partnership payable in one, two and three years, and all other creditors were paid in full. It was further agreed that all the assets of the firm and of the individual members thereof should be conveyed to a committee named, or one member thereof in trust for all; and the assets were accordingly conveyed to two persons in trust for the committee. The committee was to have authority to apply the individual assets to the payment of the individual debts, and the firm assets and any surplus of individual assets that might remain after the payment of individual debts to the purposes of the business, at their discretion. It was further provided that the firm should carry on its business, with the advice and under the direction, of the committee named, and that all debts contracted with the approval of the committee in carrying on the business should be entitled to payment before any payment was made upon the notes given under the agreement, and the committee was authorized to pay the same in any event out of the assets of the firm. After the execution of the agreement and the conveyance of the property to the committee, the firm proceeded to carry on the business for about a year under the direction of the committee ; and, with its approval, contracted debts to a considerable amount, the creditors holding such debts giving credit to the firm and relying upon the provision above recited. Toward the end of the year, finding that it was doing business at a loss, the firm and its members went into insolvency, and assignees of their estates were appointed. Held, that a bill in equity, by the members of the committee, stating the above facts, and alleging that the assignees in insolvency demanded of the plaintiffs that they should turn over to them all the property of the firm or its members which remained in tjieir possession, and that the creditors whose debts were contracted while the business was carried on under the terms of the agreement, who had not been paid, demanded of the plaintiffs that they should apply the assets of the firm to the payment of their claims, stated a case within the equity jurisdiction of the court.</p>

<p>In 1836, the city council of Boston voted “ that it is expedient to erect an iron fence around the Common; ” and in the same year the city huilt a fence, setting it back from the line of Park Street, and thus throwing a part of the Common into the street. The city also made a brick sidewalk, outside of the fepee, upon the land which had formed part of the Common, and it was thereafter used by the public. No record of this widening of the street was made. Held, in an action against the city for personal injuries sustained in consequence of the defective condition of this sidewalk, that if there had been for more than twenty years a constant and uninterrupted use of the sidewalk hy the public, under a claim of right to use it as a part of the public street and not as a part of the Common, this would establish it by prescription as a part of the street.</p>

<p>A writ of error will not lie for error in fact, which contradicts the record.</p> <p>It is within the power of the Superior Court, after a rescript has been sent down by this court, affirming the judgment of the Superior Court for the plaintiff in an action at law pending in that court against several defendants, to allow the plaintiff to discontinue against one of the defendants, and to enter final judgment against the other defendants; and the exercise of such power is a matter of discretion, which will not be revised on a writ of error.</p>

<p>A constable or a private person has no authority to serve the process issuing upon a libel for divorce, unless by special order of the court.</p>

Tobt for personal injuries. Answer, a general denial. Trial in this court, before W. Allen, J., who reported the case for the determination of the full court, in substance as follows: The plaintiff offered evidence tending to show the following facts: In October, 1878, one James Dean was under contract with the defendant to build, and was building, a culvert under Franklin Street, in the town of Malden, the defendant by one term of the contract, which was not in writing,…

<p>Tort for personal injuries received by the plaintiff while in the employ of the defendant. Trial in the Superior Court, before Gardner, J., who reported the case for the determination of this court, in substance as follows :</p> <p>The plaintiff offered evidence tending to show that he received injuries by falling from a tree, while engaged, under the direction of a foreman or assistant superintendent employed by the defendant, in cutting a branch from the tree; that the accident was occasioned by the gross carelessness of the defendant in neglecting to furnish him with proper implements, to employ proper foremen or fellow servants to direct him, and to give him suitable cautions and directions to enable him to do his work with safety to himself; and that the plaintiff was in the exercise of due care. The plaintiff also offered evidence tending to show that he was hired for the defendant by William Doogue, the defendant’s superintendent of the Common and public grounds; that Doogue was appointed as such superintendent under ordinances or by-laws, one of which was as follows: “ The superintendent of the Common and public grounds shall, under the direction and control of the city council or a joint committee thereof, have the care and superintendence of the Common, Public Garden, and all the public squares and enclosures belonging to the city, and also the trees in the streets of the city; ” that the plaintiff was set to work by the superintendent under the immediate direction and control of a foreman or assistant superintendent named James Doogue; that the plaintiff was for several days kept at work sweeping paths on the Common, and in trimming trees on the Common and in the streets of the city of Boston; that then the plaintiff was sent by said superintendent to work under the direction of James Doogue, upon some trees standing and growing in the sidewalk of a public street called P Street, in that part of the city of Boston known as South Boston; that these trees were private property belonging to the abutter, upon whose premises they had stood for more than thirty years; that the abutter gave permission to have the trees cut down; that the plaintiff was ordered to ascend one of the trees and cut a certain branch therefrom; that while preparing to cut this branch, as he had been ordered to do, and while in the tree for that purpose, he fell and received the injuries complained of.</p> <p>The plaintiff testified that “ on the 4th day of February they were engaged in cutting down trees on P Street. In the forenoon James Doogue was not there. At noon he came there and told me to cut this tree down. He told me to get a rope, and others to get ladders. He told me to get up on the tree with the saw, which I did. I went up as he told me, and I was putting the rope around the limb I was to cut. I was trying to do it, and it broke from under me, and I fell to the ground. As I went up into the tree he gave me no cautions. I followed his directions.”</p> <p>There was also evidence tending to show that the plaintiff was afterwards paid by the defendant for the time he was at work in the position from which he fell.</p> <p>There was no evidence in the case that any notice was given to the mayor or aldermen of any intention to cut down or trim said trees, or that the board of aldermen gave its consent to the cutting down or trimming of said trees, unless the jury would be authorized to infer the same from the facts already stated. " It was admitted that the street in which the tree was growing was a public way of the city of Boston.</p> <p>At the request of the defendant, the judge ruled that there was no evidence upon which the jury would be authorized to find that the defendant was liable for any damages sustained by the plaintiff at the time he received the injuries in question; and ordered a verdict for the defendant; and, at the request of the parties, reported the case for the determination of this court, such order to be made therein as the law and the facts might require.</p>

Tort, for personal injuries received by a brakeman, while in the defendant’s employ.

Tort for personal injuries occasioned to the plaintiff while in the employ of the defendant. Answer, a general denial. Trial in the Superior Court, before Mason, J., who ruled that there was no evidence to go to the jury, from which it would be competent for them to find for the plaintiff, and directed a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>If a servant is injured by the breaking of a rope used in hoisting goods, in consequence of the neglect of a fellow servant, who knew of the defective condition of the rope, to supply a new one, in accordance with a duty which the master has imposed upon him, the question whether the fellow servant acted as a fellow servant merely, or as the representative of the master, is a question of law and not of fact.</p> <p>A corporation owning a lighter is bound to use reasonable care in maintaining in suitable condition the appliances used on board the lighter by its servants in hoisting and lowering merchandise; but if it furnishes such appliances, and employs a competent servant to see that they are kept in proper condition, it is not liable for an injury occasioned to one servant by the parting of a rope, in consequence of its being used for too long a time, and after its defective condition was known to the servant whose duty it was to replace it.</p>

<p>Contract, for money had and received, to recover $65, deposited by the plaintiff with the defendant corporation under a written agreement providing, among other things, that the plaintiff, who was about to enter the defendant’s employ as a conductor, should, upon entering such employ, deposit the sum of $65, to be retained by the defendant, together with interest accrued thereon and all wages that might be due him, as security for the proper discharge of his duties, for the due accounting for and paying over to the defendant of all fares received, and for the due observance by him of all the rules and regulations of the defendant; that, in case of a breach" by the plaintiff of any of said rules and regulations, the defendant might retain the whole of said deposit and any interest thereon, and the amount of wages that might be due him, as liquidated damages, for such breach; and that the defendant’s president “ shall be the sole judge between the company and the conductor whether the company is entitled to retain the whole or any part of said $65 and interest, and all wages that may at - any time be due him, as liquidated damages. And his certificate in writing that the same or any given part thereof, stated in such certificate, are to be so retained and forfeited to the company, ■ and of the cause of such retention, shall be a final adjudication thereof, binding and conclusive evidence between the parties in all courts of justice, civil and criminal, both that the amount thereby certified as the true amount to be forfeited and retained has become and is so forfeited and retained by the company, and that that has happened which in such certificate is certified to be the cause, and that it is a lawful and sufficient cause for such retention; and such certificate shall bar the conductor of all right, under any circumstances, to recover the moneys so certified to be forfeited and retained, or any part thereof.”</p> <p>The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, upon agreed facts, in substance as follows:</p> <p>The defendant received said $65 under said agreement, and the only claim the defendant has to such money is by virtue of the agreement and the president’s certificate indorsed thereon, as follows : “ By virtue of the written agreement, and under the power therein conferred upon me, I, Charles E. Powers, president of said Middlesex Railroad Company, do hereby adjudge and decide that said railroad company is entitled to retain the whole of the $65 deposited with it under said agreement, together with all the interest thereon, and the same is hereby declared to be forfeited to the said railroad company on account of the breach by the within-named Augustine K. White, conductor, of the fourth clause of said agreement [which related to the faithful discharge of his duties as conductor] and of the sixty-fifth and sixty-sixth rules and regulations of the Middlesex Railroad Company.”</p> <p>The rules and regulations above referred to were as follows : “ 65. The punch must be used to cancel and record a fare for each and every person over three years of age who rides upon the car. 66. As soon as fare has been received from one person the punch must be used in the presence of such person, to record such fare or fares, before another one is taken up. Failure to tiomply with this rule, in every instance, will be positive cause of dismissal.”</p> <p>The plaintiff contends that this money should be paid to him for the reason that the agreement was, on its face, unconscionable and void, and against public policy.</p> <p>The defendant contends that the agreement was valid, legal and final between the parties.</p> <p>If the court should be of opinion that the agreement was void, judgment was to be entered for the plaintiff; if it was valid, judgment for the defendant.</p>

<p>A steamboat, on which were goods insured against “ immediate loss by fire,” came into collision with another steamboat. Soon after the collision, a fire, caused by the collision, broke out, which prevented the saving of the goods. The vessel subsequently sank, with the goods insured, before they were touched by the fire. In an action on the policy of insurance, the parties agreed that, in case of recovery by the plaintiff, the amount should be a sum stated, unless it should appear on proper evidence that this amount should be changed. The judge excluded the evidence of an expert, offered by the defendant, that the goods in the situation they were then in, in a sinking boat, were of no value; and instructed the jury that, if they found that this was a loss by fire within the terms of the policy, they should find as damages the sum agreed upon. .Held, that the defendant had no ground of exception.</p>

<p>Tort for personal injuries occasioned to the plaintiff by being struck by a locomotive engine belonging to the defendant. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff introduced evidence tending to show the following facts:</p> <p>The defendant’s railroad at Newton consists of two tracks, the southern track being used for trains running toward Boston, and the northern track for trains from Boston. The station building, in which are the ticket-office, baggage-room, etc., is on the south side of the road, and is one hundred and twenty feet long. A platform extends along its front and eastwardly eighty feet to the west side of Centre Street, a highway which crosses the railroad at grade, and westwardly three hundred and twenty-four feet beyond the building, making in all a platform of five hundred and twenty-four feet.</p> <p>On the north side of the railroad a platform extends from Centre Street westerly to the end of a narrow passageway leading from Washington Street, this platform being five hundred feet long, and its west end being sixty-eight feet east of the west end of the platform on the south side of the railroad. Opposite the station building, and on the north platform, is a shed for the shelter of waiting passengers, twenty-five feet wide and seventy-five feet long, the west end of which is two hundred and eighty feet east of the passageway. Between the shelter shed and the station building are two strips of planking, each ten feet wide and thirty-three feet from each other. The crossing of the railroad and Centre Street is planked. There is no planking across the tracks at any other place, but the tracks are left in the usual condition of railroad tracks, with nothing but rails and sleepers, and not filled up level with the sleepers, and with no preparation of the tracks to fit them for crossing by foot passengers. There was nothing to prevent people from crossing the tracks, except what is herein stated.</p> <p>Passengers taking trains for stations east of Newton enter the cars from the south platform, and passengers leaving such trains get out upon the south platform. Gates are kept closed on the north side of the cars going toward Boston, so that passengers can neither get on nor off the cars on that side.</p> <p>Passengers coming from Boston, or taking trains going west, leave or enter the cars by the north platform, and closed gates on the south side of such cars prevent people from leaving or entering such trains on the south side.</p> <p>Both platforms were raised about a foot above the track. Washington Street runs nearly parallel with the railroad at the distance of about eight rods northerly from it, and connects with Centre Street, so that there is free access, for dwellers on Washington Street, to the station building and the south platform by the highway.</p> <p>The plaintiff, a woman seventy-two years old, was the holder of a commutation ticket, entitling her to ride to and fro between Newton and Boston. On the day of her injury she started from her house, which was on the south side of Washington Street, and immediately west of the passageway already referred to, for the purpose of taking, and in ample time to take, the twenty-three minutes past ten A. M. train for Boston. She passed from Washington Street into and through the passageway, which was narrow, and from which no view of trains coming from the east could be had. Two ladies were a short distance in front of her in the passageway. This passageway ends at a flight of three or four steps which lead to a landing connecting with the end of the north platform, which slopes gradually down to its level, which is about two feet below the general level of the platform. When the plaintiff reached the foot of the steps a freight train was passing westward on the north track, — a regular freight train, as she understood it, about twenty minutes late. She waited there about two minutes until the last car had passed, and then went up the steps, and, standing on the landing, looked eastward to see if any other train were coming. She was familiar with the defendant’s time table, and knew when trains were due at Newton, and that no other train was due at that time, and that the rules of the defendant did not permit trains to follow within five minutes of each other. While looking eastward, she saw the ladies who had preceded her in the passageway walking along the north platform. She did not see any train approaching, nor hear any bell or any whistle. While she was looking, she was attracted by the incoming of the train which she was about to take; and, knowing that the rules of the defendant did not permit a train to pass a station while another was passing it, and supposing that no train would approach from the east, she stepped, a moment after, upon the north track, and was struck by the engine of a freight train coming on that track from the east, a few hundred feet behind the other freight train, and received the injuries complained of..</p> <p>The ladies who preceded her in the passageway saw the locomotive engine, which struck the plaintiff, coming, immediately on arriving at the top of the steps. They walked slowly, and the engine of the passenger train which was coming from the west, on the south track, passed them when they were less than a hundred feet east of the passageway, and the engine of the train which struck the plaintiff passed them going west, on the north track, before they were a hundred feet east of the passageway. When they were about a hundred feet east of the passageway, the last-named engine whistled very sharply two or three times, whereupon they turned round and saw the plaintiff just upon the track. Other evidence, introduced by the plaintiff, tended to show that the engine which struck her whistled two or three times in quick succession before she was struck, and so sharply as to attract the attention of passengers in the passenger train, and before their car had met the engine which struck her; and that the engine which struck the plaintiff was drawing an extra freight train not on the time table.</p> <p>Evidence introduced by the plaintiff further tended to show that the passageway through which she approached the railroad had been used by foot passengers for nearly twenty years, and that she and many others had been accustomed to use it; that the plaintiff and others, about to take trains for Boston, had been in the habit of stopping at the end of the passageway while their train was coming in, and then crossing the tracks and getting upon the rear car of the train, and that this was without objection from the defendant; that of those who came to the railroad premises through the passageway, some passed along the north platform easterly, some crossed the tracks opposite the passageway, and others crossed the tracks at various points between the passageway and the shelter shed; and that no objection had been made by the defendant to this practice.</p> <p>The railroad track is straight, from a point west of the passageway, at least for a quarter of a mile east of the passageway; and if a person stands on the edge of the top step at the end of the passageway, without going toward the side next to the railroad track, the posts of the shelter shed would interfere with the view of a train approaching from Boston.</p> <p>The plaintiff also introduced evidence tending to show that there was no flagman at the end of the passageway; and that no warning was given the plaintiff not to cross, other than appears from the foregoing evidence. The north platform, except under the shelter shed, is ten feet wide. There is nothing on it between the passageway and the shelter shed, except that a lamp, upheld by a bracket fastened to the fence at the back or north side of the platform, projects over it some two feet, at the height of seven or eight feet, at a point one hundred and eighty feet east from the passageway. The roof of the shelter shed is supported by posts, which stand five feet north of the south edge of the platform, and in the neighborhood of Centre Street some shops front on the platform, and do not project over or upon it. About two thousand people live north of the railroad and west of the passageway.</p> <p>On this evidence, which was all the evidence on the question of the liability of the defendant, the judge, at the request of the defendant, ruled that the action could not be maintained; and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>A testator by bis will devised all his estate real and personal to his son. By a codicil, he provided that, if the son should die without leaving living issue, then any portion of the estate which might remain should be equally divided among the testator’s sisters and nieces and their female heirs and assigns. By a subsequent codicil, he provided that the son should not come into possession of the estate until he attained the age of twenty-five years; and that the executor should hold the estate in trust, and apply the income thereof to his support, until he attained that age. The son died after reaching the age of twenty-five years, in possession of the property, intestate and without leaving issue. Held, that his heirs were entitled to the estate, and not the testator’s sisters and nieces.</p> <p>If several demandants join in a writ of entry, and some of them fail to prove their title, the action must fail as to all, unless the writ is amended by striking out the names of those who have not proved their title.</p>

Bill in equity, filed June 21, 1882, against James E. Dwinell, John 0. Mason, William P. Greeley, and John F. Annable. The defendants demurred to the bill for multifariousness by reason of the misjoinder of causes of action and of parties defendant. Hearing before 0. Allen, J., who sustained the demurrers, and reserved the case for the consideration of the full court. If the demurrers should be sustained, the plaintiff was to have leave to amend the bill.

<p>A testator, at the time he executed his will, was lying on his bed unable to move. His sight was unimpaired, but he could only look upward. The witnesses signed the will at a table, which was in an adjoining room, and nine feet distant from the testator. The door was open, and the table was in the line of vision of the testator if he had been able to look. He could hear all that was said, and knew and understood all that was done, and, after the witnesses had signed the will, it was handed to him, and he read their names as signed, and said he was glad it was done. A codicil to the will, which was executed while the testator was in the same condition, was attested by the witnesses at a table by the side of the bed about four feet from his head. Held, that the will and codicil were attested in the "presence ” of the testator, within the Gen. Sts. c. 92, § 6.</p>

<p>Replevin of certain personal property. The answer alleged that the defendant took the property as a constable of the city of Boston, by virtue of a writ issuing from the Municipal Court of Boston, against one William G. Thwaites, which writ was returned by him into court. The answer further alleged that, at the time of the taking, the plaintiff had no property in, or right of possession of, said property. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on the following agreed facts:</p> <p>“ The goods replevied were, at the time of the service of the plaintiff’s writ, and at the time of the attachment hereinafter mentioned, the joint property of the plaintiff and William G. Thwaites, who were copartners under the style of Thwaites and Fay, being partnership property; and were held by the defendant, as a constable, by virtue of an attachment, in an action in the Municipal Court of Boston, in which judgment has since been entered against said Thwaites, which remains unsatisfied.”</p>

<p>A corporation owning a large tract of land lying between two streets in a city, divided it up into lots, and sold the lots by auction, one of the terms of sale being that “between the lots there shall be a railway fourteen feet wide, to be for the common benefit of all the lots bounding on it, to be used for no other purpose than a railway, and no building is ever to be built over it.” Deeds of the lots were made which conveyed the fee to the middle of this strip of land, with the easements and subject to the restrictions contained in the above-recited terms of sale. Railway tracks were laid in this strip of land, but the use of it for a railway was afterwards abandoned. Held, on a bill in equity, by an owner of one of the lots against the owner of another lot, brought more than twenty years after such abandonment to compel the removal of a structure erected on the defendant’s land, but on the strip of land reserved for a railway, that the defendant was entitled to use his land as he saw fit, and that it was no longer subject to the restriction that no building was to be built over it.</p>

<p>In an action upon a policy of insurance, conditioned to be void if the property insured should be “ sold or conveyed in whole or in part,” oral evidence is admissible to prove that the plaintiff informed the defendant that there had been a conveyance of the property, at the same time that he informed the defendant of the existence of an outstanding mortgage on the property made before the policy was issued; and that the defendant thereupon indorsed on the policy its consent to pay the insurance in case of loss to the mortgagee named in the mortgage, and redelivered the policy to the plaintiff.</p>

<p>Contract upon two policies of insurance, dated respectively October 28 and December 1, 1876, for the term of three years, whereby the defendant, a New York corporation, insured, against loss by fire, Emma L. Putney, on her dwelling-house in Cambridge, “payable in case of loss to Davis, Taylor and Demmon [the plaintiffs] to extent of their interest.” Trial in this court, before W. Allen, J., who reported the case for the determination of the full court, in substance as follows:</p> <p>The policies contained among others the following condition: “ If the property be sold or transferred, or upon the passing or entry of a decree of foreclosure, or upon a sale under a deed of trust; or if the property insured be assigned under any bankrupt or insolvent law, or any change take place in title or possession (except in case of succession by reason of the death of the assured), whether by legal process, or judicial decree, or voluntary transfer or conveyance; then and in every such case this policy shall become void.”</p> <p>On July 26, 1877, Putney sold and conveyed the property to one Henry Pearson, by an absolute conveyance in fee simple; and Pearson conveyed the same, by a similar conveyance, to one Emerson.</p> <p>On June 8, 1878, the plaintiffs, who held a mortgage on the land on which was the house insured, entered and took possession, according to law, for breach of the condition of their mortgage, and caused a certificate of their entry to be recorded in the registry of deeds on June 11, 1878.</p> <p>On December 21,1878, the plaintiffs informed the defendant’s agents of the entry, and these agents made the following indorsements upon the policies, at the plaintiffs’ request, for which -no consideration was received or asked:</p> <p>“Boston, December 21, 1878. Davis, Taylor and Demmon, the parties to whom this policy is payable in case of loss, being mortgagees, have entered for breach of the conditions of their said mortgage.</p> <p>“ It is understood and agreed that this policy shall attach and cover their interest as such.</p> <p>“It is hereby agreed that this insurance, as to the interest of the mortgagees only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy, nor for non-occupation of the premises.</p> <p>“ It is further agreed that the mortgagees shall notify said company of any change of ownership or increase of hazard which shall come to their knowledge, and that every increase of hazard not permitted by the policy to the mortgagor or owner shall be paid for by the mortgagees on reasonable demand, according to the established scale of rates, for the use of such increased hazard during the current year.</p> <p>“ It is also agreed that whenever the company shall pay the mortgagees any sum for loss under this policy, and shall claim that, as to the mortgagor or owner, no liability therefor existed, it shall at once be legally subrogated to all the legal rights of the mortgagees under all the securities held as collateral to the mortgage debt, to the extent of such payment; or, at its option, may pay to the mortgagees the whole principal due or to grow due on the mortgage, with interest, and shall thereupon receive a full assignment and transfer of the mortgage and all other securities held as collateral to the mortgage debt; but no such subrogation shall impair the right of the mortgagees to recover the full amount of their claim.”</p> <p>At the time of this transaction, the plaintiffs knew of the conveyance by Putney, but, not understanding that it was of any consequence as affecting their rights, did not inform the defendant or its agent thereof; and neither the defendant nor any of its agents had any knowledge of such alienation or conveyance until after the loss by fire, which occurred on February 21,1879.</p> <p>Upon this evidence, the defendant contended that the plaintiffs were not entitled to recover; and asked the judge so to instruct the jury. The judge declined so to do; and the jury returned a verdict for the plaintiffs. If, upon the evidence, the plaintiffs were entitled to recover, judgment was to be entered on the verdict; otherwise, for the defendant.</p>

<p>A dealer in ice had in a town, other than that in which he resided and had his office, a storehouse, in which the ice which constituted his stock in trade was kept, and from which it was delivered on contracts principally made elsewhere. Held, that the building in which the ice was kept was not a “ store ” within the Gen. Sts. c. 11, § 12, cl. 1; and that the ice was not taxable to him in that town.</p> <p>The cutting of ice on the surface of a pond, and storing the pieces so cut in a building, is not a “manufacture,” so that the machinery employed therein is taxable to the owner, under the Gen. Sts. c. 11, § 12, cl. 2.</p>

Contract to recover one half of the expense incurred by the plaintiff town in the repair of a highway, across East Harbor Channel, between the plaintiff and the defendant towns. Trial in the Superior Court, without a jury, before Brigham, C. J., who ruled that the action could not be maintained, and ordered judgment for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

Writ of error to reverse a judgment rendered for the Commonwealth at May term 1882 of the Superior Court for the county of Suffolk, for the transaction of criminal business, upon an indictment in six counts.

<p>Indictment charging the defendant with the larceny, on June 22, 1882, at Boston, of five pounds of bacon, in a building of one Aaron Kimball. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows:</p> <p>Thomas Lowell, a police officer, was called as a witness for the government, and testified that the defendant, at the time alleged in the indictment, was a police officer, whose route included the building named in the indictment; that, in consequence of orders from his superior officer, the witness, on the night in question, by means of a key, entered said building and sat in a chair in a shop therein, in a position to watch, and for the purpose of watching; that said piece of bacon was then a part of the stock in trade in the shop, and was then hanging near a window opened at the top; that about one o’clock in the morning the defendant came along, put his hand in the opened window, and took the piece of bacon therefrom.</p> <p>On cross-examination, the witness testified that he did not see the defendant’s face very well, and did not see it so as to identify him, but saw his form and uniform; that he let him go, and about fifteen minutes afterwards met the defendant on the street with the bacon in his hand; that he said, “ Where did you get that, Jim ? ” to which the defendant replied, “ I found it on the street; ” that the witness then suggested that he take it to the police station, to which the defendant readily assented, and, on arriving there, repeated the same statement to Lieutenant Johnson, the officer in charge; that thereupon the witness said, “ Now, Jim, you had better own up. I was in the place when you took it. We have got you down fine. This is not the first you have taken. We have got other things against you nearly as good as this;” — that then the defendant “ weakened,”- and asked the witness to drop it, and said he would resign, and the witness and the lieutenant could have the credit of catching him.</p> <p>Lieutenant Johnson, the officer in charge, testified that he was present when the defendant came into the station with Lowell; that after the defendant’s talk with Lowell he appeared broken down, and he, Johnson, then asked the defendant if he took the bacon out of the store, and the defendant said, “ Yes, lieutenant, I did.”</p> <p>This witness also testified that he could not say that Lowell said, “You had better own up, Jim;” but, on cross-examinatian, testified that Lowell might have so said; that he did hear Lowell say, “We have got other things against you nearly as good as this.”</p> <p>So much of this testimony as related to the confession was admitted against the objection of the defendant.</p> <p>Aaron Kimball, another witness for the government, on cross-examination, was shown, and identified as his signature to the bottom thereof, the following paper: “ Boston, Sept. 24, 1882. In the matter of the prosecution of James J. Nott, I, the person from whom the bacon was taken that he is charged with taking, am content not to have the matter further prosecuted. The amount taken was small, and I sympathize with his family. A. Kimball.”</p> <p>The defendant then offered this paper, and sought to read it to the jury, for the purpose of examining the witness in relation thereto; but the judge excluded the same.</p> <p>While the witness Lowell was on the stand, his attention, on cross-examination, was called to the fact that the original complaint in the Municipal Court was sworn to by one Honey, a police officer, who, Lowell testified, was not present at the time of the alleged larceny, nor at either of the interviews with the defendant in reference thereto; and thereupon the defendant asked Lowell this question, “ Why did you not yourself swear to the original complaint?” Upon objection by the government, the question was excluded.</p> <p>The jury were instructed that the statements made by the defendant at the police station, in the nature of a confession, could not be considered by them, unless such statements were made voluntarily; that if they were induced by threats, or by any promise of favor, they were not in law voluntary; and that, upon the evidence, it was a question of fact for the jury whether these statements were so induced.</p> <p>The defendant contended that, upon the testimony, the of-fence, if any was committed, was simple larceny only. The judge instructed the jury that, upon the evidence, the offence, by whomsoever committed, was larceny in a building.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>The first case was an action of tort for personal injuries occasioned to the plaintiff’s intestate, Peter Sullivan, by an explosion of naphtha, alleged to have been negligently stored by the defendant.</p> <p>The second case was an action of tort for loss of services of said Peter by the same explosion, Peter being the minor son of the plaintiff.</p> <p>The cases were tried together in the Superior Court, without a jury, before Putnam, J., who reported them for the determination of this court, in substance as follows:</p> <p>Peter Sullivan was about twelve years of age. One Patrick Long, a boy about fourteen years of age, was employed by the superintendent of streets of the defendant city to trim the lanterns which were at that time placed, during the night, near a sewer which was building in one of the public streets, and to take these lanterns to the place where the sewer was, and-to hang and light them there. These lanterns were kept inside of the building in which the explosion, hereinafter described, took place, and Long was accustomed to go nightly to this building to trim the lanterns, and then to go and set them, and light them.</p> <p>On the morning of Saturday, July, 10, 1880, about half-past seven o’clock, he called at the house of Sullivan, and Peter went with him to this building. Long went inside, and began trimming the lanterns; Sullivan remained outside of the building, in an alley on which the building fronted. He had nothing to do about trimming the lanterns, and had no business at the place, but only went to accompany Long. Long had been engaged for about ten minutes in trimming the lanterns, but had not trimmed them all, when an explosion took place.</p> <p>Some naphtha which was stored in one corner of the building, and placed there under the circumstances hereinafter named, exploded, but how or why it did so the judge was unable to find upon the evidence. Long used no matches while in the building, and the lanterns were not lighted at the time of the explosion. The main door of the building, which fronted on the alley, remained open while Long was in the building. The roof of the building was blown off by the explosion, and fell upon Sullivan in the alley. He was taken out in about half an hour, and at that time was dead. Long was drawn out from under the timbers which fell inside of the building, but was not injured.</p> <p>This building belonged to the defendant, and was called the old lock-up, having been formerly used for that purpose. It was a small, low brick building, with a slate roof; a sixteen-inch wall, with three or four inches of plank between the courses of brick, and a stone cap to the main door, which opened out on to the alley. This alley was not an accepted street, but ran from one accepted street to another. There were two or three tenements in it, and it had been used generally by the public as a thoroughfare for fifteen or sixteen years. The building fronted on this alley, and stood about one hundred and ten feet from Main Street, and it was situated in a thickly settled part of the city. In 1879, and up to the time of the storage of this naphtha, it was used exclusively as a tool-house, in which the superintendent of streets was accustomed to store the tools used by the workmen in his employ about the public streets.</p> <p>Some time in that year, and prior to July 10, Dennis Sullivan, who was chairman of the committee on fuel and street lights in the defendant city, asked the superintendent of streets for permission to store some naphtha (which was used in some of the street lamps) in one of the cells in this building.</p> <p>The superintendent objected, and thereupon said Sullivan asked the chairman of the committee on streets if he could use a portion of the building for that purpose, and he said he might; and Sullivan thereupon ordered the naphtha to be moved into this building. The chairman of the committee on streets also told the superintendent of streets to let Sullivan store the naphtha there, and the superintendent thereupon had one of the cells cleaned out for the purpose. He also gave a key of the building to the city lamplighter, who was under the employ of the committee on fuel and street lights. The superintendent of streets hired and discharged the men in his employ, and sent the pay-roll to the city treasurer.</p> <p>The defendant is a city with the ordinary powers of cities. The superintendent of streets was elected by the city council on joint ballot. At the time of the storing, in 1879, Dennis Sullivan was an alderman of the city, and chairman of the committee on fuel and street lights of that year. No action or vote of that committee was taken in reference to the storing of this naphtha. There was nothing on the records of the committee concerning it, and no member of the committee had any knowledge of the fact, excepting said Sullivan.</p> <p>After this storing of naphtha in this building, in 1879, was begun, under the foregoing circumstances, it continued to be stored there down to the time of this explosion; but there was no evidence offered of any vote or other action of the city government of 1880, or its committees, or any individual member of them, in reference to its being stored there in 1880, or of any knowledge of any of them that the naphtha was being stored there during that year. It was in fact so stored, and the naphtha was used in the street lights during that year.</p> <p>Upon these facts, the defendant asked th.e judge to rule, that, as matter of law, the defendant was not liable. The judge so ruled, and found for the defendant. If the ruling was correct, judgment was to be entered for the defendant; otherwise, new trials ordered.</p> <p>Annexed to the report were such portions of the charter of the city, and of its by-laws, as were deemed material. A copy of them is printed in the margin.*</p>

<p>A. hired a shop and also a post-office box in a certain town, assuming the same name as that oí a reputable merchant in that town. After writing to the plain, tiff, upon paper upon which were printed his assumed name and the number of his post-office box, and asking the price of certain goods, and receiving a reply, he ordered a quantity of the goods. The plaintiff, relying upon the financial standing of the person whose name was assumed, and supposing the letters were written by him, forwarded the goods, addressed to A. with the name of the town, by a common carrier, and sent a letter, which was received by A., notifying him of the shipment. The carrier took the goods to the shop hired by A. and delivered them to the occupant, who signed receipts for them in his assumed name; and he soon afterwards disappeared. Held, that, in the absence of negligence on the part of the carrier, the plaintiff could not maintain an action against Mm for conversion of the goods.</p>

<p>Three actions oe tort, with counts in contract, against a common carrier, to recover the value of certain goods entrusted to the defendant by the plaintiffs, at Boston, for carriage to Dayton, Ohio. At the trial in the Superior Court, before Rockwell, J., the jury returned verdicts for the plaintiffs ; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>A testator, by his will, devised the residue of his property to his six children. By a codicil he devised certain stores to a charitable corporation, its successors and assigns forever, in trust to apply the net rents and income to the support of such indigent students in theology, while resident at C., as should be preparing themselves for the ministry, who should he deemed most meritorious and worthy of assistance, in sums not exceeding $100 to $150 a year for three years. The codicil further provided, as a “ condition,” that, in case of the corporation “ accepting said bequest, and afterwards applying or appropriating said rents and income to any other or different purpose or object than that herein before expressed, then said bequest or devise from that time shall become null and void to all intents and purposes, and the said stores shall from thenceforward revert to and become a part of my estate, to be distributed, divided and disposed of, trader the provisions of my said last will and testament, in the same way and manner as if the aforegoing devise had never been made ” On a bill in equity, brought by the charitable corporation, it appeared that the income from the trust estate had largely increased from what it was at the testator’s death; that there had not been a sufficient number of indigent students to exhaust the net income, if each beneficiary was paid no more than the amount stated in the codicil; and that there was a large surplus income, which was constantly increasing. Held, that the codicil created, not a condition, but a conditional limitation, which was void for remoteness. Held, also, that the principal object of the trust could be best carried out by increasing the amount to be paid to each beneficiary.</p>

<p>The jurisdiction given to police and district courts, by the St. of 1877, c. 210, § 4, in actions of tort, where the damages demanded are more than $20 and do not exceed $300, is not taken away by the St. of 1877, c. 211, § 3, giving trial justices exclusive jurisdiction in actions of tort where the damages demanded do not -exceed $100.</p>

<p>An action cannot be maintained against a railroad corporation for personal injuries occasioned to a brakeman in its employ by being struck by a bridge, while on a moving train, and resulting in his death, if the evidence wholly fails to show that he was using due care, or that his death was not instantaneous.</p>

Tort, for personal injuries occasioned to the plaintiff while operating a circular saw in the defendant’s employ. At the trial in the Superior Court, before Knowlton, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

<p>If a wife releases dower in her husband’s land, at his request, in consideration of an oral agreement by him to convey to her other land, which is no more than a fair equivalent for the value of her dower so released, he being solvent at the time of making such agreement, and if he subsequently, within six months of the commencement of proceedings in insolvency, conveys such land to her through a third person, at a time when he is insolvent and she has reasonable cause to believe him insolvent, his assignees may avoid the conveyance, under the Gen. Sts. c. 118, § 89 or § 91.</p>

Bill in equity, filed February 4, 1881, to redeem a parcel of land in Rochester, in this county, from two mortgages. The case was referred to a master, whose report was in substance as follows: The first mortgage was made on December 9, 1875, and was from the plaintiff to the defendant, of one undivided half of the' land, for $600, payable on demand, with interest at the rate of six per cent. The plaintiff’s wife released dower. The second mortgage was dated January 15, 1877.

Contract in two counts. The first count was on an account annexed, for a balance due for work and labor on a vessel called the Bristol.

Writ of entry to recover four parcels of land in Taunton. The tenant pleaded nul disseisin as to one parcel, and disclaimed as to two parcels; and the demandants discontinued as to the fourth parcel.

<p>This court has no jurisdiction in equity to order partition of land between tenants in common.</p> <p>Under the Gen. Sts. c. 136, a tenant in common of land, who has erected a house upon the land without the knowledge or consent of his cotenant, is not entitled to have partition made of the land without the house, and to have that part of the land on which the house stands set off to him.</p>

<p>The plaintiff began the manufacture of machines for the defendant under an oral contract. After a considerable amount of labor and materials had been furnished, a written contract was made between the parties, by the terms of which the plaintiff was to receive payment for completed machines on delivery. Subsequently, and before any machines had been completed, but after much work had been done, which, although necessary for the construction of all the machines, could not enter into the cost of any particular machine, the written contract was superseded by another written contract, by the terms of which all items furnished before the date of that contract were to be paid for under it, and the defendant acknowledged his indebtedness for work previously done. Held, in an action on the last contract, that the defendant was not entitled to a ruling, that the plaintiff could not recover, under it, for work and labor performed before its date.</p> <p>The plaintiff agreed, in writing, to manufacture for the defendant certain machines, and to deliver them to his order; and the defendant agreed to pay the plaintiff for all labor and materials used or furnished for the machines at a specified rate, and, in addition thereto, ten per cent of the cost. The defendant further agreed to remit to the plaintiff for each machine the amount due for the manufacture and delivery of the same, and, in addition thereto, all surplus of profits which should result to the defendant, after deducting expenses of sale and subsistence, until the defendant’s existing indebtedness to the plaintiff should be liquidated, “ all and each of said remittances to be made immediately on receipt of sale of each machine.” Held, that, on delivery of the machines, the plaintiff was entitled to maintain an action for the labor and materials furnished.</p> <p>The plaintiff agreed, in writing, to manufacture machines for the defendant, and to deliver them to his order; and the defendant agreed to pay for them at a specified rate, and in addition thereto all surplus profits until the defendant’s existing indebtedness to the plaintiff should be liquidated, on receipt of sale of each machine. This agreement was subsequently modified by an agreement that the plaintiff should be exclusively entitled to receive payment for machines sold, and should pay over to the defendant one fourth of the surplus of receipts above the cost of machines. Held, in an action for the price of manufacturing the machines, that the defendant was not entitled to a ruling, that, under the contract as modified, the defendant was liable, if at all, only for money had and received.</p> <p>The plaintiff agreed to manufacture machines for the defendant, and to deliver them to his order, the defendant to pay the expense of transportation. Held, that the agreement was performed by manufacturing the machines and holding them subject to the defendant's order.</p> <p>The plaintiff manufactured a machine for the defendant, under an agreement by which the defendant was to pay the price of manufacture. The defendant did not take the machine, and it was subsequently sold by the plaintiff’s assignee in bankruptcy. Held, that the plaintifí could maintain an action for the agreed price on giving the defendant credit for the proceeds of the sale.</p> <p>The plaintifí manufactured machines for the defendant under a contract. After the machines were delivered- to purchasers, they were returned for some fault or defect, and were repaired. Held, that the mere fact that these repairs were made after the contract had terminated would not prevent the plaintifí from maintaining an action for the repairs.</p> <p>If a deposition is taken on written interrogatories, one of which calls for the production of a memorandum-book, and is not objected to, it is too late at the trial to object to the book, if it is annexed to the deposition.</p> <p>In an action on an account annexed, if certain items are satisfactorily proved, they should not be struck out merely because they do not appear in the plaintiff’s books of account.</p>

Writ op dower. The tenant’s plea alleged that, on January 29, 1879, the land sought to be recovered was levied upon and seized by virtue of an execution, duly issued from the Superior Court, against Louis L. Barnard, the demandant’s husband, in favor of the tenant, and was set off to the tenant in full satisfaction of the execution, and has since been held by the tenant; that Louis L. Barnard died on or about June 12, 1880, possessed of a large estate, which he disposed of…

<p>Actions oe contract on two policies of insurance, each for $2250, upon the barque Joseph Maxwell and whaling outfits, on each interest in proportion as valued, at and from New Bedford, January 16, 1872, wherever she may go on a whaling voyage, until her return to New Bedford, if on or before January 16, 1876. In the margin of each policy, the vessel was valued at $11,000, and the outfits at $25,000. The policy of the Commercial Insurance Company, which had its place of business in New Bedford, contained the following printed clause: “It is understood and agreed, that catchings shipped home during the voyage shall be at the risk of the insured, without diminution of the value of outfits at the time, and that one fourth of all other catchings shall replace the outfits consumed.” The policy of the China Insurance Company was made at Boston, and was expressed to be “subject to the same risks, conditions, liabilities and restrictions as are taken by the New Bedford insurance companies on whaling risks.”</p> <p>These cases were before the court and were argued with the cases reported 131 Mass. 239; and, after the decision, were referred to an auditor, on whose report the cases were heard by Morton, C. J., and reserved for the consideration of the full court. The facts stated in the auditor’s report sufficiently appear in the opinion.</p>

<p>Tout, for personal injuries occasioned to the plaintiff’s intestate, a child nineteen months old, by being run over by an ice-cart, driven by the defendant’s servant, in a public highway in Taunton. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiff introduced evidence tending to show that his house was within thirty or forty feet of the highway, with no fence separating it therefrom; that the highway was about a mile from the Court House, was well built and considerably travelled; that it was about forty feet wide, without any distinctive lines of sidewalk; that there were no houses within three or four hundred feet of the plaintiff’s house; that the line of travel was in about the centre of the way; that the child was alone in the road about ten feet out from the sidewalk and unattended ; that the child had been left for a few moments by the mother, who had the care of it, in the front room of the house, where were another child, some ten years of age, and a neighbor, then making a call at the house; that the mother stepped into the next room to do some work about her supper; that in the course of five or six minutes she went to the front door, which had been left open, the door from the' front room into the entry having been also left open, looked out, and saw her child lying in the road, about ten feet from the line of the highway, and making some attempt to get up; that she ran to the child, took it up, and found the child to be badly injured; that at the time the child was lifted up, she saw the defendant’s ice-cart about one hundred and fifty feet up the road; that her daughter ran after the ice-cart, and told the driver he had run over her little sister; that the driver was then reading a newspaper, and the reins were hitched up to the cart over the driver’s head, passing down through the driver’s hands, and the horses were walking. There was also evidence tending to show that no other carriage passed by the child, though this was in controversy. There was no evidence from any eyewitness of the injury to the child.</p> <p>The defendant introduced some evidence, but none that affected the question of the care of the child, except that the driver of the ice-cart testified that he did not see the child, and was not aware that he had run over anything.</p> <p>The plaintiff asked the judge to instruct the jury as follows: “ 1. If the child strayed upon the street without any fault of its mother, and the injury to the child happened from want of care of the defendant’s servant, the plaintiff is entitled to recover. 2. If the defendant’s servant might by proper care have avoided the accident, and did not, the -action may be maintained, even if the child was improperly there, and was incapable of taking care of itself, if the mother was not in fault.”</p> <p>The judge declined to give these instructions, and gave the following instructions, as requested by the defendant: “1. To suffer a child of the age of nineteen months, without using all due preventive care, to wander out of the house, and into and upon a public and frequented street, is negligence. 2. It is culpable negligence, and violation of parental duty and care, to suffer a child of the age of nineteen months to be upon a public and frequented street, without any care taken to prevent the same. 3. In this case, if the mother of the child, in whose care it had been left, went into another room to attend to other duties, without providing for the care and protection of the child in her absence, with the outer door of the house open, and, during said absence, the child wandered into the street and was there found injured, and if there is no evidence of the way and manner in which it was injured by a passing vehicle, the plaintiff is not entitled to recover. If the child went from the house into the street without the care or protection of any person in so going, and, while there and so unprotected, was injured by the wagon, the plaintiff cannot recover. 4. If the child, while in the street, and there unprotected by the care of any person, ran or fell against the wheels of the wagon, and was thrown down and injured, the plaintiff cannot recover. 5. The question is not whether the mother of the child exercised reasonable and due care in disregarding the child for a short time, while she went from the room where it was left by her into another room, during which absence the child went out into the street of its own will, but whether, while in the street, the child had present protection, or reasonable provision made for its safety, at the time of receiving the injury.” The judge gave other appropriate instructions upon the general question of liability, which were not excepted to.</p> <p>The jury returned a verdict for the defendant • and the plaintiff alleged exceptions to the refusal to rule as requested, and to the specific instructions above set forth.</p>

<p>The objection that the consideration of a contract is not correctly stated in a declaration is not open on a bill of exceptions which states that no question was made concerning the pleadings.</p> <p>A. owed a certain sum upon a promissory note payable to C. and secured by a mortgage running to him, but representing a debt due to B., and C. held the note and mortgage for B.’s benefit. A. owed other persons besides B., with whom, being insolvent, he settled, paying one in full and to the others different portions of their debts. A. also made a settlement with B. and C., which was evidenced by a written agreement; according to the terms of which A. paid fifty per cent of B.’s debt, part to B. and part to C., and B. released C. from all liability to him, and the note and mortgage were given up by C. and discharged. The agreement then provided as follows: “ Said B. is to receive from said A. pro rata per cent of all moneys said A. may hereafter pay his ‘borrowed money creditors;’ as he calls them, to the amount of fifty per cent on ” the sum due on said note before the settlement, said amount being stated in figures; “ the pro rata herein named is intended to mean on all moneys paid borrowed money creditors, after the settlement which A. now says he has made with such creditors,” reciting in full the settlements said to have been made, and leaving the amount remaining unpaid to be computed. Held, in an action by B. against A. upon this agreement, that it was not void for uncertainty; and that the meaning was, that, when A. should pay to his “ borrowed money creditors ” any portion of their debts remaining unpaid, he should pay to B. the same proportion of his debt remaining unpaid.</p>

Writ of entry, dated March 8, 1881, to recover a parcel of land in Haverhill. Plea, nul disseisin. The writ described the land as bounded southerly by lot No. 13, and land now or late of Ira G-.

<p>Contract, against the owners of a vessel, for pilotage. Trial in the Superior Court, before Rockwell, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The plaintiff was a duly licensed and commissioned United States and state pilot for the harbor of Newburyport. On March 31, 1882, the steamship Achilles came into Ipswich Bay, and within a marine league of the shore, bound for Hewburyport, which was her port of destination. The plaintiff boarded her first, and tendered his services to pilot her into Hewburyport; but the master of the steamship refused the plaintiff’s services, on the ground that he had been ordered not to recognize the old pilots.</p> <p>The Achilles jvas owned by the Philadelphia and Reading Railroad Company, one of the defendants, but had been chartered for that voyage by the Philadelphia' and Reading Coal and Iron Company, to transport a cargo of coal from its depot in Philadelphia to its depot in Hewburyport, for sale at Hewburyport in the regular course of its business, which was the selling of coal at Philadelphia, Hewburyport, and other ports on the coast; and the steamship was not engaged in any other business whatever on that voyage. She was regularly and properly documented with bills of lading signed and delivered, and was a vessel of the United States, not sailing under a register, but under a coasting license, and had been continuously, for about seven years, employed in carrying coal for various persons from Philadelphia to Hew York, Boston, Hewburyport, and other ports along the coast of the United States, chiefly, however, in carrying coal of the Philadelphia and Reading Coal and Iron Company from its depot in Philadelphia to various depots of that company, as in the present voyage.</p> <p>The master of the Achilles was licensed as a United States pilot by the local inspectors of steamboats for the district of Philadelphia; and there was no other pilot on board, either licensed by state or United States authority.</p> <p>It was not admitted that the vessel was regularly employed in the coasting trade, unless the above facts showed that, as matter of law, she was a vessel so employed.</p> <p>It was admitted that the plaintiff informed the master of the Achilles that she would be held to pay the regular fees for pilot-age, whether his services were accepted or not.</p> <p>It was not contended that the steamship was exempt from the payment of compulsory pilotage under the laws of this Commonwealth, unless she was regularly employed in the coasting trade.</p> <p>Upon these facts, the judge ruled that the plaintiff could not maintain this action; and directed the jury to return a verdict for the defendants. If the ruling was correct, the verdict was to stand; otherwise, the verdict to be set aside, and a new trial ordered.</p>

Replevin of seven eighths of a schooner, attached by the defendant, a deputy sheriff, as the property of Valentine Doane, Jr., upon a writ against him in favor of D. Crowell and another. After the former decision, reported 131 Mass. 50, that a part-owner of a vessel could not maintain replevin for his undivided part, the defendant moved for judgment for a return.

<p>A railroad corporation constructed its tracks across a private way, which connected two public ways of a city, and over which there was much travel. At the crossing the corporation put up a sign, upon which was the following: “This is not a public way, and is dangerous.” Held, in an action against the corporation, by a person injured at the crossing by being struck by a locomotive engine of the defendant, that the corporation was not entitled to a ruling, as matter of law, that this sign was a denial of the right of crossing, and that a person crossing did so at his own risk.</p> <p>If, in an action against a railroad corporation for an injury sustained by being run over by a locomotive engine of the defendant, at a crossing of a private way at grade, the plaintiff relies upon the alleged negligence of the engineer of the locomotive, and also upon the want of a flagman, the defendant is not entitled to a ruling that, if the engineer used reasonable care, the plaintiff is not entitled to recover.</p> <p>In an action against a railroad corporation, for an injury sustained at a crossing at grade, the defendant is not entitled to a ruling that the amount of care required of the railroad in using the crossing is the same that is required of the person who attempts to use the crossing, to avoid danger.</p> <p>A boy about nine years old had in his charge, in a street of a city in the daytime, his brother, who was nearly five years of age. On approaching a place where the way crossed a railroad at grade, the younger boy, who was a short distance in advance, turned to see if his brother was coming, and, while walking backwards over the railroad, caught his foot between one of the rails and the planking which was laid between the rails, and, before he could extricate his foot, he was run over by a locomotive engine. At the time the boys began to cross the railroad, there were no indications of the approach of the engine. Held, in an action for the injuries sustained, against the corporation owning the railroad, that the question whether the boys and their parents were in the exercise of due care was one of fact for the jury.</p>

Tort for personal injuries. At the trial in the Superior Court, before Wilkinson, J., there was evidence tending to prove the following facts: The plaintiff, a child eighteen months of age, resided with his parents in a house by the side of the defendant’s railroad, in Peabody, the access from the house to the street being by the side of the railroad track, the front door of the house being about thirty feet from the street and twenty feet from the track.

Petition to the Superior Court for an assessment of damages occasioned to the petitioner’s land by the flowage of water from the respondent’s reservoir. At the trial, before Boekwell, J., the jury returned a verdict for the petitioner; and the respondent alleged exceptions. The facts appear in the opinion.

<p>A bill in equity, brought by a railroad corporation against a construction company, to restrain an action at law, brought by the company against the corporation, to recover sums of money alleged to be due for building its railroad, can be maintained only on the equity which the stockholders in the corporation have, if the bill proceeds upon the ground that the work was done under a contract entered into by the corporation with an irresponsible person, through the fraudulent procurement of the managing director of the corporation and for his personal benefit, which contract was assigned to the construction company, with the assent of the directors of the corporation, many of whom were interested in the construction company, although there are creditors of the corporation, and among them is the government which granted its charter.</p> <p>By the terms of the charter of a railroad corporation, the subscription books were to be kept open until $100,000,000 should be subscribed, and persons were to be allowed to subscribe at a late date on the same terms with the earlier subscribers, and one hundred miles of railroad were to be built within a certain time. Capitalists were unwilling to risk their money in the construction of the railroad, if others, after success was assured, could share the profits equally with themselves. The managing director of the corporation procured an irresponsible person to offer to construct a portion of the railroad, and procured the directors to accept the offer on behalf of the corporation. The managing director furnished this person with means to carry on the work, and took to himself the profits of the enterprise. He also had an agreement with this person, by which the contract should be assigned to such person as he should direct. The managing director intended that, if the scheme could be carried out, all of the stockholders of the corporation would have an opportunity to become interested in it, in proportion to the number of their shares of stock. Subsequently, a construction company was chartered, in which the managing director and other directors of the corporation were largely interested, and which had as its directors some of the directors of the corporation; the contract already made was assigned to this company with the assent of the directors of the corporation, and an opportunity was given to all the then stockholders of the corporation to become members of the company, and the road was built by the company. Held, on a bill in equity, brought by the railroad corporation against the construction company to restrain the prosecution of an action at law brought to recover sums of money due for building the road, that the managing director did not stand as to the contract procured by him in the relation of an undisclosed principal. Held, also, no actual fraud being found to exist, that the above facts did not show constructive fraud, so as to render the contract void in the hands of the construction company.</p>

Tort for personal injuries occasioned to the plaintiff’s intestate, Eliza M. Bowe, by a defective stairway in a tenement owned by the defendants, and of which the intestate and her husband, the plaintiff, were tenants. Trial in the Superior Court, before Aldrich, J., who reported the case for the determination of this court, in substance as follows: The action was originally brought by Eliza M. Bowe; and after her death was prosecuted by her husband as administrator.

<p>A married woman, who has committed adultery and confessed it to her husband, and been expressly forgiven by him, and who has lived with him for several years thereafter, is not debarred from maintaining a libel for a divorce on the ground of his adultery, committed after such period of cohabitation.</p>

Contract on a promissory note, dated October 7, 1876, for the sum of $5000, payable, without interest, five years after date, to the order of the plaintiff, and signed by the defendant. Writ dated October 13,1881.

<p>A consignee of a cargo of coal cannot be held as trustee of the master of the vessel upon a writ served before the entire cargo has been delivered, although, by the terms of the bill of lading, the consignee is to pay freight at a certain rate per ton.</p>

<p>Tort for personal injuries received by the plaintiff, on May 6, 1878, in using a winch on board the steamship Illyrian, of which the defendant was the owner, for the purpose of discharging cargo from the steamship. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>If an officer attaches personal property which is exempt from attachment, an omission of the owner to claim it as exempt does not, as matter of law, constitute a waiver of the exemption.</p> <p>If articles of household furniture, which are exempt from attachment, are intermingled, in the house of the owner, with other similar articles not so exempt, this is not such a confusion of goods as will justify an officer, upon failure of the owner to claim any of the articles as exempt, in attaching all of them.</p> <p>A mortgagor of personal property, who is rightfully in possession at the time when it is wrongfully attached, may maintain an action against the attaching officer, although the attachment constitutes a breach of a condition of the mortgage.</p> <p>Ho exception lies to the giving of instructions which were requested by the excepting party.</p>

Tort for being expelled from one of the defendant’s cars. Trial in the Superior Court, without a jury, before Colburn, J„ who reported the case for the determination of this court, in substance as follows: The defendant is a common carrier of passengers, for hire, owning lines of street cars between South Boston and Boston proper, and, among others, one running over Federal Street Bridge, between Boston and City Point in South Boston by what is called the Bay View route, and…

<p>Contract, with a count in tort, by a judgment debtor and the surety on his recognizance, against the sheriff of Middlesex, for the alleged neglect of one of his deputies to serve a notice of the time and place appointed for the examination of the debtor. After the former decision, reported 132 Mass. 214, the case was tried in the Superior Court, before Mason, J. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Tort for personal injuries received by the plaintiff while in the defendant’s hall, on October 8, 1879. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiff introduced evidence tending to show that, while using ordinary care in passing along one of the alleys in the gallery of said hall, being a spectator at a public meeting advertised and held in the hall, there was a depression in the alley, into which she stepped and fell, and received the injuries complained of; that the hall was insufficiently lighted at the time of the accident, so that she could hot see said depression, or step-down, and save herself therefrom; and that she had no notice thereof.</p> <p>The defendant offered evidence tending to show that the hall was properly and safely constructed in the part where the plaintiff was injured; and for that purpose called an architect, who was permitted by the court to give, as an expert, his opinion as to whether the hall was properly constructed in that regard at the time it was built and at the time of the accident.</p> <p>The defendant also offered evidence tending to show that the hall was constructed for the defendant about twenty-nine years ago; and that the construction in that particular had not been altered or changed during that time.</p> <p>The defendant also called as a witness the architect who built the hall; and he was allowed to testify that he built it properly at the time it was built, and “ he did not know how to build it any better now.”</p> <p>It was also in evidence, and not in dispute, that the defendant had owned and lighted the hall as a place of public meeting ever since its construction; and that the lighting of the hall was under the defendant’s charge and control.</p> <p>The judge instructed the jury as follows : “ The plaintiff must satisfy the jury, in order to recover, that the defendant has been wanting in ordinary care in the construction of this gallery, as to its planes, steps, or levels, and their relation to each other, and that the defendant knew that the construction was faulty or defective. If the superintendent of the Music Hall, in the employ of the defendant, knew all about the hall and its construction, and was there present in charge that evening, in view of the premises and the lights, as the evidence tended to show, that is sufficient knowledge to render the defendant liable. The defendant was not bound, in regard to the construction of the hall and gallery, to have the very best mode of construction known to the mechanic arts at this period of time. It is sufficient, in the matter of construction, if the construction conforms in its methods to methods now approved as good and safe by the best mechanics and architects.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>A., a person forty-five years of age, entered the employ of a railroad corporation as a brakeman, having previously had some experience in that kind of work. He was placed at work in a yard of the corporation upon a switching engine, which was used to change cars about the yard and to make up trains. He, with others, was in the habit of taking cars which had been damaged and putting them upon a certain track in the yard two or three times a week. After working a few weeks, he was injured by reason of a broken brake on a car. Whenever there had been damaged cars to be moved, during his employ, his attention had been called to the fact by the yard-master, who usually told the men that the cars had been damaged, and that he wanted them put on a track indicated. They could usually tell a damaged car by its appearance. A. was sometimes accustomed to examine to see if cars were damaged; and he looked at the car in question, with others, on the day of the accident, but saw nothing out of order about it. Held, in an action by A. against the corporation, that the injury was caused by one of the risks assumed by him in his employment; and that the action could not be maintained.</p>

<p>A corporation engaged in transporting merchandise by railway made a contract, by its agent, W., with the agent of the owner of a steamship, for the shipment of grain, and W. sent the agent of the steamship a paper headed “ Memorandum of freight engagement,” and signed by W. as agent, which contained the name of the steamship, the date of sailing, the number of bushels, the rate of freight, and the words, “Bar account of B. Engaged by W. agent.” The grain not being ready, W. and the agent of the steamship orally agreed that the contract for the grain should be transferred to another steamship, owned by a different person, but running in the same line and having the same agent. Held, in an action by the owner of the second steamship against the corporation, for breach of the contract to furnish the grain, that by the terms of the memorandum the defendant was the contracting party, and not the person on whose account it was shipped, although, by the course of dealing between the parties, it was the practice to carry grain, on one bill of lading, from the place where it was delivered to the defendant to the place to which it was carried by the steamship. Held, also, that the defendant was not entitled to a ruling that, on all the evidence, the contract for the delivery of the grain to the owner of the steamship was the contract of the shipper, and not that of the defendant.</p>

<p>Contract for money paid. Trial in the Superior Court before Q-ardner, J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was evidence tending to show that the plaintiff, as a stockbroker in Boston, was directed by the defendant to purchase certain stocks of various companies incorporated under laws of the United States, the defendant depositing with the plaintiff a portion of the price of said stocks, which deposit was known as a margin. The plaintiff testified that he made, in pursuance of the defendant’s orders, contracts with certain persons, named Brown, Smith and Watson, and others whose names he could not give, by which they agreed to deliver the stocks ordered at the market price on the day of the contracts, at any time within sixty days, the buyer to have the option to call for the stocks at an earlier day. The plaintiff also offered evidence that, at the maturity of these contracts, or earlier if the defendant desired, they were to be closed by the plaintiff, the defendant paying or receiving any difference between the contract price and the market price on the day of such closing, according to the rise or fall of price of stocks with reference to the contract price; the defendant to receive the profit or bear the loss, and to pay the plaintiff broker’s commissions and interest on the contract price as if the stocks had been actually bought and sold.</p> <p>The defendant offered evidence tending to show that he ordered the plaintiff to buy the stocks outright on the defendant’s account; that the plaintiff agreed so to do, and to carry the stocks for the defendant for the sixty days, on the payment of a proper sum as a margin to the plaintiff; and that he never ordered the plaintiff to buy time contracts, but always supposed that the plaintiff had bought the stocks outright.</p> <p>There was conflicti iig evidence as to whether Smith, Brown, Watson, and others, with whom the plaintiff testified he made the contracts, were, at the time of making the contracts, the owners or assignees of the stocks contracted for, or authorized by the owner or assignee of the same, or his agent, to sell or transfer the certificate or other evidence of the shares so sold or contracted for; also as to whether the plaintiff made any actual purchases or sales of said stocks, and whether he paid any sums of money to any person by reason of said transactions.</p> <p>The defendant contended that the plaintiff had made no actual purchases or sales, and had made no payments on account thereof; and that any contracts made by him, as testified to by him, were illegal and void, under the law of this Commonwealth. But the judge, at the request of the plaintiff, ruled that the burden of proof was on the defendant to show that the contracts, if made, were illegal and void, and that Smith, Brown, Watson, and others were not, at the making of said contracts, the owners or assignees thereof, or authorized by the owners or assignees, or their agents, to sell and transfer the certificates or other evidence of shares so contracted for.</p> <p>The judge also instructed the jury, without objection by the defendant, in substance, that the plaintiff could recover for the amounts paid and expenses incurred on his stock contracts made by him as agent of the defendant, without showing affirmatively that the parties with whom he contracted were the owners of the stock at the time the contracts were made; that the plaintiff was bound only to use reasonable diligence in ascertaining whether there was any defect in the contracts which he made with others at the request of the defendant.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions to the ruling as to the burden of proof.</p>

<p>If the master of a vessel, which has drifted upon a beach in a damaged condition, sells her, without right, to a person who, after repairing her, getting her off, and taking her into port, sells her hull to another person, the latter is liable for the conversion of the hull; and, in an action against him by the owner, the measure of damages is the market value of the hull at the time and place of the conversion.</p> <p>If the master of a vessel, which has drifted upon a beach in a damaged condition, sells her, without right, to a person who repairs her, gets her off, and takes her into port, the buyer is liable for her conversion; and, in an action against him by the owner, the measure of damages, if there is no market at the place where she lay when bought, is her value there, determined by her value at a port where there is a market for such a vessel, less a reasonable allowance for the probable cost of repairing her, getting her off, and taking her into port, and for diminution in her market value on account of having been ashore, and for the risk of getting her to market.</p>

<p>Two actions of replevin of a quantity of pig-iron. The cases were tried together in the Superior Court, without a jury, before Rockwell, J., who reported them for the determination of this court, in substance as follows:</p> <p>The E. & G. Brooke Iron Company, a corporation established under the laws of Pennsylvania, and located at Birdsboro’ in that State, on May 16, 1881, by bought and sold notes of that date, “ sold to E. P. Cutler and Company, of Boston, Mass.,” six hundred tons of pig-iron, “deliverable at Elizabethport, N. J.,” and “ for immediate delivery,” upon the terms of “ purchasers’ paper at four months, with interest at ninety days, at six per cent per annum.”</p> <p>In pursuance of said contract of sale, the six hundred tons of iron were forwarded by the E. & G. Brooke Iron Company from Birdsboro’ to Elizabethport, to E. P. Cutler and Company, in the care of A. B. Hazard, a shipping agent for iron companies at Elizabethport, who received the same, with the way-bills thereof, from the railroad over which the- iron came, in several parcels, and had received all the iron by June 2. The E. & G. Brooke Iron Company paid the freight on the iron to Elizabethport, but did not pay Hazard for his services in respect to the iron, although Hazard testified that he expected to get pay for his services from the E. & G. Brooke Iron Company, but it refused payment, and he received no compensation from any one; nor did it appear that said company had anything further to do with the iron until it was replevied by the writ in the first case.</p> <p>On May 27, 1881, one Engle, a forwarding commission merchant in Hew York, acting as agent for, and under written instructions, dated May 21,1881, from, E. P. Cutler and Company, for whom he was agent for storing and shipping iron in May and June, 1881, having received from them an order on one Smith, the freight agent of said railroad at Elizabethport for the delivery of said iron to him, Engle, chartered as agent of Cutler and Company two schooners, and sent them to Elizabethport for the iron. Hazard, acting under written instructions from Engle, immediately loaded three hundred tons of the iron upon each of said vessels. On May 28, 1881, the brokers who had negotiated the sale for the E. & G. Brooke Iron Company, forwarded a bill or invoice of the iron to E. P. Cutler and Company.</p> <p>On June 4, the iron having been loaded upon the schooners, bills of lading of the iron were signed by the captains of the schooners, respectively, in triplicate, and one set of the same was immediately forwarded by Engle to E. P. Cutlér and Company, at Boston, to whose order the iron was deliverable by the terms of the bills of lading, and was received by them on June 6,1881. On said day, having received the bills of lading, E. P. Cutler and Company forwarded to the E. G. Brooke Iron Company their four promissory notes, pursuant to the terms of the contract of sale, the notes being received by said company’s agents on June 7, 1881.</p> <p>On May 26, 1881, the First National Bank of Newburyport made a loan of $6000 to E. P. Cutler & Company, upon the security of three hundred tons of said iron, (which had not then reached Boston, but was at Elizabethport,) taking their promissory note of that date, the note reciting that there was deposited as collateral security a warehouse receipt for said three hundred tons. The warehouse receipt referred to was issued by John C. Nichols, a public warehouseman in Boston, on May 25, 1881, and stated that there was “received on storage, for account of Messrs. E. P. Cutler and Company, three hundred tons Brooke pig iron, deliverable to the holder hereof on presentation and surrender of this receipt, legally indorsed, and upon payment of all charges thereon.”</p> <p>On June 7,1881, said bank made another loan of $6000 to E. P. Cutler and Company, upon the security of the remaining three hundred tons of said iron, taking their promissory note of that date, the iron having been shipped, but not then arrived at Boston, with a similar warehouse receipt.</p> <p>E. P. Cutler and Company indorsed the bills of lading in blank, and delivered them, one on June 7, 1881, and the other on June 11, 1881, to* said John C. Nichols, who had a public warehouse at Fiske’s Wharf, the destination of said schooners in Boston, to hold as the agent of the bank, and he thereupon can-celled the old and issued new warehouse receipts for the iron to the bank, having received from the president of the bank verbal authority and instructions to take the iron for the bank upon its arrival.</p> <p>The schooners with the iron arrived at Fiske’s Wharf on June 15,1881; Nichols went on board both the schooners immediately, and took formal possession of the iron in the name of the bank, as its agent; and at once proceeded to unload the schooners, one at Fiske’s Wharf and the other at Caswell’s Wharf, and had unloaded and piled up all the iron upon his wharves and in his warehouses by June 18, 1881.</p> <p>E. P. Cutler and Company, on June 15, 1881, informed their creditors of their insolvency.</p> <p>On June 16, 1881, John B. O’Brien, a deputy sheriff, attached the iron, the same being on said wharves and in said warehouses, in actions brought by several creditors of E. P. Cutler and Company against said firm; and he held it there under the attachments when replevied from him by the E. & G. Brooke Iron Company, on June 21, 1881.</p> <p>On June 24, 1881, the iron was replevied, while still at said wharves and in said warehouses, from the E. & G. Brooke Iron Company by the bank.</p> <p>On June 20, 1881, one Umberger, with authority from the E. & G. Brooke Iron Company, tendered back to E. P. Cutler and Company, and left at their office, the four promissory notes given by the firm to said company for the iron, and received by said company on June 7, 1881, and kept by it until June 20; and on or about said June 20, Umberger tendered to Nichols the amount of freight and warehouse charges upon the iron, (Nichols having paid the freight for the bank.) and demanded the iron at said wharves, and did all things necessary to make a stoppage in transitu, provided the iron was still in transit.</p> <p>It was contended for the E. & G. Brooke Iron Company that the iron had not reached its destination, and was still in transit, when replevied from the attaching officer, on June 21, 1881; and that the purchase of the iron and the subsequent proceedings in respect thereto were tainted with fraud on the part of E. P. Cutler and Company and of the bank and its president.</p> <p>The judge found, as facts, that no fraud was proved on the part of E. P. Cutler and Company in the purchase of the iron, and no fraud on the part of the bank in the matter of the loan, but that the purchase and loan were both made in good faith; that, as matter of law, the contract provided for delivery at Elizabethport, N. J., and that delivery was in fact made there; that if the contract should be so construed as to require delivery in Boston, complete delivery was made there before the first action was brought, and before said tender; and that the attempts of said company to stop the iron in transitu were not in time, the iron having previously reached its destination; and ruled that, had such attempts been in fact in time, they were sufficient in law to constitute a valid stoppage in transitu; and found for the defendant in the first case, with nominal damages of one dollar, and for the plaintiff in the second case, with nominal damages of one dollar.</p> <p>If these findings should stand, judgment was to be entered accordingly; otherwise, a new trial to be ordered.</p>

Tort, under the St. of 1881, c. 199,* for causing the death of the plaintiff’s intestate, on ¡November 16, 1880, at a place in Melrose, where the defendant’s railroad crossed a highway at grade. Writ dated August 9, 1881.

<p>In an action upon a policy of insurance, conditioned to be void in case of other insurance, oral evidence that the insurance company knew, when it delivered the policy, that there was other insurance outstanding, is inadmissible.</p>

<p>A. executed a trust deed in this Commonwealth, where he was then domiciled, by which he conveyed certain personal property to a trustee, in trust to pay the income of a portion to B. for life, and, on the death of B., to pay the principal of that portion to A., if then living, and, if not then living, to A.'s “ heirs at law.” The trust deed authorized the fund to be invested in real estate, and looked to a possible division in that form. A. died after B., and at the time of his death he was domiciled in another State. The fund always remained invested in personal property. Held, that the construction of the instrument depended upon Massachusetts law, and that the term “ heirs at law ” meant heirs at law, and not next of kin, or persons entitled under the statute of distributions relating to personal estates.</p> <p>A. executed a trust deed in this Commonwealth, where he was then domiciled, by which he conveyed certain personal property inherited from his father, to a trustee, in trust to pay the income of a portion to B., for life, and, on the death of B., to pay the principal of that portion to A., if then living, and, if not then living, to A.’s “heirs at law.” A. died before B., leaving a mother, a widow, and certain uncles and aunts, descendants of bis paternal grandfather. The trust fund remained invested in personal estate. A., at the time of his death, was domiciled in another State, by the law of which, if he had left real estate which descended on the part of his father, it would have passed to his uncles and aunts, as descendants of his paternal grandfather; if it had vested in the intestate by purchase, or in any other way than descent on the part of the • father or mother, it would have passed to his mother. Held, that, if the law of the State of his domicil at the time of his death governed, the mother was to be deemed his heir at law.</p>

<p>A. conveyed land to B. in trust, first, to hold the land as security for all claims of B. against A., which then amounted to several thousand dollars, and were partly secured by two mortgages on the same land; and second, to convey the surplus to any person to whom A., his grantee, devisee or appointee, might request. The next year after this conveyance, A. and B. made their wills. A.’s will devised the land in question to B. and his wife for life, and, after their death, to C. and D. B.’s will provided concerning the land in question, “ conveyed to me by A.” by the deed referred to, that “ the same go to such person or persons as he may by will or deed appoint, according to the terms of said deed; but if he makes no such appointment by deed or otherwise, my will is that he shall have the use, improvement, income, rents and profits of the same during his natural life, including also the income from any money paid for the same, or any part thereof, for public improvements; and in case he makes no different disposition of the same, my will is that the same go after his decease to such of my nephews and nieces as may then be living.” “ And I hereby release said A from all claim against him or said estate by virtue of any mortgage thereon, now held by me.” A. died in the following year, and, during the same year, B., by a deed reciting the conveyance to him in trust and the will of A., and interpreting the latter as leaving “ the remainder after the death of both of us, and after the payment of all claims I, or my estate, may have against him or his estate,” to 0. and D., “in pursuance of the trust mentioned in said deed of A. to me,” conveyed to C. and D. “ all the right, title and interest in said estate to which they should become entitled at my decease and the decease of my said wife, and after the payment of all claims which I or my estate may have against said A. or his estate.” B. died six years later, having been in possession of the land up to that time, taking the rents and profits, and having reduced Ms claim to several hundred dollars and cancelled the mortgage notes which he held. Held, on a bill in equity by the executor of A. against C. and D., to establish a charge on the land to the extent of the amount due on B.’s claim, that B.’s will disposed of the interest in the land which he had under the trust deed from A. to him.</p>

<p>A., for a sum of money to be paid him by B., agreed to assist in finding a person who would advance money to enable B. to buy land, which he had formerly owned, but which had passed into the hands of the mortgagee by the foreclosure of a mortgage thereon. B., relying upon A.’s agreement, abstained to some extent, though not entirely, from trying to get the money elsewhere. A. also dissuaded him from seeking such other assistance, with the secret intent to get the land himself; and bought the land on his own behalf with his own money, and took a conveyance of it to himself. Held, that these facts did not disclose enough to make A. a trustee for B., on the grounds either of agency or of fraud.</p>

<p>Bill in equity, filed March 23, 1878, to restrain the foreclosure of a mortgage of a parcel of land, and to compel the mortgagee to release the land from the mortgage. Hearing before Colt, J., who reported the following case for the consideration of the full court:</p> <p>On November 7, 1870, Horace Sargent and Prentice Sargent, being the owners of a parcel of land in Boston, mortgaged the same to the defendant, by a deed recorded November 18, 1870, and containing the following clause: “ The grantee, for herself, her heirs, executors, administrators and assigns, hereby agrees with the grantors, their legal representatives and assigns, that she will release from time to time, whenever requested, any portion or portions of said land, .... on being paid therefor at the following specified rates; viz. for upland .... at the rate of fifty cents per foot, .... and all sums so paid for releasing said land .... shall be indorsed on the mortgage notes, .... and be so much paid on the mortgage debt. Provided always that the mortgagee shall not be required to release under the foregoing provisions so as to impair this mortgage as security for the part of the mortgage debt remaining unpaid.”</p> <p>After the mortgage was given, the mortgagors divided the land into house-lots, and on January 14, 1873, conveyed to the plaintiff by a deed of warranty, which was recorded on January 15, 1873, one of said house-lots, containing twelve hundred feet, which lot is the one in regard to which the plaintiff seeks relief. On January 14, 1874, the mortgagors conveyed to Margaret Smith, by a deed of warranty recorded on March 14, 1874, another of said lots, also containing twelve hundred feet. Prior to either of these two deeds, the mortgagors had erected upon each of the two lots conveyed, which were upland, a dwelling-house of the value of $3000; and, at the date of the deed to the. plaintiff, there was due upon said mortgage a sum not exceeding $2100.</p> <p>The rest of the premises conveyed by the mortgage consists of vacant upland, the value of which does not exceed $1000, and which still remains in the hands of the mortgagors, who are insolvent.</p> <p>The mortgage became due on November 7,1876. At the time of the deeds to the plaintiff and Smith, the mortgagors did not disclose the fact of the existence of the mortgage, and neither the plaintiff nor Smith knew of such mortgage until March 4,1878.</p> <p>On March 2, 1878, the defendant advertised the whole of the estate described in said mortgage for sale on March 26,1878, under the power of sale contained in said mortgage, there having been a breach of the condition thereof, and notified the plaintiff, Smith and the mortgagors of such proposed sale.</p> <p>The plaintiff, hearing that Smith had demanded of the defendant a release of the Smith lot upon payment of fifty cents per foot therefor, notified both the defendant and Smith of his deed from the mortgagors, and protested against the Smith lot being released, unless the defendant first released the plaintiff’s lot, or applied the full value of the Smith lot and said vacant land toward the payment of the mortgage. On March 14, 1878, after such notice and protest to the defendant and Smith, the defendant did release the Smith lot to Smith for the sum of six hundred dollars paid by him. At the time of such release, the fair market value of the Smith lot was $3500, and the value of the vacant land covered by said mortgage and never conveyed by the mortgagors was $1000, and the value of the plaintiff’s lot was $3500.</p> <p>In the deed of the Smith lot from the mortgagors to Smith, and in said release to Smith, the land is described as bounded “ northeasterly by the estate of W. H. Clark, 60 feet.”</p> <p>The plaintiff contended that the defendant should be held to have received the full value of the Smith lot, or so much thereof as should be sufficient to pay said mortgage, or so much thereof as would, with the vacant land still held by the mortgagors, pay said mortgage, and asked that the defendant be decreed to release the plaintiff’s lot from the operation of said mortgage.</p> <p>Such decree was to be entered as law and justice might require.</p>

<p>A policy of insurance, issued by an insurance company chartered by a State other than this Commonwealth, recited that, in consideration of the payment of premiums by a wife, the life of her husband was insured, and the company agreed “with the said assured ” to pay the sum insured, at its office,in the State from which it obtained its charter, to the wife, “ or assigns,” within ninety days after notice and proof of the death of the husband. The policy further provided that, “ in case the said assured should die before the decease of ” her husband, “ the amount of this insurance ” should be payable to their children. The charter of the corporation issuing the policy authorized a married woman to cause the life of her husband to be insured for her sole use, and provided, that, “ in case of her surviving her husband,” the amount of the insurance should be payable to her, and that, “in case of the death of the wife before the decease of her husband,” the amount of the insurance might be made payable to her children. At the time the policy was issued, the general laws of the State contained similar provisions. The policy was in fact procured by the husband, and all the premiums were paid by him. The husband and wife and their children were lost at sea, and there was no direct evidence as to which survived the other. The next of kin of the husband took out letters of administration, in this Commonwealth, on the estates of the husband and wife, and obtained the amount of the insurance from the insurance company, receipting for it as administrator of each estate, “for whom it may concern.” The Probate Court declined to order him to account for the insurance in the settlement of the wife’s estate. Held, on an appeal to this court by the next of Mn of the wife, that the interest of the wife in the policy was contingent on her surviving her husband; that the burden of proof was on her next of kin to show that she survived; and that the decree of the Probate Court must be affirmed.</p>

<p>A corporation may maintain an action against" a person who presents a forged power of attorney to transfer stock, upon the faith of which the corporation issues to such person a new certificate of stock, although such person acted in good faith.</p> <p>In an action by a corporation against a person to whom it has issued a new certificate of stock, upon the faith of a forged power of attorney to transfer stock presented by him, the measure of damages will embrace: (1.) The costs and expenses (not including counsel fees) of a suit brought against the corporation by the person whose name was forged, to compel an issue of new stock to replace that transferred, the corporation having notified the present defendant of that suit and requested him to defend it, which he refused to do; (2.) The amount paid by the corporation for stock bought by it in good faith to replace that so transferred, although the stock was then of a higher value in the market than at the time when the forgery was committed; (3.) The dividends upon the stock which the corporation was obliged to pay the person whose name was forged.</p>

<p>A bill in equity by a mortgagee of personal property, against the assignee in insolvency of the mortgagor and a prior mortgagee, alleged that the conditions of both mortgages were broken, and that the whole amounts secured by them were due; that the first mortgagee had given notice of his intention to foreclose his mortgage; that the assignee in insolvency had taken possession of the property and. refused to deliver it to either mortgagee, and had removed and concealed it so that it could not be discovered by the plaintiff, or delivered by the first mortgagee upon payment; and that the assignee denied the validity of the first mortgage, and claimed that it was void as against him. The bill offered to redeem from the first mortgage, if it was valid, and if, upon payment, the plaintiff could obtain possession of the property; and prayed that it might be determined whether the first mortgage was valid, and, if it was, that the plaintiff might pay the same; and that, upon such payment, or without it if the mortgage should be found invalid, the assignee might be ordered to deliver the property to the plaintiff, or, if he had sold the same, to pay the plaintiff’s debt out of the proceeds of such sale. The answer set up, and .it appeared in evidence at the hearing, that the assignee had sold the property, and, at the time the bill was brought, had more than sufficient of the proceeds to pay both mortgages. The first mortgage was found to be void against the assignee as a preference, and the plaintiff’s mortgage to be valid. Held, that the court had jurisdiction of the bill; and that the plaintiff was entitled to a decree, ordering the assignee to pay him the amount of his debt secured by the mortgage.</p> <p>A., to whom B. was indebted, advised C. to lend money to B. on the security of a mortgage of personal property, and acted as C.’s agent in completing the transaction. With the money thus obtained B. paid A. the debt which he owed him. Both A. and B. acted in fraud of the Gen. Sts. c. 118, §§ 89, 91; but C. had no knowledge of the fraud. Held, that the knowledge of A. was not in law imputable to 0.</p>

<p>A married woman, by a will to which her husband consented in writing, bequeathed the residue of her property to a trustee, in trust to pay the net income to her husband during his life, and on his death, “provided and on condition ” that he made no will directing otherwise, to pay the income to A. until she reached a certain age, and on arriving at that age to pay her the principal, or, in case of her death before attaining such age, to pay the principal to her children. The will further provided that the bequest to A. was on the sole and express condition that A. should, after the decease of the testatrix, take good care of the husband during his life, “ rendering him all the kindly personal attention in her power tending to make him comfortable and happy, such as a dutiful and affectionate daughter would render; and in case of any ill treatment, neglect or shortcoming in the above-mentioned expected duties and relation,” of which the husband was to be "the sole and exclusive judge,” he was authorized by will to direct how the residue should go upon his death. At the time the testatrix made her will, A. was a married woman, living with her husband and children in a neighboring city. She visited the husband of the testatrix on an average once a week, and helped him all she reasonably could. During his illness she visited him daily, did his marketing and took care of his accounts. About a week after Ms wife’s death, the husband urged A. to come and live with him, and was angry because she refused, and many times after that was made angry by her refusal of like requests. About a month after his wife’s death, he made a will, in which he referred to his wife’s will and the power of appointment therein given Mm, and, reciting that he did it in execution of the power, bequeathed the remainder to a third person. Held, that his will was a sufficient execution of the power given by his wife’s will; and that the court could not find on these facts that he failed to exercise his judgment, or that he acted in bad faith.</p>

<p>B. wrote to the president of a college as follows: “If you can raise one hundred thousand dollars within five years from date to aid the college, you may rely upon me for one hundred thousand in addition to what I have already given.” Held, in an action upon this letter, as a contract on the part of B., that the condition therein required the raising of one hundred thousand dollars in money, and was not satisfied by a promise of money contained in a vote of a society, to the payment of which a condition was attached.</p>

<p>Two petitions for writs of certiorari, to quash certain proceedings and orders of assessment of the board of health of the city of Newton. The cases were heard together by Field, J., who reserved them for the consideration of the full court, such, orders to be made therein as law and justice might require. The facts appear in the opinion.</p>

Contract for breach of the following agreement, dated April 7, 1882, and signed by the defendant: “ Received of Mrs. C. M. Sherer twenty-five ($25.00) in part payment for house and underpinning now occupied by me on Walnut Street, the said house and foundations to be one hundred and twenty-five dollars ($125.00), the balance to be paid for said house and moved at five days’ notice.

<p>An owner of land with buildings thereon conveyed the land to a city by a deed containing the following clause. “ The grantor excepts and reserves to himself all of the buildings and structures standing on the granted lands, with all machinery and fixtures; provided, however, that the same shall be removed from the granted premises by the grantor, at his sole expense, before ” a day named, “ and if not so removed the grantor forfeits all right thereto, and the same shall thenceforth be the absolute property of said city.” The buildings were insured against loss by fire by the grantor, after the date of the deed, and were burned before the day limited by the deed for their removal. Held, that the insured was the owner of the buildings at the time of the loss.</p> <p>An owner of land with buildings thereon, upon which he had insurance against loss by fire, sold the land, retaining the ownership of the buildings, and obtained new insurance thereon in the same company. The assured at the time of effecting the new insurance said nothing about the change of title in the land ; and the insurer was ignorant of it; but there was no fraud on the part of the assured. Held, that the policy was not avoided.</p> <p>An owner of land with buildings thereon conveyed the land by a deed, which reserved to the grantor the ownership of the buildings, if removed from the land before a day named, and if not so removed they were to be forfeited to the grantee of the land. After the conveyance, the grantor obtained insurance on the buildings against loss by fire; and they were destroyed by fire before the day limited by the deed for their removal. Held, in an action by him on the policy, that he was entitled to recover the actual intrinsic cash value of the property destroyed, without regard to the fact that it was to be removed by a day named.</p>

<p>A person who excavates on his land in such a manner as to let in the sea, which . undermines and injures adjoining land of another, is liable to an action by the latter for the injuries so caused, including injury done to a well by the percolation of salt water.</p> <p>Upon the hearing of a bill in equity to restrain the defendant from excavating on his land so as to let in the sea and injure adjoining land of the plaintiff, it appeared that the plaintiff had recovered damages in an action at' law against the defendant for injuries resulting from the same cause; and that a master, to whom the equity cause was referred, was not furnished with sufficient evidence to determine for what acts damages were assessed in the action at law. Held. that, on amending the bill by adding a prayer for the assessment of incidental damages, the case should be recommitted to the master to assess all the damages sustained by the plaintiff from the excavations of the defendant, which he could not have recovered in the action at law, and for such future injuries as would probably result therefrom.</p>

<p>An unincorporated insurance association agreed to lend a sum of money1 to a partnership, on interest at six and a half per cent per annum, and it was understood that, if the money was not repaid within six months, the rate of interest from that time should he seven per cent. The money was lent, and a note signed by the partnership, payable on demand, with interest at six and a half per cent, was given, with A. as a surety. At the expiration of the six months, the note was not paid, and the secretary of the insurance association, who was also a member of it, wrote in the body of the note a statement, that from the end of the six months interest was to be at the rate of seven per cent. One payment of interest was afterwards made at the higher rate, and the partnership soon afterward failed. The surety brought a bill in equity to restrain the insurance association from negotiating the note with his name on it as surety; and the insurance association brought a cross bill to have the words added by its secretary erased from the note. It was found as a fact, that the secretary had no authority to alter the note; that he did it in good faith, and under a mistake of fact; and that the surety had not been injured. Held, that the surety’s bill must be dismissed, and the relief sought by the cross bill granted.</p>

Complaint, on the Pub. Sts. c. 100, § 30, to the District Court of Southern Berkshire, alleging that, on September 29, 1882, certain intoxicating liquors were kept and deposited by Charles Pinney in a certain building in New Marlborough, with the intent to sell the same unlawfully in this Commonwealth; and praying for a warrant to search said premises.

<p>Indictment in six counts. The first count alleged that the defendant, on October 10,1882, at Boston, threatened to accuse a person named “of having committed the crime of open and gross lewdness and lascivious behavior in the presence of” the defendant, with the intent of the defendant to extort from the person named, a certain sum of money. The second count alleged that, at the same time and place, the defendant threatened to • accuse said person of having committed the crime of assault and battery upon the defendant, with the same intent alleged in the first count. The third and fifth counts were similar to the first, except the name of the person threatened and the amount intended to be extorted; and the fourth and sixth counts were similar to the second, with the same exceptions.</p> <p>Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows:</p> <p>When the defendant was placed at the bar for trial, the clerk proceeded to empanel the jury in the following manner: the names of the persons summoned were written on cards like that printed in the margin,* and were deposited in a revolving barrel or box, each card containing one name; and this box was whirled back and forth each time a name was drawn out. Before any names were drawn therefrom, the defendant objected to the jury being empanelled in this way, because it was not in accordance with the Pub. Sts. e. 170, § 81, the thing used not being a box, the name of each person summoned as a juror not being placed in a box, and all shaken thoroughly together, and the written description on each card of the juror’s abode and occupation being insufficient. The judge overruled the objection ; and the defendant excepted.</p> <p>The government contended that the defendant, under the name of Herbert J. Brown, brought a civil action against one of the persons named in the indictment, in connection with the alleged verbal threats to extort money; and, in order to identify the defendant as the plaintiff in that action, called the attorney of record for the plaintiff therein as a witness.</p> <p>The defendant objected to the witness being allowed to testify to any facts which came to his knowledge as his counsel or attorney. The witness testified that he was an attorney, and that all the knowledge he had in the matter came to him while acting in the relation of attorney and counsel for the defendant. The witness was permitted to testify, against the defendant’s objection, that he was the attorney for the plaintiff in the action brought by the defendant against said person; that the action was brought in the name of Herbert J. Brown; that the papers produced were the original papers in said action, and that the writ and declaration were in the handwriting of the witness.</p> <p>Certain interrogatories filed in said action, purporting to be signed by Herbert J. Brown and sworn to before a justice of the peace, were produced, and the witness was asked if the signer of those interrogatories was the defendant; to which the witness, against the objection of the defendant, answered Yes. The justice of the peace also testified that the defendant, at the time he administered the oath, acknowledged, in the presence of his attorney, that the signature was his. To the admission of the testimony of the attorney, the defendant excepted.</p> <p>There was evidence tending to show that the defendant had orally pretended to accuse each of the three persons named in the indictment of an act of grossly indecent and irregular indulgence of lust, involving the illegal use of force on the defendant’s person; and that the defendant had demanded money from each of said persons, coupling such demands with intimations and insinuations, in various forms, that, unless money was furnished as demanded, publicity would be given to said pretended acts.</p> <p>There was evidence that one of the defendant’s demands on the person named in the first and second counts of the indictment was in substance as follows: “ Do you know me ? I have got your watch; your name and mine are on the books at the Creighton House, and if you don’t give me one hundred and twenty-five dollars, I will make this town too hot to hold you.” Also that he demanded of the person named in the third and fourth counts five hundred dollars, saying in substance: “ If I were to tell what I know about you, you would give it to me damned quick. I can make it bad enough. I will ruin you and break you up.” At another time: “ Give me five hundred dollars, or I ’ll put this thing in court.” And at another time: “I am not going to settle with you for five hundred dollars. I know more of you than I did before; you are a rich man, and have got to come down.” Also that the defendant said to the person named in the fifth and sixth counts: “ If you don’t pay me fifty dollars, I will expose you.” At another time: “If you don’t go and see my lawyer before five o’clock you will be arrested; ” but the evidence did not show that at any time there was a distinct threat, which by itself alone, apart from what had previously been said between the parties, and from what was afterwards said between them, set forth in terms a purpose to charge either of the offences named in the indictment.</p> <p>The defendant asked the judge to rule that there was a variance between the threats proved and the allegations in the indictment. The judge refused so to rule, and instructed the jury that it was necessary on each count for the government to prove that there was a verbal threat to accuse the person named with the offence stated in such count; that proof of a threat to accuse of any other crime than that named in the count would not sustain the count; but that the threat need not have contained a full description of the offence to be charged; that it was sufficient if the language, used in the light of what preceded and what followed between the parties, imported a threat to charge the crime alleged, and was so understood by the parties. To the refusal to rule, and to the instruction given, the defendant excepted. The jury returned a verdict of guilty on the first, third, and fifth counts, and a verdict of not guilty on the second, fourth, and sixth counts; and the defendant alleged exceptions.</p>

Complaint to the Police Court, of Chelsea, charging the defendant with the violation, on August 16, 1882, of an order or regulation made by the board of health of the town of Revere, adopted on October 11, 1881, as follows: “ Reg. 5. No swine shall be kept in any place in this town, on and after November 11, 1881, without a permit first being obtained from the board of health in writing.

<p>It seems that a motion to quash an indictment, on the grounds that no offence is fully, plainly and formally set up therein, and that all the facts which constitute the offence are not properly set forth, does not assign “ specifically the objections relied on,” within the Pub. Sts. c. 214, § 25.</p> <p>An indictment on the Pub. Sts. c. 205, § 9, for giving a bribe to a judicial officer, alleged that the transaction took place when the defendant “ was lawfully brought before the District Court of Central Berkshire, a court duly and legally established, and before J. T., Esquire, the standing justice of said court;” that said J. T. was then and there lawfully presiding in said court; and that he was a judicial officer duly qualified to perform his duties as such. Held, that the indictment sufficiently alleged that the matters referred to were pending before the justice in his official capacity, and that he was duly appointed.</p> <p>If a person makes a full and complete delivery of money to a magistrate, with the corrupt intention of influencing his decision in a matter pending before him, such person is guilty of corruptly giving a gift to the magistrate, within the Pub. Sts. c. 205, § 9, although the latter receives the money in ignorance of what it is, and retains it solely for the purposes of public justice.</p>

<p>At the trial of an indictment for adultery, a witness testified that he had seen the defendant write once, and had been accustomed for twenty years to compare manuscript writings, and handwriting and penmanship, and was allowed to give his opinion that certain communications in cipher, written to the woman with whom the adultery was alleged to have been committed, were in the defendant's handwriting. Held, that the testimony in regard to the qualification of the witness as an expert was sufficient to warrant the reception of his opinion.</p> <p>At the trial of an indictment for adultery, if the defendant, while testifying in his own behalf, admits the correctness of the explanation by an expert of certain communications in cipher, written by the defendant and by the woman with whom the adultery is alleged to have been committed, he has no ground of exception to the admission of the testimony of the expert.</p> <p>At the trial of an indictment for adultery, a witness, competent to testify as an expert, testified in explanation of letters written in cipher by the defendant and the woman with whom the adultery was alleged to have been committed ; and the defendant, while testifying in his own behalf, admitted the correctness of the testimony of the expert. A communication written upon a newspaper in a cipher, which the same key fitted, was then offered in evidence; and there was testimony that it appeared to be in the defendant’s handwriting. It contained plain evidence of adultery with tile woman to whom it was addressed. She was called by the pet name used in a letter which the defendant admitted he wrote to the woman named in the indictment. Both communications contained a reference to a threat to arrest the writer for an abortion committed upon the woman to whom they were each addressed, and both contained certain similarities of expression. Held, that the writing upon the newspaper was properly submitted to the jury.</p> <p>At the trial of an indictment for adultery, the woman with whom the adultery was alleged to have been committed testified as a witness for the defendant, denying the fact of adultery. The government sought to contradict her by showing that a letter, offered in evidence, was written by her. The contents of the letter tended to show illicit intercourse between the writer and the person to whom it was addressed. She denied that she wrote the letter, although she said it looked like her handwriting. Two other manuscripts were produced, with direct evidence that she wrote them, and were used as standards of comparison for the letter in question. One person acquainted with her handwriting testified that the letter was in her handwriting; and another person, competent to express an opinion, testified that the letter appeared to be in the same handwriting witli that of one of the other manuscripts. It was written in a cipher which had been used by the defendant in writing to her; and he testified that she understood this cipher and had written to him in it. The envelope of the letter was addressed to a woman in a certain town, with the number of a box in the post-office; and there was evidence that that was the number of the defendant's box in the post-office in that town, and that he had taken from that post-office and box another letter with a similar address, and had opened and read it. The letter also contained, twice repeated, three initials, the meaning of which was not explained, but which apparently had some secret meaning, and which were also used by the defendant in a letter acknowledged by him to have been sent by Mm to the same woman. Held, that the, letter was properly submitted to the jury.</p>

Complaint to the District Court of Southern Berkshire, for keeping and maintaining a common nuisance, to .wit, a certain tenement in Great Barrington used for the illegal sale and illegal keeping of intoxicating liquors on May 1, 1883, and on divers other days and times between that day and June 6, 1883.

<p>Indictment, on the Gen. Sts. c. 161, § 12, charging that the defendant, at Springfield, on January 9, 1882, in the nighttime, did break and enter “ a certain building, to wit, the office building of the Boston and Albany Railroad Company,” with intent to commit larceny therein. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:</p> <p>Albert Holt, the paymaster of the Boston and Albany Railroad Company, testified for the government, among other things, as follows: “ There are four buildings in Springfield bwned by said corporation other than the one which was broken into, the other buildings having in them rooms used as offices for business done in the buildings. One of the other office buildings is situated about four hundred feet, one about one thousand feet, and one about'fifteen hundred feet, from the one alleged to have been broken into. The one broken into was the paymaster’s room in a building used for the general office of the company; the corporation had other general offices, but no other in Springfield.” Upon this evidence, the defendant asked the judge to rule that the indictment did not contain a sufficient description of the building alleged to have been broken; but the judge refused so to rule.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>At the trial of a complaint for the illegal sale of intoxicating liquor, the evidence tended to show a sale of such liquor on Sunday in the bar-room of the defendant’s hotel by a clerk in his employ. The defendant testified that the sale was made without his knowledge and against his instructions. On cross-examinatian, the government asked the defendant if he did not pay a fine imposed on Ms clerk for a sale made on the previous Sunday; to which he replied that he “ loaned him the money to pay it.” Held, that the defendant had no ground of exception to the admission of the question and answer.</p> <p>The fact that, at the trial of a criminal case on appeal in the Superior Court, a copy of the record of the lower court went to the jury with the other papers in the case, by inadvertence, does not entitle the defendant to a new trial as of right.</p>

Indictment alleging that the defendant and Michael Reilly, on October 21, 1882, at Chicopee, broke and entered a railroad car of the Connecticut River Railroad Company, and stole and carried away therefrom two barrels of whiskey. Trial in the Superior Court before Blodgett, J., who allowed a bill of exceptions, in substance as follows: There was evidence that two barrels of whiskey were stolen from the car.

<p>Indictment as follows:</p> <p>“ The jurors for the Commonwealth aforesaid, on their oath present, that John E. Flagg of Royalston in said county, on the twenty-first day of May in the year eighteen hundred and eighty-three, at Royalston in said county, did wickedly, advisedly and corruptly solicit, urge and endeavor to procure one Thomas Stafford feloniously, wilfully and maliciously to set fire to and burn a certain building, to wit, a barn of one Ellen H. Clark, there situate in said Royalston, by then and there wickedly, advisedly and corruptly offering to said Thomas Stafford a large sum of money, to wit, the sum of ten dollars, with intent of him, the said John E. Flagg, thereby then and there to procure him, the said Thomas Stafford, feloniously, wilfully and maliciously to set fire to and burn the said barn of Ellen H. Clark aforesaid.</p> <p>“ And the jurors aforesaid, on their oath aforesaid, do further present, that said John E. Flagg, of Royalston aforesaid, in the county aforesaid, on the twenty-first day of May in the year aforesaid, at Royalston aforesaid, in the county aforesaid, did wickedly, advisedly and corruptly solicit and incite one Thomas Stafford feloniously, wilfully and maliciously to set fire to and burn a certain building, to wit, a barn of one Ellen H. Clark, there situate in said Royalston, with intent of him, the said John E. Flagg, thereby to injure the said Ellen H. Clark.</p> <p>“ And the jurors aforesaid, on their oath aforesaid, do further present, that said John E. Flagg, of Royalston aforesaid, in the county aforesaid, on the twenty-first day of May in the year aforesaid, at Royalston aforesaid, did feloniously, wilfully and maliciously attempt to commit an offence prohibited by law, to wit, did then and there feloniously, wilfully and maliciously attempt to burn a certain barn of one Ellen H. Clark, there situate, that being an offence prohibited by law, and in such attempt did then and there, give and deliver to one Thomas Stafford the sum of ten dollars, with intent of him, the said John E. Flagg, thereby then and there to induce and procure the said Thomas Stafford to burn the said barn of the said Ellen FI. Clark, but the said John E. Flagg did then and there fail in the perpetration of said offence, so as aforesaid attempted to be perpetrated by him, against the peace of the Commonwealth, and contrary to the form of the statute in such cases made and provided.</p> <p>“ And the jurors aforesaid, on their oath aforesaid, do further present, that said John E. Flagg, of Royalston aforesaid, in the county aforesaid, on the twenty-first day of May in the year aforesaid, at Royalston aforesaid, did feloniously, wilfully and maliciously attempt to commit an offence prohibited by law, to wit, did then and there feloniously, wilfully and maliciously attempt to hire and procure one Thomas Stafford to burn a certain barn of one Ellen H. Clark, there situate, that being a felony and an offence prohibited by law, and in such attempt did then and there pay and deliver to said Thomas Stafford the sum of ten dollars, with intent of him, the said John E. Flagg, thereby then and there to hire and procure the said Thomas Stafford to burn the said barn of the said Ellen H. Clark, but the said John E. Flagg did then and there fail in the perpetration of said offence, so as aforesaid attempted to be perpetrated by him, against the peace of the Commonwealth, and contrary to the form of the statute in such cases made and provided.</p> <p>“ The several counts of this indictment are different descriptions of the same act.”</p> <p>In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment, “ because no one of the counts therein contained sufficiently sets forth an overt act towards the commission of the offence alleged to have been committed.” Barker, J., overruled the motion; and the defendant excepted.</p> <p>Thomas Stafford testified for the government that, on Sunday, May 13,1883, he met the defendant, who said to him, “ If you ’ll burn Mrs. Clark’s barn, I ’ll be true to you as long as you live, and you shall not want, I’ve got money enough,” taking out and showing to the witness four $20 gold pieces; that the witness said, “ Keep quiet;” that the defendant then told him to meet him on the following Thursday night; that they met that night, and the defendant said, “ You burn Mrs. Clark’s barn, and I ’ll slip $50 into your fingers before Saturday night,” and the witness said, 66All right;” that on Sunday afternoon, May 20, they met again, and the defendant said to him, “ You burn Mrs. Clark’s barn as soon as possible and leave no black streaks behind you, and I ’ll see you well paid; ” that the witness asked him if he had any money with him, and the defendant said he had none; that on Monday afternoon following they met again, and the defendant said, “ I’ve been thinking you better wait till I go west, and then they can’t swear it on to me;” that the witness asked him how he had better set it on fire; that the defendant told him to do it as he pleased, but that there was a sliding door on the east end, and that he could touch a match to the hay; that the witness said, “You know what you said the other night; ” that the defendant replied, “ Yes, I shall have to let you have some money," and then paid him two $5 bills; that the defendant also had a $20 bill, and the witness asked for that, but the defendant said he couldn’t spare it.</p> <p>There was no evidence that the witness ever attempted to set fire to the barn in question. It was admitted that the Mrs. Clark referred to was Ellen H. Clark, and that she owned a barn in Eoyalston at the time referred to. There was other evidence* for the government, corroborating the testimony of Stafford in particulars tending to connect the defendant with the crime, and material to the issue. There was also evidence of threats by the defendant against Mrs. Clark and her husband.</p> <p>The government relied on the above testimony of Stafford, thus corroborated, to support the indictment. The defendant denied the statements of Stafford, so far as they concerned any conversation by him relating to the burning of Mrs. Clark’s barn, or payment of money therefor.</p> <p>The defendant asked the judge to rule that, upon the evidence, the jury would not be authorized to convict him upon either count of the indictment. The judge refused so to rule, and left the question to the jury, directing them not to return a verdict of guilty upon the third and fourth counts, unless they found that money was paid by the defendant to Stafford to induce him to fire the barn; but that if they found that money was paid by the defendant to induce Stafford to fire the barn, as contended by the government, to return a general verdict of guilty.</p> <p>The jury returned a general verdict of guilty; and the questions of law arising upon the motion to dismiss and upon the request of the defendant for a ruling that the evidence would not warrant a conviction, being in the opinion of the judge so important and doubtful as to require the decision of this court, were reported, with the defendant’s consent, for its determination. If the ruling was correct, and the conviction upon either count could be sustained on the evidence, the verdict was to stand; otherwise, a new trial to be granted.</p>

<p>Complaint, on the Pub. Sts. c. 112, § 169, for obstructing and occupying with cars, for more than five minutes at one time, on December 2, 1882, a certain street in Worcester, called Crescent Street. At the trial in the Superior Court, Pitman, J., directed the jury to return a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>A complaint on the Pub. Sts. c. 101, § 9, to a district court, alleged that the defendant, on a certain day, was the person having the control of a certain tenement described, and did then and there permit the said tenement to be used and resorted to for illegal gaming. In the Superior Court, on appeal, the defendant objected that the complaint did not allege that he maintained, or aided in maintaining, a common nuisance, or that the said tenement was a common nuisance, to the common nuisance of all the citizens of the Commonwealth; and that the possibility was not excluded that some other person might have had control of the premises on that part of the day when they were used for gaming. Held, that the defects alleged were merely formal, and the objections were taken too late.</p>

<p>At the trial of a complaint for keeping intoxicating liquors with intent unlawfully to sell the same, the minutes of a vote of the selectmen, amended in court by permission of the judge, in the absence of the other selectmen, by one of the selectmen who acted as clerk of the board, so as to show a valid revocation of a license to sell intoxicating liquors issued by the selectmen to the defendant, are inadmissible in evidence to prove such revocation.</p>

Writ oe ENTRY to foreclose a mortgage of land in Lanes-borough, made by the tenants, who were husband and wife, to Jedediah W. Newton. Plea, nul disseisin, with the specification of defence that the mortgage had been paid and extinguished. Trial in the Superior Court, before Bacon, J., who reported the case for the determination of this court, in substance as follows: No question was made as to the validity of the mortgage.

Petition to the county commissioners, alleging that on June 1, 1881, and ever since, the petitioners were the. owners of a certain parcel of land in Heath (described by metes and bounds); that on November 1, 1881, the respondent laid out a town way across said land, starting from a bar-way, about twelve rods from the southwest corner of said lot, and running thence in an easterly direction across said lot, twenty-eight rods, to land of H. N. Sharp; that, since said laying…

<p>Information in equity, at the relation of Charles G. Delano, against the Greenfield Library Association, its trustees, and William B. Washburn. Hearing before W. Allen, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>Petition for a writ of certiorari to quash the proceedings of the county commissioners of Franklin in abating a tax assessed by the town of Greenfield upon the funds of the Trustees of the Smith Charities. Hearing before Morton, C. J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>A person who prevails, upon an application for a sheriff’s jury to assess the damages occasioned by the taking of his land by a railroad corporation, is entitled to be allowed, in the taxation of costs in the Superior Court, as part of his “ legal costs,” given by the Pub. Sts. c. 112, § 100, the fees of his witnesses for travel and attendance before the sheriff’s jury, and the officer’s fees for summoning the witnesses; and it is immaterial that the items in question do not appear in the sheriff’s certificate of costs returned to the Superior Court.</p> <p>If both parties to an action appeal from the decision of the Superior Court to this court, and one party waives his appeal and prevails on the appeal of the other party, neither party is entitled to recover the costs of the appeal, under the Pub. Sts. c. 198, § 27.</p>

<p>The defendant gave the plaintiff promissory notes, in renewal of earlier notes upon which the interest was overdue. The new notes did not include, and were not received in satisfaction of, the over-due interest; but the question of interest was understood by the parties to remain an open one, the defendant saying that he would make it all right, acknowledging that he was legally liable, and urging certain reasons why the claim ought not to be pressed. The old notes were left, together with the new ones, in the defendant’s possession, where they had been before, but crumpled up, and not for safe keeping. Held, that these facts would warrant a finding for the plaintiff in an action for the overdue interest.</p>

Tort against the manager of the Troy and Greenfield Railroad and Hoosac Tunnel, for personal injuries received by the plaintiff, a brakeman, while in the employ of the defendant. At the trial in the Superior Court, before Staples, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

Replevin of certain personal property, attached by the defendant, a deputy sheriff, on a writ against the plaintiff’s husband. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

<p>B. agreed to make for A. a certain number of castings of a new stove, in a specified time, the patterns for which were to be furnished by A. In an action by A. against B., for breach of' this contract, one ground of defence was, that delays were occasioned by the failure of A. to furnish patterns in time, because of alterations made by him in the patterns. Held, that A. was entitled to put in evidence that there was a well-known, universal usage in the business to make changes in new patterns, arising from the fact that the first set of patterns, however good, would never produce castings that could be put together without alteration.</p> <p>If B. agrees to make for A. a certain number of castings in a specified time, A. to furnish patterns for the castings, and there is no unjustifiable delay on A.’s part in furnishing the patterns, in an action by A. against B. for breach of the contract, B. is not entitled to a ruling that, if there was no unreasonable delay on his part after receiving the patterns, the plaintiff can recover only the additional cost which he has incurred for so many castings as the defendant might have manufactured after the patterns were furnished and before the time specified in the contract for the completion of the work.</p> <p>If questions in writing are submitted to a jury, and a general verdict is returned without the questions being answered, it is within the discretion of the presiding judge to accept the verdict, and to withdraw the questions; and to the exercise of this discretion no exception lies.</p>

Coetract upon two promissory notes, made by the defendant, and payable to the order of the plaintiff. Answer, want of consideration. At the trial in the Superior Court, before Putnam, J., without a jury, the defendant, for the purpose of proving the defence set out in the answer, offered in evidence by his attorney his own deposition, which deposition contained matter material to the defence. To the admission of this deposition the plaintiff objected.

<p>If an attachment is dissolved under the Pub. Sts. c. 157, § 46, by the debtor going into insolvency, and the attaching officer refuses to deliver up the 'goods on demand by the assignee in insolvency, the creditor is not entitled to prove, under § 139, as a claim against the estate, the expenses subsequently incurred by the officer in keeping the goods.</p>

<p>If a person is in possession of a building adapted for use as a foundry and machine-shop, and furnished with power from a water-wheel belonging to the owner of the building, he is liable for the fair rental value of the premises as a machine-shop and foundry, after notice from the owner that he shall hold him liable if he cdntinues such occupation thereafter, although he uses it for storage purposes only.</p> <p>An exception to a refusal to give a ruling requested will not be considered by this court, if no facts appear in the bill of exceptions which would render such ruling relevant.</p>

<p>In an action for the breach of the condition of a bond, if a trial by jury is not claimed as provided by the Pub. Sts. c. 167, § 69, it is too late, after finding by the court that the condition is broken, to move to have the damages assessed by a jury.</p>

<p>If the Governor of the Commonwealth, on receipt of a bill from the Senate or House of Representatives, states in writing his objections to the bill, delivers it to his private secretary with instructions to have the bill with his objections returned to the House in which it originated, and then leaves the Commonwealth, temporarily, and the secretary, within five days from the time the bill was presented to the Governor, and while the Lieutenant-Governor is performing the duties incumbent upon the Governor, returns the bill with the objections, in accordance with the directions he received from the Governor, which have not been countermanded by the Lieutenant-Governor, the bill does not have the force of a law, without further action by the Legislature; and the fact that the objections bear a date as of a day when the Governor is absent from the Commonwealth, is immaterial.</p>