Volume 136 — Massachusetts Reports

<p>Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ as a brakeman, by. a locomotive engine alleged to have been improperly constructed. At the trial in the Superior Court, before Gardner, J., the jury returned a verdict for the plaintiff in the sum of $4500; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>In an action against a railroad corporation, on the St. of 1881, c. 199, § 2, for running over and killing a girl sixteen years old, at a place where a highway crossed a railroad at grade, there was contradictory evidence upon the question of the neglect of the defendant to give the signals required by law, but it was conceded that the head-light of the locomotive engine was burning, that the girl was familiar with the locality, that the track was visible for nearly a mile, and that, at the time, it was not dark, but twilight. The plaintiff's evidence tended to show that, when the locomotive engine was within from three to six rods of the crossing, the whistle was blown twice, and the girl, who was then within a few feet of the track, quickened her pace and ran upon the track, and was killed. Held, that the burden of proof was upon the defendant to show that the girl was guilty of gross or wilful negligence. Held, also, that the court could not say, as matter of law, that attempting to cross the track, under such circumstances, was gross or wilful negligence.</p>

<p>If a city lays out a street of a certain width, at a grade higher than that of the adjoining land, the owner of the adjoining land may maintain an action of tort against the city for damages caused to his land by the act of the agents and servants of the city in placing part of the embankment necessary to support the street upon his land.</p>

<p>A count for money paid should contain an averment that the money was paid at the defendant’s request.</p> <p>A surety may recover contribution from his co-surety in an action for money paid.</p> <p>In an action for contribution to the amount paid by the plaintiff upon a promissory note signed by A. as principal, and by the plaintiff and the defendant as sureties, the declaration alleging that they were joint makers with A., oral evidence is admissible to show that the signers of the note were joint makers, by agreement among themselves.</p>

<p>Replevin of a cow. Writ dated October 23, 1882. Trial in the Superior Court, without a jury, before Barker, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff, who owned the cow in question on October 21, 1882, raffled her, a number of persons participating, each paying fifty cents for a chance. The defendant and John Joubar claimed to be the winner. The plaintiff decided in favor of Joubar. On the following day, while the cow was in the plaintiff’s pasture, the defendant, without leave of the plaintiff, entered the pasture, took away the cow, and removed her to his own premises. On October 23, the plaintiff signed a certain instrument, which was not produced in evidence, but which Joubar testified was in the following words: “I hereby deliver to John Joubar one cow, formerly owned by me, and I release all claim I have or have had on said cow.” On the same day, and before the replevin writ was served, the plaintiff and Joubar went to the defendant, and the plaintiff demanded the cow, in a conversation in which Joubar testified that the plaintiff said to the defendant that “he wanted the cow to deliver to Joubar.” At the same time the said instrument was shown to the defendant.</p> <p>It was admitted that no consideration passed between the parties save that involved in the lottery transaction; that the instrument in favor of Joubar was in furtherance of the decision of the plaintiff that Joubar was the winning party in said raffle. It further appeared that Joubar paid the price of his ticket when the above instrument was signed by Miller, and that after the cow was returned to the plaintiff he delivered it to Joubar as his.</p> <p>Upon the above facts, the judge ruled that, after the delivery of said instrument to Joubar, and the presentation of it to the defendant at the meeting of the parties above referred to, the plaintiff had so parted with his property in the cow that he could not maintain the action ; and found for the defendant.</p> <p>The plaintiff alleged exceptions.</p>

<p>If judgment is rendered against a party in a District Court, and he has, without fault on his part, lost his right of appeal, the Superior Court has, under the Pub. Sts. c. 187, § 25, power to grant a writ of review.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by an alleged defect in a highway in the defendant town. After the former decision, reported 133 Mass. 526, the case was tried in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:</p> <p>On the night of May 9, 1879, the plaintiff, while walking on the east side of North Main Street in the defendant town, struck her foot against a pine stump, and was thrown down and injured.</p> <p>The evidence tended to show that for nearly forty years the greater portion of the foot travel along the highway in question had taken a defined path on the easterly side, contiguous to the fence, and on a level with the wrought road; that in 1876, the road was cut down for some distance, (about fifteen or eighteen inches at the place of the accident,) leaving the footpath at its former level; that, at the same time, the fence on the easterly side had been moved back about two feet; that there was grass on each side of the path, but the evidence was conflicting whether it extended one foot or two feet from the fence; that the stump against which the plaintiff struck her foot projected one and a half to two inches above the soil. The witnesses differed in locating this projection at from eighteen to thirty inches from the fence.</p> <p>The case was submitted to the jury, with full instructions as to the liability of towns for injuries caused by defects or obstructions in and near to highways and footpaths along highways, and, among others, that the plaintiff could not recover unless the alleged defect was in the travelled path, and none of said instructions were excepted to; but the defendant asked the judge to rule that, if the obstruction complained of was in the grass, and out of the travelled path, the plaintiff could not recover, which instruction the judge declined to give.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>In an action against a town for injuries occasioned by an alleged defect in a highway, the evidence was conflicting on the question of the speed at which the plaintiff was driving his horse at the time. Held, that the defendant was entitled to put in evidence that the horse, both before and after the accident, had been driven at a certain rate of speed on a race-course, as tending to show the capacity of the horse for speed, and as bearing upon the probability of the testimony as to his speed at the time of the accident.</p>

Tort for cutting down eight trees on the plaintiff’s land. At the trial in the Superior Court, before Staples, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

Contract on an account annexed for $177.41, for goods sold and delivered to the defendant’s testatrix between December 3, 1872, and January 8, 1875. Writ dated January 6, 1882. Answer, the statute of limitations. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows: The defendant’s testatrix died December 13, 1880, and the defendant was appointed on January 3, 1881, administrator, with the will annexed, of her estate.

<p>An advertisement of a sale of a parcel of land taken for a tax, which incorrectly states the year for which the tax is assessed, does not comply with the Gen. Sts. c. 12, § 29; and is fatally defective, although it states correctly the amount of the tax assessed.</p> <p>The provision in the Gen. Sts. c. 12, § 35, that the collector’s deed of land sold for the non-payment of a tax shall state “ the place of residence of the grantee,” is not merely directory; and a deed which omits such a statement is fatally defective.</p>

<p>Contract, for the benefit of Louis Phelps and Asa S. Law-ton, on a bond, dated November 1, 1877, in the penal sum of S5000, executed by the defendant to the plaintiff. Trial in the Superior Court, without a jury, before Staples, J., who ordered judgment for the plaintiff for the penal sum of the bond; and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Under the Pub. Sts. c. 157, § 93, providing that a discharge shall not he granted, or valid, if the insolvent debtor, “being a merchant or tradesman, has not kept proper books of account,” it is a question of fact in each case whether the debtor has kept such books as will enable a competent person examining them to ascertain the true state of his affairs; and it cannot be ruled, as matter of law, that the failure to keep a cash-book invalidates a discharge.</p>

<p>Writ of entry, dated September 20, 1877, in two counts, to recover two parcels of land in Scituate, each consisting of upland and flats. Plea, nul disseisin as to the flats, and a disclaimer of title as to the upland. Trial in the Superior Court, before Bacon, J., who, after a verdict for the tenant on the question whether the demandant had acquired title by adverse possession, reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>Under the Pub. Sts. c. 100, § 5, and the St. of 1882, c. 164, the mayor of a city, in signing a license for the sale of intoxicating liquors, performs a merely ministerial duty; and, if a license is granted by the board of aldermen, the signing by the mayor may be enforced by mandamus.</p> <p>It is no objection to the validity of a license for the sale of intoxicating liquors, granted by the board of aldermen of a city, that the board did not act in accordance with their usual modes and their rules of procedure, if the rules were suspended.</p> <p>A notice, published in a newspaper, of an application for a license to sell intoxicating liquors, gave the first name and surname and the initial letter of the middle name of the applicant, the class of the license applied for, and described his place of business as “in a building known as K.’s Block, on the easterly side of M. Street, at the corner of S. Street.” The applicant had a druggist’s sign in front of the shop occupied by him in K.’s Block, which shop was the third from the corner of the two streets; neither the block nor the street was numbered; and the applicant wrote his name as it appeared in the published notice. Held, that the notice was a sufficient compliance with the Pub. Sts. c. 100, § 6.</p>

Contract for money had and received. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows: The plaintiff offered evidence that the defendant was the administrator of the estate of William H. Robinson; and showed, by a copy of the defendant’s first and final account as administrator, that there was a balance due the estate of Robinson of $622.

<p>Petition to the Superior Court, filed at December term, 1882, alleging that, in 1876, the petitioner brought an action against the respondent upon a promissory note for $500, and recovered judgment thereon at March term, 1878, of said court, but neglected to file with the clerk the papers necessary to enable him to make up and enter the judgment within the time prescribed by the rules; and praying that the judgment might be recorded, so that she might avail herself of the benefit thereof.</p> <p>At the hearing, before Bacon, J., it was admitted that the respondent had paid $200 or $300 to the petitioner’s attorney since the judgment was ordered; that the attorney had had possession of the note, but not during all of the time the payments were made; that during part of the time it was in the possession of the petitioner or her attorney; and that no payments had ever been indorsed on the note.</p> <p>The petitioner contended that she should have judgment entered as of the former term; and the respondent contended that the judgment should not be recorded, and that this petition should be dismissed.</p> <p>The judge allowed the petition; and the respondent alleged exceptions.</p>

<p>If a chattel, while in the possession of a bailee for hire, is injured by the negligence of a third person, and is repaired by the bailor, and the cost of the repairs is charged to the bailee, at his request, the latter, although he has not paid such cost, may maintain an action of tort against the person causing the damage.</p>

<p>If a trustee conveys trust property to himself, the conveyance may be avoided by a part only of the eestuis que trust.</p> <p>A leasehold estate was held in trust under a will, by the terms of which the trustees were to pay the income to each surviving child of the testator for life, and on the death of each child to transfer such child's share to his children. The trustees were empowered to convey any of the trust property discharged of the trust. In 1872, the trustees, without fraud, conveyed for less than its fair value, an undivided portion of the leasehold estate, through a third person, to two of their number, who then owned the remaining undivided portion of the estate. In 1875, the beneficiaries under the will knew of the transaction. In 1877, on their petition, the then trustee was removed by the Probate Court, and a new trustee was appointed. In 1880, a bill in equity was brought by the new trustee, and by some of the beneficiaries, to set aside the conveyance. Held, that the plaintiffs had not been guilty of such loches as to prevent their maintaining the bill.</p> <p>If trustees under a will convey trust property to themselves through a third person, for an inadequate consideration, though without fraud, and subsequently render an account to the Probate Court, in which the conveyance to the third person is stated, and a decree is made, these proceedings do not operate as a bar to a bill in equity for a reconveyance of the property, brought by a new trustee and the beneficiaries against persons to whom the former trustees conveyed the property, the new trustee and some of the beneficiaries not having been parties to the probate proceedings.</p> <p>A bill in equity, not waiving an answer under oath, alleged that a trustee conveyed property to himself through a third person, and then conveyed it to the defendant; and that the defendant took the conveyance, not in good faith and for value, but well knowing the premises, and having actual notice that the conveyance had been unlawfully made by the trustee to himself. The answer, under oath, denied knowledge or notice of any unlawful conveyance. Held., that the answer did not have the effect of requiring evidence of more than one witness to establish the facts alleged.</p> <p>Findings of fact, by a master in chancery, from the testimony of witnesses whom he sees, will not be reversed by this court unless they are shown to be clearly erroneous from the evidence reported.</p> <p>On a bill in equity by a trustee under a will and some of the eestuis que trust, to set aside a conveyance of a fractional part of a leasehold estate by former trustees under the will to themselves, it appeared that all of the eestuis que trust were not agreed in desiring to avoid the conveyance, and that their interests could not be separated; that the trustees had a general power to convey the trust property, and intended no actual fraud by the sale to themselves; that there were future interests in the trust, which were not represented, except by the trustee; that considerable time had elapsed since the conveyance; and that persons other than the trustees had acquired interests in the property for valuable considerations, and without fraud. Held, that the court would allow the defendants to retain the property, on paying the difference between the amount for which the trustees conveyed it to themselves and its then fair value, and interest, with annual rests.</p>

<p>Two BELLS IN EQUITY, filed November 1, 1881, under the Gen. Sts. c. 113, § 2, cl. 11, to reach and apply, in payment of debts due to the plaintiff from the first-named defendant in each suit, their respective interests in the assets of a copartnership composed of themselves and the other defendants. The cases were heard before Q. Allen, J., who ordered a decree for the plaintiff in each case; and the defendants appealed to the full court. The facts sufficiently appear in the opinion.</p>

<p>Bill in equity against the selectmen of Brookline and the American Rapid Telegraph Company of Massachusetts, to restrain the selectmen from granting to the telegraph company a location for its posts and wires in Brookline. The defendants demurred to the bill for want of equity. At the hearing, before jEndicott, J., a decree was entered sustaining the demurrer and dismissing the bill; and the plaintiffs appealed to the full court. The allegations of the bill appear in the opinion.</p>

<p>An article was delivered in Paris, France, to L., who was engaged in the express business, for carriage to S. in this Commonwealth. The receipt issued by L. was headed “American-European Express,” with the name of B. in the margin. The bill rendered by B. for the carriage of the article was also headed “American-European Express,” gave on one side the address of American “ Branch Offices,” on the other side had the words, “ Foreign Agencies: Paris,” and charged the whole freight from Paris to S. A letter from B., written after the delivery at S., stated that “the American-European Express is not a corporation. The proprietors in Paris are L., and in New York, B.” In an action against B. for injury done to the article in the course of carriage from Paris to S., the jury found for the plaintiff, and also found specially that B. was jointly interested with L. in the express business from Paris. Held, that the finding was warranted by the evidence.</p>

<p>If a broker makes a contract for A. to sell and deliver to B. a certain quantity of wheat, at any time, during a year named, which A. may select, at a fixed price, and agrees that if, by a rise in the price of wheat, more margin shall be required, he will not sell the wheat, but will draw upon A. for such an amount as is necessary to carry the wheat, the broker has no right to close the contract without drawing upon A., although A. at the time is out of the State, and has made no provision for the payment of the draft, of which fact the broker has knowledge.</p>

Contract in three counts. The first count was upon an account annexed for $73.23, for work and labor. The second count was for $73.23, money had and received.

Contract to recover $1000, the price of a steam-engine alleged to have been sold by the plaintiff to the defendant. Answer : 1. A general denial. 2. That on or about May 1, 1881, the defendant purchased a steam-engine of one Lafayette Huntoon for the sum of $300; and that said Huntoon represented himself to be the agent of the plaintiff.

<p>Contract upon a promissory note for $400, dated August 4, 1875, payable on demand to the order of the plaintiff, and signed by the defendant. Writ dated February 26, 1883. Answer, a discharge in bankruptcy, granted on August 3, 1880, from debts existing on April 20, 1878. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, upon agreed facts, in substance as follows:</p> <p>The defendant has received his discharge in bankruptcy, and has not, since said discharge, paid any debt which he owed before the discharge was granted. The discharge is a bar to this action, unless certain letters, three in number, written by the defendant to the plaintiff, are “ evidence of a new or continuing contract,” within the provisions of the Pub. Sts. c. 78, § 3, so as to deprive the defendant of the benefit of relying upon the discharge in bar of the action. The first letter, dated August 18, 1878, contained the following: “In regard to the interest on that note, my lawyer says I must not pay any one a dollar until I get through bankruptcy, then I can pay if I want to do so. I shall pay you all and the interest, but you will have to give me time.” The second letter, dated February 20, 1880, was as follows:. “ I received your letter. I am sorry that I cannot pay you now; I shall pay you all I owe you with interest, but at this time I cannot. I am in bankruptcy, and when I get through, then I will tell you what I can do. I am not owing very much. I shall get on my legs again. As soon as I can, I shall pay you.' You will hear from me again soon.” The third letter, dated May 14, 1881, contained the following: “ When I can, I shall pay up all my debts, and yours shall be the second that I pay. To pay you now, I cannot spare a dollar from my business, but if you will wait, I think I can pay you some time.” These letters referred to the note in suit, and to no other debt to the plaintiff.</p> <p>If, upon these facts, the plaintiff was entitled to recover, judgment was to be entered for him in a sum named, and interest from the date of the writ; otherwise, judgment for the defendant.</p>

<p>A testator authorized his executor to sell and convey all or any part of his real estate, and directed him to appropriate a certain sum of money, to be raised out of his estate, and to place the same at interest secured by mortgage; and that the interest of said sum be paid to the testator’s wife during her life, and, after her death, said sum be divided between several persons named. The executor did not appropriate and set apart the sum directed by the will, but gave to the widow his personal bond to pay her the interest of that sum; and, after her death, failed to pay the legacies to the persons named. Held, that an action brought, for the benefit of the legatees, against a surety on the executor’s bond, more than twenty years after the failure of the executor to appropriate the money raised from the estate, but within twenty years from the death of the widow, was not barred by the statute of limitations.</p>

<p>A sale by one partner to his copartner, and a mortgage back, of the seller’s share of the partnership property, upon which there is a policy of insurance against loss by fire, issued to the partnership, are not a breach of a condition in the policy that it shall be void, if, without the written assent of the insurer, “ the said property shall be sold.”</p> <p>A policy of insurance against loss by fire, issued to a partnership upon its property, contained the condition that the policy should be void, if, without the written assent of the insurer, “ the situation or circumstances affecting the risk shall, by or with the advice, agency, or consent of the insured, be so altered as to cause an increase of sucli risk.” One partner sold to his copartner, and took back a mortgage of, the seller’s share of the partnership property. Held, in an action on the policy, in which both partners joined, that it could not be said, as matter of law, after a finding for the plaintiffs, that there was a breach of the condition.</p>

<p>Action on the Pnb. Sts. c. 175, to recover possession of certain premises in Fitchburg. Trial in the Superior Court, without a jury, before Staples, J., who allowed a bill of exceptions, in substance as follows:</p> <p>Gardner S. Burbank held two mortgages on certain premises, which included the premises in question, upon which there was due about $3500. On December 8, 1880, Burbank made a peaceable entry upon the mortgaged premises for the purpose of foreclosing the mortgages, a certificate of which entry was duly recorded in the registry of deeds on December 9, 1880; and thereafter, and up to April 22, 1881, he remained in the possession of said premises, and in receipt of the rents and profits. On April 22, 1881, Burbank and one Stephen M. Allen entered into an agreement in writing, by the terms of which Allen was entitled to buy said mortgages for $2800, their full value being $8000, of which amount $500 was acknowledged to have been received, which was to be forfeited if the balance, $2300 and interest, was not paid by Allen within one year, unless the time of payment should be extended in writing before the expiration of the contract.</p> <p>On April 21, 1882, the time of the payment of the $2300 and interest was extended in writing to May 1, 1882; and Allen, after the execution of said agreement, put the defendants into occupation of said premises. In October, 1881, Allen purchased of the mortgagor the equity of redemption of the mortgaged premises, and, on April 26, 1882, conveyed to the defendants that portion of the premises sought to be recovered in this action. Allen did not pay nor tender to Burbank the balance due under said agreement, or any part thereof, within the time as extended; and, on May 4, 1882, Burbank, for the purpose of taking possession, entered the premises, by forcibly raising a window in a barn on the premises and entering the barn through the window, and then proceeded into the house and remained there by his agent, without removing the furniture or effects of the defendants, who had been absent from about April 20, 1882, on a visit, and without their knowledge or consent.</p> <p>On said May 4, Burbank executed and delivered to the plaintiffs a lease of the premises for the term of one year, and the plaintiffs entered into occupation thereof, being admitted to possession by Burbank. On the night of May 6, the defendants returned to Fitchburg, and were informed that the plaintiffs were in actual occupation of the premises under their lease; and, about nine o’clock in the evening of said day, they went with Allen to the house, knowing that the plaintiffs’ agent was in the house holding the same, and, without asking for admittance, attempted to force a rear door, by Allen’s throwing himself against it, and, the door not yielding, he broke a window and raised the same, and they all thereupon entered the house, against the will and without the consent of the plaintiffs’ agent, who remonstrated against the entry, and afterwards left the house, leaving the defendants therein.</p> <p>Allen, on April 21, 1882, informed Burbank that he had purchased the equity of redemption of said premises, and showed him his deed, and prior to that time Burbank had been consulted in regard to the purchase; and on said April 21 Allen informed the plaintiffs of his/ intention to convey the premises to the defendants, the same being. done on April 26; but neither Burbank nor the plaintiffs knew that he had done so prior to May 4, 1882. Neither Burbank nor the plaintiffs ever gave Allen or the defendants any notice to quit, or any notice of the fact of the delivery of the lease to the plaintiffs, prior to the time when Burbank took possession of the premises, on May 4, 1882.</p> <p>The judge ruled that the defendants, on May 6, 1882, were lawfully entitled to the possession of the premises, and authorized to enter the same in the manner shown by the evidence; and that there was no evidence to warrant him in finding a forcible entry or detainer thereof on the part of the defendants; and found for the defendants. The plaintiffs alleged exceptions.</p>

<p>Writ of entry to recover a parcel of land in Oxford. Plea, nul disseisin. The case was submitted to the Superior Court, and, after judgment for the tenant, to this court on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>In an action against a city for an injury sustained by reason of the defective condition of a sidewalk, caused by water flowing from the land of an abutter and freezing, a ruling that “ the city authorities had no right to prevent surface water from escaping to the highway from the land of an adjoining owner, where the highway had been laid out and the grade established according to law,” affords the plaintiff good ground of exception.</p>

Contract upon an account annexed, for use and occupation of the plaintiff’s building in Bridgewater, from May 23, 1879, to April 28 1881. Answer, a general denial.

<p>Tort for an assault and battery. At the trial in the Superior Court, before Mason, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Judgment was rendered upon the report of commissioners on a petition for partition of land, that their report be accepted and “ partition be made firm and effectual forever; ” and it was further ordered that the case be “ continued nisi upon the question of costs.” Before any adjudication upon this question, the petitioner died, and his administrator was admitted by the court to prosecute the case. Held, that the administrator was erroneously admitted to prosecute; and that costs could not be awarded against the respondent.</p>

<p>The Superior Court has no authority to order a return of property replevied in an action, which has been dismissed by that court for want of jurisdiction because the value of the property did not exceed one hundred dollars.</p>

<p>When the original assessment of a tax is valid, its reassessment is void.</p> <p>Under the Pub. Sts. c. 11, § 4, providing that personal property, for the purposes of taxation, shall include “ debts due the persons to be taxed more than they are indebted or pay interest for,” a tax upon a debt due from an intestate is properly assessed to the creditor, although the amount is in dispute, if it is conceded by the administrator to be as much as that taxed, and is finally compromised, by authority of the Probate Court, by the payment of a larger sum.</p>

<p>At the trial of an action for personal injuries occasioned to the plaintiff by falling over a pile of sleepers, placed by the defendant upon a wharf by permission of the owner, the defendant testified in his own behalf that he was in the neighborhood at the time of the accident, and at once went there and saw the pile and its condition; and that he then ordered the sleepers to be removed. On cross-examination, he was asked why he caused the sleepers to be removed; and also whether the sleepers were in existence. Both questions were excluded. Held, that the plaintiff had no ground of exception.</p> <p>At the trial of an action for personal injuries occasioned to the plaintiff by falling over a pile of sleepers, placed by the defendant upon a wharf owned by another person, the plaintiff offered to show that the owner of the wharf had requested the defendant’s employees to inform the defendant that he must remove the sleepers. Held, in the absence of evidence that the defendant had received the notice, that the plaintiff had no ground of exception to the exclusion of the evidence.</p> <p>At the trial of an action for personal injuries occasioned to the plaintiff by falling over a pile of sleepers, placed by the defendant upon a wharf by permission of the owner, which the plaintiff contended had been revoked, the judge instructed the jury that the evidence as to license was of no consequence, unless the jury found in it something which bore upon the question of the negligence of the defendant. Held, that the plaintiff had no ground of exception.</p>

<p>A notice to a city that a person has been injured by a defect “on the northerly side of E. Street, about seventy-five or one hundred yards from the corner of L. Street, and nearly opposite the gateway of the first house on that side of E. Street from said corner,” does not sufficiently designate the place of the injury, under the St. of 1877, c. 234, § 3, if it appears that the injury occurred on the south side of E. Street.</p> <p>The St. of 1882, c. 36, providing that no notice given under the Pub. Sts. c. 52, § 19, “ shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place, or cause of the injury: provided, that it is shown that there was no intention to mislead, and that the party entitled to notice was not in fact misled thereby,” does not apply to an action for an injury, notice of which has been given before its enactment.</p>

<p>Appeal from a decree of the Probate Court, refusing to grant the petition of the executor of the will of Thomas M. Saunders, to have a debt alleged to be due from the appellee to the testator deducted from a legacy given to the appellee by the will. Hearing before Field, J., who affirmed the decree of the Probate Cotirt, and reported the case for the consideration of the full court. If the appellant was entitled to have the debt deducted from the legacy, the decree of the Probate Court was to be reversed, and the case recommitted to determine the amount ; otherwise, the decree to be affirmed. The facts appear in the opinion.</p>

Bill in equity, against John W. Taylor, Charles H. Taylor, and William E. Taylor. The case was referred to a master, who found among others the following facts, which are all that are material to the point decided: In October, 1872, a copartnership was formed between the plaintiff and the defendants Charles H. Taylor and William E. Taylor, for the purpose of carrying on the express business.

<p>An indictment on the Pub. Sts..e. 101, §§ 6, 7, for keeping and maintaining a tenement used for the illegal sale of intoxicating liquors, is not supported by proof that the defendant committed the offence described in § 9; namely, that, being the owner of the premises, he made a written lease of them to another, knowing that the lessee intended to use them for the illegal sale of intoxicating liquors; and that the lessee so used them.</p> <p>An indictment on the Pub. Sts. c. 101, §§ 6, 7, for keeping and maintaining a tenement used for the illegal sale of intoxicating liquors, is not supported by proof that the defendant, who was a servant of the lessee of the premises, made illegal sales in the presence, or under the direct personal supervision, of his employer.</p>

Two indictments, charging the defendants, on December 25, 1882, at Attleborough, with an assault upon Elisha C. Brown, a deputy sheriff, while in the due and lawful execution of the duties of his office.

Complaint to Joseph E. Pond, Jr., justice of the peace, “designated and commissioned to issue warrants in criminal cases,” alleging that the defendant, on November 13, 1882, at Attleborough, kept intoxicating liquors with intent to sell the same in this Commonwealth, he not being authorized so to sell the same under the provisions of the St. of 1869, c. 415, nor by any legal authority whatever.

Indictment for an assault and battery. At the trial in the Superior Court, before Knowlton, J., one Michael McEleheny testified as a witness for the government.

<p>Complaint to the First District Court of Eastern Middlesex, alleging that the defendant, on March 12, 1883, at Malden, unlawfully exposed and kept for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was evidence that the defendant was the owner of a tenement in which newspapers, pies, cakes, cigars, and tonic beer were kept and sold; and the defendant offered evidence that no lager beer or intoxicating liquors had been sold, kept, or exposed for sale on said premises.</p> <p>There was also evidence that police officers of Malden, on the day named in the complaint, found in the defendant’s tenement a sugar-barrel, nailed and headed up, which, upon being opened subsequently by them, contained 120 bottles of lager beer; that the barrel had no marks upon it, and was left on the defendant’s premises by an expressman fifteen minutes before it was seized; that it was placed behind a counter, and there found by the police officers; that the barrel had not been unheaded or opened, and none of the beer had been offered or exposed for sale or sold; and that the barrel and contents were then removed by the officers, and ten days afterwards were returned to the defendant by order of court.</p> <p>There was other evidence bearing upon the questions of the defendant’s knowledge that the barrel contained lager beer, and whether he procured the contents of the barrel supposing that it contained hop beer, and whether the contents of the barrel were intended for sale by the defendant, upon which the judge gave instructions which were not excepted to.</p> <p>The defendant asked the judge to instruct the jury as follows: “ 1. To constitute the statute offence, the keeping and exposing of intoxicating liquors, and an intent to sell the liquor at all events, without authority of law, must be proved to the satisfaction of the jury, to a moral certainty, and beyond a reasonable doubt. 2. - There must be the overt act of offering for sale; while intent may exist in a man’s mind, and no act be done in pursuance of such intent. 3. There must be an offer of the liquor by exposing it to those who might become purchasers. If the liquor is concealed or deposited where its presence cannot be known to the public, it is not exposed for sale within the meaning of the statute. The three words are to be taken together to get at the sense of the statute. 4. A man may have liquor and intend to sell it;. but, unless he exposes it for sale, he commits no offence under this complaint.”</p> <p>The judge declined so to rule; and instructed the jury, that, if they found proved, beyond a reasonable doubt, the fact that, at the time and place alleged in the complaint, the defendant had received and was keeping in his shop, for any period of time, a closed barrel containing lager beer in bottles, for the purpose and with the intent to sell such lager beer in violation of law, the defendant might be convicted upon the complaint, notwithstanding there was no evidence that the defendant, before the seizure and removal of the barrel and its contents from his shop, had sold or offered for sale any of the lager beer in that barrel.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>A writ of error does not lie to reverse a judgment rendered upon an indictment for arson, on the grounds that the building burned was not a dwelling-house, as alleged in the indictment, and that it was not the property of the person named in the indictment as the owner.</p>

<p>Indictment, alleging that the defendant, on September 7, 1882, at Worcester, “contriving and unlawfully and maliciously intending to injure, vilify, and prejudice one Augustus B. R. Sprague of Worcester,” “ and to deprive him of his good name, fame, credit, and reputation, and to bring him into great contempt, scandal, infamy, and disgrace, he the said Sprague being then and there sheriff of our said county of Worcester, and also the keeper of the jail and house of correction at Worcester aforesaid, unlawfully and maliciously did publish, and cause and procure to be published, a false, scandalous, malicious, and defamatory libel, containing divers false, scandalous, malicious, and defamatory matters and things of and concerning the said Augustus B. R. Sprague.” The indictment then set forth the libel, the material parts of which were as follows :</p> <p>“ In the name of humanity I feel called on to prefer charges against A. B. R. Sprague, sheriff and jailer, Worcester county, Massachusetts. 1. I charge him with being-an untruthful man. 2. I charge him with being a profane man. 3. I charge him with being a common drinker of intoxicating liquors. 4. I charge him with treating prisoners placed under his charge cruelly, wickedly, shamefully. 5. I charge him with being a libertine, even making the jail a place of prostitution. 6. I charge him with ruining a young and innocent Worcester lady. 7. I charge him with boasting of the influence of his office, money, and friends being sufficient to crush any one who should attempt to expose him. 8. I charge him with employing men as officers who are untruthful, bad men. 9. I charge him, or any other man, with being a coward, who will draw a pistol on a virtuous Christian lady, in the presence of men and women, for no cause other than exposing him in a crime which would send him to the state prison as a criminal. Some, or I will say many, of the acts of cruelty committed in Worcester county jail have been most cruel, even ruinous to the health of prisoners. As to the management of the property of the county, I am told he is neither honest or prudent. I, however, care nothing about property. I have met one young man who was ruined in health for life in consequence of bad treatment in Worcester county jail under Sheriff Sprague, and hear of many others who have been badly treated. I make these charges perfectly free from anger towards Sheriff Sprague or any human being.”</p> <p>The indictment concluded as follows: “ The letters and word ‘ A. B. R. Sprague,’ in said libel, meaning the said Augustus B. R. Sprague. The said Burnham Ward well then and there well knowing the said defamatory libel to be false, to the great scandal and disgrace of the said Augustus B. R. Sprague.”</p> <p>In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment, for the reason that the publication alleged to be libellous referred to Sprague only in his official capacity, and the allegations of the indict.ment referred to him in his private capacity. Grardner, J., overruled this motion; and the defendant• excepted.</p> <p>At the trial, the government introduced evidence tending to show that the defendant, who was then a resident of Worcester, caused the alleged libel to be printed and circulated in Worcester.</p> <p>The government called Sprague as a witness, who testified that he was first appointed sheriff of Worcester county in June, 1871, and had held the office ever since ; that he had been jailer and keeper of the house of correction in Worcester for the last seven years, during which time he had lived with his family at 'the jail.</p> <p>On cross-examination, he testified that the next election for sheriff would be at the general election in November, 1883; that he could not say whether he would be a candidate for reelection in 1883; and that he would not disclaim his intention of being a candidate.</p> <p>The defendant asked the judge to rule that, taking the fair meaning of the whole publication, the charge related to Sprague in his official capacity; that, as the allegations of the indictment referred to him in his private capacity, the evidence did not tend to prove the charges; and that, upon a fair meaning of the words thereof, no malice could be presumed in law.</p> <p>The judge refused to rule as requested, and ruled that the indictment set out a libel against Sprague in his individual and private capacity, and not in his capacity as sheriff or jailer of the county, and that the allegation that he was such officer was merely descriptivb; that those charges in the alleged libel relating to. the misconduct of Sprague in his official capacity should be stricken out and excluded from the consideration of the jury, this ruling excluding the fourth and eighth charges, and the following sentences: “ Some, or I will say many, of the acts of cruelty committed in Worcester county jail have been most cruel, even ruinous to the health of the prisoners. As to the management of the property of the county, I am told he is neither honest or prudent. I, however, care nothing about property. I have met one young man who was ruined for life in consequence of bad treatment in Worcester comity jail under Sheriff Sprague, and hear of many others who have been badly treated.” At the request of the defendant, the third charge was also excluded, as containing nothing libellous. To this ruling defendant excepted, so far as it related to the other charges not excluded.</p> <p>The defendant then requested the judge to rule, as matter of law, as follows: “ 1. The occasion of the publication was such as to make it privileged. 2. The publication was a privileged communication, for the making of which the defendant is not criminally liable. 3. The publication was a privileged communication. 4. Assuming that the publication was made in good faith, without malice, and in the belief that it was true, then it was a privileged communication. 5. In deciding upon each of these foregoing requests, it is the duty of the court to assume that the publication was made in good faith, without malice, and in the belief that it was true.”</p> <p>The judge gave the fourth ruling requested; refused to give the others; and ruled that the defendant could not be convicted, without proof of malice; but that if the publication was libellous, that is, such as to bring the person libelled into hatred and contempt among the people, malice was presumed from the act of publication, the truth or other justification not being set up.</p> <p>The defendant then offered evidence tending to show that some of the charges (not excluded) were true; and the government offered evidence tending to contradict the defendant’s evidence, and to show that the publication was made with actual malice, and with an intent to injure Sprague.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>An indictment for receiving stolen goods, knowing them to have been stolen, need not state the place of the larceny.</p>

Complaint alleging that the defendant, on January 5, 1883, at Marblehead, kept intoxicating liquors, with intent to sell the same unlawfully in this Commonwealth.

<p>Indictment, in four counts, each charging John W. Jones, Anton Meroth, and Herman Stencil with the larceny of certain goods, the property of Francis A. Strater, at a time and place named. The counts were alike, except as to the times alleged.</p> <p>At the trial in the Superior Court, before Rockwell, J., the defendant Meroth, before the trial of the other defendants, pleaded guilty. All the evidence offered by the government tended to show the larceny of some of the articles named in the indictment, at separate times, and by the other defendants severally, without joint action with each other or with Meroth, except as follows: After their arrest, Meroth and Jones were placed in adjoining cells; and thereupon Jones said to Meroth, “ What did you tell the old man ” (meaning Francis A. Strater, named in the indictment) “about me?” Meroth replied, “I told him nothing; ” and Jones said, “ I guess Stencil ” (meaning the defendant Stencil) “has given us away."</p> <p>The defendants offered no evidence, and asked the judge to rule, that, upon the evidence, neither could be convicted; that the plea of guilty by Meroth exhausted the indictment; that, upon the evidence, there was no direct connection or joint action by either Jones or Stencil with Meroth; and that neither could be convicted without proof of such joint action.</p> <p>The judge refused to rule as requested; but ruled that, upon the evidence, if the jury should be satisfied of its truth, either defendant could be convicted on any count of the indictment to which the evidence applied.</p> <p>The jury returned a verdict of guilty as to Jones, and not guilty as to Stencil; and Jones alleged exceptions.</p>

<p>A bond was executed to the judge of probate by S., trustee under a will, as principal, and G. as surety. The trustee was removed; H. was appointed trustee in his place, and demanded of S. the trust funds, which S. refused to deliver. G. died, and S. and another person were appointed administrators of his estate, and gave a joint bond. More than two years afterwards, but before the estate was fully administered, H. brought a petition, under the Gen. Sts. c. 97, § 8, to the Probate Court, to order the administrators to retain in their hands sufficient funds to satisfy his claim, as trustee, against G.’s estate. The petition was granted, but the amount in the hands of the administrators was insufficient to satisfy H.’s claim. H. then brought an action, under the Gen. Sts. c. 97, § 10, in the name of the judge of probate, upon the trustee’s bond, against the administrators of the estate of G. Held, that the refusal of the former trustee to deliver the trust fund to H. was a breach of his bond as trustee, for whicli a claim arose against the estate of G. as surety; that, on payment by the administrators of the amount in their hands, an obligation would arise on the part of S. to indemnify the estate, which would be assets in the hands of both administrators ; that judgment should be entered for the penal sum of the bond, and execution awarded for the amount of the trust fund due from the former trustee to H.</p>

<p>Tort for slander. 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>Whether an assessment upon an estate for the construction of a sewer by a city is void, because the scheme adopted is not in accordance with the provisions of the St. of 1878, c. 232, § 3, and whether the statute itself is constitutional, are not open upon the trial of a petition to the Superior Court for a jury to revise the assessment, and can properly be raised only on certiorari; and the rejection of evidence relating only to these questions is immaterial.</p> <p>At the trial of a petition to the Superior Court for a jury to revise an assessment upon an estate for the construction of a sewer by a city, if it is admitted that the assessment is correct according to the scheme adopted, and the question of the validity of that scheme is not open to the petitioner, the assessment is properly affirmed.</p>

Petition for a jury to revise an assessment, laid upon the petitioner’s estate by the city of Fitchburg, for the construction of a sewer. Trial in the Superior Court, before Staples, J., who directed a verdict for the respondent for the amount of the assessment, with interest; and reported the case for the determination of this court.

<p>Under a condition in a mortgage of land, given in 1874, that the mortgagor “ shall pay all taxes and assessments on the granted premises,” he is bound to pay the taxes assessed, under the Pub. Sts. c. 11, §§ 13 §• seq., upon the amount of the mortgagee’s interest in the premises ; and, until he has done so, he cannot maintain a bill in equity to compel the mortgagee to discharge the mortgage.</p> <p>A bill in equity by a mortgagor, to compel the mortgagee to discharge the mortgage, alleged that the defendant “ agreed that, if the plaintiff would pay him the sum of $40, he would allow him to take up the balance of the same; that the plaintiff agreed to take up said mortgage upon these terms, and then paid the defendant the balance of said mortgage and $40 in addition thereto ; and, in consideration thereof, the defendant agreed to discharge said mortgage upon the record.” The mortgage contained the condition that the mortgagor “ shall pay all taxes and assessments on the granted premises.” Held, on demurrer, that the bill did not set up any agreement by the defendant to discharge the mortgage without performance by the plaintiff of all its conditions.</p>

<p>Contract, upon an account annexed, for the board and care of the defendant’s minor child. Writ dated March 16, 1882. The case was referred to an auditor, who found the following facts:</p> <p>The plaintiff has boarded and partly cared for the minor child of the defendant for the -period of time named in the account annexed to the declaration, namely, three hundred and twelve weeks. Most of that period the mother of the child, who lived with the plaintiff, was away in the daytime at work. During this time the plaintiff cared for the child; but the mother of the child took care of the child at night, and when she was not away at work. A fair price for the board and care furnished by the plaintiff to said child, under all the circumstances of the case, was an average of three dollars for each week during the whole time. The defendant has paid the plaintiff through his wife $35, which was applied by the plaintiff on this account.</p> <p>The board and care was furnished under the following circumstances : The mother, previously to the birth of the child, came to live with the plaintiff, with the consent of the defendant, and remained there with her child, with his consent, until the date of the writ. He paid the board of the mother until about five weeks before the child was born. He never lived with the plaintiff. He came to see the child at the plaintiff’s house when the child was about ten months old, and never came there after-wards. Subsequently, he removed to Rhode Island, where he has since resided. He never offered to take the child or the mother, or to assume the care of either. On April 21, 1877, the mother, with the knowledge of the plaintiff, but without the knowledge of the defendant, obtained a decree of the Supreme Judicial Court giving her the custody of the child; and, on November 12, 1879, the mother, with the knowledge of the plaintiff, but without the knowledge of the defendant, obtained a decree of divorce from the defendant, with the custody of the child.</p> <p>The auditor found that the defendant was liable to the plaintiff for the board and care of the child for 312 weeks at $3 per week, less the $35 paid by him, amounting to $901, with interest from the date of the writ, unless the obtaining of said decrees, or either of them, by the mother, relieved the defendant from liability from the time of the granting thereof.</p> <p>At the trial in the Superior Court, before Mason, J., without a jury, the plaintiff contended that she was entitled to recover the amount found due by the auditor; and asked the judge so to rule. The defendant contended, and asked the judge to rule, that, if the plaintiff was entitled to recover at all, she was entitled to recover only from the time her claim began up to the time of the decree of April 21, 1877, or at most up to the time of the decree of November 12, 1879.</p> <p>The judge ruled that the plaintiff was entitled to recover only up to the time of the decree of April 21, 1877; and found for the plaintiff in the sum of $175.78. The plaintiff alleged exceptions.</p>

<p>Tort, for the conversion of a building. Trial in the Superior Court, without a jury, before Mason, J., who found for the plaintiff; and the defendants alleged exceptions. The facts appear in the opinion.</p>

<p>The plaintiS in a bill in equity,before hearing, moved “for leave to enter a discontinuance." Held, that this motion, though informal, might be treated as a motion for an order dismissing the hill; and that the plaintiff was entitled to a decree dismissing the bill without prejudice.</p>

Tort against the sheriff of Bristol for the acts of his deputy, in attaching and keeping possession of the plaintiff’s goods. After the former decision, reported 134 Mass. 347, the case was tried in the Superior Court, before Pitman, J. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

<p>Contract, upon an account annexed, to recover $1608.91, and interest, for goods sold and delivered. The case was referred to an auditor, upon whose report, as an agreed statement of facts, it was submitted to the Superior Court, which found and ordered judgment for the plaintiffs in the sum of $119.91; and the plaintiffs appealed to this court. The facts appear in the opinion.</p>

<p>A stipulation in a deed poll, that the grantee, his heirs and assigns, shall make and maintain a fence between the granted premises and adjoining land of the grantor, is not a covenant, and will not sustain an action by a subsequent grantee of the adjoining land against a purchaser from the grantee in the deed poll.</p>

<p>A corporation was authorized by statute to issue preferred stock, not to exceed a certain number of shares, giving its guaranty that each share of such stock should receive semiannual dividends of a certain number of dollars on each share. The statute further provided that such stock should not be issued until the corporation had received a certain sum for each share ; that the stock might be exchanged for common stock, but not within a stated time preceding the making of a dividend; and that, upon the dissolution or termination of the corporation, the holders of preferred stock were entitled to be paid in full next after the payment of debts, and before any payments to the holders of the common stock. Held, that the guaranty of dividends on the preferred stock was an absolute one, and not conditional upon the earning of sufficient profits by the corporation.</p>

<p>H. deposited a sum of money in a savings bank in the name of E., “ subject to the order of H.” A few days afterwards H. asked E. to come to his house, showed him the deposit-book, said he was going to give it to him, and delivered it temporarily into his possession. H. then said he would keep the book for E., as he had a safe, and took it and put it into the safe. On the same day, by E.’s request, H. signed and delivered to E. a paper certifying that the money was for him. H. never drew the interest upon the deposit, but allowed it to accumulate during his life, doing nothing to assert a personal ownership. E. gave seasonable notice to the bank that he should claim the money; but the bank paid the same to H.’s administrator. Held, in an action by E. against the bank, after the death of H., for the amount of the deposit, that the jury were authorized to find a completed gift of the money by H. to E.; and that the bank had sufficient notice thereof.</p>

<p>Replevin of a stock of merchandise, consisting of preserves, jellies, and canned goods. Writ dated February 27, 1882.</p> <p>At the trial in the Superior Court, before Staples, J., there was evidence tending to show that, on January 22, 1881, the plaintiff lent to A. N. Fairbank $400, to enable him to buy a stock of canned goods, and took a promissory note, and a mortgage on the stock as security for the debt; that Fairbank took one O’Hara into partnership with him, and, prior to July 5, 1881, the new firm, desiring money with which to buy materials and to pay the expenses of the business, applied to the plaintiff therefor, and he agreed that, upon satisfactory security being given, he would advance money to the firm from time to time, to enable it to carry on its business; that, on said July 5, both partners assumed the balance due on the note, and the plaintiff lent them an additional sum, and it was agreed that the old note and mortgage should be delivered up, which was done, and a new agreement was drawn up, by which the plaintiff was to hold the stock of the firm as security for his advances, which agreement the plaintiff refused to accept; that Fairbank then assigned, as security, a policy of insurance on his life to the plaintiff; that thereafter, from time to time, between that day and September 2, 1881, the plaintiff advanced to the firm further sums, amounting in all to $978; and, not being satisfied with the security, caused the following agreement to be drawn up, which was executed by Fairbank and by O’Hara:</p> <p>“ Memoranda of an agreement made and entered into this second day of September, A. d. 1881, by and between Levi Wilson, of Uxbridge, county of Worcester, Commonwealth of Massachusetts, of the one part, and A. N. Fairbank and Eugene O’Hara, both of Worcester, in said county, copartners as A. N. Fairbank & Co., of the other part:</p> <p>“ Witnesseth, That whereas said A. N. Fairbank & Co., who are engaged in the business of canning fruits and vegetables, have received from said Wilson loans of money for the purpose of enabling them to carry on said business, and desire further loans for the same purpose, and desire to secure said Wilson therefor: Now therefore it is mutually agreed by the parties hereto as follows, viz.: The said Wilson is to advance money not exceeding in amount (including the amount already advanced) the aggregate sum of twenty-five hundred dollars, for the purpose of enabling the said Fairbank & Co. to purchase fruit and materials, and pay all expenses of canning and preparing the same for market, until the end of the canning season; and when the process is completed, then the entire stock in trade of said A. N. Fairbank & Co. is to be the property of said Wilson; is to be convéyed to him by good and sufficient bill of sale, renewed and delivered to said Wilson every thirty days during said season, and the money realized from the sale of the whole or any part of said stock in trade is to be accounted for, and paid over to said Wilson, except such sums as may be necessary to defray the expenses of said business, as fast as the same is collected; all sales to be made for cash, or approved credit, and after said Wilson shall have received from said sales or otherwise the whole amount which he shall have advanced to said Fairbank & Co., together with fifteen per cent of the net profits of the business, as and in lieu of interest for said money so advanced, then he the said Wilson will release and quitclaim to said A. N. Fairbank & Co. all the balance of said stock in trade, and the unappropriated balance of proceeds of sales. The said A. N. Fairbank & Co. to act as selling ágents only until said sum shall be paid, and are in no case to use the name or credit of said Wilson in making purchases or otherwise conducting said business. Said Wilson is not a partner of said A. N. Fairbank & Co., and in no way responsible beyond the money advanced to said firm for the purposes aforesaid. And in case said A. N. Fairbank & Co. shall neglect or refuse to conduct said business according to the terms of this contract, and with their best skill and judgment, and do not keep on hand stock in trade of the value of the amount so advanced under this contract, or its equivalent in cash or approved credits, or shall neglect to keep true and accurate books of account open to the inspection of said Wilson at all times, then said Wilson may terminate said contract, take immediate possession of all the goods, effects, and credits of said A. N. Fairbank & Co. without process of law, and sell and dispose of the same at public or private sale, and out of the proceeds pay himself the amount due to him under this contract, with all expenses of keeping, advertising, and selling same, and pay over the balance, if any remains, to said A. N. Fairbank & Co. or their legal representatives. Witness the hands and seals of the parties, this second day of September, A. D. 1881.”</p> <p>There was also evidence tending to show that, upon the execution of the above agreement and its delivery to the plaintiff, the latter delivered to the firm the prior unaccepted agreement and also the assignment of the policy of insurance, and the plaintiff thereupon lent the firm the further sum of $500, and on October 3 advanced to the firm the balance of the $2500 mentioned in the agreement; that the firm began business in Worcester, in a store at No. 1 Summer Street, and continued there until December 20, 1881, when a portion of the stock was moved to a store on Pleasant Street, and the firm thereafter occupied the Pleasant Street store as its principal sale store, and advertised it in the papers as its place of business; that the Summer Street store was still retained, being used as a storehouse, and goods were also kept and sold therefrom by the mother of O’Hara, as opportunity offered, and Fairbank and O’Hara remained in person at the Pleasant Street store until their failure; that on February 20,1882, the property still being at the two stores, the plaintiff, being dissatisfied with the conduct of the business by the firm, went to the Pleasant Street store, and, finding both partners present, said to Fairbank, in hearing of O’Hara, that according to their agreement he had the right to take posses- . sion, and he, Fairbank, could not sell any more, and that he did so take possession, and put O’Hara in keeper, directing him to sell the goods' for the plaintiff, and forbidding Fairbank from selling the same or having anything to do with the property; that O’Hara agreed to do it; and that the canning season closed in November or December.</p> <p>On February 28, Fairbank and O’Hara filed a petition in insolvency, and the defendant was appointed messenger on February 24, on which day the first publication was made, and on that day the defendant, as messenger, took possession of the property at both stores, having previously, on February 23, taken it as a deputy sheriff, on a writ of attachment against Fairbank and O’Hara, and held it on said writ till he took it as messenger. He caused the stock at Pleasant Street to be moved to the Summer Street store, and put in there with the other stock of the same general character and description, where it remained until the service of the writ in this case, upon which the whole stock in the Summer Street store on February 27 was on that day taken.</p> <p>Fairbank and O’Hara appeared as witnesses for the defendant, and denied the foregoing evidence relating to Wilson’s taking possession. There was evidence that, at the time the defendant attached the goods, he asked for the key of the Pleasant Street store, and it was given to him by the attorney of Fairbank and O’Hara, the latter making no objection.</p> <p>The only question submitted to the jury was whether actual possession was taken by the plaintiff of the stock in the Pleasant Street store on February 20, and thereafter kept by him till the stock was taken by the defendant on his writ of attachment, which question the jury answered in the affirmative; and the judge thereupon directed a verdict for the plaintiff for such portion of the property taken as was manufactured from materials bought with money advanced by the plaintiff after September 2, 1881, irrespective of the store which they were in, and also such portion as was taken possession of by the plaintiff in the Pleasant Street store, not included in the foregoing category, and for the defendant as to the remainder.</p> <p>The jury returned a verdict accordingly; and both parties alleged exceptions to certain rulings and refusals to rule, which appear in the opinion.</p>

Contract upon a promissory note for $350, dated September 1, 1880, payable on demand to the order of the plaintiff, signed by the defendant, and indorsed by one Smith.

<p>A bill in equity by the guardian of an insane person, to compel a reconveyance of land conveyed by his ward to the defendant, alleged that, although the deed was absolute in form, it was intended by the parties only as a mortgage to indemnify the defendant against loss upon a bond, executed by him as part of the same transaction, and conditioned for the payment of debts and legacies mentioned in the will of the obligee, said ward, in case the estate of the latter was not sufficient to pay them at the time of his decease. Held, on demurrer, that the deed was sufficiently alleged to have been a mortgage.</p> <p>A guardian of an insane person may maintain a bill in equity, to compel a reconveyance of land conveyed by his ward to indemnify the grantee against loss upon a bond, executed by him as part of the same transaction, and conditioned for the payment of debts and legacies given by the will of the ward, in case the estate of the latter is not sufficient to pay them at the time of his decease, the deed, though absolute in form, having been intended by the parties only as a mortgage, the land being necessary for the ward’s support, and a surrender of the bond and a release of the obligor’s liability upon it being offered.</p>

<p>The will of a married woman provided that her husband should “ not only have out of my estate what the laws of this Commonwealth prescribe, but the entire use, income, and profits of all my real and personal estate during his natural life; and furthermore, that if in his judgment it shall be necessary to his personal comfort to expend and consume any portion of the principal or capital of my said estate, he may freely appropriate so much thereof, even to the last cent, as may be justly deemed necessary for that purpose; and I do give and bequeath the same to him accordingly; ” and further provided that “ whatever may be left out of the principal or capital of my estate given to my husband as aforesaid, if anything, after his decease, I leave to be inherited by my paternal relatives and their descendants, as the laws of the land prescribe.” Held, that the husband’s title to land under the will was not so clear as to justify the court in decreeing specific performance of an agreement to buy the land, which stipulated that he should give a clear title thereto.</p>

Two ACTIONS OE TORT for entering a certain house in Worcester owned by the plaintiff’s husband and occupied by her, and doing certain acts therein tending to disturb her occupation. The cases were tried together in the Superior Court, before Gardner, J., who reported them for the determination of this court, in substance as follows: The plaintiff offered evidence tending to show the acts complained of.

<p>In an action against the sureties upon a bond, given to a bank, and conditioned for the faithful discharge by C. of “ all his duties as clerk of said bank,” and against the misappropriation of any of the funds of the bank “ which may come under the care or control of said C. as clerk,” the evidence showed that C., during the whole term of his employment, performed the duty, to some extent, usually performed by a teller, of paying and receiving money over the counter of the bank. It was found as a fact that “ the duties as clerk,” contemplated in the bond, did not mean merely the duties of a bookkeeper, but that they embraced the duty of receiving and paying out money at the counter of the hank. Held, that the defendants were not entitled to a ruling, as matter of law, that there had been such a change in the duties of the clerk as to discharge them from liability.</p> <p>In an action against the sureties upon a bond given to a bank by C., and conditioned for the faithful discharge of his duties as clerk of the bank, a breach of which is proved, the question whether a former judgment recovered by the bank against C. is conclusive evidence of the amount for which the sureties are liable is not open, but judgment must be entered for the penal sum of the bond.</p>

<p>Tort, for false and fraudulent representations. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The defendant was a member of the firm of C. R. Griffin and Company, the general agents for New England of the New York Life Insurance Company of New York. The defendant represented to the plaintiff that Samuel D. Nye and certain other persons, nine in all, on whose judgment and standing the plaintiff relied, had each become insured in said insurance company for the sum of $10,000 on the fifteen years’ endowment plan, had each paid their first premium, and were all acting as directors of the Worcester District Society, a local branch of the New York Life Insurance Company, which exercised some supervision of the company’s local business and shared in the profits of it.</p> <p>It was proposed that the plaintiff should take the same sort of policy that was taken by the other " persons mentioned, and become associated with them as a director of said society, from which great profits were expected.</p> <p>Relying on these representations, the plaintiff took a fifteen years’ endowment policy for $10,000 in said New York Life Insurance Company, and paid the first premium of $721.40 thereon, and signed an agreement to become a member of said district society.</p> <p>About six months later, the plaintiff ascertained the facts, that Samuel D. Nye and several of the persons represented as having been insured, and as having paid their premiums, and as having become directors in said district society, had not become insured, had not paid their premiums, and had not been acting as directors of said society, and that the statements had been made by the defendant fraudulently. He forthwith notified the defendant of his intention to cancel his policy, and demanded back his premium.</p> <p>It further appeared that the policy became forfeited if the yearly premiums were not paid; but it was not disputed that, until cancelled or forfeited, the policy was a good policy, and that the New York Life Insurance Company was a good and amply solvent company, and that the premium was a fair premium for that kind of policy.</p> <p>The defendant requested the judge to rule that, on the evidence and pleadings in the case, the plaintiff was not entitled to recover. The judge declined so to rule.</p> <p>The defendant then asked the judge to instruct the jury as follows: “1. The burden is on the plaintiff to prove that he did rely, and had a right to rely, on the representations of the defendant. 2. He must prove that those representations were false, and that he was damaged by relying on them. 3. The damage must be caused by the fact that the statements were false instead of true, and it is not therefore competent to show that his own act of cancellation caused the damage. 4. The plaintiff suffered no damage unless the value of the policy which he obtained was less than it would have been had the statements been true. 5. The value of the policy is its actual money or market value, and not its peculiar value to the plaintiff. 6. The measure of damages is the difference in money value between what he got, and what he would have got had the representations been true.”</p> <p>The judge gave the first instruction, in substance, but refused to give the other five instructions requested; and instructed the jury as follows:</p> <p>The plaintiff upon discovering the fraud might take advantage of it in either of two ways. He could keep on with his contract and sue for the damage which he had suffered, or he could do as he did in this case, rescind the contract and recover the amount of the money that he paid therefor, with interest, less the value of the insurance, if any, which he had received from said contract, as damages.</p> <p>The jury found for the plaintiff in the sum of $812.26; and the defendant alleged exceptions to the refusal of the judge to rule and instruct the jury as requested, and to the ruling and instruction given.</p>

<p>A bill in equity may be maintained for an account of the net profits of the sale of goods, made and sold under patents belonging to or controlled by the plaintiff, in pursuance of an agreement between him and the defendant, by which the latter was to purchase the patents, and to that end was to make and sell the patented articles and pay over one half the net profits to the plaintiff until the whole agreed price was paid, whereupon the patents were to be transferred; but not against a corporation, nearly all the stock of which is owned by the defendant, and which, as was intended by the defendant when he made the contract with the plaintiff, has done the work and made the profits, as the defendant’s agent, with full knowledge of the contract.</p>

<p>A person who has been elected a surveyor of highways of a town cannot maintain , an action against the town for money paid by him, without the direction or knowledge of the selectmen, for labor upon the highways of the town, before his district has been assigned to him for the year, although a portion of the money was. expended judiciously, and the selectmen sent him an order on the town for that amount, which he returned because it was less than he claimed, and the whole amount paid by him was for work done in the district subsequently assigned to him, and was less than the sum allowed him to be expended in that district.</p>

<p>If facts are known to a creditor, which give him reasonable cause to believe his debtor to be insolvent, and he also knows that the debtor knows the same facts, he has reasonable cause to believe that the debtor believes himself to be insolvent, and that a payment of the debt by him is made in fraud of the laws relating to insolvency.</p> <p>If a debtor is insolvent before making payment of his debt, and there is no evidence of a subsequent change in his financial condition, a jury will be warranted in finding that he was insolvent at the time of the payment.</p>

<p>Bill oe review, alleging the following facts:</p> <p>The plaintiffs, who were manufacturers in Plymouth, were restrained by a decree of this court, made on October 1, 1881, upon a bill in equity brought by the present defendants, from ringing a bell on their mill before the hour of six and one half o’clock in the morning; which decree was affirmed by the full court on September 7, 1882. [See Davis v. Sawyer, 133 Mass. 289.] On March 28, 1883, the Legislature passed an act, which took effect upon its passage, as follows: “ Manufacturers and others employing workmen are authorized, for the purpose of giving notice to such employees, to ring bells, and use whistles and gongs of such size and weight, in such manner and at such hours as the board of aldermen of cities and the selectmen of towns may in writing designate.” [St. 1883, e. 84.] On April 18, 1883, the selectmen of Plymouth granted to the plaintiffs a written license to ring the bell on their mill in such manner, and at such hours, beginning at five o’clock in the morning, as they were accustomed to do prior to the injunction of this court.</p> <p>The prayer of the bill was that the injunction might be dissolved, or that the decree might be so modified as- to enable the plaintiffs to act under their license without violating the decree of this court; and for other and further relief.</p> <p>The defendants demurred to the bill, assigning, among other grounds of demurrer, that the St. of 1883, e. 84, was unconstitutional, so far as applicable to the defendants.</p> <p>Hearing on bill and demurrer, before Colburn, J., who reserved the case for the consideration of the full court.</p>

<p>Contract upon a promissory note for $137, dated January 1, 1870, payable on demand to the order of Abram Spooner, and purporting to be signed by the defendant’s testator, and to be witnessed. Writ dated May 28, 1880. The action was first brought by Alden Rounseville as plaintiff. To the declaration filed, by him, the defendant answered that she was ignorant whether her testator “ ever signed and executed the promissory note set forth and declared on in the plaintiff’s writ and declaration, and shall require the plaintiff to prove the same.” On motion, Rounseville was allowed to erase his name as plaintiff, and to substitute therefor the name of the present plaintiff. A new declaration was thereupon filed. The answer to this contained, among other things, the following: “ The defendant denies each and every allegation in the plaintiff’s writ and declaration, and denies the signature of the alleged note described in the plaintiff’s declaration.” Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff claimed the right to read the note in evidence, without proving the signature of the maker, on the ground that there was not such a special denial of the genuineness of the signature, and demand that it should be proved at the trial, as is required by the Pub. Sts. c. 167, § 21. But the judge ruled that the answer was sufficient to require proof of the maker’s signature by the plaintiff.</p> <p>The plaintiff then offered to prove the signature by a witness who was acquainted with and knew the maker’s handwriting, but who was not the attesting witness. Upon the defendant’s objection, the judge ruled that this could not be done, and rejected the evidence; and ruled that the plaintiff must first call the attesting witness, who was present in court.</p> <p>The plaintiff, objecting, called the attesting witness, who testified that the maker’s signature was genuine; and, on cross-examination, stated that she signed her name as witness at the request of the plaintiff, without the knowledge or consent of the maker, several months after its date. Evidence contradicting her on this point was given by the plaintiff.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>In an action brought against an administrator, in which judgment is recovered against him, two executions should be issued, under the Pub. Sts. c. 166, §§ 5-9, one against the estate of his intestate for the damages only, and the other for the costs against the administrator personally; and, in such a case, a levy of an execution, which includes both damages and costs, upon the real estate of a deceased person, is void, notwithstanding the Pub. Sts. c. 172, § 55.</p>

<p>Two minor children, while their father was at sea, their mother, who had built with her own money a house upon land owned by the father, having died, left the premises, which they had previously occupied with their mother, and went to live with their uncle, who was executor of her will and called himself their guardian. Their father visited them about a year afterwards, and paid money from time to time for their support, and corresponded with them often, but, after his first visit, went to a foreign country and lived there. The uncle, while the children were living with him and their father was away, let the premises at will only, and without specifying his authority. He credited the children with the rent in his private account-book, and charged them with the cost of their support; and also accounted with their father, so far as required. The mother left a will, by which she gave the house to the children; and the uncle insured it for their benefit. They afterwards gave notice to quit to the tenant of the house, and occupied it themselves. Held, on a writ of entry by the father against the children, brought more than twenty years after their mother’s death, that there was no evidence that they had acquired a title by adverse possession.</p>

<p>The release by a married woman of her right of dower in her husband’s land is a good consideration for a promissory note, signed by him, payable to a third person, and given by him to her; and a divorce subsequently obtained by him from her, on account of her adultery, is not a failure of such consideration.</p> <p>»f a promissory note, payable on demand to a third person, and indorsed by the payee, is given by the maker to his wife, in consideration of her joining with Mm, in release of her right of dower, in a mortgage of Ms land, an action on the note may be maintained against the indorser, although the mortgage is outstanding and unpaid, and there has been no breach of its conditions.</p> <p>During the deliberations of a jury, and in the absence of the presiding judge from the court, the officer in charge of the jury, upon being informed by the foreman that a juror was ill and required some brandy, saw the juror, thought him ill, and sent for and gave to the foreman two ounces of brandy. Afterwards another juror fell upon the floor in a fit, and the officer allowed a physician to administer to the juror, who recovered. The jury subsequently agreed upon a verdict. Upon a motion to set aside the verdict, the presiding judge found that the officer acted in entire good faith, and that the party against whom the verdict was given was in no way prejudiced by his acts. Held, that this court was not required, as matter of law, to set aside the verdict.</p>

<p>A bill in equity may be maintained by the administrator of a deceased partner against the surviving partner, for a sale of letters patent belonging to the partnership, and for an account of the profits received by the surviving partner from the use of the patent since the dissolution of the partnership.</p>

<p>C. requested A. to recommend to him a builder “ that you can indorse in every way responsible and reliable,” who could erect a building for him cheaper than certain other builders. A. recommended B., who orally promised to pay A. a sum of money “ for his trouble.” B. was employed by C., erected the building, and was paid. Held, that A. could not maintain an action against B. on his promise.</p>

<p>An assignee of a recorded mortgage, whose assignment is unrecorded at the time of a sale of the mortgaged land for the non-payment of taxes, but which is recorded before making tender for the purpose of redemption, is a “ mortgagee of record,” within the meaning of the Gen. Sts. c. 12, § 36, cl. 4.</p> <p>In 1874, E., the owner of land, mortgaged it to W. In 1875, W. assigned the mortgage to H., but the assignment was not recorded until 1882. In 1876, W. by mistake discharged the mortgage on the margin of the record thereof in the registry of deeds. In 1877, before the St. of 1877, c. 229, took effect, W. and H. brought a bill in equity against E. to have the discharge of the mortgage can-celled. In 1876, after the discharge of the mortgage, and in 1877 and 1878, a tax on the land was assessed to E. as owner, and, not being paid, the land was sold in 1879 to J., by the collector of taxes of the town in which the land was situated, and deeds in due form to J. were executed by the collector, and recorded. In 1882, a decree was entered in the bill in equity ordering a cancellation of the discharge, which decree was recorded, in the same year, in the registry of deeds, and there was no evidence that J. had any knowledge of the suit prior to such record. Soon after, in the same year, H. foreclosed the mortgage by a sale under the power therein contained, and conveyed the land to himself. More than two years after the sale for taxes, but within two years after H. had knowledge of such sale, he made a tender to J., for the purpose of redeeming the land. Held, that, on the tender being refused, H. could maintain a writ of entry against J. to recover possession of the land.</p>

Conteact. The declaration was as follows: “ And the plaintiff says that Howard F. Solomon gave the plaintiff an order upon the defendant for the amount of money which was then due from the defendant to the said Solomon, to wit, the sum of fifty dollars; which order the defendant accepted and agreed to pay, a copy whereof is hereunto annexed, and the defendant owes the plaintiff the amount for which said order was given, to wit, the sum of fifty dollars.” The copy annexed was…

<p>Two bills IN equity, the first filed January 11, 1882, and the second May 1, 1882, to enforce trusts alleged to be created by the will of William D. Austin in favor of the plaintiff. The material parts of the will, which was dated June 20, 1878, were as follows:</p> <p>6 6 After the payment of my just debts and funeral charges, I bequeath and devise as follows:</p> <p>“ 1st. To my beloved wife, Mary Austin, the cottage house where I now live, with the land extending back of the same to the westerly board fence ; to have and to hold the same to her for her natural life, and after her decease then to my beloved daughter Mary Nudd, wife of William Nudd, to her sole and separate use and her heirs forever, free from the interference and control of her husband.</p> <p>“ 2d. To my daughter; the said Mary Nudd, I bequeath all the household furniture and other personal property in said cottage house at the time of the decease of my beloved wife, and also the sum of seven dollars per month out of or from the income or rents from the store and the dwelling-house owned by me next to my cottage house on Orange Street, and numbered forty on said street, and also the sum of five dollars per month out of the rents of my four-tenement dwelling-house numbered thirty-eight on said Orange Street; said rents to be free from the control and interference of her husband; to have and receive said rents during her natural life only.</p> <p>“ 3d. To Amelia Powers, wife of John Powers, I give and devise the dwelling-house and store numbered forty on said Orange Street, with the land on which it stands to the southerly board fence, and extending westerly by the line of said board fence to the westerly boundary line of my estate, and having for northerly boundary line the line running westerly from Orange Street to the westerly boundary, and adjoining my cottage house estate mentioned in first and second items; to have and to hold the same for her natural life only, and free from the control of her husband, and subject however to the reservations made to Mary Nudd in the second item hereof.</p> <p>“ 4th. To my son Frank I give and devise the four-tenement dwelling-house and land whereon it stands, and situate on the westerly side of said Orange Street, and numbered thirty-eight thereon, together with land between the two board fences which form the northerly and southerly boundaries of said land, including herein the land extending to the westerly line of my said land on the line of said board fences; to have and to hold said premises during and for his natural life only, subject however to the reservations to Mary Nudd, my daughter, as herein set forth in the second item.</p> <p>“ 5th. The above devises and bequests are made upon condition that no intoxicating drinks shall ever be sold upon said premises by said devisees and legatees, and in case said condition is not kept or fulfilled, then said devises and bequests to revert or go to my said daughter, Mary Nudd.</p> <p>“ 6th. To the trustees of the Catholic Orphan Asylum, to be erected in said Fall River, I devise and bequeath the rents, profits and income of all my real property before devised except that mentioned in the first item hereof, in trust for the benefit of said asylum forever after the decease of the devisees and legatees herein named; said legacy conveys a fee simple in- all my said real property in said trustees and their successors; and of this legacy it is my wish and earnest desire that there shall be a vigorous enforcement and observance thereof.”</p> <p>The bill in the first case, which was against Amelia Powers and Mary Austin, alleged that William D. Austin died on September 15, 1878; and that his will was duly admitted to probate ; that the testator, at the time of his death, owed no debts; that the rents and income of the estate mentioned in the third clause of the will were more than sufficient to pay the plaintiff the bequest of $7 per month contained in the second clause of the will; that the last-named defendant had an estate of dower in the land; and that both defendants refused to pay the plaintiff the bequest, which was due since September 15, 1878.</p> <p>The bill further alleged that the orphan asylum, mentioned in the sixth clause of the will, was not in existence, and that there was no indication that it ever would be.</p> <p>The prayer of the bill was that Amelia Powers be ordered to pay the amount due the plaintiff; and, in default thereof, that the plaintiff be authorized to sell the whole or part of the premises covered by the trust, subject to the dower interest of Mary Austin, and apply the proceeds to the payment of the sums due the plaintiff; and for further relief.</p> <p>The answer of Amelia Powers admitted the execution of the will and its admission to probate, denied that this defendant had used or enjoyed the premises, or that they were charged with a trust in favor of the plaintiff; alleged that Mary Austin had waived the provisions of her husband’s will, and had petitioned the Probate Court to have her dower assigned to her; that commissioners had been appointed, who had assigned to her as part of her dower the upper tenement in the house devised to Amelia Powers. The answer further alleged that the plaintiff had a full, adequate, and complete remedy at law.</p> <p>It was afterwards agreed in writing that the dower of Mary Austin was assigned to her in the manner set forth in the above answer; and that the defendant Powers had occupied and let the premises in the manner described in the bill, except so much of the same as was assigned as dower to Mary Austin. The bill in the second case, which was against Francis S. Austin and Agnes Austin, his wife, sought similar relief against the defendants, and against the estate devised to Francis S. by the fourth clause of the will. This case differed from the first only in the fact that the bill alleged that Francis S., on September 15, 1880, conveyed the property devised to him to a third person, who conveyed it to Agnes Austin; and in the fact that dower in the land was not assigned to Mary Austin. The answer admitted certain facts, and contained a general denial of all allegations of the bill not admitted, but said nothing about the alienation of the estate. It was agreed that the defendants had occupied in part, and let in part, the premises in question. Both cases were heard by W. Allen, J., on bill, answer, and the facts agreed, and reserved for the consideration of the full court.</p>

<p>A notice to a city that a person has been injured by falling upon the sidewalk of a street named, “ the fall being consequent upon the icy and slippery condition of the said sidewalk,” sufficiently designates the cause of the injury, within the St. of 1877, c. 234, § 3.</p>

Contract upon a judgment recovered by the plaintiff against Edwin Robinson, the defendant’s intestate, in the Court of Common Pleas for the county of Norfolk, on January 8, 1850. Writ dated January 4, 1888.

<p>Contract to recover the amount of taxes assessed by the defendant in the years 1880 and 1881, respectively, upon real estate owned by the plaintiff, and paid under protest. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, upon agreed facts, in substance as follows:</p> <p>The plaintiff is a corporation, chartered by the St. of 1880, c. 195,* and, on May 1,1880, and May 1, 1881, was the owner of certain land, with buildings thereon, situated in Lynn.</p> <p>On May 1, 1880, the buildings above mentioned were vacant; and on May 1, 1881, some of them were, with the land connected therewith, occupied by persons who had received bonds for deeds, and were paying for them as provided by the charter of the corporation; but no part of said real estate had been paid for in full by any of the occupants, nor had deeds of any of it been given.</p> <p>Only one of said occupants, William E. Stone, was ever a member of the corporation.</p> <p>The cost value of all the land belonging to the plaintiff in 1880 and 1881 was $869.68. The cost value of the land and buildings occupied as above stated in 1881 was $562.47, that of the portion occupied by Stone being $300.22. The plaintiff has, as fast as practicable, improved all its land, and assigned it and caused it to be occupied as provided by its charter; and it has made no other use of any of its land.</p> <p>Upon all the real estate aforesaid, the defendant assessed to the plaintiff a tax for the year 1880 of $17.60; and during the months of July and August, 1881, gave due notice of the sale of said real estate for non-payment of the tax, the tax having remained unpaid for more than fourteen days after having been duly demanded from the plaintiff by the defendant’s collector of taxes. On August 22,1881, the plaintiff delivered to the defendant’s collector of taxes a written protest against the assessment and collection of the tax, and thereupon paid to said collector the amount of said tax, together with interest, and the costs of advertising and notice, the whole amounting to $20.34.</p> <p>The defendant also assessed to the plaintiff upon all its real estate aforesaid a tax for the year 1881 of $18.27; and on May 18, 1882, the plaintiff delivered to the defendant’s collector of taxes a written protest against the assessment and collection of the tax; and thereupon paid to said collector the amount of said tax, together with interest and the cost of a summons, the whole amounting to $19.39.</p> <p>These assessments were valid, if said property was in said years taxable to the plaintiff, and was not by law exempt.</p> <p>If, upon the above facts and the true construction of the charter of the plaintiff corporation, the plaintiff was entitled to recover in this action the whole or any part of the money so paid, by reason of the exemption of said property, or any part thereof, from taxation, judgment was to be entered for the plaintiff for the sum of forty dollars; otherwise, judgment for the defendant.</p>

Petition, dated July 12, 1882, to have a homestead set off in an estate in Lawrence, under the Pub. Sts. c. 123. The case was submitted to the Superior Court, and, after judgment for the respondents, to this court on appeal, upon agreed facts, in substance as follows: The estate in question was conveyed to Nicholas G. Paul in 1848, and was thereafter occupied by him with his family as a residence, until his death, on March 7, 1870.

<p>A sale, under a power contained in a second mortgage of land, of the entire estate, as unencumbered, is not a valid execution of the power, although, at the sale, the auctioneer states the existence of the first mortgage, and that it may remain at the option of the purchaser, and the deed delivered to the purchaser also states that he assumes and agrees to pay the first mortgage as part of the consideration ; but the deed operates as an assignment of the second mortgage to the purchaser.</p>

<p>The fact that an action is brought for the benefit of a third person does not deprive the defendant of the right, given by the Pub. Sts. c. 167, § 49, to file interrogatories for the discovery of facts material to the defence of the action, to be answered on oath by the plaintiff.</p> <p>If the plaintiff in an action wholly neglects to answer interrogatories filed by the defendant, any of which are pertinent and material, it is within the discretion of the court to order a nonsuit; and no exception lies to the exercise of such discretion.</p>

<p>An officer, who fails to complete an attachment of property by returning the writ upon which the attachment is made, cannot, after judgment against him in an action by the owner of the attached property, maintain an action against the obligors in a bond, given to the officer by the attaching creditor, to indemnify the officer against liability by reason of the attachment.</p> <p>The testimony of a referee, to whom is referred an action against an attaching officer by the owner of the attached property, as to the reasons for his award against the officer, upon which judgment is rendered, is incompetent and immaterial in an action by the officer against the obligors in a bond, given to him by the attaching creditor, to indemnify him against liability by reason of the attachment, although the obligors were notified of the action against the officer, and defended it.</p>

<p>Section 33 of the Pub. Sts. c. 137, (St. 1880, c. 233,) applies only to an execution for a debt against the estate of a deceased person which has been rendered insolvent ; and in an action by an executor, in which the defendant files a declaration in set-off, and obtains judgment in his favor, he is entitled to an execution for costs against the executor de bonis propriis, under the Pub. Sts. c. 166, § 8, although the estate of the plaintiff’s testator has been represented insolvent.</p>

<p>If a decree of the Prohate Court, reforming the account of an administrator, has been affirmed by this court on appeal, and the case remitted to the Probate Court for further proceedings, that court may authorize the bringing of an action upon the administrator’s bond, although the certificate of the decision of this court has not then been filed in the Probate Court; and, in the action on the bond, neither the administrator nor his sureties are entitled to contest the validity of the order authorizing the action.</p> <p>The failure of an administrator to pay to the widow of his intestate an allowance, made and ordered to be paid by a decree of the Probate Court, is a breach of his bond for which his sureties are liable; and, in an action on the bond, evidence of gross negligence on the part of the administrator, offered by the sureties as tending to show that the decree should not have been made, is incompetent.</p> <p>The failure of an administrator to pay to the heirs of his intestate, on demand, rents of real estate received by him, before any decree of the Probate Court in relation thereto, is not a breach of his bond for which his sureties are liable.</p>

<p>Contract, to recover rent from May 24 to November 24, 1882, on the following instrument, in writing, dated November 24,1879, and executed by the plaintiff and the defendant:</p> <p>“ Know all men by these presents, that we, Samuel Kimball, of Boxford, in the county of Essex, and State of Massachusetts, and William Sawyer, of Georgetown, in said State and county aforesaid, have leased our mill privilege in Boxford, it being the same on which our box factory was burned, with all the rights and privileges pertaining thereto, for the term of one year, for seventy-five dollars, with the privilege of continuing five years at one hundred dollars per year, to Henry M. Cross,' of Newburyport, in the aforesaid State and county.</p> <p>“ And I, Henry M. Cross, on my part, promise to pay the rent as above described, and to be paid semiannually, and I agree to keep said privilege in as good condition as it is at this time.”</p> <p>Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiffs put the lease declared on in evidence; and the defendant admitted its due execution and delivery. The land demised thereby extended seventy feet on a street, and ran back forty feet. A mill formerly standing thereon had been burned at the date of the lease.</p> <p>At the same time that the lease was executed, Kimball demised to the defendant the right to take a deposit of infusorial earth from land near the premises demised in the lease, upon a royalty, and also about a quarter of an acre of land, on which to put sheds for drying said earth. The defendant furnished money to his brother, John S. Cross, who, as agent for the defendant, carried on operations in removing said deposits for a short time after November 24, 1879, not exceeding six months. Soon after November 24, 1879, a two-story building, twenty by thirty feet, was placed upon the premises demised by the lease, standing on stone posts, and used in connection with the removal of said deposits, which building was the property of the defendant.</p> <p>The plaintiffs offered evidence tending to show that the defendant, at or near the end of the first six months of the first year of the lease, paid as rent therefor to one William F. Sawyer, as agent for William Sawyer, one of the plaintiffs, the sum of $18.75, that being his share of the semiannual rent then due; and also that the defendant, at or near the close of the first year, paid the same amount to William Sawyer for the last six months’ rent of the first year; and that, at or about the end of the first six months of the second year after the date of said lease, the defendant paid Sawyer the sum of twenty-five dollars as his share of the rent of the premises demised in said lease for said six months.</p> <p>It also appeared that, some time in the summer of 1881, the defendant was told by the plaintiff, that, if he wished to terminate his lease, he must move off his building; and that he then _ replied that he was not ready to do that, as he hoped to interest New York parties. It appeared at the trial that the building on the lot had never been removed.</p> <p>On September 26, 1881, Kimball sent the following letter to the defendant, by the agent of both the plaintiffs: “ Mr. Cross: If convenient, I would like to have our affairs settled up. I conclude you do not care to use the buildings longer. Please transact the business with Mr. William F. Sawyer, Georgetown. Yours truly, Samuel Kimball.”</p> <p>William F. Sawyer, agent of both the plaintiffs in collecting the rents and caring for the premises, testified as follows, and his evidence was not contradicted: “I saw the defendant in September, 1881, at the time the letter was presented. I asked him to remove the buildings. I understood he wished to keep the infusorial earth lot longer, but did not wish to keep the mill privilege longer. In January, 1882, he told me he had no further use for these premises, and did not propose to pay any more rent or have anything more to do with them. I did not then ask him to remove the buildings, but had done so the previous fall.”</p> <p>It was admitted that no rent had been paid for the premises demised by the lease during the time covered by the writ, and that the same had been duly demanded.</p> <p>The defendant contended, and offered evidence tending to show, that his third payment of rent was on account of Kim-ball’s share of the first year’s rent, and not for six months of the second year. He also denied that he had expressed any wish to retain the premises after the first year, and testified that at the end of the first year he had notified the plaintiffs that he should give up the premises; but this evidence was controverted by the plaintiffs.</p> <p>The defendant offered to show that he had never seen the lease declared on. The judge excluded the evidence.</p> <p>The defendant offered to show that he was informed, by parties other than the plaintiffs, that the site of the old mill covered by the lease was across the stream, and that the building put on the demised lot was intended to be put on the lot demised by Kimball alone. The judge excluded the evidence, but allowed the defendant to testify that he did not know in fact that the building was on the demised premises, and supposed the contrary.</p> <p>The defendant asked the judge to rule that the lease, as such, had no operative force after the expiration of one year, even if the defendant availed himself of the privilege of continuing, named therein. The judge declined so to rule, and did rule, that, if the plaintiffs proved that the defendant elected to continue in possession under the lease after the end of one year, and did in fact continue to occupy the premises after that year, and up to and during the six months in respect to which rent was claimed, under the privilege contained in the original lease, then he was liable in this action; but that such liability did not arise if, at any time prior to May 24, 1882, the defendant surrendered the premises to the lessors, and they accepted the same as surrendered; and that, upon the question of surrender, the burden of proof was on the defendant, and upon the former proposition the burden of proof was upon the plaintiffs.</p> <p>The defendant also asked the judge to rule, that, upon the facts and evidence herein appearing, the plaintiffs could not maintain their action. The judge declined so to rule.</p> <p>The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.</p>

<p>Tort for damages caused to the plaintiff’s estate, by the negligence of the servants of the defendant city, in excavating for and laying water pipes. Trial in the Superior Court, without a jury, before Staples, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff, in opening his case, stated that he relied upon the following facts:</p> <p>By the St. of 1872, o. 79, the defendant city was authorized to supply itself with water. Under this statute, the defendant laid distributing pipes through its streets, and from such pipes smaller service pipes were laid by the defendant to the residences of individuals, under an ordinance of the city providing therefor. The plaintiff, shortly after the laying of the main pipe in the street where he resided, applied under the ordinance for a service pipe to be laid from the main street pipe through his premises into his house, which was located near the street line. Thereupon the servants of the defendant made excavations, and laid the service pipe under the plaintiff’s stone and iron fence, which was on the line of the street, and from the fence under the foundation wall of the plaintiff’s house. The injury complained of was the settling and twisting of the fence and cellar wall, caused by the negligence of the defendant’s servants in undermining the same while digging for and laying the service pipe. The plaintiff paid for all the expense of laying the service pipe beyond the street line, as provided in the ordinance. The plaintiff’s premises, through which the service pipe was laid, were never taken by purchase or otherwise under the provisions of the statute, nor claimed nor used in any other manner than as above stated. After the laying of' the service pipe, the plaintiff paid the defendant the established rates for the use of the water thus conveyed to him.</p> <p>The defendant asked the judge to rule that, upon the above facts, this action could not be maintained, because the plaintiff’s remedy was under the provisions of the St. of 1872, c. 79, and was exclusive.*</p> <p>The judge so ruled; and ordered judgment for the defendant. The plaintiff alleged exceptions.</p>

<p>If one party to a contract under seal, which has been partly performed by the other party, totally repudiates it when the other party is not in default, the latter may rescind the contract, and maintain an action to recover back money paid by him under it.</p> <p>A bill in equity for the specific performance of a contract under seal, alleging that it has never been rescinded, but containing an alternative prayer for the payment back of money paid under the contract, which, after a hearing upon the merits, is dismissed with costs, is not a bar to an action at law between the same parties, founded upon a rescission of the contract by the plaintiff, to recover back the money so paid.</p>

Libel for divorce, on the ground of adultery, filed August 21, 1882. Hearing before G. Allen, J., who refused to grant a divorce, and entered a decree dismissing the libel; and thereupon, at the request of the libellant, reported, for the consideration of the full court, the facts found by him, as follows: “The adultery was proved as charged; and the remaining question was whether a divorce should be refused on the ground' of the connivance of the libellant.

<p>Petition to enforce a mechanic’s lien. Trial in the Superior Court, without a jury, before Gardner, J., who reported the case for the determination of this court, in substance as follows:</p> <p>It appeared that, prior to August 20,1881, Benjamin B. New-hall was the owner of the land described in the petition, and on that day he made an absolute conveyance of the same, free from incumbrances, by warranty deed, dated August 13, 1881, to the respondent Bassett; and, the land having been divided into three lots, Bassett made a mortgage back to Newhall on each of said lots, one for $5500, one for $6500, and one for $8000. An agreement in writing was entered into on said August 13, between Newhall and Bassett, which recited the conveyance above mentioned, and that Bassett proposed to erect certain buildings on the three lots; the execution of the above-named mortgages, and that they were made in contemplation of the erection of said buildings on the land, and of the advance of $11,000 by Newhall to Bassett in consideration of the mortgages, the price of the land forming the remainder of the consideration; that Bassett agreed to erect and complete said buildings within a time named; that, if the work on the buildings was discontinued, Newhall might prosecute the same to completion at Bassett’s expense, all sums so expended to be considered as secured by the mortgages; and that any liens claimed on said buildings and land might be settled by Newhall, and any sums so paid should be deemed part of the advance above provided for, and be secured by the mortgages. The warranty deed, mortgages, and agreement were executed and delivered at the same time, and as parts of the same transaction. Bassett paid no money and gave no other consideration for the warranty deed than the mortgages, and as is set out in the written agreement. The warranty deed and the three mortgage deeds were all duly recorded on August 20, 1881. On September 10, 1881, Newhall assigned said mortgages to one Poor, to obtain money to carry out the agreement, Poor having notice of said agreement; and subsequently Poor assigned the mortgages to other persons, who had no notice of said agreement, but who knew that the buildings were under construction and unfinished. Immediately after the delivery and recording of the deed and mortgages, Bassett commenced the masonry-work of the buildings, and Newhall advanced money to him, from time to time, until December 5, 1881, when Bassett failed to continue the work and left it in an unfinished condition, and at that time the cash advances from Newhall amounted to $5500; and Newhall, under the agreement, then took charge of the work and finished the buildings. The purchase money of the land, the sums advanced by Newhall to Bassett, and the money laid out by Newhall in completing the buildings, amounted to more than the amount of the three mortgages.</p> <p>On August 13, 1881, Newhall and Bassett orally agreed upon the transaction, which was reduced to writing on August 20, 1881; and a few days before said August 20, Bassett requested the petitioner to assist him in the construction of the buildings by superintending the work and doing a part of the same, and the rate of wages of the petitioner was then agreed upon, and some preparations were made by them in examining materials to be purchased, and in ascertaining the lines of the land to he built upon. On August 24, the petitioner commenced the masonry-work under the direction and in the employ of Bassett, and continued the same until he ceased, on November 19, 1881; and, within thirty days thereafter, he duly filed his certificate of lien in the registry of deeds, and commenced this action on February 16, 1882.</p> <p>It also appeared that Newhall did not authorize Bassett to do any work on the land before the conveyance thereof, on August 20, 1881, and after that day their relations to each other were regulated by said written agreement; and that, some time after this action was commenced, said mortgages were foreclosed by the assignees thereof under -the powers of sale therein, and Bassett’s interest in the premises was thereby extinguished, and subsequently, by mesne conveyances, Newhall became the owner by title under such foreclosure.</p> <p>Newhall, having filed an answer, now contested the petitioner’s action; and contended that his interest as mortgagee when the labor was performed, and his present title under the foreclosure, were not subject to the petitioner’s claim.</p> <p>The judge ruled that Newhall was in the position of an owner under the statute, and that the lien was established.</p> <p>If such ruling was correct, the petitioner was to have a decree of sale; otherwise, the petition to be dismissed.</p>

<p>Contract, against Eben D. Jordan and Charles Marsh, co-partners under the firm name of Jordan, Marsh, and Company, and Isaac Hayden, upon an account annexed. The case was referred to an auditor, whose report, so far as material to the point decided, was in substance as follows :</p> <p>The defendant Hayden had several patents for cleaning cotton, consisting of a machine which he claimed was superior to all other machines or apparatus then in use for that purpose. In the spring of 1866, Hayden had several interviews with the defendant Jordan, in which he explained to Jordan the nature of his machine and its workings, and tried to persuade Jordan to join with him in carrying on the business of cotton cleaning with his machine at the South. In one of these interviews, Hayden proposed to Jordan that his firm, Jordan, Marsh, and Company, should furnish the needed capital to carry on the business of cotton cleaning, and do all other necessary things for the transaction of said business; while he would furnish his patents for cotton cleaning and provide suitable men to run the machines which might be required. In the same interview, after some talk between them as to the cost of the machines, Jordan told Hayden to make inquiry and find out the cost of such machines, and report to him. In a few days after this last-mentioned interview, Hayden submitted to Jordan the plaintiff’s estimate as to said machines, whereupon Jordan told Hayden to “ go ahead and have the machines built,” and also said, “ We will arrange the details of the business hereafter, and will go to our attorneys and have this put in writing.”</p> <p>Immediately afterwards, Hayden entered into a contract with the plaintiffs to build the machines mentioned in their declaration, with the understanding and agreement, at the time of making the contract, that the plaintiffs should charge the machines to Hayden alone, Hayden saying at the time to the plaintiffs, but not in the presence of the other defendants, or either of them, that Jordan, Marsh, and Company were interested with him in the machines. Jordan failed to meet Hayden at the attorneys’ office, at the time appointed by them, to have their agreement put in writing, and the subject of putting the same in writing was not mentioned by either party thereafter, so far as the evidence disclosed.</p> <p>The plaintiffs, in pursuance of the order given to them by Hayden, proceeded to build the machines, and in all their correspondence and dealings touching the same they dealt wholly with Hayden, and kept accounts solely with him.</p> <p>When the plaintiffs called upon Hayden to pay for the goods charged in their account to him, he declared that it did not belong to him, but to Jordan, Marsh, and Company, to pay; but he acknowledged to the plaintiffs that he was responsible for the bill, because he ordered it. The plaintiffs said they did not mean to run the risk of getting their pay from some one else, but meant to hold Hayden and not let him off.</p> <p>The auditor ruled, as matter of law, that the contract made with the plaintiffs for said machines by Hayden was the contract of Jordan, Marsh, and Company with the plaintiffs; and that the defendants Jordan and Marsh owed the plaintiffs the sum of $7802.87, according to their account annexed, together with interest thereon from the date of the writ.</p> <p>At the trial in the Superior Court, before Colburn, J., Hayden was defaulted, and the plaintiffs discontinued as to him. The only evidence in the case was the report of the auditor, put in by the plaintiffs. The judge ruled that, under the auditor’s report, the action could not be maintained against Jordan, Marsh, and Company, and directed a verdict for them, which was rendered ; and reported the case'for the determination of this court. If the direction was right, judgment was to be entered on the verdict; otherwise, the verdict to be set aside, and a new trial ordered.</p>

<p>Tort for personal injuries received by the plaintiff while a passenger on the defendant’s railroad, with a count in contract for a breach of the defendant’s contract to carry the plaintiff safely. Trial in this court, before Meld, J., who reported the case for the consideration of the full court, in substance as follows;</p> <p>It was proved or admitted that, at the time of the alleged injury, the plaintiff was a passenger in one of the defendant’s cars; that he had purchased a ticket which entitled him to be carried therein from West Townsend to Boston; that the defendant owned a branch road leading from West Townsend, and joining with its main road at a place called Ayer Junction, which branch is called the Peterboro’ and Shirley branch; that at Ayer Junction the defendant’s road is crossed at right angles by another road, called the Worcester and Nashua Railroad; that this road connects with the defendant’s road by certain side-tracks, laid from the former to the latter road on the side opposite to that on which the Peterboro’ and Shirley branch joins the same. By a contract between the defendant and the Worcester and Nashua Railroad Company, it was agreed, in order to run a line from Worcester to Boston, that each corporation should provide two passenger cars for this line, that each should haul at each trip one or more of said passenger cars over its line, and that the fares received on this line should be equally divided between the two corporations, the cars hauled by each to be taken up by the train of the other at Ayer Junction. By long practice between the roads, the connecting of the cars was performed by coupling the same on one of the side-tracks leading from the Worcester and Nashua Railroad to the defendant’s road. The defendant’s car coming over the Peterboro’ and Shirley Railroad towards Boston was backed up on one of said side-tracks, and, being left by the locomotive, remained there until the Worcester and Nashua train arrived at the junction. The Worcester and Nashua train disconnected from its train such car or cars as were to be drawn to Boston at a point about half a mile from the connecting side-tracks, and from which there was so descending a grade that the car would move, if started, by its own momentum ; said car, with a brakeman of the Worcester and Nashua Railroad Company, proceeded on by its own impetus, and was afterwards directed by a switch on to the side-track, where it ran down towards, and was to be connected with, the defendant’s car or cars, placed there for the purpose, by patent couplers. This process is called making a flying switch. On the day in question, the defendant’s car, in which the plaintiff was riding, was backed up as usual on said side-track, and, while waiting there, the car from the Worcester and Nashua Railroad which was intended to be joined to the defendant’s car came, under the direction of the bralceman of the Worcester and Nashua Railroad, and struck the Peterboro’ and Shirley car, knocking said car forward four feet, (breaking the glass chimneys of some of the lamps,) from which collision, as the plaintiff alleged, he received the injuries sued for. It appeared by the evidence of the defendant’s witnesses that, at some other times, the car sent over the flying switch had struck the stationary car with as much violence as upon the occasion of the accident, but ho harm had ever resulted therefrom. No evidence was offered as to the condition and equipment of the car coming from the Worcester and Nashua Railroad, or as to which road, the Worcester and Nashua or the defendant road, the particular car belonged, except that there was a brakeman upon it belonging to the Worcester and Nashua Railroad. But it did appear that the two cars were united by a self-coupling apparatus upon their respective platforms, instead of requiring a man to couple them by going between them to use a bolt.</p> <p>The defendant called as witnesses William B. Stearns, its president, and John Adams, its superintendent, persons of long experience in the management of railroads, each of whom testified that it was a safe and prudent mode of management. The president admitted that there was a great dispute among railroad experts as to the safety of flying switches, some preferring switching engines and some flying switches.</p> <p>The defendant contended that, upon the above facts, it was not liable for the injury, but that it was caused, if at all, by the negligence of the Worcester and Nashua Railroad; and that there was no other evidence tending to show negligence on the part of the defendant. The plaintiff contended, among other things, that it was carelessness on the part of the defendant to place its cars on said side-track, and allow them to be connected, as they were, with the car from the Worcester and Nashua Railroad by means of a flying switch; but introduced no evidence on this point.</p> <p>The jury returned a verdict for the plaintiff in the sum of $7500 ; and found, in answer to questions in writing put by the court, that both corporations were negligent.</p>

Contract, upon three promissory notes made by the defendant, payable to the plaintiff or order, dated March 13, 1871, one for $100, payable in one year, one for $150, payable in two years, and one for $150, payable in three years from date, with interest at ten per cent per annum. Writ dated June 13,1881. Answer: 1, A general denial. 2. The statute of limitations.

<p>A married woman, by an agreement with her husband, obtained a divorce from him, which was void, and afterwards went through a form of marriage to one P., with whom she lived as his wife until her death. She left a will, in which she described herself as the “ wife of P.”; by which she gave one half of all her personal property to her “ husband,” and authorized her “ husband ” to remain in possession of her house for a certain time after her death; and of which she appointed her “ husband ” executor. Held, that by the term “ husband ” the testatrix intended P., and not her lawful husband.</p> <p>Under the Gen. Sts. c. 107, § 54, a divorce obtained in another State, by an inhabitant of this Commonwealth, for an alleged cause which occurred here while the parties resided here, is of n# force or effect here; and, both parties being inhabitants of this Commonwealth, and neither of them ever having been in the State where the divorce was obtained, the court granting it had no jurisdiction of thé parties, and the divorce is wholly void. •</p> <p>H. and M. were lawfully married in this Commonwealth, and lived together here as husband and wife for several years. They then entered into an agreement in writing, at her request, with a view that she might marry one P., by which the husband agreed to furnish evidence and allow the wife to procure a divorce from him for adultery, and she agreed to pay him a sum of money when the divorce was obtained. A libel for divorce was signed and sworn to by her in this Commonwealth, and, on the same day and at the same place, he signed an acknowledgment of service of the libel and a consent to be defaulted, and procured an affidavit of a witness of evidence, fabricated by the husband, of adultery by him. These papers were presented to a court in Utah, and a decree of divorce was rendered thereon. The wife then informed the husband that she had obtained a divorce, and he left her house and they did not live together after-wards. She then went through a form of marriage with P., with whom she lived as his wife until her death; and she and P. paid H. the sum of money agreed upon. While she was living with P., she made a will, to which H. did not consent in writing. Held, that H. was entitled to claim a distributive share in the estate of his wife.</p>

<p>A testator directed that the remainder of his property should he divided into three equal parts, “ one part to be,given to my sister A., in trust nevertheless as hereinafter provided.” He then provided as follows: “ I hereby give and bequeath to C., to have and to hold to him, his survivors, heirs, executors, assigns, and administrators forever, in trust nevertheless, to and for, the ends, intents, and purposes following, to take care of the said property, and from time to time, to sell and reinvest the same in real or personal property, any of the trust funds in his hands, and to pay over the whole of the net income and profits, as they accrue, to my sister A. and all, and any portion of the principal held in trust, whenever the said A. shall claim she requires the same for her comfortable support, and it so seems in the discretion of the said trustee.” Held, that the testator’s intention was to give one third of the residue of his estate to A., to be held in trust for her by the trustee named in the will.</p>

Tort, for the conversion of certain personal property. Answer, a general denial. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on ap¡peal, upon agreed facts, in substance as follows : On June 3, 1882, William J. Robinson was the owner of the property involved in this action.

<p>The following instrument, signed by the defendant, was delivered to the plaintiff: “ Please deliver to H. goods as he may want from time to time, not exceeding in amount three hundred dollars, and if not paid for by him within thirty days I will be responsible for the same.” Held, that it was not a continuing guaranty, but was exhausted and satisfied by the first purchase by H. of goods to the amount of §300, followed by payment for the same.</p>

Petition to expunge from the records of the Superior Court an amended return of a deputy sheriff. Mason, J., overruled the motion; and the petitioner alleged exceptions. The facts appear in the opinion.

Trial in the Superior Court, before Colburn, J., who allowed a bill of exceptions, in substance as follows: The debtor filed his petition in insolvency on January 6,1880. It was admitted that he was insolvent, and knew himself to be so, during the year next preceding the filing of his petition.

.Bill in equity, filed October 23, 1882, under the Pub. Sts. c. 151, § 2, cl. 11, against Nicolaus and Katherine B. Von Zedlitz, and the trustee under her marriage settlement, to enforce an assignment by her of income thereunder to the plaintiffs.

Contract, on a judgment obtained July 13, 1881, in the Superior Court for the city and county of San Francisco, in the State of California. Writ dated March 4, 1882. Trial in the Superior Court, before Pitman, J., who reported the case for the determination of this court, in substance as follows : The plaintiff was and still is a resident and citizen of California, and the defendant a resident and citizen of Massachusetts.

<p>Contract, to recover the difference between the contract price for 100 shares of stock, alleged to have been sold by the plaintiff to the defendant, and the market price of said shares at the time of the expiration of the contract, which was in writing, and signed by defendant, as follows: “ One hundred shares. Boston, Oct. 6, 1881. I have purchased of E. A. Nichols one hundred shares of the stock of the Deer Isle S. M. Co., at one dollar and forty-six cents per share, payable and deliverable buyer’s option in (60) sixty days, with interest at the rate of six per cent per annum.”</p> <p>At the trial in the Superior Court, before Blodgett, J., the defendant admitted signing the contract, and the plaintiff testified that he and the defendant were stockbrokers in Boston, and members of the Boston Mining and Stock Exchange; that he actually had a certificate of one hundred shares of said stock at the time of making the agreement, and pinned the agreement to the certificate, keeping both together until the expiration of said sixty days, when he tendered the same certificate to the defendant and demanded payment of the contract price; that the defendant then refused to accept the certificate or pay for it; and that, within a few days thereafter, the plaintiff sold the stock for a less price.</p> <p>No question was made as to the measure of damages, which was agreed to be $111.50, if the plaintiff was entitled to recover.</p> <p>What consideration was received by the plaintiff for entering into said agreement did not appear, but it was admitted that there was a valid and sufficient consideration.</p> <p>This was all the evidence offered in the case; and the defendant asked the judge to rule that said agreement gave to the defendant a right to have the stock delivered to him at any time within said sixty days, upon his tendering to the plaintiff the contract price therefor, but imposed no obligation upon the defendant to accept said stock at any time; and that the plaintiff was not entitled to recover in this action.</p> <p>The judge refused so to rule; ruled that, under said agreement, the defendant was entitled to demand the delivery of said stock to him at any time he saw fit within said sixty days, and was bound to accept the stock, upon tender thereof to him at the expiration of said sixty days, and to pay the contract price therefor; and directed a verdict for the plaintiff in the sum of $111.50. The defendant alleged exceptions.</p>

Bill in equity, filed June 29, 1883, against the city of Boston, L. F. Morse, and Harvey D. Parker, alleging that the city of Boston, on June 28, 1883, and long prior to said date, was seised in fee and was in possession of a certain parcel of land at the corner of Bosworth Street and Chapman Place in said city ; that, prior to that day, the city, by its duly authorized agents, offered to sell said parcel of land on said date, by public auction, by the defendant Morse, a…

<p>B. executed a bond to A. conditioned to reimburse to A. a certain proportion of such sum as A. might be compelled to pay “ to the treasurer or attorney of the United States,” by reason of the liabilities to be assumed by A. as surety of H. for the faithful performance of his duties as additional paymaster, to which he had been appointed. The instrument provided that the bond given by H. and A., when executed, was to be taken “ as part of these presents for knowledge of the contents thereof.” H. as principal and A. as surety subsequently gave a bond to "the United States or their certain attorney,” conditioned not only for the faithful performance by H. of the duties of his office, but to regularly account for moneys received by him as paymaster, and to refund any public moneys unaccounted for. Held, that these differences in the language of the two bonds did not affect the liability of B. to A., if there was a breach of the bond given by A. as surety to the United States.</p> <p>B. executed a bond to A. conditioned to reimburse to A. a certain proportion of such sum as A. might be compelled to pay to the United States by reason of the liabilities to be assumed by A. as surety of H. A bond was afterwards executed to the United States, by H. as principal and by A. as surety, for the faithful performance by H. of the duties of his office. A default on the part of H. afterwards took place, and the United States after his death, without making any demand on his representatives, brought an action against A. This action was continued for several years to allow A. to apply to the Court of Claims for relief. This relief was refused by that court. A. then consented to a default, and judgment was rendered against him for a certain amount, with interest from the date of the writ, and costs. The United States then sued out a writ of error, claiming to be entitled to interest from the time of the breach by H.; and A. sued out a writ of error, claiming to be liable only for nominal damages. The judgment rendered below was affirmed by the Supreme Court of the United States. A. paid the judgment, and brought an action against B. on the bond executed by him. Held, that, although no notice had been given to B. of the action brought against A., B. was liable, not only for his proportionate part of the principal sum, but also for his proportion of the interest and costs paid by A., if A. in resisting the action against him had acted with good faith and with due diligence.</p>

<p>An auditor’s report, though prima facie evidence, does not change the burden of proof.</p> <p>At the trial of an action against a broker to recover money paid to him for the purchase of shares of stock on a margin, the plaintiff contended that no purchases were in fact made, and the defendant contended that the money was expended in buying shares of stock which were sold at a loss. The plaintiff put in evidence the report of an auditor, who found in favor of the defendant, and called the defendant as a witness, who testified that the purchases and sales were made, but was unable to tell of whom he bought or to whom he sold. Held, that the burden of proof was on the defendant to show that the transactions testified to were real; and that it could not be ruled, as matter of law, that the auditor’s report was not controlled by the evidence.</p>

<p>Tort for personal injuries sustained by the plaintiff while a passenger on a ferry-boat used by the defendant as a common carrier of passengers for hire. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The jury took a view of the boat, and of the gates at the ends thereof, hereinafter described. The boat, except as herein specified, was of the ordinary form of ferry-boats, the centre lengthwise being occupied and traversed by vehicles, and either side by foot-passengers. Amidships of the boat, on either side, are cabins. From the cabin to the gate at which the accident happened is a strip of deck which is commonly occupied by foot-passengers during the trip, and is passed over by them in entering and leaving the boat. This strip was spoken of as a passageway, during the trial, by the counsel on both sides, and by two of the defendant’s witnesses. A canopy extends from the cabin over eleven feet of this strip, and the remaining sixteen feet thereof is not in any way sheltered or roofed in. There is no gate or partition between the space under the canopy and the rest of the deck. In the cabin and under the canopy are seats, but not elsewhere. At each end of the boat, on either side of the driveway for vehicles, and between it and the space occupied and traversed by foot-passengers, are posts, and attached to and working upon each of said posts is a pair of gates, each pair operated together and folded perpendicularly, one of said gates when lowered extending across the end of the strip of deck occupied and traversed by foot-passengers as aforesaid, and the other extending across one half the driveway, and the two pairs extending across the whole end of the boat. Each gate is composed of two horizontal iron rods, an upper and a lower, and of several vertical iron rods bolted on to the horizontal ones. The latter are hinged to the post, in such a way that, when the gates are to be opened, the horizontal rods swing upward upon the end next the post as pivots, gradually assuming a vertical position till all the parts composing the gate are in a vertical position, close to each other and to the post. Upon each post is plainly painted, “ Hands off the Gates.” At the time of the accident there was a chain attached to a post twenty-five and one half inches back from the gate, to be hooked across the passageway, at an angle, to a staple at the outside of the boat, so that the shortest distance between the chain and the outer end of the gate was twelve inches. The chain as it hung when hooked into the staple was slack, and a person pressing against it in the middle could bring it within eight inches of the gate when the gate was lowered. This chain was formerly used there, and was not put up at the time of the construction of the gate.</p> <p>At the time of the accident, there was no lock or fastening of any kind upon the gate. When the gates were put on the boat, there were locks at the top which operated with a key that fastened the two pair of gates together. At the bottom of each gate, on the end at the centre of the boat, was a bolt, with a handle, flange, and catch, that went down into a socket on the deck, and turned round and locked the gate; and to’ open the gate it was necessary to take hold of the handle and turn the bolt a quarter round. At the time of the accident, the lock at the top had been removed, how long before was not shown, and the catch on the bolt which went down into the socket in the deck was off, so that this did not work and lock the gate. When this catch was broken off, or allowed to get out of working order, was not shown. The captain of the boat testified, on cross-examination: “ I don’t know when the lock at the top was taken off. I don’t know whether the catch has been broken off, or whether it is there yet. I don’t know how long that boat has been running without it being on at all. I did not order it off. I don’t know that it is off. I have not been down to examine it. The purpose of putting the lock on the gates was to keep passengers from opening the gates, and to prevent the passengers from being crushed to death between the boat and the drop.” Since the accident, a chain has been put on, which is attached to the post in the rear of the gate and permanently bolted to the outside end of the gate, and operates with it. As to the locks that operated with a key and locked the gates together, the captain testified: “ They would never stay there. The passengers could shake them, and they would open. We tried them every way, and gave them up. We did not try any other method of locking, — either a padlock, or chain with a lock, or anything of that kind, to fasten the gates together. The bolt that went down into the deck and turned part way round, when in working order, held the gate fast, so that no passenger could throw it up.”</p> <p>The crew ordinarily consisted of a captain, engineer, fireman, and two deck-hands; and the ordinary process of opening the gates was as follows: one deck-hand stood near the gates at the bow, and the other near those at the stern, till about the end of the trip, when the man at the stern, at a signal from the captain, dropped a pin into the rudder to make it serve as a prow for the return trip, and then came forward; the man at the bow, standing in the driveway, raised one pair of gates, while both men stepped outside to the extreme front of the boat, closing the gates behind- them; on the boat coming close to the drop, the two deck-hands stepped ashore, one on each side, hooked the chains to the boat, worked the windlass till the boat was fast, and then went to the middle of the driveway; each took hold of one gate and faced the outside of the boat so as to be able to see the whole of the gate that he had hold of, and kept his eye on the gate to see that no one got hurt; then they raised the gates.</p> <p>The plaintiff, being the sole witness in his behalf as to the accident, and being uncontradicted, testified as follows: “ I started to come to Boston in the morning. When I got to the East Boston ferry it was very foggy; and, when I went aboard the boat, I went through the cabin, or into the cabin, and stayed there some time, I don’t know exactly how long. It was very thick, and the boat was running very irregularly. It struck Battery Wharf; and then I went through the cabin, and went forward within two or three feet of the gate, the same as lots of the passengers. We were just as thick as we could stand; and when the boat went into the slip, I saw somebody hook on the boat. They hooked on the boat, and jumped at the middle where the horses went out, where they were heaving this gate up, and this gate went up, and the instant the gate started, there seemed to be a big pressure of the passengers, — they kind of rushed quick, — and in half a second I was thrown forward against this gate, I being nearer the post than any one, and I threw my hand up this way, to save myself from going against the gate, and I was triced right up by my little finger on that hand, and as quick as I got caught I cried out. I grabbed hold of this hand, and gave my finger a jerk. At the same time a couple of passengers jumped at the gate and took hold of it to pull it down to release my hand; I can’t tell whether they did or riot. I pulled my hand out, and started up the drop. I should judge there were from a hundred and fifty to two hundred more passengers than the boat generally carries, on account of its being foggy.” He further testified that, when he went out from the cabin, the chain attached to the post two feet back from the gate was lying on the deck in front of him, as it was very common to be lying on the deck.</p> <p>On cross-examination, he testified: “ For three or four years I have come over this ferry every week, from one to three or four times a week; the gates were put on after I began to come this way from Chelsea, and something like three or four years ago. I have seen the gates work, and knew how they worked exactly, and knew the danger of it; have seen the sign on the gates, 1 Hands off the Gate.’ ” When asked, on redirect examination, what he meant by knowing the danger of the gate, he said: “ I mean if a man got against them, or put his hand on them when in operation, of course it,would injure him. I did not put my hand voluntarily on the gate.’’ He further testified, on cross-examination, that he spent most of the time in the cabin, where there was room enough to stay; that when the boat touched Battery Wharf, he came forward with a great many others; that there was no one directly between him and the gate, but there were passengers on his right, nearer the gate, and at its end where it goes up; that he stood over two feet from the gate, and stood back of the chain; that he was the person nearest to the gate at that point; that the passengers were crowding up there, and that was the reason he got shoved when they made a lurch. In answer to many and varied questions as to his purpose of being there, etc., he testified: “ I went forward the same as I have been hundreds of times, and not only me, but hundreds of others; ” that he went forward so as to come out with the other people, he supposed; that at the same time he was not in a hurry ; that he went forward so as to crowd along ánd get along and see where the boat was, as much as anything ; that the passengers hurried up the drop as quick as they could to get into the horse-car; that persons who get off first are more apt to get seats; that he wanted to get a seat in the horse-car; that he should say he went down in front so as to be off among the first, but he was not in a hurry; that he went there so as to get out when the gate opened, the same as the rest of the passengers, and to come to Boston; that there were a great many people standing out there when he got out; that the boat was unusually crowded, but not so crowded but what one could get along : that there was plenty of room where he stood; that a good many jumped off the boat on to Battery Wharf, which took off some of the crowd; that he did not see them jump off, but he heard others say so ; that he went by a good many people to get where he stood; that he was with quite a number of others trying to get as near the gate as he could without getting injured; that he probably wanted to get off among the first, because passengers will often come forward, if they can, to get nearer the gates, and not near enough to injure them, so as to get out first; and that he was there to get out as quick as he could, but he was not in a hurry.</p> <p>He further testified, that he saw two deck-hands when he went aboard; that when he came out of the cabin he did not see the deck-hands or any men at work on the boat; that he saw a man at work at the windlass by which the boat is hooked and pulled up to the drop, who hooked on the boat and jumped to throw open the gates; that he saw this man jump towards the gate when they opened it, but he did not see him take hold of the gate; that he did not see who it was that took hold of the gate; that he did not see anybody touch the chain that he found in front of him; that he did not start from his place before the gate went up; that when the passengers started he was shoved up against the gate; that he did not try to get out; that the passengers on his right had to go out first; that before he could get out there were twenty out; that he did not touch the gate, with any part of his person, before he was pressed against it; that he was two or three feet back from it; that there was no signal or notice or warning before the gate was thrown up that morning.</p> <p>The defendant’s witnesses, being the captain, who had been employed on the ferries nine years, and two deck-hands, who had been there employed about six years each, testified, without contradiction, that, when the boat reached the Boston side, she was opposite Battery Wharf, the next wharf to the ferry slip; that there were vessels at anchor in the stream, invisible owing to the fog, which rendered it dangerous to back off into the stream; that one deck-hand, at the captain’s order, went ashore on Battery Wharf and attached a hawser to a pile; that when the captain was ready to have the hawser thrown off .the wharf, the boat had drifted out so far that the deck-hand could not get aboard; that the captain knew when he sent him ashore that he intended to leave him; that this deck-hand ran as fast as be could on shore around to the drop towards the boat, and arrived at the end of the drop about as the boat did; that he at once hooked the boat on, and began to wind up the windlass; that when he arrived there, the gates were up, and the passengers were coming off; that he did not touch the gates or chains; that the other deck-hand was on the upper deck, at work on the hawser; that as soon as he pulled it in, the captain sent him down to the lower deck to drop the pin into the rudder; that this pin is dropped to secure the rudder for the next passage across; that this second deck-hand then went to the front of the boat, and the gates were up, and the most of the passengers were off, — only twenty-five or thirty left; that he did not touch the gates or the chain; that he heard no .outcry, only the crowd, kind of excited, yelling, and anxious to get off; that the captain did not see the gates go up, or who raised them; that the chains across the passageway were hooked up at the beginning of the trip, as they always were. On cross-examination, the captain testified that the dropping of the pin in the rudder, which he sent the deck-hand to do, was not necessary to enable him to make a landing, but to secure the rudder for the return trip; that when he sent the man to the stern to drop the pin, he knew that there was no deck-hand on the bow of his boat; that he did not wait before entering the slip a sufficient time for the man who had gone round to get there; that he went into the slip knowing that there was nobody there to receive his boat, and knowing that he had sent the other man back to drop the pin, which was not necessary for making a landing.</p> <p>One of the deck-hands testified that the boat, at the time of this accident, came into the slip and up to the drop without anybody at the bow to take charge of the gates; that, after he had put the hawser over the pile, he could have got back on board the boat; that he could have left the hawser attached to the pile, and, after the boat had been warped round, the hawser could have been cast off from the boat, and subsequently recovered from the wharf; that he was left upon the wharf merely to cast off the hawser from the pile.</p> <p>The defendant asked the captain, “ Besides the time of this accident, how many times did you ever come up to the drop without a deck-hand at the bow of your boat ? ” and the answer was, “ Never.” The same question was subsequently asked the deck-hands, and excluded.</p> <p>The defendant asked the captain and one of the deck-hands, whether, besides this accident, they ever knew a person to get hurt by being pushed against the gate by the crowd at the same time that the passengers pushed the gate up, and offered to prove, as bearing on the question of the defendant’s negligence, that no accident of this sort had ever before occurred. The plaintiff objected, and the judge excluded the testimony.</p> <p>The plaintiff contended, upon the evidence, and argued to the jury, among other things, that in omitting to have locks upon the gates, and in allowing the bolt and catch which fastened the gates to be out of repair, and in omitting to have persons to operate the gates, and in omitting to guard them more effectually, the defendant was guilty of negligence.</p> <p>At the close of the evidence, the defendant requested the judge to rule that the plaintiff had introduced no evidence to show the exercise of due care on his part; but the judge declined so to rule.</p> <p>The judge instructed the jury, in part, as follows, to which no exception was taken: “ The burden of proof is also upon the plaintiff to establish another proposition, — that this accident happened without any contributory carelessness or negligence on his part. If you find upon the evidence that the defendant was guilty of neglect of legal duty, and that the plaintiff has established that by a fair preponderance of the evidence, you will come to the second proposition, and see whether he has made that out; namely, that he himself was in the exercise of due care at this time, and that no fault of his contributed to the accident. The rule of law is, in general, that the plaintiff must exercise such care' as persons of ordinary intelligence and ordinary care- would exercise, under like circumstances, with reference to this danger. If he knew of a danger, and voluntarily put himself in the way of it, he cannot recover for any result of his voluntary action in that particular. If a person, knowing the risks, sees fit to take those risks voluntarily, he cannot after-wards ask another to make compensation for what comes from such action. You will judge whether he, in this particular, was in the exercise of súch care as ordinary men would exercise under such circumstances ; and you will consider further whether he voluntarily assumed certain dangers, and, if so, whether what happened to him resulted from such assumption of these dangers, or whether it resulted from some other danger, of which he had no knowledge, and which he did not assume; and upon all the evidence, weighing it carefully, you will come to such conclusion as you feel constrained to, for the plaintiff or against him, upon this proposition.</p> <p>“ I am asked by the defendant to instruct you that a desire to get off the boat quickly is not a sufficient excuse for the plaintiff’s going near the gates, if there were special risks incurred by so doing. I give it with a modification, and I give it in this form as modified: A desire to get off the boat quickly is not a sufficient excuse for the plaintiff’s going near the gates, if there were such special risks incurred by so doing that it was not reasonably, safe and prudent for him to go there.”</p> <p>The defendant requested the judge to instruct the jury, that, if the plaintiff went from the cabin to his position near the gate voluntarily, and with no occasion therefor nor inducement thereto, caused by the managers of the boat, except their permission, and if there were special risks attached to that position, the verdict must be for the defendant. The judge refused to give this instruction.</p> <p>The jury returned a verdict for the plaintiff, in the sum of 12300 ; and the defendant alleged exceptions.</p>

Contract, for injuries to a piano hired of the plaintiff by the defendant.

<p>Contract for money had and received. Trial in the Superior Court, before Colburn, J., who reported the case for the determination of this court, in substance as follows:</p> <p>Mary H. Toomey died seised of an estate situated in East Boston, and leaving a husband, Daniel Toomey, and, as her heirs at law and next of kin,-two sons, Patrick Toomey and John Toomey, and a daughter, Ellen O’Brien, the wife of the defendant in this action.</p> <p>By a deed dated December 15,1870, Patrick Toomey, John Toomey, Ellen O’Brien, and the defendant conveyed the estate in question to Daniel Toomey. By a deed dated August 30, 1871, and recorded August 31, 1871, Daniel Toomey conveyed said estate in mortgage to the defendant. The condition of this mortgage was the payment of $1033.33 in two years, with interest at the rate of six per cent per annum, and it was without a power of sale. Under this mortgage, entry for possession was made by the mortgagee on November 14, 1874, and a certificate of such entry was recorded on the same day.</p> <p>By a deed dated December 16, 1875, and recorded December 21, 1875, the defendant assigned said mortgage, “ together with the possession taken to foreclose said mortgage,” to Bridget F. Mahoney, the wife of Timothy J. Mahoney. The consideration expressed in this assignment was $1033.83.</p> <p>By a deed dated December 16, 1875, and recorded December 21, 1875, John Toomey and Ellen O’Brien, reciting themselves to be the only heirs at law of Daniel Toomey, deceased, intestate and unmarried, and of Patrick Toomey, deceased, intestate and unmarried, together with the defendant, who joined in said deed as one of the grantors, for the consideration of $2000, conveyed the estate in question to Timothy J. Mahoney, “ subject to a mortgage given to secure the payment of $1033.33.” Timothy J. Mahoney, by a deed dated December 20, 1875, and recorded December 21, 1875, conveyed the estate in mortgage to the defendant. The condition of this mortgage was the payment of $1000 on or before November 1, 1877. This mortgage was in the common form, with full covenants of warranty and against incumbrances.</p> <p>Bridget Mahoney, wife of Timothy J. Mahoney, did not join in said mortgage in the grant or covenants thereof, but only joined in the in testimonium clause in the following words: “ And for the consideration aforesaid, I, Bridget Mahoney, wife of said Timothy J., do hereby release unto the grantee and his heirs and assigns all right of or to both dower and homestead in the granted premises, and also, for further security for this mortgage, I release and convey my interest under the mortgage given by Daniel Toomey to said Thomas O’Brien, recorded with Suffolk Deeds, liber 1066, fol. 218.”</p> <p>Bridget F. Mahoney died intestate on April 10, 1880, leaving surviving her her said husband, Timothy J. Mahoney, and one child ; and letters of administration have been taken out on her estate.</p> <p>For breach of the condition of the $1000 mortgage, the defendant, in execution of the power of sale therein, published an advertisement, which stated that at a certain time and place there would be sold by public auction “ all and singular the premises described in said mortgage, namely, a certain parcel of land,” describing it by metes and bounds, and concluding as follows: “being the same premises conveyed to Timothy J. Mahoney by said Thomas O’Brien et al. by deed recorded with Suffolk deeds. The above premises are to be sold subject to any and all existing taxes; $200 to be paid at time and place of sale, and balance upon delivery of the deed. Terms made known at sale. For further particulars apply to the auctioneer.”</p> <p>At the time and place of sale, the estate was sold by public auction, by a duly licensed auctioneer, to the plaintiff, who paid $200 to the auctioneer, and received the following receipt therefor, signed by the auctioneer: “ $200. East Boston, Aug. 10, 1880. Received of Jennie Callaghan two hundred dollars as part payment of the price of house and land situate on the corner of Porter and Havre Streets, East Boston, as per terms of sale.”</p> <p>The title of the estate being reported to the plaintiff to be defective, she demanded the return of the purchase money deposited, and brought this action.</p> <p>The defendant offered in evidence the following memorandum, signed by the plaintiff, and delivered to the defendant at the sale. “ East Boston, Aug. 10,1880. Terms of sale. On Tuesday, Aug. 10, 1880, will be sold frame building and land situate on Porter Street, corner of Havre, East Boston, mentioned and described in the printed advertisement hereto, on the following terms, viz. $200 to be paid at time of sale; balance of the purchase price in ten days from time of sale.” “ East Boston, Aug. 10, 1880. I am the purchaser of the above-described estate in the printed advertisement hereto, purchased for the sum of $2510, and hereby assent to the terms and conditions of sale, and agree to abide by the same.”</p> <p>It was agreed at the trial, subject to the plaintiff’s objection as to admissibility and competency, that, of the $2000 consideration of the deed from the Toomey heirs to Timothy J. Mahoney, $1000 was paid in cash to said heirs, and $1000 in the $1000 mortgage from Mahoney to the defendant; that all the deeds and assignments recorded December 21, 1875, were delivered and recorded simultaneously; that the defendant accepted the mortgage of $1000 in part payment of the mortgage of $1033.33, and was then and there paid by the heirs the remaining $33.33 and accrued interest in cash; that about February, 1871, Patrick Toomey, one of the heirs of Daniel Toomey, sailed from Portland to Havana, and neither he nor the ship in which he sailed has since been heard from; and that the mortgage of $1033.33 was assigned by the defendant to Bridget F. Mahoney, instead of being discharged or assigned to Timothy J. Mahoney, for the purpose of preventing a merger, and to keep it alive so as to cut off Patrick Toomey or his heirs, if he or they should return.</p> <p>The judge ordered a verdict for the plaintiff, which was returned accordingly.</p> <p>If the defendant was bound to give a good title, and was able to do so, judgment was to be entered for the defendant; otherwise, judgment on the verdict.</p>

<p>A person who travels from one town to another on the Lord’s day, for the sole purpose of visiting an invalid sister, whom he believes to be ill, and another person who drives the former, at his request, solely for the same purpose, are travelling from charity, within the Pub. Sts. c. 98, § 3; and each person may maintain an action against a town for personal injuries occasioned by a defect in a highway therein, although the plaintiff testifies that his only reason for going on the Lord’s day instead of on a week day was that he could not have gone on a week day on account of his work.</p>

<p>The answer to a declaration for money had and received contained a general denial, and alleged that the defendant had duly accounted for and paid all moneys ever received by him of the plaintiff. Held, that the plaintiff was entitled, under the Pub. Sts. c. 167, § 24, to file a replication, averring that the defendant had never paid him, and that the accounts rendered were false and fraudulent. Held, also, that the plaintiff was entitled to file interrogatories to the defendant, under the Pub. Sts. c. 167, § 49, relating to the issue raised by the replication.</p> <p>If the answer to an interrogatory to a party to an action shows that the interrogatory is immaterial and does the party no harm, he has no ground of exception to an order compelling him to answer.</p> <p>A deposition of a witness described therein as a resident of another State was taken in such State, on a commission issuing from a court in this Commonwealth. At the trial it did not appear that the witness was then within the Commonwealth. Held, that a sufficient foundation had been laid for the admission of the deposition.</p> <p>Where a deposition of a witness is taken out of the Commonwealth, on commission, the omission of the deponent to answer the interrogatories fully does not necessarily preclude its admission in evidence.</p> <p>If the defendant in an action, in answer to interrogatories filed by the plaintiff, has said that he purchased shares of stock of a firm doing an extensive business in another State, the plaintiff is entitled to put in evidence the deposition of a member of that firm to the effect that no such transaction is shown by the books of the firm, although copies of the books are not annexed to the deposition.</p> <p>A ruling that the plaintiff in an action is not bound to prove all the allegations of his replication, but only so much as may be necessary to meet the state of the proof under the answer, furnishes the defendant no ground of exception.</p> <p>A. employed a broker to purchase certain shares of stock upon a margin, and to carry them for him. The broker reported that he had made the purchase. On a decline in value, A. instructed the broker to sell the shares ; the broker after-wards reported that he had done so; and A. paid him the difference between the purchase price and the sale price, together with interest and commissions. Held, that, if no purchase or sale was in fact made, and the broker simply assumed the contract himself, A. was entitled to recover from the broker the money paid him, unless he made the payment with knowledge of the facts.</p> <p>The fact that a person receives from a broker the profits of a transaction in buying and selling stocks upon a margin, does not necessarily amount to a ratification of another transaction in the purchase and sale of stocks, between the - same parties, which has resulted in a tust</p>

Contract on a guaranty. The case was sent to an auditor, who found the following facts; The plaintiff, by an indenture dated January 18, 1883, and duly recorded, leased to James O. Egerton and Isaac F. Kendall the three upper stories of a building in Boston, for the term of ten years from March 1, 1873, at an annual rental of $3500.

Petition to the Superior Court for the assessment of damages for land taken by the respondent, under an order passed April 13, 1882, to widen Portland Street.

<p>In an action for deceit, the declaration alleged that the defendant "falsely and fraudulently represented to the plaintiff that she knew of her own knowledge that D. had left assets exceeding all his liabilities by more than” a certain sum. The presiding judge found that the defendant represented that the assets were the sum named in excess of the liabilities; that, in fact, the estate was insolvent; and that the defendant believed that the representation made was true, and did not ascertain the contrary until long after it was made. The plaintiff asked the judge to rule that, “ if the court finds that the defendant Represented to the plaintiff that the assets left by D. were” the sum named “ in excess of all his debts and liabilities, but that, in fact, D. died insolvent,” the defendant would be liable, if the plaintiff acted on such representations. Held, that the ruling asked for was properly refused.</p>

<p>At the trial of an action against a city for personal injuries occasioned by an accumulation of snow and ice upon a street crossing, the defendant offered to prove that it made every possible effort to clear the streets of the snow upon the ground; that such was the depth of the snow that it was not practically possible for several days after a certain storm to put all the streets in proper condition for public travel; and that the city was proceeding at the time of the accident, with all possible speed, to put the streets in the condition required by law; and to prove that, at the time of the accident, it was, and ever since the said storm had been, engaged with all reasonable care and diligence in clearing its streets from the defects caused by snow and ice; and that it had done all that it was practically possible to do. The evidence offered was excluded. Held, that the defendant had good ground of exception.</p>

<p>A minor, who, knowing his minority and not disclosing it, borrows money from a person whom he knew believed him to be of full age, and gives a promissory note and a mortgage of land to secure it, is not estopped from avoiding the note and mortgage after coming of age; and continuing in possession of the land and refusing to pay the note are not sufficient to prove ratification.</p>

<p>Upon a bond given under the St. of 1877, c. 97, by a person having an interest in money or credits attached by trustee process, to dissolve such attachment, with the condition to pay to the plaintiS the sum for which the trustee may be charged, if any, within thirty days after final judgment, no action can be maintained if the trustee has been defaulted, and, although adjudged a trustee, has not been charged for any sum.</p>

<p>The St. of 1871, c. 307, authorized a town, for the purpose of supplying its inhabitants with water, to take the waters of a great pond and the waters which flowed into it, and any water-rights connected therewith, and to take and hold such lands as might be necessary for erecting and maintaining dams and reservoirs, and for laying and maintaining pipes and other works for collecting, conducting, and distributing said waters; provided that the town should be liable to pay all damages that should be sustained by any person in his property by such taking of land, water, or water-rights, or by the construction of such works; that no application should'be made for the assessment of damages for the taking of any water-rights until the water was actually withdrawn or diverted by the town; and that such application must be made within one year from the time when the water was actually withdrawn or diverted. The town accepted the statute; and took land, which was afterwards conveyed to it by the owners, and constructed thereon a water-gallery and pumping station. It laid pipes from the gallery to the pond, but never used them. It pumped water for the use of its inhabitants from the gallery on a certain day, and continued to supply water from the gallery ; and, within a year from that day, the owner of a mill privilege on a brook, which was the outlet of the pond, applied for the assessment of his damages. Held, that, if a substantial portion of the water in the gallery came by percolation from the pond, or if the water intercepted by the works.constructed by the town and used by it would otherwise have flowed into the pond, the petition for the assessment of damages was not premature, and could be maintained.</p> <p>If the admission of certain deeds in evidence, at the trial, before a sheriff’s jury, of a petition for the assessment of damages for the taking of water-rights under statutory authority, is excepted to, and no copies of the deeds are furnished in the papers submitted to this court upon an appeal from an order of the Superior Court accepting the verdict, the excepting party does not show that he was aggrieved by their admission. i</p> <p>By the St. of 1871, c. 307, §§ 1, 2, a town was authorized to take the waters of a pond, and for this purpose to build aqueducts, and erect and maintain dams, and make reservoirs. By § 11, it was authorized to erect and maintain a dam at or near the outlet of the pond, so as to hold the waters of the pond at a level not exceeding six feet above high-water mark. Held, that, under §§ 1, 2, the town had the right to build a dam at the outlet so as to hold the waters of the pond at high-water mark.</p> <p>At the trial of a petition for the assessment of damages caused to the owner of a mill privilege on a pond by the taking of the waters of the pond by a town under the authority of a statute, which provided that no such petition should be filed until the water was actually withdrawn or diverted by the town, the following rule of damages was given to the jury: “ First ascertain what was the fair market value of the petitioner’s mill with its water-rights appurtenant to it, and then ascertain how much its value has been diminished by the existence of this right of the town to use now and prospectively the waters which would otherwise come to his mill. This diminution is the sum to which the petitioner is justly entitled as compensation. To this sum add interest from the time when the water was first actually diverted.” Held, that the respondent had no ground of exception.</p>

<p>An officer’s return on an execution levied upon land stated that he gave notice in writing of the time and place of sale to A., the debtor, by leaving the same at his last and usual place of abode. The officer subsequently petitioned the court for leave to amend the return by adding the words, “ as I could not find the said A. in my precinct,” and in the petition stated, under oath, that he “did not find said A.” in his precinct. The court allowed the amendment. Held, on a writ of entry, against the purchaser at the sale on execution, by a subsequent mortgagee of the debtor, to foreclose the mortgage, that the court had power to allow the amendment; and that, if the legality of the action of the court in allowing the amendment could be questioned in this proceeding, it was not to be presumed that the amendment was allowed on the affidavit of the officer alone. Held, also, that the amended return could not be contradicted or falsified by oral evidence.</p>

<p>If a writ is served personally upon a defendant, lie is constructively present in court, and a judgment rendered upon his default is not rendered in his absence, within the Gen. Sts. c. 146, § 21, allowing a petition for a review to be filed within one year after he first has notice of a judgment, rendered in his absence and without his knowledge.</p> <p>If the Superior Court grants a petition for a writ of review, which it had no jurisdiction to entertain, an objection to such jurisdiction, taken at the hearing upon the writ, is not too late.</p>

<p>Tort for personal injuries occasioned to the plaintiff, on June 14, 1881, by an alleged defect in Bridge Street, in the defendant city. Trial in the Superior Court, before Barker, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff introduced evidence tending to prove the following facts: On June 13 and 14, 1881, Bridge Street was obstructed for its entire width, except the sidewalks, by a two-story wooden building then in course of removal through the street. The plaintiff lived in Somerville, and was accustomed to pass through Bridge Street in the street-railway cars. The obstruction caused by the building made it necessary to change cars and go. on foot over the sidewalk to reach the cars on the other side of the building. About nine o’clock in the evening of June 14, 1881, the plaintiff got out of a car in which he was a passenger, and which had reached the obstruction, and attempted to pass to the other side over the northerly sidewalk, which he had always used previously, and had used that afternoon, and which had a lighted street lamp upon it at the end of the building; but he found it so obstructed with stones and timber that he was obliged to go to the other or southerly sidewalk. When he reached that sidewalk, the building cut off all light from the street lamp, and there was no light whatever upon or about the building at the end next to the southerly sidewalk. There was a depression of about five inches in the sidewalk caused by the intersection of a passageway, which depression, by reason of the darkness, he did not see, and he stepped into it and fell, receiving the injuries complained of.</p> <p>On July 13, 1881, the plaintiff gave a notice in writing to the defendant, which stated the time and place of the injury; that the building prevented the light from falling upon the sidewalk, and there was no sufficient light of any' kind there; and that “by reason of darkness, caused as aforesaid,” he fell and received his injuries.</p> <p>The plaintiff also put in evidence an ordinance of the defendant city, which provided that, whenever any street was rendered unsafe or inconvenient for travellers, the superintendent of streets should erect a suitable fence across the same, and attach a lighted lantern to the fence, to be kept there from twilight in the evening through the night.</p> <p>The judge ruled that the notice was defective and insufficient in the statement of the cause of the injury, and directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort. The declaration alleged that the defendant, an attorney at law, on April 18, 1882, caused a writ to be issued from a police court in his favor as plaintiff, and against the present plaintiff as defendant, and a certain corporation as trustee, and upon said writ the wages for the personal labor of the plaintiff, amounting to $83, were attached in the hands of the trustee by the defendant, and the trustee was summoned to appear in said action; that the defendant, well knowing that, at the return day of said writ, there were sufficient funds attached in the hands of the trustee to satisfy the claim on which the defendant had brought his said action, failed and designedly neglected to enter said action, for the purpose of bringing another action against the plaintiff for the same cause of action; that the defendant, maliciously contriving and wickedly intending to vex, harass, injure, and oppress the plaintiff, commenced another action for the same cause of action against him, and the same corporation as trustee, and attached on the writ therein $83, the wages of the plaintiff in the hands of the trustee, which he had attached in the action so discontinued, together with $48, the wages of the plaintiff which he had earned in the employ of said corporation since the service of the writ in the first action, amounting in the whole to $131.</p> <p>The defendant demurred to the declaration, on the ground that it set forth no legal cause of action. The Superior Court sustained the demurrer, and ordered judgment for the defendant ; and the plaintiff appealed to this court.</p>

<p>A mortgage “ of all the right, title, and interest which we now or may hereafter have in and to the property and estate of J. deceased, testate, whether the same comes to us by will or descent, a part of said property being the late homestead of said J.,” does not include land which was originally part of the homestead of J., but which was conveyed by him to one of the mortgagors before his death.</p> <p>If the language of a mortgage of real estate excludes a certain parcel of land, evidence of an intention of the parties to include it is not admissible, on a bill in equity to redeem the parcel from a sale for taxes, against a third person.</p>

<p>Contract for expenses incurred by the plaintiff town from August 18, 1879, to October 13, 1881, in the support of Mary Cavanaugh, whose settlement was alleged to be in the defendant town. 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 support was properly furnished to the pauper by the plaintiff; proper and sufficient notices thereof were given to the defendant; and reasonable and sufficient answers to such notices were made by the defendant, denying any settlement in the defendant town.</p> <p>Mary Cavanaugh, prior to 1860, attained the age of twenty-one years, and acquired no legal settlement in this Commonwealth. From 1860 to 1865, she, being unmarried, resided in the defendant town, as a servant in a private family, for five consecutive years, and was n'ever furnished with aid as a pauper during that period. On January 7, 1865, she was married to a man having no legal settlement in this Commonwealth, and resided with him thereafter in various towns up to 1870, not acquiring-any settlement by such residences.</p> <p>In 1870 her husband removed to the plaintiff town, where she continued to live with him, three children having been born of the marriage, until his death, in May, 1872. Since his death she has continued to reside in the plaintiff town, receiving aid as a pauper, which, from 1871 to 1875, was reimbursed it by the Commonwealth. Aid as a pauper was furnished her during every year from 1871 to 1879; and from 1879 to 1881, bemg the two years immediately preceding the date of the writ, aid was furnished her as a pauper, as set forth in the plaintiff’s declaration, none of which has been reimbursed by her.</p> <p>The plaintiff contends that Mary Cavanaugh acquired a settlement in the defendant town by reason of the five years’ residence therein under the circumstances above set forth.</p> <p>The defendant contends that she never acquired any settlement in this Commonwealth; and, if any, none in the defendant town.</p>

<p>Indictment on the Pub. Sts. c. 207, § 9, alleging that the defendant, on November 27, 1882, at Lynn, “feloniously, maliciously, and unlawfully did use a certain instrument, the name of which instrument is to the jurors aforesaid unknown, which instrument the said William D. Corkin in his hands then and there had and held, by then and there forcing and thrusting the instrument aforesaid into the body and womb of a certain woman whose name is Abby L. Cain, with intent thereby then and there to cause and procure the miscarriage of the said Abby L. Cain, against the peace of the Commonwealth aforesaid, and contrary to the form of the statute in such case made and provided.”</p> <p>In the Superior Court, the defendant demurred to the indictment, on the ground of the insufficiency of the allegations therein. Brigham, C. J., overruled the demurrer; and the defendant excepted.</p> <p>At the trial, the government introduced evidence tending to prove, that, on November 17, 1882, Abby L. Cain, the woman named in the indictment, applied to the defendant, who was a physician, informing him that she was about three months advanced in pregnancy, that she had been taking various drugs without effect, and wished him to prescribe for her; that he told her he did not think drugs alone would produce the desired effect; that, after a full consultation, he recommended and used an electric battery, applying one of the plates to her abdomen and the other to her back, while she was lying upon a lounge, this treatment being continued for about an hour and a half; that during the treatment he made an examination with a speculum, and, while so doing, he inserted through the speculum into her womb a sharp instrument; that, in addition, he also prescribed for her certain medicines or drugs, which she took away with her; and that all these methods of treatment were for the purpose of causing a miscarriage.</p> <p>The defendant objected to all the evidence offered, excepting that relating to the use of the instrument; but the judge admitted it.</p> <p>The government then offered evidence tending to show that, on November 22 and 27, said Cain went to the defendant’s office; and that, on each of those occasions, the same treatment was used as on the first occasion.</p> <p>The defendant objected to this evidence; but the judge admitted it, and also the evidence above objected to, for the purpose of showing intent, and also the defendant’s knowledge of the condition of pregnancy of Cain.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Complaint to the Fourth District Court of Eastern Middle-sex, for exposing and keeping for sale intoxicating liquors, on January 23, 1883, at Woburn, with intent unlawfully to sell the same in this Commonwealth. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:</p> <p>It appeared that the defendant had a license as a common victualler; and that, upon application to the selectmen of Woburn, they, on May 4, 1882, granted him a license of the first class, to sell intoxicating liquors to be drunk on the premises.</p> <p>There was evidence tending to show that sales of intoxicating liquors were made by the defendant, on the day named in the complaint, on the premises described in said license, and evidence tending to show the condition, arrangement, and contents of the licensed premises on that day; also evidence tending to show that the defendant, on said day, kept .a public bar on the licensed premises, and that he maintained a partition which interfered with a view of the interior of said premises.</p> <p>The government offered evidence to show the condition and arrangement of the licensed premises on February 15, 1883, which was admitted, against the defendant’s exception. The defendant justified under his license.</p> <p>The judge instructed the jury, that if they found that, at the time and place alleged in the complaint, the defendant, although having a license to sell liquors of any kind to be drunk on the premises, in keeping and selling such liquors on such premises kept a public bar, or placed or maintained a partition upon the licensed premises in such a way as to interfere with a view from the outside of the premises of the business conducted thereon, the defendant might be found guilty upon this complaint, under the provisions of the Pub. Sts. c. 100.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Complaint to the Fourth District Court of Eastern Middle-sex, for an unlawful sale of intoxicating liquors, on December 16, 1882, at Woburn.

Complaint to the First District Court of Eastern Middlesex, on the St. of 1882, o. 270, § 4, alleging “that Burkner F. Burlington, late resident of Wakefield, in the county of Middlesex, is the father of one Mary L. Burlington, a minor child under the age of twenty-one years, and that the said Burkner F. Burlington, on the first day of July, in the year of our Lord one thousand eight hundred and eighty-two, at Wakefield, in the county of Middlesex, did knowingly and…

Indictment on the Gen. Sts. c. 161, § 59, alleging that the defendant, on February 10, 1876, at Buckland, conveyed certain real estate, knowing that an incumbrance existed thereon, without, before the consideration was paid, informing the grantee of the existence and nature of such incumbrance.

Indictment, alleging that the defendant, on May 18, 1883, at Salem, “ contriving and unlawfully and maliciously intending to injure, vilify, and prejudice one John W. Hart, and to deprive him of his good name, fame, credit, and reputation, and to bring him, the said Hart, into great comtempt, scandal, infamy, and disgrace,” “ unlawfully did compose, write, print, and publish, and cause and procure to be composed, written, printed, and published ‘ in a certain newspaper then…

Complaint alleging an illegal sale of intoxicating liquors by the defendant to one Francis H. Caffin, at Hyde Park, on July 23, 1883.

<p>A person may be indicted, under the Pub. Sts. c. 91, § 101, for digging oysters from flats described in a license granted under § 97, without the consent of the licensee, if, in digging quahaugs, he disturbs and destroys oysters, although he does not take them from the water,' and has no intent to do so.</p> <p>No private right in an individual to dig quahaugs exists in this Commonwealth.</p>

<p>Contract to recover the balance due upon a promissory note for $6500, dated July 7, 1873, payable on demand to the order of the plaintiff, and signed by the defendant. Trial in the Superior Court, without a jury, before Knowlton, J., who found the following facts:</p> <p>The note in suit was secured by a mortgage, given to the plaintiff by the defendant, of two adjoining lots of land in Worcester. The defendant afterwards conveyed the land to one William H. Earle, by a warranty deed, which recited that the consideration paid was $14,000, which was the full consideration for the whole estate. The covenants in the deed against incumbrances and of warranty excepted a mortgage of $6500, which was the mortgage above named; and Earle paid only the difference between that amount and $14,000. At the time of this purchase, there was an understanding between the defendant and Earle that the latter was to provide for the mortgage. The plaintiff was not informed of this understanding, but, at the time of the release hereinafter mentioned, understood and believed that, under the contract between the defendant and Earle, the mortgage debt was to be primarily a charge upon the land, and, inasmuch as it was less than the supposed value of said real estate, that it was expected to be paid by Earle for the protection of his property. Afterwards Earle sold one parcel of the mortgaged premises to one Henry for $2500, and paid $2000 of that sum to the plaintiff, which was indorsed on the note, retaining the balance; and the plaintiff thereupon released to Earle all its right, title, and interest to said parcel under the mortgage, reserving its right to enforce the mortgage against the remainder of the estate. There was no evidence that the plaintiff had any knowledge- or notice that Henry paid more than $2000 for the land. The defendant had no knowledge or notice of this release until after it was made, and never consented to it. Subsequently, the plaintiff sold the remainder of the premises, under the power in the mortgage, for a sum insufficient to pay the debt.</p> <p>The judge found that, by said release, the defendant was damaged to the amount of $500; and that he was entitled to be credited with that sum on the note ; found for the plaintiff for the balance due on the note, after deducting said sum; and reported the case for the determination of this court.</p> <p>If the finding for the plaintiff was erroneous in law, it was to be set aside, and such judgment entered as law and the facts require; otherwise, judgment for the plaintiff for the amount of the finding.</p>

<p>Tort in four counts. The first count alleged that the defendant forcibly broke and entered the plaintiff’s dwelling-house on Locust Street in Haverhill, and did certain acts therein. The second count was for an assault. The third count was for the conversion of certain goods of the plaintiff. The fourth count alleged that the defendant caused to be published in a newspaper in Haverhill a false and malicious libel concerning the plaintiff, a copy of which was as follows: “ The Locust Street Brutality explained. The woman came to my house, Sept. 16, 1882, engaged a suite of rooms for §1.50 a week. She left April 11,1883. She paid $34.50. About three months ago she decided not to come down stairs at all; consequently she was a great deal of trouble. I told her six weeks ago, that if she would leave the 1st of April, and give me $6, I would give her a receipt in full. She would n’t do it. She kept her door locked, and would not give any satisfaction. I sought advice, and did as I was told. She is not a stranger here, — she never made friends. Can find out all about her by taking a little trouble. The Landlord.” 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 prove that on September 16, 1882, she began to occupy certain rooms in a house owned and occupied by the defendant, under an oral contract with him to pay him rent at the rate of one dollar and a half per week, payable monthly; that she had paid all the rent due to the defendant except the sum of about ten dollars, which was in arrear, and continued to occupy said rooms until April 11, 1883; that on that day, while the plaintiff was temporarily absent from said rooms with the intention of returning, the defendant effected an entrance therein, without any breach of the-peace; that, upon hearing of the entry of the defendant, the plaintiff returned to her rooms, the defendant trying without success to prevent her entry; that the defendant told the plaintiff that he had got possession, and she must not come in; and that he then removed the plaintiff’s effects, took out the door and windows, put out the fire, and tried forcibly to remove the plaintiff, taking her by the shoulder.</p> <p>The defendant testified that, on April 6, 1883, he executed and delivered a written lease, under seal, of said premises to Oliver T. Peters, for the term of six months from said April 6 ; that Peters signed it, and also signed the following paper, addressed to the plaintiff: “You will please take notice that I have a written lease of the premises now occupied by you at No. 69 Locust Street in this city, from the owner thereof, and you are hereby required to vacate the same forthwith. Haverhill, Apr. 6, 1883; ” and that Peters handed both the lease and said paper to the defendant, saying, “ Go ahead and get possession; ” and, in pursuance of this authority, the defendant did what he afterwards did as agent of - Peters, and sent this notice to the plaintiff by his daughter on April 7.</p> <p>The defendant further testified that Peters never occupied the rooms; and that nothing had been said or done between him and Peters between April 6 and the time of the acts complained of.</p> <p>There was no other evidence as to the execution and delivery of said lease or paper, or of the authority of the defendant to act for Peters. Peters was not called or summoned as a witness at the trial.</p> <p>The plaintiff admitted that, on April 7, 1883, she received the aforesaid notice from the hands of the defendant’s daughter.</p> <p>The plaintiff testified that, at the time of the alleged trespass, the name of Peters was not mentioned, nor was there any statement made to her that the defendant was acting for Peters. The defendant did not contradict this testimony, and introduced no testimony that he had at any time told the plaintiff that he was the agent of, or authorized to act’ for, Peters, except as appears herein; but it appeared that the defendant had taken possession of the premises, and was in possession when the plaintiff returned thereto, and it did not appear that she made any inquiry as to the authority under which he acted or was there.</p> <p>The plaintiff contended that she was entitled to go to the jury upon this evidence, which was all the evidence upon the first three counts. But the judge ruled that there was no evidence to warrant the jury in finding that there was no delivery of said lease, or that the defendant was not agent of the lessee in taking possession of the premises and doing the acts done therein; and also ruled that, upon the evidence, the plaintiff was not entitled to recover on the first and third counts; and directed the jury to find for the defendant on those' counts.</p> <p>The judge instructed the jury, as to the second count, that the defendant had the right to use necessary and suitable force to remove the plaintiff from said rooms, and no more, she refusing to go when requested; and that if he used no more force than was necessary and suitable under all the circumstances, they should return a verdict for the defendant on the second count; and that if he used unsuitable and unnecessary force in removing her, they should return a verdict for the plaintiff.</p> <p>The plaintiff then introduced evidence tending to prove that the defendant caused to be' published in the Haverhill Daily Bulletin, a newspaper published in Haverhill, the article alleged to be a libel in the fourth count; and that it was published of and concerning the plaintiff, and referred to her. No damage was offered to be shown except such as would be implied from the fact of such a publication.</p> <p>The judge ruled, as matter of law, that the publication was not in itself libellous or actionable; and directed the jury to return a verdict for the defendant.</p> <p>The jury "returned a verdict for the defendant on all the counts; and the plaintiff alleged exceptions.</p>

<p>A testator, by a codicil to his will, revoked a devise and bequest of one fifth of the residue of his estate to one of his sons, and devised said one fifth to trustees in trust “ to manage, invest, and reinvest the same from time to time,” as his son might wish, and to pay the net income to his son, half-yearly, during his life. On the death of the son, the testator gave said one fifth part to his son’s children, equally,'in fee simple, the issue of any deceased child taking his or her parent’s share by right of representation. If, at the time of the son’s death, any child of his was under the age of twenty-one years, his “ share of the trust fund” was to “continue to be held and managed” by said trustees, “and paid over to him or her only as he or she shall respectively come of age.” If any child of his son should die under twenty-one, his share of the principal was to be paid over and conveyed to his or her issue, if any; otherwise, to his or her brothers and sisters. If the son should leave no issue, or if all his children should die under the age of twenty-one years, and without leaving issue living at their decease, then at the death of the son without issue, or at the death of the last survivor of the children, “ the principal ” of the trust fund was to be paid or conveyed to the testator’s heirs at law. Held, that, on the death of the testator’s son, his minor children took vested interests in the trust fund subject to be devested on their dying under twenty-one years of age, and that until their attaining that age, or dying before, they were entitled to a share of the net income of the fund.</p>

Bill in equity, filed August 28, 1882, against the town and the selectmen of Nahant, to restrain the defendants from the occupation of land of the plaintiff in said town.

Contract on an account annexed for advertising and selling a lodging-liouse.

Tort for personal injuries occasioned, on April 30, 1881, to the plaintiff, who was in the employ of the Western Union Telegraph Company, while engaged in climbing a telegraph pole on Columbus Avenue in Boston, and carrying a telegraph wire attached to his person, by a car of the defendant corporation running against the wire, which extended across the highway, and pulling the plaintiff from the pole.

<p>A certificate of deposit issued by a national bank is not a promissory note, within the meaning of the Gen. Sts. c. 53, § 10; and, in an action thereon by a person to whom it has been transferred by the depositor, the bank is not entitled to set off the amount due upon a promissory note given by the depositor to, and discounted by, the bank, the certificate being issued for the proceeds of such note.</p>

<p>The St. of 1862, c. 223, §§ 10, 11, providing for the expenses of the support of lunatics in state lunatic hospitals, does not apply to the case of a sane person acquitted of homicide by reason of insanity and committed to such a hospital, under the St. of 1873, c. 227.</p>

Contract upon a policy of insurance against loss by fire, issued to the plaintiffs by the defendant corporation. Trial in the Superior Court, before Staples, J., who ruled that the plaintiffs could not maintain their action, and directed a verdict for the defendant; and the plaintiffs alleged exceptions. The facts appear in the opinion.

<p>In an action upon a promissory note, if the plaintiff’s evidence tends to show that a “pass-book” kept by the plaintiff, which contained a statement of an account against the defendant, had been in the defendant’s possession, and that it was shown to him at the time the note in suit was given, in settlement of the balance which appeared to be due by it, the book is admissible in evidence.</p>

<p>Contbact for breach of a written agreement to accept and pay for certain shares of stock. 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>From September 1, 1881, to January 1, 1882, the plaintiff and the defendant were stockbrokers and members of the Boston Mining and Stock Exchange. On Saturday, October 1, 1881, the plaintiff bought by auction, at said exchange, 1500 shares of the stock of the Deer Isle Mining Company, at eighty-seven cents per share; but, in accordance with the custom of the members of said exchange, to pay for and deliver stock on the next business day succeeding the sale, he did not receive his certificates thereof or pay therefor until the following Monday, October 3.</p> <p>On the same Saturday, but later in the day, the plaintiff sold to the defendant, by auction, at said exchange, 1000 shares of said stock, at ninety-eight cents per share, payable and deliverable, buyer’s option, sixty days; and on the following Monday, and after he had received his certificates for the 1500 shares, and while he had them in his possession, the plaintiff delivered to the defendant a memorandum of sale, and received from the defendant a memorandum of purchase, as follows :</p> <p>“ 1000 Shares. Boston, Octo. 1,1881. I have sold to T. Brigham Bishop & Co. one thousand shares of the stock of the Deer Isle Mining Co., at ninety-eight cents per share, payable and deliverable, buyer’s option, sixty days, with interest at the rate of six per cent per annum. W. J. Mann.”</p> <p>“ 1000 Shares. Boston, Octo. 1, 1881. We have purchased of W. J. Mann one thousand shares of the stock of the Deer Isle Mining Co., at ninety-eight cents per share, payable and deliverable, buyer’s option, sixty days, with interest at the rate of six per cent per annum. T. Brigham Bishop & Co.”</p> <p>These memoranda, although dated October 1, were not signed and delivered until October 3. Prior to this sale to the defendant, the plaintiff had never sold or entered into a contract to sell or deliver any shares of said stock. At all times during the sixty days mentioned in said memoranda, the plaintiff was the owner and had in his possession at least 1500 shares of said stock, which he was under no prior contract to deliver, and held himself in readiness to deliver to the defendant 1000 shares of said stock on the payment of the agreed price therefor. On October 12, the plaintiff sold to the defendant 100 other shares of said stock by auction, at said exchange, payable and deliverable, buyer’s option, sixty days, at $1.90 per share; and, on the next business day, in accordance with the custom of the members of said exchange, the plaintiff and the defendant made and delivered memoranda as before. The plaintiff, on said October 12, was the owner of at least 1500 shares of said stock, and, during all the time mentioned in the memoranda, was the owner of and held in his possession at least 500 shares of said stock, which he was under no prior contract to deliver, and at all times held himself ill readiness to deliver to the defendant 100 shares of said stock on payment of the agreed price therefor.</p> <p>On December 3, 1881, at the expiration of the sixty days mentioned in the memoranda, the plaintiff tendered to the defendant 1000 shares of said stock and demanded payment therefor. The defendant refused to accept and pay for the same, giving- as his only reason therefor that he was unable so to do. On the next business day thereafter, the plaintiff, having given notice to the defendant thereof, sold said 1000 shares of stock by auction, at said exchange, for forty cents per share. These shares were purchased for the plaintiff by a person who had been instructed by the plaintiff to bid as high as forty cents per share therefor, but no higher, and were subsequently transferred to him by this person. The market value of said stock was, on the day of its sale, forty cents per share. On December 15, 1881, and at the expiration of the sixty days mentioned in the second memoranda, the plaintiff tendered to the defendant 100 other shares of said stock, and demanded payment therefor. The defendant refused to accept and pay therefor. The plaintiff did not then sell said stock, and it was then worth twenty-five cents per share in the market.</p> <p>The certificates of said 1500 shares of stock received by the plaintiff on said October 3 were issued to a person who had assigned and indorsed the same in blank. Within a few days thereafter, the plaintiff sent these certificates to the office of the corporation at Portland, Maine, for the purpose of transfer, and received new certificates therefor in his own name.</p> <p>During the time mentioned in the memoranda, the plaintiff bought and sold many thousand shares of said stock, and intermingled the certificates thereof, and did not tender to the defendant the same identical certificates of stock which he had in his possession at the time of the sales by him to the defendant, and it is possible that the identical certificates which the plaintiff had at the time of the contracts with the defendant were sold by him for prices equal to those therein set forth, and that the certificates actually tendered were bought by the plaintiff just prior to the tender for forty cents per share. The market price of said stock fluctuated between November 1 and December 1, and at the latter date was about forty-two cents per share. The defendant never demanded any of said stock from the plaintiff. After October 12, the plaintiff made one or two short sales of said stock, and for two days had contracts out for the future delivery of 200 more shares of said stock than he then owned ot had any interest in. These contracts were in the same form as the memoranda above mentioned.</p>

Contract against the owner of a vessel, for pilotage. Trial in the Superior Court, without a jury, before Staples, J., who allowed a bill of exceptions, in substance as follows : The plaintiff introduced evidence tending to show that said vessel was of 219 tons burden, and hailed from, the port of Windsor, Nova Scotia; that on the morning of September 23, 1882, she was four miles east of Boston Light, on pilotage grounds, and then on a voyage from said Windsor to Boston, and…

<p>If an executor, summoned as the trustee of a devisee of his testator, after the service of the writ upon him, obtains leave of the Probate Court to sell real estate for the payment of debts, the personal estate being insufficient for that purpose, and, after applying a portion of the proceeds of such sale to the payment of the debts, pays to such devisee a certain sum as his share of the surplus, he is not chargeable as trustee for that sum.</p>

<p>A written instrument, given to one of two joint tortfeasors, and reciting the receipt from him of a certain sum “as full payment, as per claim,” is a bar to an action against the other tortfeasor; and oral evidence is inadmissible to show that the sum paid was intended to be received as part, and not as full payment.</p>

<p>A bill in equity, under the Pub. Sts. c. 136, §§ 26, 29, may be maintained against a devisee primarily liable, and one who is only liable in case the debt cannot be collected from the other devisee, although the bill does not allege that the debt, or a part of it, cannot be collected from the devisee primarily liable.</p> <p>Land was conveyed to C. subject to certain “ conditions,” so called, one of which was that no building should be erected on a certain part of the land. C. after-wards conveyed the land to K. by a deed containing full covenants of warranty and against incumbrances. It. conveyed the land by a similar deed to A., and A. by a similar deed conveyed it to I). C. then died, and, after claims against his estate were barred by the statute of limitations, D. agreed to convey the land to E. by a warranty deed. On a bill in equity by E. against D. for specific performance, D. was ordered to convey the land and to abate a certain part of the price on account of the incumbrances created by the deed to C. Subsequently D. brought an action against A., and A. brought an action against It., for breach of the covenant against incumbrances, and damages were recovered. K. then brought a bill in equity against the devisees of C., under the Pub. Sts. c. 136, §§ 26, 29, within a year after payment of A.’s judgment. Held, that the breach of the covenant against incumbrances contained in the deed from C. to K. occurred when the deed was given, and that the bill could not be maintained for that breach. Held, also, that the breach of the covenant of warranty occurred when K. paid the judgment recovered by A., and that, on this ground, the bill could be maintained.</p>

<p>Contract for breach of a written agreement to sell goods. Answer, the statute of frauds. Trial in the Superior Court, before Colburn, J., who ruled that the action could be maintained; directed a verdict for the plaintiff; and reported the case for the determination of this court. If the ruling was right, judgment was to be entered on the verdict; otherwise, the verdict to be set aside, and judgment entered for the defendants. The facts appear in the opinion.</p>

<p>Beplevin cannot be maintained against an attaching officer by a mortgagee of the' attached property, without proof that he has given to the officer, when demanding payment of the amount due on the mortgage, a statement containing “ a just and true account of the debt or demand for which the property is liable to him,” as required by the Gen. Sts. c. 123, § 63.</p> <p>Depreciation in value of property replevied, by reason of its not being in as good condition at the time of the trial as when replevied, does not constitute an element of damage which the defendant is entitled to recover, except in a suit upon the bond.</p>

Contract, by the administrator of the estate of James Keeley, against Allen Cameron and John W. Abbott, to recover the amount of an award of arbitrators, and interest thereon..

<p>The “ covin or collusion ” which bars an action, under the Gen. Sts. c. 85, § 1, to recover treble the amount of money lost by gaming, by a third person, after three months from the time of the loss, is covin or collusion between the loser and the winner of the money, and not between the loser and such third person.</p> <p>At the trial of an action, under the Gen. Sts. c. 85, § 1, to recover treble the amount of money lost by gaming by C., the plaintiff’s counsel was allowed to ask both C. and the plaintiff, who was C.’s brother, whether either had any information or knowledge, before the action was commenced, that the right of action under the statute, accruing to the loser of money to recover the same, was limited to a period of three months. The same question was allowed to be asked the father of both C. and the plaintiff, who had been a member of the State police, and, in that capacity, had acquired some knowledge of the statutes. Held, that the defendant had no ground of exception.</p> <p>At the trial of an action, under the Gen. Sts. c. 85, § 1, to recover treble the amount of money lost by gaming by C., the defendant contended that the action was not prosecuted by the plaintiff in good faith, and that C. was the real prosecutor of the action in the plaintiff’s name; and, on cross-examination of the plaintiff, who testified that he had paid the counsel of record to bring the action, the defendant asked him how much he had so paid. Upon the plaintiff’s objection, the question was excluded. Held, that the defendant had no ground of exception.</p>

<p>Contract for use and occupation of certain premises in Boston, from December 1, 1881, to March 1, 1882. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiffs testified that they and the defendants met on August 11, 1881, when the defendants asked the plaintiffs to lease them the premises, stating that they wished to use the building for storage of iron pipe and for other purposes connected with their business, as it was convenient to their place of business; that the plaintiffs agreed to lease the premises to the defendants for a term of three years, at the rent of $550 a year, payable quarterly, from September 1, 1881; and that, after the terms of the agreement had been concluded, but at the same interview, upon the request of the defendants that it should be put into writing, the plaintiff Lyon promised the defendants to prepare a written lease for execution; that the defendants also asked the plaintiffs to strengthen the floor of the building, so that it might safely support the great weight of the iron pipes which they intended to place upon it, and to make certain other changes for the defendants’ convenience, which the plaintiffs undertook to do, and did do to the satisfaction of the defendants; that the plaintiffs gave the defendants permission to occupy as soon as these repairs would allow, but agreed to charge no rent until September 1, and the defendants accordingly entered into occupation about August 20; and that, at this interview, nothing was said by either party about underletting.</p> <p>The defendants testified that they met the plaintiffs on August 11, 1881, when it was agreed that the plaintiffs should execute and deliver to the defendants a written lease of the premises for the term of three years, from September 1, 1881, at the rent of $550 a year, payable quarterly; that the plaintiff Lyon should prepare the lease and present it to the defendants for execution at once; and they gave the defendants permission to enter and occupy the premises in the mean time, no rent to accrue for such occupation until the beginning of the term to be created by the lease.</p> <p>It further appeared that the plaintiff Lyon did prepare the lease, and early in September went to the defendants’ place of business for the purpose of having it executed; but, the defendants being absent from Boston, that was not accomplished. No demand for the lease was afterwards made upon Lyon, except upon casual meetings in the street; but, on several occasions during the first quarter of the term, the defendants called upon the plaintiff Sawyer for the lease; and he, not knowing it had been prepared, each time stated that it was through inadvertence that it had not been made, but that he would speak to-Lyon about the matter and have it attended to. About December 1, when the quarter’s rent became due, Lyon went with the lease and the rent bill to the defendants’ place of business; and he testified that the lease was then left with the defendants for their examination and execution. The defendants denied any knowledge that it was then left. On December 23, Lyon again went to the defendants’ place of business; and the defendants testified that they then first saw the lease. The lease was not signed, but Lyon offered to execute it. One of the defendants, supposing, as he testified, that the lease was drawn as he claimed it should be, gave the plaintiffs a check for the amount of the first quarter’s rent and began to sign the lease; but the other defendant then discovered that the lease contained a covenant on the part of the lessees not to underlet without the written assent of the lessors, whereupon the defendants demanded that the covenant should be stricken out. Lyon declined to strike it out, and said he would speak to Sawyer about it. A few days later, both plaintiffs called on the defendants, and the same demand by the defendants and refusal by the plaintiffs were made; and the defendants testified that they said that, unless the clause was stricken out, the trade would be off. This the plaintiff's denied. The plaintiffs offered to indorse on the lease a permission to the defendants to underlet for a purpose no more objectionable than their own occupation. Thereupon the defendants refused to accept the lease, and said they should vacate the premises; and the next day, December 28, wrote a letter notifying the plaintiffs that they should vacate the property on December 31. The plaintiffs told the defendants they should not accept a surrender of the premises; but on December 31, the defendants enclosed the keys in a sealed envelope, with a letter stating that they had left, and delivered the same to the plaintiffs, and the defendants did not occupy the premises thereafter, and testified that that was as soon as they could have vacated the building. The defendants also paid an amount equal to one month’s rent from December 1, and never requested the return of the check of December 23, but paid it on presentation.</p> <p>On January 2, 1882, the plaintiffs wrote the defendants that, as they had already told the defendants, they should not accept the keys, but should claim to hold the defendants as tenants at will. The defendants then replied, denying that they were tenants at all, the written lease not having been executed, and, on January 16, the plaintiffs wrote them that they should not waive specific notice, according to law, of intention to quit the premises, and meantime should hold the defendants responsible for the' rent; but added that, if the premises could be let before such termination of the defendants’ tenancy, the plaintiffs would credit, on account of the defendants’ rent, such sums as might be received from the new tenant up to that time.</p> <p>The plaintiffs gave the defendants no notice to quit, or of their intention to terminate the tenancy, and. no other surrender was made by the defendants than that above stated, and nothing further passed between the parties; but, on May 22, 1882, the plaintiffs entered and caused certain work to be done upon the premises for the convenience of a new tenant, who entered on June 1. No objection to the lease offered was ever made by the defendants except as to the clause forbidding underletting. The plaintiffs contended that the contract of August 11 was one to let the premises to the defendants only, for use by them in the course of their business; and that the lease tendered satisfied their agreement.</p> <p>The defendants asked the judge to give the following instructions : “1. The right to underlet is incident to the estate of a lessee, and he cannot be deprived of it except by express agreement. If the plaintiffs agreed to give the defendants a lease, they were bound to give a lease with siich covenants only as are incidental or proper to the estate demised. A covenant on the part of the lessees not to underlet is not a proper covenant, and the refusal of the plaintiffs to execute a lease without such covenant not to underlet was a breach of their agreement. 2. If the defendants entered the premises under a contract for a written lease for three years, and the plaintiffs refused to execute such a lease as the contract called for, then, upon such refusal, the defendants were not bound to give the statutory notice to determine the tenancy. And if, upon and by reason of such refusal, the defendants vacated the premises, they are only liable for the time they actually occupied. 3. If the plaintiffs, by agreeing to execute a written lease, induced the defendants to enter the premises, and then refused to execute the lease agreed upon, the defendants were not bound to give the statutory notice to quit. 4. If the defendants entered under a license to occupy the premises until the plaintiffs could prepare the lease agreed upon, and the plaintiffs then refused to execute such lease, then the tenancy expired with such refusal, and no notice was required to determine it. 5. If the parties misunderstood each other as to a material part of the contract under which the defendants entered the premises, upon such misunderstanding being disclosed, either party could withdraw from the contract, and if the defendants did so withdraw, and vacate the premises, then they are liable for such time only as they had the beneficial use of the premises. 6. If the defendants paid the plaintiffs for the use and occupation ending December 1, 1881, under the belief that the plaintiffs were about to execute such a written lease as the agreement under which they entered called for, such payment would not be a waiver of the defendants’ right to the lease, nor would'it change the character of their occupation or their tenancy. 7. If the plaintiffs, after the surrender of the premises, on December 31, 1881, by the defendants, resumed possession or control of the premises, without notice to the defendants, the plaintiffs thereby accepted the surrender, and cannot recover, even though possession was so resumed after the bringing of this action. 8. By resuming possession of the premises and making alterations therein, in the month of May, 1882, without notice to the defendants, the plaintiffs accepted the surrender made December 31, 1881, by the defendants.’’</p> <p>The judge gave the first instruction asked for; the third, with the word “ fraudulently ” inserted before the word “ induced ; ”, the fourth, with the word “ mere ” inserted before the word “ license; ” but refused to give any of the others, and further instructed the jury as follows: “ Where a person is let into possession under a contract to take a lease, his possession is a tenancy at will, and the statute requires a written notice to quit in order to terminate such a tenancy. If it was a part of the contract of letting that a written lease should be given, yet if the defendants entered into possession of the premises, under the -agreement, before this was done, they made themselves tenants at will of the plaintiffs, and the failure of the plaintiffs to perform that which they had agreed to do would be a breach of contract, for which they would be entitled to their action, but would not enable them to terminate the tenancy upon which they had entered, or to abandon the premises abruptly, as a tenant at sufferance might do, nor would it deprive the plaintiffs of their rights to demand the rent of the premises, which became due according to. the terms of the agreement under which they entered. Unless the defendants show that some other understanding was had between the parties as to the duration of the term or the event which should terminate it, or the method of its termination, or unless the plaintiffs waived notice, or consented to the termination, or accepted the surrender of possession, the statutory rule would apply.”</p> <p>The jury returned a verdict for the plaintiffs; and the defendants alleged exceptions.</p>

<p>A. boarded his horse at B.’s stable, his custom being to take the horse from the stable each day and use it in his business, and return it to the stable at night. On one occasion, a certain sum being due B. for the horse’s board, A. did not return the horse to the stable as usual, and B., upon finding the horse in A.’s possession about three weeks afterwards, took possession of the horse under a claim of a lien upon it, and left it in charge of his agent, who, with A., was to return the horse to the stable on the next day. On that day, A. told B.’s agent that he bad concluded not to take the horse to B., but was going to see him. B.’s agent returned with A., leaving the horse behind. A. offered B. a certain sum in settlement of his claim, which he refused to accept, and A. then promised to send the horse to B. on the next day, which he did not do. Held, on a petition to enforce a lien upon the horse, under the Pub. Sts. c. 192, § 32, that there was evidence that B. had waived his lien.</p>

<p>A. executed a mortgage of land to B., to secure a promissory note for a specified amount. In fact the note was intended to secure advances to be made by B. After B. had made advances to an amount less than the face of the note, he executed an assignment of his “interest” in the mortgage and note to C., and indorsed the note in blank, without recourse. B. then sold the note and mortgage to D. for certain property, and delivered to him the note, on which an instalment of interest was then overdue, the assignment to C., and what purported to be an assignment from C. to D. There was no such person as C. in existence; but D. acted in good faith and without notice that the note was given for future advances. After D. had notice of all the facts, he took a new assignment from B. When D. took the note, he believed it to be of no value, and relied only on the land as his security. Held, on a bill in equity by A. against D., that A. was entitled to redeem only on paying the full amount of the note.</p>

<p>A testator, by his will, gave the residue of his estate to trustees in trust to pay the income to his sister M. during her life, and, at her death, to pay over the income, during their respective lives, to sucli of the children of his sister A. as should then be living or tliereafterwards be born; and further provided that, upon the death of any of said children of A., leaving issue, “ such issue to take equally, to them and their respective heirs and assigns, the share of which the parent during life was entitled to the income; but in case of the death of any of said children without issue, the share or shares of such deceased children is to be equally divided among his or her brothers and sisters, the said share, however, to be held in trust as aforesaid.” Held, on a bill in equity, by the trustees under the will, to obtain the instructions of the court, that the children of A. took only life estates, and not estates tail; that the limitation over to such children was not void for remoteness; and that any questions as to the effect of the limitations over upon the death of any of the children of A. could not be considered.</p>

Tort for personal injuries occasioned to the plaintiff, by being struck by a mail-bag thrown by a mail-agent in the employ of the United States, from a mail-car belonging to the defendant on one of its trains. Trial in the Superior Court, without a jury, before Staples, J., who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

Tort for the obstruction of a drain, alleged to be appurtenant to the plaintiff’s land.

<p>Petition for a jury to revise a betterment assessment laid upon the petitioner’s estate by the respondent city, for the laying out of a way. At the trial in the Superior Court, before Staples, J., the jury returned a verdict reducing the assessment; and the respondent alleged exceptions. The facts appear in the opinion.</p>

<p>Tort for personal injuries. Answer, a general denial. Trial in the Superior Court, before Barker, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff was injured, while travelling on the highway between Ashland and Hopkinton, by the running of the horses of the defendant, caused, as the plaintiff contended, by the defendant’s negligent management of the same.</p> <p>The plaintiff offered evidence tending to show that, about a year and a half before the accident, one of the defendant’s horses had been frightened and had run away.</p> <p>The defendant offered two witnesses, who testified that they were farmers, and that as such they had for a number of years had the care, training, and common use of horses, and breaking of colts, for their own use; and also one other witness, who testified that he had been employed by a horse-railroad company to train and fit the horses for drawing the cars of the company, and had occasionally seen the horses of the defendant driven by different persons. The defendant then asked each of these witnesses, if, from their knowledge of horses, a horse which had been frightened and had run, and had not run again for a period of more than a year and a half, required any more care than it otherwise would have required. To this question each witness answered, “ It would not.”</p> <p>. The plaintiff objected to the admission of any expert testimony upon the question of the care requisite under the supposed circumstances, on the ground that it was common knowledge, and not a question of skill, science, or peculiar knowledge. No question was raised as to the qualification of the witnesses who testified, or to the form of the question. The judge ruled that it was a matter upon which expert testimony was admissible.</p> <p>The jury returned a verdict for the defendant; and.the plaintiff alleged exceptions. t</p>

<p>In an action upon a recognizance, given by an appellant from a judgment of an inferior court for damages and costs, under the St. of 1877, c. 236, § 1, requiring him “ to enter and prosecute his appeal with effect, and to satisfy any judgment which may be entered against him in the Superior Court upon said appeal for costs,” upon an entry of judgment for the penal sum of the recognizance, the appellee is not entitled to have execution issue for the amount of the original judgment, including costs, but only for the amount of the costs arising after the appeal.</p>

<p>To a declaration upon an account annexed for goods sold and delivered, the answer set up the breach of a special contract to deliver goods. At the trial, to prove the contract, the defendant offered in evidence a memorandum signed by himself, in connection with two letters written subsequently by tile plaintiff to the defendant. The memorandum contained an agreement by the plaintiff to furnish ten thousand croquet sets to the defendant at a price named. The first letter contained these words: “ We will undertake the croquet job upon the terms agreed upon when at your place.” The second letter contained the following: “ Wezwrote you that we would undertake the job of ten thousand sets.” Held, that the evidence offered was sufficient to prove the contract alleged in the answer.</p> <p>To a declaration upon an account annexed for goods sold and delivered, the answer set up the breach of a special contract to deliver goods. At the trial, to prove the contract, the defendant offered in evidence a memorandum signed by himself, in connection with two letters written subsequently by the plaintiff to the defendant. The presiding judge ruled that the contract alleged in the answer was not proved by the memorandum and letters; and the defendant excepted: It did not appear that the defendant requested a ruling that there was a variance between the contract alleged in the answer and the evidence offered to prove it, or that the objection was raised at the trial. Held, that the question whether there was a variance was not open upon the exceptions.</p>

<p>The right of action of a minor to recover, under the Gen. Sts. c. 85, § 1, the amount of money lost by him by gaming, expires at the end of three months from the time of "the loss.</p> <p>If a minor fails, without covin or collusion, to prosecute an action, within the time limited, to recover, under the Gen. Sts. c. 85, § 1, the amount of money lost by him by gaming, his guardian may in his own name maintain an action to recover treble the amount so lost, without regard to the question whether he knew of the loss within three months of its date.</p>

Complaint to the Police Court of Newton, under the bastardy act, Pub. Sts. c. 85.

<p>Contract against a surety upon a joint and several bond, dated January 1, 1872, and containing the following condition:</p> <p>“ The condition of this obligation is such, that whereas the said John W. Thomas, who is sheriff for said county of Norfolk, hath made, constituted, and appointed the above-named Henry A. Darling a deputy sheriff under him, the said John W. Thomas, sheriff, as aforesaid: Now if the above named Henry A. Darling shall well, punctually, and faithfully discharge and perform all the services and duties incumbent on him as a deputy sheriff, as aforesaid, and shall save said John W. Thomas, his heirs, executors, and administrators, and each and every of them, harmless and fully indemnified from all judgments, damages, costs, trouble, labor, expenses, and disbursements of every kind, which may at any time arise, happen, or accrue to him, them, or either of them, or which he, they, or either of them may make, sustain, or be subjected to, in any manner, by means or in consequence of the appointment of the said Henry A. Darling, by the said John W. Thomas, to the office of deputy sheriff, aforesaid, then this obligation is to be void and of no effect; otherwise, to be and remain in full force, power, and virtue.”</p> <p>Trial in the Superior Court, before Gardner, J., who reported the case for the determination of this court, so much of the report as is material to the point decided being, in substance, as follows:</p> <p>In 1868, the plaintiff was duly elected sheriff of the county of Norfolk for the term of three years from the first Wednesday of January, 1869; and was duly qualified to serve as such. On March 1, 1871, he appointed Henry A. Darling a deputy sheriff, to hold for a term not exceeding three years from the first Wednesday in January, 1869. Darling duly qualified as such deputy soon after his appointment, but did not give a bond to the plaintiff until November 13, 1871.</p> <p>In 1871, the plaintiff was again elected sheriff for said county for the term of three years from the first Wednesday in January, 1872, and qualified by taking the oath of office on Wednesday, January 3, 1872, and on the next day gave to the treasurer of the Commonwealth a bond as sheriff, dated that day. On the same day, the plaintiff appointed Darling as a deputy sheriff for a term not exceeding three years from the first Wednesday of January, 1872.</p> <p>The plaintiff put in, subject to the defendant’s exception, evidence tending to show that he sent to Darling his written appointment for the coming term a few days before January 4, 1872, with a blank form for a bond; that the bond in suit was delivered to him by Darling on January 4,1872; and that a breach of the bond occurred during Darling’s second term of office.</p> <p>The defendant’s evidence tended to show that he signed the bond in suit on January 1, 1872, and handed it to Darling, and did not afterwards exercise any control over it; that, at this time, he had no information from any one that Darling was to be reappointed, and that he did not know of such reappointment until 1875 or 1876; that in the latter part of 1871 one of the sureties on the bond of November 13, 1871, was financially embarrassed and of bad credit.</p> <p>Darling testified that, at some time between the date of the first bond and the date of the second, the plaintiff told him that he was not satisfied with the first bond, and that the witness promised to get another; and that the bond in suit was procured and delivered in pursuance of that promise. The plaintiff denied any such conversation.</p> <p>The judge ruled that the bond in suit took effect, so as to bind the principal and sureties, from the time when it was delivered to the plaintiff, and was accepted by him, and not from the date of the bond; and that the recital in the condition of the bond, “ who is sheriff for said county,” was to be determined by reference to the time when the bond took effect, and not to the date of the bond.</p> <p>The jury found specially that the defendant signed the bond after January 1, 1872; and that Darling delivered the bond to the plaintiff on January 4, 1872. The judge, on motion of the defendant, set aside the first special finding; and ordered a general verdict for the plaintiff.</p> <p>If the rulings were correct, judgment was to be entered on the verdict for a sum agreed upon; otherwise, the verdict to be set aside.</p>

<p>A right of way by necessity may be created, where the dominant estate is set off on execution from the servient estate, and no such right of way is described in the set-off, if there is no other practicable way, and the owner of the servient estate has not assigned or offered to assign any other way.</p>

<p>On November 7, 1883, the Governor and Council adopted an order requiring the opinion of the Justices of the Supreme Judicial Court upon the following important questions of law %</p> <p>1. Whether, under thé provisions of chapter 291 of the Acts of 1879, entitled “An act to create a state hoard of health, lunacy, and charity,” section 2, which empowers the Governor, with the advice and consent of the Council, to appoint nine persons, who shall constitute a “state board of health, lunacy, and charity,” it is competent for the Governor, with the advmv • : ni consent of the Council, to appoint a woman to hold office in said board, in view of the fact that the same act provides for the appointment of three several hoards of trustees, two members of each of which shall be women.</p> <p>2. Whether a woman, having been in fact appointed in the year 1880, if such appointment was not within the p-wrer of the Governor and Council, became a legal member of said board because of the provisions of section 1 of chapter 79 of the Public Statutes, which enact that the present members of the board of health, lunacy, and mliarity 66 shall continue to hold their offices during the term; for which they were appointoil”</p> <p>3. Under the provisions 0f article 30 of the Bill of Rights, which provides flat, in the ¡government of this Common wealth, the legislative department shall never exerase the executive and judicial powers, or ciiL er of them, can tie Legislature ap jjoihi, Vh officer, either by upplicaihv-n or direct provision, it being elsewhere in the Constitution provided what officers the Legislature may appoint and elect?</p> <p>4. Does the fact that, under the provisions of section 3 of said chapter 79, said board of health, lunacy, and charity is required to make its report of its doings to the Governor and Council, on or before the thirty-first day of December in each year, and that the Governor transmits such reports to the Legislature for their information, when a woman is a member of the board, which report the Legislature acts upon, appoint or confirm such woman as a member of the board or an’ officer of the State ?</p>

On November 23, 1883, the Governor and Council adopted an order requiring the opinion of the Justices of the Supreme Judicial Court upon… Held: in determining who is chosen, have the Governor and Council the power to examine and recount the ballots given in such elections in the several cities and towns, or either of them, in order to ascertain the true result thereof, the ballots having been sealed up and preserved according to the law by the clerks of the several cities…