Volume 137 — Massachusetts Reports

<p>Tort against Charles H. Morgan, Horace A. Young, William T. McNeil, and Eleazer Hinchley, for personal injuries occasioned to the plaintiff by the falling of a traverse pulley, block, and chain from an elevated railway in one of the mills of the Wash-burn and Moen Manufacturing Company in Worcester. After the former decision, reported 130 Mass. 102, the case was tried in this court, before Lord, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The block and chain constituted a heavy apparatus weighing between two and three hundred pounds, which was placed upon an elevated single railway suspended from a truss beam. The chain was an endless chain, and weighed one hundred pounds, and extended nearly to the ground from a height of eighteen feet. The railway was put up for general use in the mill, and as a permanent part of its structure. The traverse pulley was hung upon the railway, was movable backward and forward, and was used for the purpose of hoisting rolls from the rolling machinery placed in a line directly under the railway.</p> <p>The plaintiff was a carpenter employed by said company, and it was his duty to do such general work as might be required of him in and about the manufacturing establishment. That portion of the establishment in which the railway and block and pulley were placed was a new mill, and was at the time of the plaintiff’s injury not fully finished, although the work of rolling wire had already been begun in it, and was in operation at the time the injury occurred.</p> <p>A closet for the use of the persons employed in the mill had been constructed upon one side of the room, one end of which closet was directly under one end of the railway, and for that reason was found to interfere with the convenient moving of the pulley and traverse along the line of the railway; and the plaintiff, on February 28, 1877, was directed to cut out a portion of the closet and so shorten it as not to be in the way of the convenient operation of the chain and pulley, and, while so employed, the traverse pulley and block rolled off the end of the railway upon the plaintiff, and' he received the injuries complained of.</p> <p>The plaintiff offered to prove, and contended from the fact that the block moved in that direction, that the railway inclined upon a downward grade towards the end from which the block fell; and that the jarring produced by the operation of the machinery caused the same to move along the railway until it .fell upon him. The railway extended from one side of the mill across it, and was designed to reach the other side; but it only reached within eighteen inches or two feet of the side of the mill at the end where the block fell, leaving an open space through which it might fall, and no guard or stop was placed there to prevent its falling; and this was the negligence complained of by the plaintiff.</p> <p>The defendant Morgan was the general superintendent of the entire works of the Washburn and Moen Manufacturing Company, and had the general superintendence of the construction of the mill and the arrangement of the mechanism, and gave the direction for the construction of this railway and the apparatus connected with it. He made a free-hand sketch of the railway, and caused one of the employees named Daniels to make a mechanical drawing of the arrangement, and designed the railway to reach from side to side of the mill, and gave the general orders, but not the minute details, for the construction of the same.' These plans were made in the October prior to the injury.</p> <p>Morgan gave the defendant McNeil directions to put up the railway, and his attention was not called to it from that time until the day of the injury. On the morning of the injury, and about four hours before it, he came to that part of the works, and took hold of the chain and drew the truck to a point near the corner of the closet and a few feet from where it finally fell, and, finding that the closet was in the way of its passage, gave directions to McNeil to have the closet cut off so that the chain might conveniently pass at that point, and McNeil gave directions to the plaintiff to do the work necessary for shortening the closet. Morgan’s attention was first called to the defect directly after the injury, when he declared that leaving the railway in that condition, without a stop, was gross carelessness.</p> <p>The defendant Young was the superintendent of all the machinist’s department, and had charge of constructing and putting up machinery, and was master mechanic of said company, and took his orders from Morgan. He received the drawings for the construction of the railway, after they were completed, from Daniels, and gave the drafts to the foreman of the machine-shop, Hinchley, one of the defendants, with directions to have the railway constructed ready to put up. The drawing designed the rail to reach from side to side of the mill. The railway was constructed in the machine-shop, and from there carried to the mill, placed upon the ground ready to be hung, and was to be hung by McNeil, who was the master carpenter and builder for the company, by whom it was soon after hung, some time in December, and left in the condition in which it was at the time of the injury.</p> <p>About a week before the injury, Young discovered the existence of the open space at the end of the rail, and ordered Hinchley to put a stop there, which the plaintiff contended was ordered to prevent the tackle from rolling off the railway; but the same was not done by any person until after the accident.</p> <p>The plaintiff had no knowledge of the existence of the defect, and, from his employment or connection with the structure, had no reason to know it.</p> <p>Upon the above offer of proof, the judge ruled that the action could not be maintained, and directed a verdict for the defendants ; and the plaintiff alleged exceptions.</p>

<p>An action of ejectment still exists in this Commonwealth for the recovery of a term.</p> <p>Objections not taken at the trial of an action are not open on a report of the case.</p> <p>A declaration, in an action of ejectment by A. against B., alleged a lease by P. to 3?. of a certain parcel of land, for a term of years, entry into possession by F., an assignment of the lease to A., and an ejection thereafter by B. Held, that this was a sufficient declaration of ejectment of a term to authorize a judgment for possession and for damages, and was not a declaration merely in trespass.</p> <p>A lessor served a notice to quit for non-payment of rent, by leaving the notice at the lessee’s house, off the demised premises, and called the attention of a person, not an agent of the lessee nor a member of his family, to it. This person gave the notice to the lessee the next day. Held, that the leaving of the notice was not a good service on the lessee, and that the fourteen days, prescribed by the Gen. Sts. c. 90, § 30, did not begin to run until the lessee received the notice.</p> <p>If a lessee for a term of years, within fourteen days after a notice to quit is given him by the lessor for non-payment of rent, under the Gen. Sts. c. 90, § 30, tenders to the lessor the rent due, he prevents a forfeiture of his estate; and he is not obliged to tender the taxes due on the estate which the lessor has paid to prevent the estate being sold for taxes, although the lease contains a covenant that the lessee shall pay the taxes.</p> <p>A lease for twenty years contained the provisions, that, if the premises or any part thereof should, during the term, he destroyed by fire, the rent, or a proportionate part thereof, should abate until the lessor or lessee should put the premises in repair; that, if the lessee should rebuild, the lessor should contribute the amount of insurance money received; and that, if the lessor should want the premises for the purpose of building any time after the expiration of fifteen years from the commencement of the lease, the lessee should give up the premises, after reasonable notice. A fire took place, the lessor illegally ousted the lessee and erected new buildings, and eight years afterwards, at the expiration of fifteen years, not intending then to rebuild, and while still in possession, notified the lessee that he wanted the premises for the purpose of building. Held, in an action of ejectment begun by the lessee two years before the notice was given, that the notice was of no effect.</p>

<p>Bill in equity by the trustees under the will of Silas Peirce, to obtain the instructions of the court as to the construction of the eighth clause of the will of the testator.</p> <p>By this clause the testator devised the residue of his property to his nephews Hayward P. Cushing, Nathan Cushing, and Silas Peirce 2d, in trust “ that they shall pay to the children of my deceased brother Bailey Peirce, namely, Eliza Burrell, Sarah Cole, and Abby C. Peirce, to the children of my deceased sister Beckey Lincoln, namely, Betsey Peirce Donnelly and Hannah Jane Smith, to the children of my deceased brother Waldo Peirce, namely, Caroline Kelly and Silas Franklin Peirce, and to the children of my deceased brother Elijah Peirce, namely, Elijah Foster Peirce, Sarah Bailey Peirce, and Elizabeth Bourne Peirce, five hundred dollars each annually, during their respective lives; and that they shall annually divide and distribute the residue of the net income of said trust property and estate, which shall remain after the foregoing provisions of this trust have been fulfilled, among my nephews and nieces in the first degree, in such proportions, not however exceeding five hundred dollars to any one in the same year, so long as the whole of said income may be distributed by giving no larger sum to any one, however unequal, as my said trustees may deem expedient, so long as five of my said nephews and nieces shall survive; and, when only five of my nephews and nieces shall survive, my said trustees shall make proper provisions for their support and comfort during the residue of their lives respectively, and then sell all said trust property and estate, and divide and distribute the proceeds thereof among the issue of my said nephews and nieces, both of those living and dead, in such sums, amounts, or proportions, however unequal, as my said trustees shall deem expedient and proper. I thus commit the division and distribution óf the said trust property and estate, both as it regards principal and the interest, so far as I have not given specific direction for its appropriation, entirely to the judgment and discretion of my said trustees, because I desire that it shall be so used as to aid the most those who shall be the most in need of aid, and I cannot foresee what their respective wants may be, nor what their respective circumstances may require. I have full confidence that my said trustees will exercise prudence, discrimination, and sound judgment in the execution of their trusts, and that the purposes I have indicated in the disposition of my estates will be more nearly accomplished through their agency than they would be likely to be by any other means I can devise. In all cases where I mention my nephews and nieces in this will, I intend to include said Hayward P. Cushing, Nathan Cushing, and Silas Peirce 2d, as fully as though they were not otherwise named herein.”</p> <p>The bill alleged that Hayward P. Cushing died before the testator; that the testator, by a codicil to his will, directed that the other two trustees should have all the powers and rights, and discharge all the duties, which would have devolved upon the three trustees; and that the yearly income of the estate was sufficient to pay a larger sum than five hundred dollars to each of the nephews and nieces in the first degree.</p> <p>The questions upon which the trustees desired instructions were stated in the bill, and appear in the opinion.</p> <p>The answers admitted the allegations of the bill.</p> <p>The case was reserved, by Field, J., upon the bill and answers, for the consideration of the full court.</p>

<p>Under the Pub. Sts. c. 162, if one magistrate has found a debtor guilty upon charges of fraud and sentenced him, and has refused him the oath for the relief of poor debtors, and the debtor has appealed from the judgment on the charges of fraud and recognized to prosecute his appeal, another magistrate, pending the appeal, has jurisdiction to hear and act upon an application of the debtor to take the oath for the relief of poor debtors.</p>

<p>At the trial of an action against a street railway corporation for personal injuries occasioned to the plaintiff, while a passenger in one of its open cars, by being thrown out of the car, it appeared that the defendant was repairing its track at the place where the accident happened; that, for this purpose, it had removed the paving-stones in the street, and, at the time of the accident, some of them had not been replaced; and there was evidence tending to show that the absence of the paving-stones made the passage at this point dangerous; and that this caused the injury to the plaintiff. Held, that there was evidence of the defendant’s negligence which was properly submitted to the jury.</p> <p>At the trial of an action for personal injuries, it appeared that, when the interrogatories were filed in court for the taking of the deposition of a witness, several interrogatories had been objected to by the defendant by writing under each of them the words, “ Objected to by the defendant.” In reading the deposition to the jury, the plaintiff’s counsel omitted to read these words. The defendant’s counsel was present, and made no objection to the answers being read; but, at the close of the reading, he called the attention of the judge to the fact that these words had been omitted, and contended that he was entitled, as of right, to have the deposition excluded. The judge ruled that he would hear the counsel upon any objections he saw fit to insist upon, and would exclude any part which appeared to he incompetent; but the counsel refused to make any objections. Held, that the defendant had no ground of exception to the admission in evidence of the deposition.</p>

<p>While the St. of 1855, c. 288, was in force, a wife joined with her husband as grantor in a mortgage of land, “in order to release her rights under the homestead exemption act.” The deed contained full covenants of seisin and of warranty. Held, that she did not thereby bar her right of dower in the land, although the estate at the time the mortgage was given was of less value than $800.</p>

<p>Goods were delivered to a common carrier under a bill of lading containing a stipulation that they were shipped at an agreed valuation of a certain sum, and that, if a loss occurred for which the carrier was responsible, the value of the goods at the time and place of shipment was to govern the settlement, “ except the value of the articles has been agreed upon with the shipper.” The carrier had no knowledge of the value of the goods except that furnished by the statement of the shipper, and the charge for transportation was based upon such valuation. The goods were lost by the negligence of the carrier’s servants. Held, in an action for such loss, that the shipper was estopped to claim more than the agreed valuation of the goods.</p>

<p>To an action for maintaining an artificial structure on the defendant’s land in such a manner that rain water which fell on the roof of the structure was thrown on the. plaintiff’s land, the defendant set up a right by prescription to have the water so flow. Held, that the burden of proof was on the defendant to show an open, continuous, and adverse use of such servitude; and that the burden was not sustained by proof that the artificial structure had been in the same condition for more than twenty years.</p> <p>If the plaintiff in an action proves an invasion of his rights by the defendant, he is entitled to recover at least nominal damages.</p>

<p>A deed of land described it as commencing at the northeasterly corner of lot 17 on a certain plan, and bounded by certain streets named. These streets were private ways, and there were other private ways shown on the plan referred to. Held, that the grantee had a right of way over the streets named so far as to furnish him with communication with the public streets with which they connected, but not over all the private ways shown on the plan. bounds of the previous conveyance was contained a lot which the grantor had previously conveyed, and that no plan had then been recorded; that, to prevent future disputes and misunderstandings, and to secure to the grantee his just right in the lots thereinafter described, it was agreed that the grantor should execute a new deed to the grantee. The deed then conveyed a number of lots by reference to a certain plan, and contained this clause: “ It being understood that it shall not be competent for the said grantee, his heirs and assigns, to shut up or impede the passage through any of the streets designated on the plan.” Held, that the grantor, having parted with his title to the land by the first conveyance, could not impose a servitude upon it by the subsequent deed.</p> <p>If the owner of a number of lots delineated on a certain plan, on which are shown a number of private ways, conveys certain lots to A., and releases to him all his right, title, and interest over parts of certain streets, and then conveys to B. other lots not bounded on the parts of the ways so released, and refers to the plan, B. takes no title in those parts of the ways released to A.</p> <p>A deed of a lot of land described it as bounded on three streets, which were in fact private ways, “ also the streets for public highways, as by a plan recorded in register’s office for benefit of all concerned, drawn by ” a person named. At this time, the land was pasture land, and the streets were not laid out or graded. Held, that the grantee had no right of way over ways, shown on the plan, which were remote from the granted premises, and a right of way over which was not necessary for the grantee’s enjoyment of the premises granted.</p> <p>After a conveyance of a tract of land according to a certain plan, the grantor executed and delivered to the grantee a deed poll, which recited that within the</p> <p>A deed conveyed a tract of land described as lot 1 on a certain plan. The land was bounded on two public ways. The plan showed these ways, and also a number of private ways, remote from the land conveyed, but connecting with the public ways. Held, that the deed did not, by reference to the plan, import a grant of any right of way over the private ways shown on the plan.</p>

<p>Information, under the Pub. Sts. c. 112, § 156, at the relation of ten legal voters of the town of Everett, to restrain the respondent corporation from continuing an abandonment of its station at Waters Street in West Everett. The answer denied an abandonment, and set up a relocation of the station in pursuance of the Pub. Sts. c. 112, § 157. Hearing before W. Allen, J., who reported the case for the consideration of the full court, in substance as follows:</p> <p>It was admitted by the respondent that the station in question was established in 1855, and had been continuously maintained until December 18, 1882. On December 16, 1882, the respondent gave public notice that, on December 18, it would discontinue stopping its trains at said station; and, in pursuance of said notice, it did so discontinue to stop its trains.</p> <p>The relators offered to show, as bearing upon the question whether or not the respondent had in law abandoned said station, that the change of location of the station discommoded more than three quarters of the patrons of said railroad who ordinarily took and left the cars at the station, and compelled them to travel upon each trip fifteen hundred feet farther, to the new station at Prescott Street; that since the establishment of the station at Waters Street, in 1855, a settlement of considerable proportions had grown up about it, attracted to that point by the railroad facilities afforded by the stoppage of trains at said station; that a large number of people had purchased land, and built houses, shops, and manufactories, near said station, for the same reason; that, relying upon the continuance of said station, they had paid a much higher price for the land than they otherwise would; that the value of real estate in the vicinity of said station had already been greatly decreased, and would be still further decreased by said abandonment; that the location of the new station was substantially in open land; and that there were very few inhabitants and no business in its immediate vicinity; all of which evidence the judge excluded.</p> <p>The respondent offered in evidence, which was admitted, against the objection of the relators, the record of the railroad commissioners approving the relocation of said station, which, after reciting a request of the selectmen of Everett to the board of railroad commissioners for a meeting in Everett for the purpose of relocating a station and the appointment of a day for the meeting, was as follows: “ Tuesday, October 11, at half-past ten A. M., was appointed for such meeting, at the station of the Eastern Railroad in Everett; and on Tuesday, October 11, pursuant to assignment, the board (all the members being present) met the selectmen of Everett at the Everett station on the Saugus branch of the Eastern Railroad, for the purpose of considering the matter of the relocation of the station. The selectmen appeared for the town, and submitted a vote of the inhabitants in favor of relocating the station at the foot of Prescott Street. A number of remonstrants against that location were also present, and the question was discussed by the parties interested. The proposed location was viewed, and the hearing was closed. Subsequently it was voted, that the board approves the relocation of the West Everett passenger station on the Saugus branch of the Eastern Railroad at the foot of Prescott Street, as proposed by the selectmen of Everett. Attest: Wm. A. Crafts, clerk.”</p> <p>Joseph H. Cannell testified that he was the town clerk of Everett in the year 1882, and that he acted as clerk of the board of selectmen, but that he was not a member of that board, and had not been sworn as clerk of said board. He produced the records of the selectmen, and read their action in relation to said relocation, which was had in his presence, as follows: “Voted, that the West Everett depot on the Saugus branch of the Eastern Railroad be relocated at the foot of Prescott Street, in concurrence with the vote of the railroad commissioners.”</p> <p>Ho action on the part of the railroad corporation, except as herein appears, and no approval in writing by either the board of railroad commissioners or the selectmen of Everett, was given in evidence, unless said records constitute such approval in writing. After said proceedings by the board of railroad commissioners and the selectmen of Everett, the respondent acquired the land necessary for a station and its approaches, at the foot of Prescott Street, and erected a station thereon, which was completed and ready for use on December 18,1882; and since that time the respondent’s trains have stopped there, and not, as before, at Waters Street.</p> <p>The relators contend that the acts of the respondent constituted in law an abandonment of said station, and that the respondent had not shown a relocation of said station in accordance with the provisions of law.</p>

<p>A testator by his will gave one fifth of his personal property to his son E., “ to have and to hold to him, and to his executors, administrators, and assigns forever.” By a subsequent clause, he devised all his real estate to trustees, in trust to pay an annuity, and provided that, subject to the annuity, “ said rents and income shall be applied equally by my said trustees to the maintenance, support, and comfort of my said sons and daughters in equal shares of one fifth each, and of their families, if they have any, during their natural lives, and until the death of my last surviving child,” the issue of a deceased son or daughter to take the parent’s share of the income until the termination of the trust. By a codicil, the testator stated that he had advanced to E. more than his share of the estate, both real and personal, and proceeded as follows: “ I hereby revoke all the several paragraphs of said will wherein the said E. is given one fifth part of principal and income to him and to his heirs and assigns forever, and direct that the said principal and income, both now and in the final division, shall be divided into four equal parts, one to each of my other said children,” “and to their heirs and assigns forever.” Held, that the provisions in the will in favor of E. were revoked by the codicil.</p> <p>A testator by his will devised his real estate to trustees, in trust to apply the rents and income to the maintenance, support, and comfort of a son and three daughters in equal shares of one fourth each, and of their families, if they should have any, the issue of a deceased son or daughter to take the parent’s share of the income until the termination of the trust. Held, that the trustees might, in their discretion, pay to either child of the testator its full proportionate share of the income. Held, also, that the word “family” included the son and daughters, and their respective children so long as the latter should live with their respective parents, or be of tender years and entitled to support. Held, also, that it would include the son’s wife, if she continued to reside with, or be entitled to support from, him.</p> <p>By the first codicil to his will, a testator revoked a provision in the will giving one fifth of the income of his estate to a son, and gave to the son $5000 annually for life, the same to be paid before the division of one quarter to each of his other children. By a second codicil he revoked the provision of the first codicil giving $5000 annually to his son, and, in lieu thereof, gave him one tenth part of the net income of certain real estate, the same not to exceed $2000 annually, and to be paid in quarterly payments. After this, the testator conveyed the real estate upon which the annuity was charged to trustees, in trust to appropriate the income to the payment of certain debts, and then to reconvey the property to himself. The testator died before the property was reconveyed to him, and sixteen months after his death it was reconveyed to the trustees under his will. Held, that the son was not entitled to claim his share of the income, during this time, out of the general estate of the testator; but that the son was entitled to the surplus of one tenth part of the income above $2000, if any after-wards existed, in payment of the arrearage.</p> <p>Land was conveyed to A. in fee. On the day of the conveyance, A. executed a declaration of trust, reciting that the land was held by him in trust for the benefit of a daughter, to permit her to enjoy the same for her life, and, on her death, to convey the same in fee to her children. Subsequently an agreement was made between A., his daughter, and her husband, reciting that A. had advanced a certain sum to his daughter for the purchase of the land more than he had advanced to his other children, and that he then held the premises under the declaration of trust; and it was agreed that the daughter should pay interest on this sum annually, or if not paid that it should be added to the principal; and that, at the death of A., a certain sum a year should be withheld from the income to be bequeathed to the daughter by A., until the principal and interest should be fully paid; that, when fully paid, the declaration of trust should be void, and the premises should be conveyed to the daughter if living, or to her children if she were dead. The will of A., subsequently made, left certain property in trust, the income to be paid to the daughter, and provided for the mode in which debts due from his children should be paid. A codicil to his will revoked that portion of the will which provided for the payment of debts due from his children, so far as it applied to his daughter, and directed that the debt due from her be discharged. When this codicil was made, no debt was due A. from his daughter, unless she was indebted to him by virtue of the agreement. Held, that whether the sum due under this agreement with interest was strictly a debt or not, it was the intention of the testator that it should be discharged.</p>

Tort, for malicious prosecution. The answer contained a general denial of each and every allegation in the declaration, and set up no other defence. At the trial in the Superior Court, before Knowlton, J., it appeared that the original suit, which the plaintiff alleged was instituted maliciously, and without probable cause, was a complaint charging him with giving the defendant a worthless check for $100, for a like amount lent to the plaintiff by the defendant.

Tort, for personal injuries occasioned to the plaintiff, on March 3, 1882, by a car of the defendant corporation being driven against the plaintiff’s wagon, from behind, whereby the plaintiff was thrown from his wagon, and injured. The defendant denied negligence on its part, and alleged a want of care on the part of the plaintiff.

<p>The FIRST CASE was a bill in equity, filed September 15, 1881, by Patrick J. Greene, John Paine, Clarissa A. Beaumont, and Thomas McCormick, to restrain the defendant from opening and using a way from the northeasterly end of Webster Court, in Boston, into a lot of land, of which the defendant had a lease, and which is marked No. 7 on a plan, a copy of which is printed on the opposite page; and also to restrain him from opening and using a way from Webster Avenue over the lot marked a on said plan, and thence into Revere Place; and to compel him to restore to their original condition a wall which he had removed from the northeasterly end of Webster Court, and a fence which he had removed from the northeasterly end of lot a opposite to Revere Place.</p> <p>The secord case was a bill in equity, filed April 3, 1882, to restrain the plaintiffs in the first case from interfering with Canny’s alleged rights, as owner or lessee of estates bordering on Webster Avenue, in using Revere Place.</p> <p> </p> <p>The two cases were heard together, before C. Allen, J., who ordered a decree to be entered for the plaintiffs in the first case, and for the defendants in the second case; and reported the cases for the consideration of the full court. The facts appear in the opinion.</p>

<p>If the charter of a corporation provides that the corporation shall cease to exist if a certain thing is not done in a certain time, the question whether the corporation has ceased to exist can he judicially determined only in a suit to which the Commonwealth is a party.</p> <p>If the charter of a canal corporation provides that the corporation shall not begin to construct its canal, or take any land or property therefor, until it has deposited a certain sum with the treasurer of the Commonwealth as security, among other purposes, for the payment of damages for taking land, a deposit with the treasurer, by the corporation, of United States bonds of the par value of the sum required, and of a larger market value, is a sufficient compliance with the charter, when accepted as such by the treasurer, so far as any rights of a landowner, whose land is taken by the corporation, are affected.</p> <p>The St. of 1883, c. 259, incorporated a canal corporation “ with all the privileges and subject to all the liabilities set forth in all general laws which now are or may hereafter be in force relating to railroad corporations, so far as they maybe applicable, except as hereinafter provided; ” and provided, in § 19, that the capital stock might be fixed by the corporation within certain limits; and that the corporation might locate, but could not begin to construct, its canal, or take land therefor, until it had deposited a certain sum with the treasurer of the Commonwealth as security for certain purposes. Held, that the Pub. Sts. c. 112, §§ 85, 86, relating to the location and construction of railroads, did not apply to the corporation.</p> <p>The St. of 1883, c. 259, incorporating a canal corporation, provided, in § 3, that the corporation might lay out its canal not exceeding a certain width, and should file the location thereof, within a time specified, with the county commissioners; in § 4, that the corporation might purchase or otherwise take land and materials necessary for making or securing its canal and structures and works, and, if not able to obtain such land or materials by agreement with the owner, the corporation should pay such damages as the county commissioners or a jury upon appeal might estimate; and in § 5, that the corporation should pay all damages occasioned by laying out and making and maintaining its canal, and by taking any land or materials, as provided in § 4, and such damages should, upon the application of either party, be estimated by the county commissioners, “ and when it is intended to take land or materials, such application shall be made before the actual taking or appropriation thereof.” Held, that the laying out and filing by the corporation of the location of its canal, under the provisions of § 3, was a taking of all the lands included within the limits of the location; and that it was not necessary that an application for the assessment of a landowner’s damages should be made before the actual taking or appropriation.</p>

Contract. The case was referred to an auditor, who found the following facts: On October 17, 1876, the defendant, who was in the employ of the plaintiffs as a salesman, signed an agreement as follows: “ In consideration of one dollar, I hereby agree to stand and pay to Knowles Freeman & Co. one half the loss over and above ten dollars on all bills trusted by me since above date.

<p>Evidence of the character and present reputation for truth of a witness is admissible to rebut evidence of his conviction of crime.</p> <p>Evidence is inadmissible, to rebut evidence of the conviction of a witness of crime, that he was innocent of the crime, and in explanation of his conviction.</p>

<p>Under the Pub. Sts. c. 11, §§ 14,16, and c. 13, §§ 39, 40, the tax commissioner, in determining the basis upon which to levy the annual excise on the franchise of an insurance corporation, should deduct from the aggregate value of the shares of the corporation the value of mortgages of real estate held by it, and subject to local taxation.</p>

The petition alleged that the child was of unknown parentage and a foundling; and that its parents had wilfully deserted and neglected to provide care and maintenance for the child for two years next preceding the date of the petition.

<p>Petition, filed December 11, 1882, for partition of a parcel of land in Winchester. At the trial in the Superior Court, before Barker, J., the jury returned a verdict for the petitioner; and the respondent alleged exceptions, which appear in the opinion.</p>

Writ of error to reverse a judgment of the Superior Court, rendered upon a verdict of a jury reducing assessments, laid upon the estates of the defendants in error by the plaintiff in error, for the construction of a public park. Hearing before O. Allen, J., who affirmed the judgment, and reported the case for the determination of the full court. The facts appear in the opinion.

Tort for libel, in accusing the plaintiff of having uttered certain forged bonds. Trial in the Superior Court, without a jury, before Barker, J., who allowed a bill of exceptions, in substance as follows: The defendants gave evidence of the truth of the accusation in the alleged libel.

<p>Appeal from a decree of the Probate Court, granting a petition that an administrator’s account might be opened. Hearing before Field, J., who reported the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>The treasurer of a savings bank is indictable, for embezzlement of the property of the bank, under the Gen. Sts. c. 161, § 38.</p> <p>If a count in an indictment, under the Gen. Sts. c. 161, against the treasurer of a savings bank, for embezzlement of its property, after describing the acts done, alleges that, by force of the statute, the defendant “is deemed to have committed the crime of simple larceny,” and that he did steal, take, and carry away the property “ in the banking-house aforesaid,” thus leaving it in doubt whether the count is framed under § 38 or § 39, the count is bad; and will be quashed on motion.</p> <p>In an indictment, under the Gen. Sts. c. 161, § 38, against the treasurer of a savings bank, for embezzlement of its property, an allegation of the embezzlement of money to a certain amount, and of mortgages and notes, so described as to identify them, is a sufficient description of the property alleged to have been embezzled.</p> <p>If an indictment alleges the embezzlement of certain mortgages and notes, and certain “ pieces of paper writing,” and the mortgages and notes are so described as to identify them, it is immaterial, on a motion to quash, whether the pieces of paper writing are so described.</p> <p>If some of several counts in an indictment are good, the indictment will not be quashed for defects in the other counts.</p> <p>A motion to require the government to elect upon which of several counts in an indictment it will rely at the trial, is addressed to the discretion of the presiding judge; and his refusal to order an election is not subject to exception.</p> <p>At the trial of a criminal case, the government is not required, upon the offer and request of the defendant to testify, to call him as a witness to prove his own signature.</p> <p>At the trial of an indictment against the treasurer of a savings bank, for embezzlement of its property, the defendant has no ground of exception to the admission in evidence of a book of records of the bank, kept by the defendant as its secretary, containing the record of a vote authorizing the treasurer of the bank to release and discharge the mortgages of the bank, which the government contends has been fraudulently altered by striking out the word “ and ” before “ discharge,” and by adding the words “ and assign ” before the words “ the mortgages.”</p> <p>An unauthorized assignment and delivery of a mortgage, the property of a savings bank, by its treasurer, is an embezzlement of the mortgage, although his act did not pass the title of the bank.</p> <p>An assignment and delivery of a mortgage, the property of a savings bank, by its treasurer, for his own use and benefit, is an embezzlement of the mortgage, although the treasurer believed that he had authority to assign the same for the benefit of the bank.</p> <p>A person who embezzles several articles of property at one time may be indicted and convicted for the embezzlement of each article separately.</p>

Writ oe error, to reverse a judgment rendered for the Commonwealth, at June term 1881 of the Superior Court for the county of Suffolk, for the transaction of criminal business, upon an indictment in eight counts.

<p>Petition for a writ of certiorari to quash the proceedings of the county commissioners of Hampshire, in refusing to abate a tax assessed by the town of Northampton upon the estate of the petitioner. Hearing before Morton, C. J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>The St. of 1880, c. 211, § 1, providing that the widow of a person dying intestate shall take real estate of the deceased to the value of $5000 in fee, confers upon such widow an estate in addition to that given to her by the Gen. Sts. c. 90, § 15, in lieu of dower, and she is not required to elect between the two.</p> <p>The St. of 1880, c. 211, § 2, providing that, when the assignment of the estate given by § 1 to the husband or wife of a person dying intestate cannot be made without injuring the residue of the estate, an undivided portion of such estate may be set oil, does not supersede the provisions of the Gen. Sts. c. 186, § 58, but furnishes an additional method of setting off the estate.</p>

<p>An allegation in a declaration of a conclusion of law from the facts averred is not traversable, and is not admitted by a demurrer, and may be rejected as surplusage.</p> <p>A declaration alleged that a corporation, by its treasurer P., made a promissory note payable to P., for the purpose of negotiating it for the benefit of the corporation; that P. indorsed the note, waiving demand, notice, and protest; that the defendants, who were directors in the corporation, some of whom had approved the note in writing, “ for said purposes and for said considerations,” made the following contract, which they indorsed on the note: “ We hereby guarantee the payment of the within note; ” that the note was then, before its maturity, sold and delivered to the plaintiff for a valuable consideration paid by him to P. Held, on demurrer, that the declaration showed a guaranty of the note, for a sufficient consideration, to the plaintiff, as the first indorsee and holder for value.</p>

Tort, against the owners in trust of an estate on Washington Street, in the city of Boston, for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendants, or of their servants or agents, by the fall of a derrick.

<p>A. died seised of a parcel of land bounding on a street 128 feet. There was set off to his widow, as dower, a parcel at the northerly end, measuring 49 feet on the street, and bounding southerly by a fence. Subsequently, by a partition among the heirs of A., the remainder of the land became the property of B., who conveyed it, through a third person, to his wife. On the death of the widow of A., her administrator assumed to convey the estate set off to her in dower, and included in the boundaries a strip of land south of the dower estate, making the measurement on the street 51 feet 7 inches, and B. and his wife executed a deed of release to the grantee of the same parcel. The names of both appeared in the granting part of the deed. The form of the covenants was, “ I do hereby covenant,” &c., and the wife released her right of dower and homestead in the granted premises. Held, that the deed passed the title of the wife in the whole parcel described in the deed.</p>

<p>H a mortgage of personal property is fraudulent and void as to creditors of the mortgagor, a judgment creditor may levy an execution upon the mortgaged property, as if the mortgage did not exist, although the property has not been previously attached.</p>

<p>No exception lies to the refusal to give an instruction based on facts not appearing in the bill of exceptions.</p> <p>The statement, in a certificate filed by a married woman, of her intention to do business as “ a retail liquor dealer and saloon keeper ” at a place named, is a sufficient description of her business to protect the property employed therein from attachment for her husband’s debts, although she does to some extent a wholesale as well as a retail liquor business.</p>

<p>Tort for slander. The declaration contained two counts, the first alleging that “ the defendant publicly, falsely, and maliciously accused the plaintiff of the crime of perjury, by words spoken of the plaintiff substantially as follows: ‘I say before this officer, that Plumer Chesley committed perjury when before Blackmar. I say it openly, and intend to bring him before the grand jury.’ ” The second count contained the same allegation as the first count, the words set out as spoken of the plaintiff being as follows: “I say he committed perjury in swearing as he did before Blackmar. I say openly before these witnesses that he committed perjury.” Answer: 1. A general denial. 2. That the words spoken were true. 3. That any words spoken by the defendant in relation to the matters set out in the declaration were spoken in court, in the course of the trial of a cause in the District Court of the United States for the district of Massachusetts ; that a petition was then pending to set aside a discharge in bankruptcy granted to said plaintiff; that in said petition it was charged that the plaintiff had committed the crime of perjury, and the same was assigned as one of the reasons for setting aside said discharge; and that any words spoken were parts of a conversation had with the plaintiff’s attorney in relation to said charges.</p> <p>Trial in the Superior Court before Rockwell, J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was evidence tending to show that the alleged slanderous words were spoken in the presence of the plaintiff’s counsel and of five or six other persons, most of whom were members of the bar and officers of the court, in the United States District Court room, in Boston, before the opening of the court, and while they were waiting for the judge to come in to hear a motion in a case in which the plaintiff was a party. The plaintiff testified that he was aware that the defendant had uttered the words complained of. He was then asked by his counsel, “ What has been the condition of your mind in regard to mental suffering since the publication of these alleged slanderous words ? ” The defendant objected to this question, as incompetent and inadmissible under the pleadings. The judge overruled the objection; and the witness answered, “Well, it worried me a good deal. I used to walk the floor nights and worry about it.” The defendant objected to the answer, but the judge allowed the witness to proceed, as follows: “I laid awake nights considerable, and I used to hear from it every little while. I could not get it off my mind, and it worried me, because I had no property, and I had to depend upon my character, if I had any.” The answer of the witness was objected to for the reasons before stated; but the judge admitted it.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Under the St. of 1882, c. 264, § 1, it is within the discretion of the presiding judge, if no question in an action is carried to the full bench of this court, to allow to the party recovering costs, in addition to the three term fees given by the statute, such number of term fees as is deemed just.</p>

<p>Under the Gen. Sts. c. 5, § 9, and the St. of 1877, c. 181, a joint standing committee of the Legislature, appointed under the former statute, has no authority to contract debts on behalf of the Commonwealth, not having been empowered so to do by order of the two branches of the Legislature.</p>

Tort for breaking and entering the plaintiff’s close in Boston, and doing certain acts therein. The defendant justified under a right of way over the plaintiff’s land in his wife, Lydia A. Walker, as whose agent he acted.

<p>If a debtor enters into an indenture with his creditors, which provides that all creditors are to become parties to the indenture, and by which he agrees to pay them, by promissory notes, a certain percentage of their respective claims, and they agree to accept this composition in full satisfaction and discharge of their claims, and the debtor, in order to induce some of his creditors to sign the indenture, pays them a larger percentage than that stipulated therein, without the knowledge of the other creditors who have signed it, one of the latter may maintain an action upon his claim against the debtor, without first returning the composition notes received by him, or their proceeds.</p>

Petition, filed March 20, 1883, under the Pub. Sts. c. 176, to compel the respondent to bring an action to try his alleged title to a parcel of land in Boston.

<p>An action for a breach of the covenants against incumbrances and of warranty in a deed of land from the defendant to the plaintiff’s grantor, occurring before the plaintiff became the owner of the land, cannot be maintained; and evidence that the plaintiff’s grantor knew, when he took his deed, of the existence of the matter relied upon to prove the alleged breach, is inadmissible.</p>

<p>Under the St. of 1874, c. 274, § 2, a widow may acquire a settlement in a town in this Commonwealth by residing therein for five consecutive years without receiving relief as a pauper.</p>

<p>No action lies by A. against B. for conspiracy between B. and C. in obtaining a judgment against A. in an action brought in a court of another State having jurisdiction of the subject matter and of the parties, in which A. appeared and answered, but was defaulted, which judgment remains in full force, and to satisfy which A,’s property in that State was sold.</p>

<p>Bill in equity to remove a cloud upon the title to a parcel of land in Arlington. Hearing before Devens, J., who reported for the determination of the full court the following case :</p> <p>The alleged cloud was a mortgage upon said land, given by the plaintiff to one Lorenzo Locke “ in trust for Maria R. Bartlett,” the plaintiff’s wife, dated October 2, 1858, recorded and undischarged of record, and securing a promissory note for $5600, signed by the plaintiff, payable to Locke “at my decease, in trust for Maria R. Bartlett, my wife.”</p> <p>This mortgage was given in substitution for, and for the same consideration as, an earlier mortgage upon the same premises, between the same parties, of the same amount and tenor, dated May 1, 1857, and recorded and discharged by the mortgagee at the date of the subsequent mortgage, without any consideration other than such substituted mortgage.</p> <p>The consideration of the earlier mortgage was a transfer to the plaintiff of real and personal property, inherited by his wife from her father, who died intestate in 1856, and owned by her at the time of such transfer. The transfer was made to the plaintiff through said Locke, who was a brother of the plaintiff’s wife, on or before May 1, 1857. The real estate so transferred to the plaintiff was not the real estate subsequently mortgaged by him, which was then owned by the plaintiff in his own right. The real estate so transferred from the plaintiff’s wife was valued at $1966.50, and the balance of the consideration of said mortgage was personal property, inherited by her as aforesaid, the total consideration being $5600.</p> <p>The plaintiff’s wife died on November 8, 1873, intestate, leaving a husband, the plaintiff, and, as her only next of kin, the defendants Lewis P. Bartlett, Jr., and Fanny R. Cushman, children of herself and of the plaintiff, both of full age, and living on May 1, 1857. The note and mortgage were kept by her in her possession, after being recorded, until her death.</p> <p>On April 25, 1882, the plaintiff was duly appointed administrator of the estate of his said wife.</p> <p>Locke died on November 27, 1881, and on May 9, 1882, the defendant Bartlett was duly appointed by the Probate Court trustee under the mortgage first above named, in the place of Locke, and gave bond to the satisfaction of the court.</p> <p>The plaintiff thereupon requested the defendant Bartlett to discharge said mortgage, or else assign the same to the plaintiff as administrator of his wife’s estate, offering to pay all necessary expenses attendant thereon; but the defendant refused so to do.</p> <p>On January 2, 1882, one Henry J. Locke was duly appointed administrator of the estate of Lorenzo Locke, deceased, intestate, and, by consent of parties, was made a party defendant to this bill.</p> <p>The plaintiff contended that, if said mortgage and note were not void, under the laws in force when the consideration was received, the trust created thereby, and all beneficial interest therein, had become vested in him, either as administrator of his said wife’s estate, or as her sole distributee under the statute of distributions in force when she died.</p> <p>The defendants contended that the time for the payment of the note and mortgage would not arrive until the plaintiff’s death; that the mortgage could not be discharged until that time, and then the personal representatives of the plaintiff’s wife would be entitled thereto; and that the trust in favor of the estate of the plaintiff’s wife would not arise until the plaintiff’s death.</p>

Writ of entry to recover a parcel of land in Fitchburg. Plea, nul disseisin.

Petition to the Superior Court for a jury to assess the damages caused to the petitioners by the taking, by the respondent, of certain lands, springs, and water, under the St. of 1880, a. 235.* Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows: The petitioners offered evidence tending to prove that their lands taken were full of springs affording a part of the water taken by the respondent; that a part of the water…

Bill in equity, filed May 31, 1882, by the executors of and trustees under- the will of Ezekiel J. M. Hale, to obtain the instructions of the court as to the construction of the will of the testator, the second clause of which was as follows: “ Second.

<p>Tort. The declaration alleged that the defendant corporation, on July 4, 1882, which was a holiday, for the purpose 'of celebrating the same, under the authority of the Pub. Sts. c. 28, § 13, caused fireworks to be exhibited and discharged in a public square of the city; that the plaintiff was then and there rightfully in said square, and using due care; and that, by the negligence and unskilfulness of the defendant’s servants in discharging the fireworks, the plaintiff sustained personal injuries. The defendant demurred to the declaration, on the ground that it did not state a legal cause of action.</p> <p>The Superior Court sustained the demurrer, and ordered judgment for the defendant; and the plaintiff appealed to this court.</p>

<p>Tort. The declaration alleged that the defendant was the owner of certain property situated upon Willard Place, a private way leading from Washington Street in Boston, which the defendant was bound to keep in repair; that the plaintiff occupied a tenement on Willard Place, and was obliged to travel over said way in going to and from his home; that the way was negligently suffered by the defendant to be out of repair, whereby the plaintiff, while lawfully travelling thereon, and while in the exercise of due care, fell and was injured.</p> <p>The declaration was afterwards amended by adding two counts. The first alleged that the defendant was the owner of a lot of land on said Willard Place; that he had caused or allowed to be placed on the northwesterly side thereof a plank sidewalk, which abutted upon the sidewalk in front of the block of buildings where the plaintiff resided, and extended to Washington Street; that the land under the sidewalk and Willard Place was the property of the defendant; that the defendant had allowed the sidewalk so to remain as to be an invitation, express or implied, for the plaintiff and others to use the same; that the same was defective and out of repair; and that the plaintiff, while in the use of the same, and in the exercise of due care, was thrown down and injured. The second count alleged the same facts, and further, that, by reason of the decaying of the planks and sleepers thereunder, a trap or pitfall was established in said walk, wherein the plaintiff fell, while using due care, and was injured. Answer, a general denial.</p> <p>Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was evidence tending to show that, on May 9, 1870, Francis B. Crown inshield conveyed by warranty deed to Ezekiel S. Johnson a parcel of land bounded on the southeast by Willard Place. This deed described Willard Place as twenty-four feet six inches wide, and as extending northerly from Washington Street two hundred and eighty-six feet, and granted a right of way to Washington Street in common with the grantor, his heirs and assigns, and such other persons as might have a legal right thereto. That Johnson covered his land with a block of houses, which he leased as tenement houses, and built a brick sidewalk in front thereof; that there was a fence which encroached upon land of Crowninshield on Willard Place, which land adjoined the land of Johnson, and also a sidewalk made of wood by the side of said fence, partially on Willard Place and partially on Crowninshield’s land, extending from Johnson’s land and sidewalk over the whole front" of Crowninshield’s land to Washington Street. There was no evidence as to who constructed this sidewalk, but the same had been there for years. There was no evidence introduced to show whether or not the defendant had an interest in said land on Willard Place, at the time of the alleged accident, other than what can be inferred by the contents of a deed from the defendant and others to Caleb William Loring and from Caleb William Loring to the defendant, which two deeds were offered in evidence by the plaintiff; and no evidence was introduced which connected the defendant in this action with said Francis B. Crowninshield, except what might be inferred from the two deeds last mentioned. The first of these deeds, dated November 4, 1877, recited that Francis B. Crowninshield by his will devised a certain sum to his son Benjamin in trust, and the residue of his estate to Benjamin in his own right, and in trust for the testator’s daughters, and directed that the residue should be divided into separate parts. It then conveyed the lot of land on Willard Place to Loring. On the same day the premises were conveyed by Loring to the defendant and others.</p> <p>There was also evidence, that, in 1877, an agent of the defendant, having the management of the estate, found that the fence and walk encroached upon the defendant’s land two feet, and moved it to the line of the way; that Willard Place was constructed like an ordinary street, except that it was open only at one end; that the premises in front of which the plaintiff was injured were under lease to one A. H. Allen for a term of years at the time of the injury, but Allen had no means of access to Willard Place from said land, and never used Willard Place in connection with the land. The plaintiff also put in evidence of care on his part at the time he fell and was injured, and of the defective condition of the plank sidewalk.</p> <p>There was no evidence that the defendant was under any obligation to keep the sidewalk in repair, or that he ever had anything to do with it except when it was moved, as hereinbefore stated. There was evidence that the defendant’s agent had on some occasions caused the snow to be removed therefrom; but no evidence that he had any actual knowledge of the existence of the defect in the sidewalk by reason of which the plaintiff was injured.</p> <p>After the plaintiff had put in his evidence, the judge ruled that the action could not be maintained under the declaration as it then stood; that there was no evidence of any duty incumbent upon the defendant to keep the wooden sidewalk in repair, as regarded Johnson or his tenants, by reason of the right of way given to Johnson, or by reason of the way laid out by Crowninshield. The plaintiff was then allowed to amend his declaration by adding the two new counts above set forth.</p> <p>The plaintiff on the last two counts asked the judge to instruct the jury as follows: “ If the owner of the premises in question allowed a plank sidewalk to remain in front of his premises, such as appears undisputed in the evidence in this case, it is competent for the jury to find that there was such inducement as put upon the defendant the obligation to keep the sidewalk in repair.”</p> <p>The judge refused to give the instruction requested; but instructed the jury that, if they should find that the defendant owned and had possession of the land and of the sidewalk in front of the same, he was under no obligation to keep the sidewalk in repair, and was not liable unless the jury should find that he had built the sidewalk, and knowingly allowed it to remain in such a condition that it was in effect a trap for the plaintiff, and by reason of which he was injured while using due care.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>In an action for the breach of a contract to pay a certain sum of money and to transfer a certain number of shares of the stock of a corporation, the plaintiff’s demand is for an unliquidated sum, and is not subject to a set-off for money paid to the plaintiff’s use; and an objection to evidence in support of the declaration in set-off is properly taken at the trial, although the plaintiff has answered to such declaration.</p>

Tort. At the trial in the Superior Court, before Blodgett, J., after a verdict for the plaintiff, the defendant moved for a new trial. The judge overruled the motion; and the defendant alleged exceptions. The facts appear in the opinion.

<p>71 the real consideration of a deed of land is an oral promise of the grantee to hold the title and manage the property in trust for the benefit of the grantor and her children, and the grantee has performed, and is ready and willing to perform, his promise, the grantor cannot maintain an action against him to recover the consideration stated in the deed; and oral evidence is admissible to show what the real consideration was.</p>

Contract to recover the amount of a betterment tax assessed upon the plaintiff, and paid under protest. Trial in the Superior Court, without a jury, before Mason, J., who found for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>An action, brought in the Superior Court, the declaration in which contains a count in tort and a count in contract, cannot be removed to this court, under the Pub. Sts. c. 162, § 7.</p>

Contract for money had and received, being the amount paid by the plaintiff as part of the purchase money at a sale by the defendant of land by auction. Trial in the Superior Court, without a jury, before Hitman, J., who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

<p>A seizure, by a constable, of the property of one person upon an execution against another, is a breach of the condition of the constable’s bond for the faithful performance of his duties in the service of civil processes, for which he and his sureties are liable; and it is immaterial that the execution is one which he has no authority to serve, if, in making the seizure, he acts colore officii.</p>

Petition, returnable at January term 1883 of the Superior Court, for partition of a parcel of land in that part of Boston formerly Dorchester. The case was submitted to the Superior Court, and, after judgment for the respondent, to this court, on appeal, upon agreed facts, in substance as follows: Alexander Glover died on October 24,1842, seised in fee of the land in question.

<p>An appointment of a trustee under a will, by the Probate Court, cannot be impeached, for an irregularity in the proceedings not affecting the jurisdiction of that court, in a suit in equity, under the Gen. Sts. c. 101, §§ 31-34, against the devisees and legatees of the sureties on the trustee’s bond, but is to be regarded as a valid appointment.</p> <p>A right of action against a trustee under a will, and the sureties on his bond, arises upon a demand by his successor for the trust fund and his refusal to pay over the same; and a suit in equity, under the Gen. Sts. c. 101, §§ 31-34, against the devisees and legatees of the sureties on the trustee’s bond, brought more than a year after such demand and refusal, cannot be maintained.</p> <p>If a right of action against a trustee under a will, and the sureties on his bond, has been barred by the failure of his successor to sue within the time limited by the Gen. Sts. c. 101, § 32, such bar cannot be removed, and a new right of action created, by a new demand upon the first trustee for the trust fund, made by the second trustee after a reappointment as such.</p>

Tort, for personal injuries occasioned to the plaintiff, a boy eight years and nine months old, by being run over by the defendant’s horse and sleigh, on February 17, 1881, on Aspinwall Avenue in Brookline. At the trial in the Superior Court, before Pitman, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

Contract to recover commissions on a sale of seven hundred shares in the American Hoop Dressing Company by the defendant to one Everett and others.

<p>Tort, for the conversion of certain household goods. Trial in the Superior Court, before Pitman, J., who reported the case for the consideration of this court, in substance as follows:</p> <p>One Morrill, on July 31, 1874, made a mortgage of the property in suit, which was then at 224 Shawmut Avenue, in Boston, to his father-in-law, William R. Storms, the plaintiff’s intestate, to secure the payment of his promissory note for $500, payable in one year; this mortgage was duly recorded. 'Morrill at that time occupied two rooms in the house, and the property remained there until September 26,1877, when he was suddenly compelled to remove therefrom, and had no place in which to store the goods. The defendant was at that time engaged in the business of piano and furniture moving, and Morrill employed him to move the goods. On the afternoon of the same day, the defendant placed the goods on two wagons, where, at the request of Morrill, they remained until six o’clock in the evening of that day, when Morrill, not being able to find a suitable place in which to store the goods, requested the defendant to store them, and agreed to pay him two dollars per load for each month or fraction of a month during which they should be so stored. Thereupon the defendant stored the goods in a room, as requested by Morrill, and continued to store them in different places in Boston, at Morrill’s request, until June 30, 1880, when one Sherman came to the defendant’s house, and, exhibiting said mortgage and a power of attorney from Storms, declared that he had come to foreclose the mortgage. This was the first notice the defendant had that there was a mortgage on said goods, and he claimed the right to retain them, on the ground that he had a lien upon them for carriage and storage. Sherman thereupon proceeded to take away a portion of the goods, before the defendant could interfere to prevent any further removal.</p> <p>On June 30,1880, there was due the defendant for the moving and storage of said goods a balance of $121 ($20 having been previously paid the defendant by Morrill), and otherwise no tender was ever made to the defendant by any one, either in whole or part satisfaction of his demand. It was proved that Storms had been informed that the goods had been removed from Shawmut Avenue, and stored by the defendant, about two months after the removal; and there was no evidence of dissent or disapproval on the part of Storms. The removal was a compulsory one, and the storing was a necessity to prevent the goods from exposure to loss and damage, which might result from their being put out and left on the sidewalk.</p> <p>Upon the foregoing facts, the judge ruled that this action could be maintained; and ordered a verdict for the plaintiff. If the ruling was correct, judgment was to be entered on the verdict; otherwise, the verdict to be set aside, and judgment entered for the defendant.</p>

<p>A railroad corporation is liable to one of its employees for an injury occasioned to him by being struck by a bridge-guard, if the guard is out of its proper position, and this is caused by the wearing out of a rope attached to the guard, and the corporation has not made suitable provision to have notice of, and to remedy, defects liable to be occasioned by its use.</p>

<p>Two ACTIONS OF TORT for the conversion of a horse, wagon, and other articles of personal property. The cases were tried together in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It appeared that the defendant Drew, who was a constable of the city of Boston, on April 15, 1882, attached the property in question upon a writ in favor of the firm of Wright Brothers and James, the other defendants, and against one Frank J. Dempsey. The plaintiff contended, and offered evidence tending to show, that said property was sold and delivered to him by Dempsey on January 19, 1882. The defendants denied that any such sale was made; and contended that, if made, it was without consideration, and was fraudulent as against Wright Brothers and James, who were then creditors of Dempsey.</p> <p>Upon the question whether such alleged sale was fraudulent as against creditors, evidence was offered on both sides, and, among other things, the plaintiff testified that after January 19, 1882, he kept the property in a stable hired by him from one William Peard, and paid rent to Peard therefor on March 1, 1882; and, against the defendants’ objection, the plaintiff was allowed to testify that, after April 15,1882, he paid rent to that date, and at the time of such payment took a receipt therefor, which receipt the plaintiff, against the defendants’ objection, was permitted to introduce in evidence.</p> <p>The defendant Drew testified in his own behalf, and as a witness for the other defendants ; and, on cross-examination, the plaintiff was allowed to ask, the defendants objecting, what directions he received from the attorney of Wright Brothers and James as to attaching property on the writ against Dempsey, and the witness answered that he was instructed by said attorney to attach the property in suit.</p> <p>The only evidence upon the question of liability of Wright Brothers and James was, that one of said firm agreed upon appraisers for the purpose of the sale of said horse upon the attachment and the instruction by the attorney as aforesaid, which was admitted against the defendants’ objection.</p> <p>Upon the question of damages, one James Dowd, a wheelwright, was called by the plaintiff, and testified that he built the wagon and sold it to Dempsey early in December, 1881; that he had dealt in wagons and knew their value; and that he did not see the wagon in question after he sold it to Dempsey. He was then, against the defendants’ objection, allowed to testify as to the market value of the wagon at the time he sold it to Dempsey.</p> <p>Dempsey was called as a witness by the plaintiff, and, on cross-examination, denied that he offered the horse for sale after January 19, 1882; and, a witness called by the defendants having testified that Dempsey did so offer the horse for sale, the defendants asked the judge to instruct the jury that such offer by Dempsey was evidence which would warrant them in finding that the alleged sale to the plaintiff was fraudulent. The judge declined to give this instruction, and instructed the jury that an offer by Dempsey to sell the horse as his property after January 19, 1882, unknown to the plaintiff, should be considered by them only as affecting Dempsey’s credibility.</p> <p>The defendants requested the judge to rule that the two actions could not be simultaneously maintained; that there was no evidence of conversion by the firm of Wright Brothers and James, nor by the individuals comprising such firm; and that, there was no evidence of conversion by the defendant Drew. The judge declined so to rule, and ruled that both actions might be maintained and prosecuted to final judgment; that there was evidence which would warrant á verdict for the plaintiff in both cases; and that, if the jury found for the plaintiff in both cases, they should assess the damages at the same sum in each case.</p> <p>The jury returned a verdict for the plaintiff in each case, and assessed damages in the sum of 1462.95; and the defendants alleged exceptions.</p>

<p>Tort for personal injuries occasioned to the plaintiff by the negligence of the defendant. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>An action for the conversion of personal property was referred to an auditor, whose report found that the defendant converted to his own use the chattels specified in the declaration; and that he “ owes the plaintiff upon the various items of account the sum of money respectively opposite each item,” setting forth a sum certain in respect of each. Held, that the report plainly implied that the property belonged to the plaintiff; and that an objection to the sufficiency of the report upon that point was untenable.</p> <p>At the close of the argument for the defendant in an action, his counsel presented a large number of requests for instructions; but the judge declined to rule upon them, on the ground that they were not seasonably presented, at the same time saying that, at the close of the charge, the counsel could ask for such further instructions, and except to such parts of the charge, as he saw fit. At the end of the charge, the judge repeated that, if there were matters which counsel conceived had been omitted, they might call attention to them. Held, that the defendant had no ground of exception to this course.</p> <p>A general exception to the entire charge of a judge to the jury is irregular, and cannot be sustained.</p>

” Hearing before Field, J., who reported for the consideration of the full court the following case: It appeared that John Bacon died in 1854, seised in fee simple of certain parcels of real estate in the city of Boston. His will was duly proved and allowed on July 17, 1854.

<p>Tort, in four counts, against Lawrence McLaughlin, Ann McLaughlin, and Elbridge Gr. Moulton. The defendants filed separate answers.</p> <p>At the trial, at December term 1879, the jury returned a verdict for all the defendants upon all the counts, and the plaintiff alleged exceptions, which were subsequently waived. After the verdict, the plaintiff filed a motion for a new trial, on the ground of newly discovered evidence, and, upon this motion, the court, at March term 1881, ordered a new trial as to the defendant Lawrence McLaughlin only, upon the fourth count of the declaration, leaving the verdict to stand on all the counts as to both the other defendants, and as to Lawrence McLaughlin on all the counts except the fourth.</p> <p>Pending the motion for a new trial, the defendant Moulton died, and his death was suggested of record. On the last day of said March term the plaintiff filed a paper, stating, among other things, that he discontinued the action, “ and consents that judgment be entered for the defendants for costs; ” and at his request, the following words, “ May 11. Plaintiff discontinues action, etc.,” and “May 11. Judgment for defendants by consent,” were written upon the docket by the assistant clerk, without any direction from the court, and without the knowledge of the defendants or of their counsel; and the court adjourned without day, without the attention óf the presiding justice having been called to the paper so filed, or the words so entered upon the clerk’s docket.</p> <p>In the vacation after the March term, the attention of the clerk having been called by the defendants to the paper filed May 11, and to the words entered on the docket under that date, the clerk erased all of the words so entered except “ May 11. Plaintiff discontinues action,” and kept the case upon the docket of the next term of the court, and of every succeeding one, including the present.</p> <p>At March term 1882, the defendant Ann McLaughlin filed a motion to strike out certain parts of said paper filed by the plaintiff on May 11,1881.</p> <p>The plaintiff, ever since March term 1881, has contended that this action terminated at said March term, upon the filing by him of the paper of May 11, 1881, and the writing of the words set forth upon the docket on that day, and that the action has not since been pending, and that the parties have ever since been out of court; and has repeatedly requested the clerk to drop the same from the docket, and the court to order the same to be so dropped, and, at March term 1883, filed a written motion to instruct the clerk to strike the case from the docket; but the court has made no order concerning the matter.</p> <p>At September term 1883, the defendant Ann McLaughlin called up her motion to strike out, filed May 8, 1882, and moved for judgment on the verdict. The plaintiff contended that said order ought not to be made, and that no order should be made except to direct the clerk to make up his record of judgment for the defendants as of March term 1881, or as of some term prior thereto; and asked the judge to rule as follows: “ 1. This action is no longer pending; but it terminated at March term 1881. 2. The defendants are not, and neither of them is, entitled as of right to have judgment entered as of any term later than March term 1881. 3. The court has no power to enter judgment in favor of Ann McLaughlin at this term as of any later term than said March term. 4. The power to enter judgment nunc pro tune does not authorize the court to enter judgment as of any later term than that when the plaintiff consented to judgment for the defendants. 5. There are no facts shown to justify the court, as a matter of discretion, to enter a judgment later than said March term 1881.”</p> <p>Barker, J., found as a matter of fact that said action was still pending in court, and had not been disposed of, and that no judgment had been rendered therein; refused to rule as requested by the plaintiff; allowed the motion of the defendant Ann McLaughlin to strike out, and ordered the words referred to in said motion to' be stricken out; ordered that judgment be entered on the verdict as of December term 1879 in favor of the defendant Moulton, and for Ann McLaughlin as of the present term, and for Lawrence McLaughlin as of March term 1881; and allowed exceptions alleged by the plaintiff to the refusals to rule as requested by him, and to the above orders of the court.</p>

<p>A creditor of an insolvent debtor, against whom involuntary proceedings in insolvency have been instituted, cannot maintain a bill in equity to restrain the further prosecution of the proceedings, on account of the failure of the debtor to furnish to the messenger a schedule of his creditors before the choice of an assignee, and the consequent absence of notice to such creditors of the first meeting.</p>

Contract to recover the amount of a tax assessed on personal property of the plaintiffs, 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: On May 1,1882, when the tax was assessed, the plaintiffs were partners and manufacturers of and dealers in starch. One of the partners resided in Boston, and the other two in Newton.

<p>A woman mortgaged a parcel of land to a bank. The bank foreclosed the mortgage, and the husband of the woman agreed to pay rent for the same to the bank until the bank sold the land. Subsequently the bank conveyed the land, and the grantee brought an action, under the Pub. Sts. c. 175, against the husband to recover possession. The judge, who tried the case without a jury, found that the defendant was, at the time of the deed to the plaintiff, the tenant of the bank; and ruled that it was not open to the defendant to deny, in this action, the bank’s title or possession at the time of said deed. Held, that the finding was warranted by the evidence, and that the ruling was correct.</p>

Tort for personal injuries occasioned to the plaintiff by a defect in Perkins Street in the defendant city.

<p>A constable may, upon a copias issued by a district court in a criminal case, arrest a person outside of the town for which he is elected, but in the same county, and within the jurisdiction of the court issuing the warrant.</p>

<p>Bill in equity, filed November 2, 1882, for the specific performance of an agreement to purchase land. Hearing before Holmes, J., who reported the case for the determination of the full court, so much of which as is material to the point decided was as follows:</p> <p>The warrant for a meeting of the defendant town contained the following article; “To see what provision the town will make for the better accommodation of the high school, and, if necessary, to raise and appropriate money for the same.” At such meeting, held on March 6,1882, the school committee submitted a report, stating that the needs of the high school for more adequate accommodation could be no longer postponed; that, in pursuance of the by-laws of the town, they had caused estimates to be made “ of the cost of land and buildings therefor ; ” that they recommended the construction of a building in accordance with a certain plan, the estimated cost of which would be $35,000; and that they also recommended an appropriation of that amount, and the appointment of a committee of five persons, “ to locate and construct a new high school.” It was thereupon voted, “that said report be accepted and its recommendations adopted; ” and a committee of five persons was chosen “to carry out said recommendations.”</p> <p>The warrant for a town meeting to be held on April 3, 1882, contained the following article: “To see what method the town will take to raise money to carry into effect the vote of the annual meeting, relative to a new high school building.” Under this article, it was voted at such meeting, “that the sum of $5000 be raised by taxation the present year, to be expended by the committee in locating and constructing said building; ” and “ that the town treasurer, with the approval of the selectmen, be authorized to borrow, in behalf of the town, a sum not exceeding $30,000, to be expended in completing the new high school house.” The defendant owned many school-house lots of various sizes, on one of which there was a high school building.</p> <p>At the town meeting of March 6, 1882, during the discussion of the article under which the committee was appointed, nothing was said as to the purchase of any land. A by-law of the town provided that “ No grant of a sum of money exceeding five hundred dollars shall be made until the subject matter thereof has been considered and estimates reported to the town, either by the selectmen, school committee, road commissioners, engineers of the fire department, or other town officers, or by some committee chosen for that purpose, in pursuance of a vote of the town.”</p> <p>On May 23,1882, the agreement sought' to be enforced, which provided for the sale and purchase of a parcel of land owned by the plaintiffs in the defendant town, “for the purpose of erecting a high school building,” was executed by the plaintiffs and by three members of the above-named committee. The plaintiffs have duly tendered proper deeds, conforming to the agreement; but the defendant refuses to complete the purchase, on the ground that the committee had no authority to bind the town by an agreement for the purchase of the land.</p>

<p>Tort for personal injuries occasioned to the plaintiff by the negligence of the defendant. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was evidence tending to show the following facts: The plaintiff was driving his father’s horse and wagon on Bridge Street, in Hyde Park, on March 18, 1882, when it came into collision with a train of the defendant going towards Boston from Readville, where Bridge Street crosses the tracks of the defendant’s railroad. The wagon was an ordinary open market wagon, and in the wagon were the plaintiff, a boy fourteen years and three months old, who had been used to horses, and driving horses all his life, another boy whom he had just taken into the wagon, some empty baskets, and about thirty-two pounds of meat.</p> <p>The public had been in the habit of crossing the track at Bridge Street for over twenty years, during which time it had been kept in repair by the defendant and its predecessor in title. Bridge Street is about two hundred feet long from Water Street to the tracks of the defendant corporation, and, at one hundred feet from the corner of Bridge Street and Water Street, it slopes downward through a cut, until it enters on the tracks of the railroad at the foot of the hill. The grade of Bridge Street, for the first fifty feet from the track, is twelve feet in a hundred, and, for the next fifty feet,' seven feet in a hundred.</p> <p>The foot of the slope along the railroad is ten feet, and the top of the slope fifteen feet, from the southerly rail of the inward track. The bank on the Readville side of Bridge Street increases from the height of seven and three quarters feet, at the corner of Bridge Street and the location of the railroad, to fifteen and a half feet, at two hundred and twenty feet from the centre of Bridge Street. On the top of the embankment for the first ninety feet was an unpainted picket fence about five feet high, and beyond that point was a tight board fence for about two hundred feet further. There was a signboard erected over the crossing in accordance with law, in plain view down Bridge Street, ‘from the corner of Bridge Street and Water Street.</p> <p>A person could see, through the picket fence along the top of the bank, the smoke-stack of an engine approaching from the direction of Readville, when the smoke-stack was two hundred and thirteen feet distant from the centre of Bridge Street, if he was standing in Bridge Street seventy-five feet distant from the tracks; and three hundred and forty-two feet, if he was fifty feet distant therefrom; and, at a distance of from fifteen to thirty-five feet, a clear view of the track toward Read-ville could be had. A train could be heard by a person in Bridge Street, before it came in sight through the fence.</p> <p>The plaintiff testified that he drove into Bridge Street toward the tracks of the defendant’s railroad on an easy trot; that, when he came to the crest of the hill, about one hundred feet</p> <p>from the tracks, be pulled up, and afterwards drove the horse at a rate half-way between a trot and a walk; that the other boy told him he would show him where he lived, and, as they came in view of this other boy’s home, the latter showed it to him; that this house lay on the Boston side of Bridge Street, and was hidden from view by an intervening house until the wagon was over the crest of the hill; that, when the house came in view, he looked at it, and then turned to his horse. He did not testify, nor did anybody else, that he looked for, listened for, or thought of, the train, or had the crossing in mind, except as might be inferred from the following testimony: The plaintiff testified that he “ drove into Bridge Street, looked to the right first; there was a board fence; the other boy was at the left; looked towards Boston first; showed me his house as soon as I could see it; I then turned and tended to my horse ; the other boy called my attention to the train.” From the corner of Bridge Street and Water Street to within some thirty feet of the track, (which is nearer the track than the point where the other boy’s house comes in view,) no train can be seen coming from the direction of Boston. The plaintiff also testified that, about a week after the accident, he went to the other boy’s house, and asked the latter if the plaintiff stopped to listen for the train; and that there was nothing to prevent his hearing the train, except the rattle of the wagon. The two boys testified that they did not remember hearing the bell on the engine ring. They did not testify that the bell did not ring. The engineer and the fireman testified that the bell did ring. There was no other evidence on this question. The whistle did not sound. The plaintiff further testified that, when he was within about ten to forty-six feet of the track, the other boy called his attention to the train, and he pulled the horse up; but, thinking he could not stop him, he whipped him, drove across, and the wagon was struck on the hind wheel.</p> <p>The evidence further tended to show that the train was heard coming by a woman, in a room in the second story of a house on the Boston side of Bridge Street, between Water Street and the track, with the windows shut, before the boys turned to look at the other boy’s house; and she also testified that she did not remember hearing the bell ring.</p> <p>It further appeared that there was no flagman at the crossing at the time of the accident; that the plaintiff had walked over the crossing twice, and driven over it once, before the accident, and had lived within less than half a mile of the crossing for a year; that, when he drove over the crossing before, about three months before the accident, the flagman of the defendant (with whom he was acquainted), who attended to the crossing at the Fairmount crossing (the other crossing of the defendant in Hyde Park), was attending to this crossing, because, as he judged, the Fairmount crossing was then closed. This was all the evidence in favor of the plaintiff, on the question whether he exercised due care.</p> <p>The defendant requested the judge to rule that there was no evidence on which the jury could find that the plaintiff was in the exercise of due care.</p> <p>The judge refused to rule as requested, but ruled that it was a question for the jury to decide, among other things, whether the plaintiff exercised due care ; and that, if the crossing was such as to require a flagman, it was the duty of the defendant, rather than of the town, to station one there, and, if it did not do so, it was guilty of negligence.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>The cook of a steam tug, nineteen years old, who has lived on the seashore all his life, has been to sea three summers, and has been employed on the tug four months, the length of time which it took his predecessor to become familiar with the duties on board, cannot maintain an action against the owner of the tug, who was also its master, for personal injuries caused, in broad daylight, by his getting entangled in the loose end of a line which he was engaged in making fast to a cleat toward the bow of the boat, the bow line being more dangerous to handle than the stern line, because the strain upon it is greater, and it being usual to employ him at the stern, although a part of his duty was to work on deck generally; and the fact that the master urged him forward by saying, with an oath, “You won’t get that rope fast,” will not enhance the liability of the defendant.</p>

Indictment, on the Pub. Sts. c. 207, § 29, charging the defendant, at Boston, on December 11, 1882, and on divers other days and times between that day and the day of the finding of the indictment, July 1, 1883, with being an idle and disorderly person, and with neglecting all lawful business, and habitually misspending her time by frequenting houses of ill-fame, gaming-houses, and tippling-shops.

<p>If a complaint contains several counts, each charging a distinct larceny of the property of a different person, it is no ground for a motion to dismiss the complaint, on appeal in the Superior Court, that the record of the lower court shows that, on the complaint being read to the defendant, he was asked whether he was guilty or not guilty of the “offence” charged; that he pleaded not guilty and was tried, and convicted “ of the offence aforesaid; ” and that sentence was imposed “ for the offence aforesaid.”</p>

<p>A person carried on a game, in which the public were invited to take part, described as follows: Any one wishing to play chose a number, and paid a certain sum for it; and the conductor of the game then drew an envelope from a box full of them, which envelope contained a slip with many numbers upon it. If the number chosen was found among those upon the slip, the person who chose it received a multiple of the sum paid by him, greater or less according to the odds agreed upon; if not, he lost what he had paid. Held, that a jury would be warranted in finding that the game was a “ lottery,” within the Pub. Sts. c. 209, § 1.</p>

<p>This court has no jurisdiction of a bill in equity by a citizen of this Commonwealth against a foreign corporation having a usual place of business in this Commonwealth, for specific performance of an agreement to assign and convey letters patent of the United States, and personal chattels situated here, where the only service of the bill is by subpoena upon the treasurer of the corporation.</p>

<p>An order passed by the city council of a city, by which the grade of a street as established by the city surveyor is accepted, and the former established grade is discontinued, is an order for specific repairs, under the Gen. Sts. c. 43, § 59; and an abutter, who sustains damage by the work done in pursuance of the order, must bring his petition for a jury to assess his damages within one year from the adoption of the order, under the Gen. Sts. c. 43, § 73; and the Gen. Sts. c. 44, §§ 19, 20, have no application to the case.</p> <p>The omission of the mayor and aldermen of a city to award damages to an abutter on a street, the grade of which has been changed by an order for specific repairs, under the Gen. Sts. c. 43, § 59, is equivalent to a determination that he has sustained no damages, and he is entitled at once to apply for a jury to assess his damages.</p> <p>Objections to the proceedings of the city council of a city, in passing an order for specific repairs, under the Gen. Sts. c. 43, § 69, consisting in the changing of the grade of a street, on account of a failure to give proper notices, cannot be taken by an abutter on the street, upon a petition to the Superior Court for a jury to assess the damages occasioned to his property by work done under the order, but only upon a petition for a writ of certiorari.</p>

<p>A savings bank has no lien upon the surplus proceeds of the sale of stock, held as collateral security for the payment of a promissory note, for the general balance due from the maker of the note.</p> <p>A. made an assignment of his property to a trustee for the benefit of his creditors, by which the creditors released their claims except as therein provided; and which provided that no creditor holding security should, by signing, release, impair, or in any manner affect his right to such security, but that, if the security would be applicable to A.’s liability under the insolvent laws of the Commonwealth in insolvency, the dividends should be paid only on so much of the debt as should remain after deducting from it the amount realized from the sale of the security; and that the trustee might pay off liens on the property. A. had previously given to a bank a promissory note, payable on demand, and secured by a transfer of shares of stock; and the bank made other advances to A. before and after this transaction, receiving other notes, which it still holds. Demand was made on the note secured three days before the date of the assignment, but no notice of intention to sell the security was given; and the bank afterwards became a party to the assignment. Subsequently the bank sold the stock held as security, the trustee and A. waiving the sixty days’ notice mentioned in the Gen. Sts. c. 151, § 9, and consenting to the sale; a,n"d the proceeds of the sale were more than sufficient to pay the note. Held, that the trustee could recover such surplus in an action against the bank.</p>

Contbact, by the collector of taxes of Haverhill, for the amount of a tax assessed, in 1881, upon the estate of Ezekiel J. M. Hale, the defendants’ testator. Trial in the Superior Court, without a jury, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows: The defendants’ testator was, on May 1, 1881, and for many years previously had been, an inhabitant of Haverhill, where he died on June 4, 1881.

<p>Under a count on an account annexed, the plaintiff may recover money to which he is entitled as commissions, for the use of chattels, for work done, for the use and occupation of rooms, and for money paid at the defendant’s request, under a contract with the defendant not under seal, which has been performed.</p> <p>Except for the purpose of showing title to real estate by a written lease, paroi evidence is competent to show that an agreement not under seal, and signed by A., was in fact made by him in behalf of B., and that he was duly authorized to make it.</p> <p>If the owner of a building agrees in writing, not under seal, with A., that, in consideration of 'A.’s taking care of the building, he will allow him the use of certain rooms in the building, and the owner either refuses to let A. into possession of all of the rooms, or, after he is in possession, evicts him, and lets these rooms to a third person, A. cannot maintain an action against the owner, on an account annexed, for the rent of these rooms.</p>

<p>Tort, for increasing the water supply of a brook, which was a natural watercourse, and .which rose in and ran through land of the defendant to and through the plaintiff’s premises, and for polluting the waters of the same. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:</p> <p>In 1882, the defendant built four cesspools in private ways on its own land, and from them laid drain pipes to a ten-inch pipe which emptied into a ditch on the defendant’s land. This ditch connected with the brook at a point nearly five hundred feet from the land of the plaintiff. The defendant also erected six tenement houses on these private ways, and dug six wells, which were connected by pipes with the houses. After the houses were occupied, the sink water from them passed through the drain pipes and the ditch into the brook. These pipes also carried off the surface water from the defendant’s land, which sloped towards the brook, bic cisterns were used in connection with the houses, and their privy vaults had no outlet.</p> <p>The plaintiff contended, and offered evidence tending to prove, that, in consequence of the acts of the defendant, the supply of water in the brook was increased to such an extent as to cause the brook to overflow its banks and a box drain through which it ran on his land, and to flow into the cellar of a house on his land, thereby causing the same to become unwholesome and unfit for habitation, both by reason of the water remaining in the cellar and by reason of the offensive odors arising therefrom.</p> <p>The defendant introduced evidence tending to prove that for the past three years the plaintiff had maintained a two-story privy in his said house, which was occupied by tenants of the plaintiff, with no vault connected therewith, and that the deposits therefrom went upon the surface of land at the end of the house, which land sloped toward said brook, and that there was nothing around these deposits to obstruct the flow of liquids therefrom.</p> <p>The defendant contended, and introduced evidence tending to prove, that the tenements on its land were ready for use and occupation in the spring of 1882; that one half of them remained unoccupied during six months of that year; that when used or occupied they were so used and occupied by tenants at will of the defendant; and that the defendant, by the terms of letting, reserved no control over, the tenements, or over the manner of their use when occupied or used, and did not agree to make any repairs upon the same.</p> <p>The defendant requested the judge to instruct the jury as follows:</p> <p>“ 1. The defendant had the right to turn all the surface water coming upon its land or private ways, at all seasons of the year, into that portion of the brook which was upon its premises. 2. Independently of the question of pollution, the defendant had the right to turn such water as came from its wells, which were used solely in connection with its tenement-houses for domestic purposes only, into the brook at a point on its premises. 4. The defendant is not responsible for any pollution of the waters of this brook caused by sink water which came from tenement houses owned by the defendant, if the jury find that such houses were at the time let by the defendant to tenants at will or for years, and that the defendant retained no control over said tenements, or the manner of their use, under the terms of letting, during the occupation of such tenants. 5. If the negligence of the plaintiff in maintaining his own privy contributed in any degree to the injuries resulting from offensive odors or the pollution of the waters of the brook, he cannot recover damages sustained by reason of such odors or pollution.”</p> <p>The judge ruled that the doctrine of contributory negligence did not apply to this case upon the questions of pollution of the brook and offensive odors, and declined to give either of the foregoing requests for instructions; and instructed the jury as follows :</p> <p>“ An owner of land has a right to occupy and improve it, in such manner and for such purposes as he may think fit, either by changing its surface, or by erecting buildings or other structures, or by laying out roads thereon; and this right is not restricted or modified by the fact that his own land is so situated, in its relation to land adjoining, that an alteration in the mode of his improvement and occupation of his own land will cause water, which may accumulate thereon by rains or melting snows falling on its surface or flowing upon it over the surface of adjoining lands, to flow to and stand in unusual quantities on adjoining lands, or pass into and over the same in greater quantities or in other directions than such waters would naturally flow and were accustomed to flow. No right to regulate or control the surface drainage of water can be asserted, by the owner of one lot of land, over the right of another owner of adjoining land, in that matter.</p> <p>“ It is a general rule applicable to the use and improvement of land, that the right of a person to the free and unrestrained control of his land, upon, above, and beneath its surface, cannot be interfered with or restricted by any consideration of injury to other persons which may be occasioned by the flow of mere surface water in consequence of the lawful appropriation of land by its owner to a particular use or mode of occupation. A person may improve any portion of his land, although he may thereby cause the surface water flowing thereon, wheresoever it may come, to pass off in a different direction and in larger quantities than formerly.</p> <p>“ But an owner of land has no right to a flow of surface water over land adjoining it, by collecting it in drains, culverts, or artificial channels, so as to convert a flow of surface water into a running stream, with all the physical characteristics of a natural watercourse. An unlawful collection of surface water in an artificial channel, and its discharge, by the owner of land upon which such surface water has fallen and in which there is a natural watercourse, upon adjoining land through which the same watercourse flows, whether immediately and directly upon such adjoining land, or its discharge into such natural watercourse in which the water so discharged by artificial means flows to such adjoining land, and so augmenting such natural watercourse as to cause its banks and such adjoining land to be inundated, or to be carried into such natural watercourse polluting or defiling matters mingled with such surface water, which are noxious or offensive, to the injury of the owner of such adjoining land in his use and enjoyment of his land, or in his rights in that natural watercourse, afford him a cause of action in which he may recover adequate damages for such injury.</p> <p>“The essential of a natural watercourse is a channel with well-defined bed and banks, in which there is a regular and natural, although not necessarily an incessant, flow of water from a permanent source, through which channel its water flows in a customary current, and in which it has a substantial and well-defined existence, as distinguished from an occasional and temporary outburst of water caused by rain or melting snow, or water which in time of freshets fills low and marshy places, and runs over and inundates adjoining lands.</p> <p>“ The law requires of a person through whose land a natural watercourse flows, that he should use the same in such manner as not to destroy, impair, or materially affect the beneficial appropriation of the same watercourse by the owner of land below, through which it flows. Any diversion or obstruction of the water of a natural watercouse which substantially diminishes, or the turning into it of extraneous waters which greatly enlarges, the volume of the stream, or any acts which defile or corrupt it to such a degree as essentially to impair its purity, or to cause noxious or offensive matter or stenches to be in or arise from it, and prevent the use and enjoyment of that watercourse for any of the reasonable and proper purposes to which running water is adapted and usually applied, in agriculture, mechanical power, or domestic use, are violations of the rights of owners of land through which a natural watercourse thus diminished, increased, or polluted flows, — and are misappropriations of that natural watercourse, and constitute a nuisance for which persons thereby injured are entitled to recover adequate damages.</p> <p>“ The water of wells dug upon the land of any person cannot be lawfully discharged upon adjoining land, to its injury, either by being mingled with surface water, or by being turned into a natural watercourse so as greatly to enlarge it. If the defendant, in the use and improvement of its land, erected tenement buildings on the same where a natural watercourse flowed, and provided wells, sinks, and drains adapted and intended for use, and the same were all the wells, sinks, and drains provided and adapted for the use of the tenants of said tenement houses, and the persons who occupied the same as tenants of the defendant, in making a necessary and reasonable use of such wells, sinks, and drains, caused noxious or offensive water or other matters to mingle with surface water on the defendant’s land, on which such tenement buildings were, and land adjoining and constituting a part of the same, and to flow in and with it from said tenement buildings directly to and upon the plaintiff’s land, or into the natural watercourse which flowed through the plaintiff’s and the defendant’s adjoining lands, so as to pollute or defile the water of that natural watercourse as it passed to and through the plaintiff’s land to the plaintiff’s injury, he may maintain this action against the defendant for that injury; notwithstanding no other legal relation existed between the defendant and the persons occupying such tenement houses as the defendant’s tenants than the ordinary legal relations between landlord and tenant, in the letting of tenements in such tenement houses to the several tenants who occupied the same; and notwithstanding that, in such letting, the defendant neither exercised nor reserved any control of the use of such wells, sinks, or drains, and the same were, as originally constructed and afterwards maintained by the defendant, properly constructed, adapted, and arranged for the necessary and reasonable purposes of wells, sinks, and drains.</p> <p>“If under these instructions the jury find that the plaintiff has proved, by a clear preponderance of evidence, the doing by the defendant of any of the wrongful acts alleged in the declaration, he can recover such damages only as can' be specifically ascertained and assessed, as found to be due exclusively to and inseparable from the defendant’s wrongful acts, and the direct and natural results thereof. The facts, that the proved injuries to the plaintiff’s land and house from the inundation of the same by water, or from filthy and stinking water, are due in part to his boxing up a natural watercourse flowing through his own land, or to his privy or sinks or. drains, under his control, affecting the surface water or the natural watercourse on his own land, are not decisive of his right to recover adequate and appropriate damages in this action, for injuries of the same character due to the defendant’s wrongful acts. But if the injuries to the plaintiff’s land and houses, as proved in' this trial, cannot be distinguished in their consequences to him from injuries of the same character arising from sources within his own control, or from injuries to him by the wrongful acts of persons other than the defendant or its agents or servants, the plaintiff can recover nominal damages only.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Trustee process. William T. Parker and Charles Marsh were summoned as trustees of the principal defendants, and, in answer to interrogatories filed by the plaintiffs, admitted that they had received property of the defendants by virtue of the following instrument of assignment :</p> <p>“ Know all men by these presents, that we, Elisha P. Cutler and Clarence M. Reed, both of Boston in the county of Suffolk and Commonwealth of Massachusetts, copartners under the.name of E. P. Cutler & Co., and individually, in consideration of the covenants and agreements herein expressed to be performed by their creditors and the trustees herein named, and of one dollar and other good and valuable considerations to them paid by said creditors and trustees, the receipt of which is acknowledged, do hereby give, grant, sell, and convey unto William T. Parker and Charles Marsh, both of said Boston, the former being the president and the latter the vice-president of the International Trust Company, a corporation established under the laws of said Commonwealth and located in said Boston, and to their heirs and assigns, the following property, real and personal; to wit. [Here followed a description of certain specific property conveyed.]</p> <p>“ And the grantors covenant and agree with said grantees and said creditors, that, if they have any other property or right of property not sufficiently conveyed to said grantees by this instrument, they will execute such further conveyances to them as the grantees may require.</p> <p>“ To have and to hold all said estates and property and rights of property to them, the said William T. Parker and Charles Marsh, president and vice-president as aforesaid, and to their heirs and assigns, but in trust, nevertheless, for the following uses and purposes, to wit:</p> <p>“ 1st. To take immediate possession thereof, and hold, protect, manage, and dispose of the same with a view to realizing the largest possible sum therefor in money, for the benefit of said creditors; and to that end the said trustees shall have pow’er to make contracts with mortgagees, pledgees, or holders of liens on any of said property, for an extension of their claims, to avoid sacrifice through forced sales, or to take up any of such mortgages, pledges, or other liens in their discretion, and hold them in place of the present holders, to avoid such sacrifice. But the grantees, however, shall be under no obligation to take any pledged property, and pay or become liable for the lien thereon, if in their judgment it is not advisable so to do, nor shall they be obliged to incur any personal liability whatever; but they may charge the trust estate in their discretion for all reasonable costs, contracts, and liabilities in the execution of this trust for the benefit of said creditors.</p> <p>“ 2d. Said trustees shall dispose of all said assets.as rapidly as it can be done in the ordinary course of trade, and without sacrifice, and to that end they may avail themselves of the services of brokers; and as said grantors’ creditors have appointed an advisory committee, both said trustees and the grantors shall be governed by the advice of such committee so far as practicable; but said trustees, having assumed the final responsibility, shall have the right to exercise a final discretion and decision as to time and manner of sales of property, and as to any other act or thing in the execution of this trust, except so far as they may be expressly restrained or controlled by the terms of this instrument. So far, however, as said trustees act under the advice and direction of said advisory committee, expressed by letter or other writing or by telegraph, they shall not be responsible to any of the other parties hereto for any abuse of their powers under this instrument. Said committee is composed of Hugh W. Adams and J. E. Thompson, both of New York, and J. O. Richardson, of Philadelphia.</p> <p>“ 3d. Said trustees shall pay pro rata dividends to all the unsecured creditors of said grantors, to such an amount and as often as it may be safe to do so, and when they have realized all the estate aforesaid into money, they shall immediately declare a final dividend of all the money then remaining in their hands as the proceeds of said property, after deducting all costs of executing this trust; and as a part of such costs they may deduct interest at the rate of six per centum per annum on all money advanced by them in the execution of the trust, necessary and usual brokers’ commissions actually earned by brokers and paid by said trustees, and for their own services and responsibility a commission of one half per centum on sales or disposition of real estate and personal property, and same on receipt from book accounts, notes, and other claims due said grantors.</p> <p>“ 4th. In making such payments to creditors, there shall be no preference or priority, except to holders of valid liens, and other creditors whose claims would be preferred under the laws of said Commonwealth relating to the insolvency or insolvent estates of living persons; but holders of liens whose security shall have been lawfully disposed of shall be treated as unsecured for the balance of their claims.</p> <p>“ 5th. Full and accurate accounts of all the doings of said trustees under this instrument shall be kept by them and said grantors, and the advisory committee of creditors shall have ac cess thereto at all reasonable times.</p> <p>“ 6th. Said William T. Parker and Charles Marsh, president and vice-president as aforesaid, as such trustees, are hereby con ■ stituted the attorneys of said grantors and of said creditors, with as full powers in the premises as if they were the absolute owners of all said property, and with equal powers as to the defence of any legal proceedings which may be pending or may hereafter be instituted affecting any of said property, or the grantors personally, subject to the trusts and limitations herein expressed.</p> <p>“Said grantors hereby covenant with the said trustees, that the schedule hereto annexed contains the names of all their creditors, secured or unsecured, whose claims equal or exceed fifty dollars in amount, and the amount due them, respectively, without interest.</p> <p>“ And the said William T. Parker and Charles Marsh, president and vice-president of the International Trust Company, hereby accepting this trust on the terms aforesaid, covenant with said grantors and their creditors, parties hereto, that it will execute the same faithfully; and the said respective creditors of the grantors, each for himself, in consideration of the foregoing conveyance, hereby ratify the same, and each, in consideration of the agreement of the others, and of one dollar to each of them paid by said grantors, agrees to take and accept from said trustees their dividend or proportionate part of the estate and effects hereinbefore assigned and conveyed by said grantors to said trustees, in full payment, satisfaction, and discharge of the whole of their respective debts, demands, actions, and causes of actions, whatever, against said grantors, whether due and payable at the date of these presents or not. And an. acceptance of this conveyance for our benefit, evidenced by our signatures hereto, shall constitute such discharge.</p> <p>“ It is expressly covenanted and agreed by all the parties hereto, that creditors holding securities do not prejudice the same by becoming parties hereto, but simply discharge said Cutler and Reed and said firm of E. P. Cutler & Co. from all personal liability for such secured claims, the secured creditors relying upon their collateral and upon their right to a dividend for unsecured balances. And further, that any attaching creditor who becomes a party hereto does not thereby release or prejudice his lien by attachment until this instrument shall have been executed by the general creditors of the grantors, secured and unsecured, in such manner, and to such an amount in number and value of claims, as shall be satisfactory to the grantors; it being the purpose of the latter to have this instrument executed by all their creditors whose claims equal or exceed fifty dollars in amount, in such form and to such extent as shall save them harmless against proceedings in insolvency under the laws of said Commonwealth, and secure their release from all personal responsibility for their debts, except those which are" trifling in amount; and when they express their satisfaction with the due execution of this instrument in writing and hereon, it shall be a perfected conveyance and agreement, and not before.</p> <p>“ It is finally covenanted and agreed by all the parties hereto, that if said advisory committee, as now constituted or as hereafter constituted by a vote of said creditors duly called for the purpose of filling vacancies, shall decide upon any plan or scheme for the sale or disposition of any part of said pledged iron directly to individual creditors who may wish to avail themselves of such plan or scheme, then said trustees shall conform thereto, and shall thereupon sell and turn over to such creditor or creditors as said committee shall name such part of said iron in kind and quantity as said committee shall designate in writing; but the advances, costs, and expenses then made, incurred, or due by or to said trustees on account of such iron so to be turned over or disposed of to such creditors, shall first be paid to said trustees. Said committee, however, shall not act upon or carry out any such plan or scheme until they have given all the unsecured creditors whose claims amount to fifty dollars or upwards notice of their intended action, at a creditors’ meeting or by mail, that the latter may have an opportunity to express their approval or disapproval: not that the action of said committee may be controlled or restrained, but that said committee may have the fullest information as to the advisability of their action.</p> <p>“In witness whereof, the said several parties have interchangeably set their hands and seals this day of July,</p> <p>1881, this instrument being made in triplicate for convenience and to save delay.”</p> <p>It further appeared, from the trustees’ answers, that this instrument was executed by the principal defendants and by a number of creditors before August 1,1881, and that by that day it had been delivered to the trustees by the defendants, with the following indorsement, signed by them, thereon: “Boston, August 1, 1881. The within trust deed having been executed by the creditors to an extent satisfactory to us in number and amount, we hereby approve the same.”</p> <p>It further appeared that, at the time of the attachment in this action, July 21, 1882, creditors named in the schedule annexed to the assignment whose claims amounted to $85,581.88 had not signed or assented to the assignment, and of these, creditors whose claims amounted to $15,034.53 had since assented; that creditors not named in the schedule, whose claims amounted to $15,003.74, had signed before the attachment, and that other creditors not so named, and whose claims amounted to $43,580.88, had not signed; that the face value of the claims of the creditors who had signed before the attachment exceeded the value of the property assigned; and that the trustees had at the time of the attachment, and still had, in their possession, under said assignment, property of the defendants greater in amount than the plaintiffs’ claim.</p> <p>At the hearing before Holmes, J., on a motion to charge the trustees on their answers, the judge ruled that they were not chargeable, and ordered that they be discharged. The plaintiffs alleged exceptions.</p>

<p>If the ticket seller of a railroad corporation delivers to a passenger a ticket with a hole punched in it, and assures him that the ticket entitles him to be carried to his place of destination, when in fact, by the rules of the corporation, it does not, and the passenger is expelled by the conductor from the train of cars, for refusing to pay additional fare, he may maintain an action therefor against the corporation.</p>

<p>A., a depositor in a savings bank, assigned and delivered Ins bank-book to B., who gave notice thereof to the bank. Afterwards the bank was summoned as trustee of A. in a suit against him, and was defaulted. C., as attorney for the plaintiff in that suit, took the execution issued therein, and, within thirty days after judgment, made demand upon the treasurer of the bank, who thereupon issued a deposit-book to C., as trustee, for the amount of A.’s deposit. C. indorsed payment of the amount upon the execution, which was returned satisfied in part. Held, that C. did not become a creditor of the bank.</p>

. Contract upon a promissory note for $2500, dated January 9, 1877,'payable four months after date, at the Eliot National Bank of Boston, to the order of the makers, Whitcomb and Thayer, and indorsed by them and by the defendant. Writ dated November 16, 1880.

<p>A. and B. entered into an oral agreement, by which A., who owned a parcel of land, was to buy an adjoining parcel at a certain price, value his own land at a sum named, and erect a warehouse on both parcels according to certain plans ; and B. was to hire the same for a term of years, at a certain percentage upon the cost of the building and land, at the valuation so agreed upon. In the course of building, B. asked A. to make certain additions and alterations, and agreed to pay a certain percentage, for the term of the lease, upon the cost. The building was erected with such additions and alterations as were requested; but B. refused to accept the lease. Held, that the agreement to take a lease was within the statute of frauds, and that A. could not maintain an action against B. for the cost of the land bought and of the building erected less their value at the time of B.’s refusal to take the lease; and that the agreement for the additions and alterations was not a separate agreement.</p> <p>B. placed upon a building in process of erection by A., of which B. had orally • agreed to take a lease when completed, a sign stating that he would occupy the store upon its completion, and that the chambers were to be let. B. also offered the chambers to let to various persons; he was at the building daily, giving directions to the workmen; he selected the gas fixtures for the building; and he caused various changes to be made in the details of the work in finishing the building. Upon the completion of the building, B. refused to take the lease, and removed his sign. Held, that A. could not recover of B. for use and occupation. ,</p>

Contract, for the breach of a written agreement made by J. J. Brookman, the agent of the defendant, in its name, with the plaintiff, in New Orleans, Louisiana, for the sale of 3000 barrels of mackerel.

<p>In an action for money lent, oral evidence is admissible to show that a transfer of stock, absolute in its terms, by the defendant to the plaintiff, was intended only as collateral security for the payment of a loan.</p> <p>In an action for money lent, the payment of which is secured by a transfer of stock by the defendant to the plaintiff, the question whether the plaintiff, by an unauthorized sale of the stock, has incurred the liability imposed by the Pub. Sts. c. 203, § 72, is not involved.</p> <p>If A. borrows money for B., the payment of which is secured to the lender by a transfer of stock furnished by B., to whom the money so borrowed is paid by A., this does not constitute a loan by A. to B., to recover which A. can maintain an action against B., before A. has repaid the money which he borrowed, or has sustained some loss.</p> <p>In an action for money lent, the payment of which was secured by a transfer of stock by the defendant to the plaintiff, the latter testified, in his direct evidence, that, on a day named, the defendant transferred a certain number of shares of the stock to him to sell to one K., who, as the plaintiff told the defendant, was making inquiries about the stock. The defendant, in his testimony, contradicted this evidence. The plaintiff was allowed, against the defendant’s objection, to testify in rebuttal, that, on the day before the one named, he brought K. to the defendant’s office, and that K. and the defendant had an interview. Held, that the order of the admission of the evidence objected to was within the discretion of the presiding judge, and not subject to exception; and that it could not be said that the evidence, although of slight importance, was not admissible.</p> <p>The judge presiding at a trial is not bound, as matter of law, to set aside a verdict, because, in his opinion, it is against the weight of the evidence.</p>

Petition to the Superior Court for the assessment of damages for land taken, on May 23, 1881, by the respondent, for the extension of Harrison Avenue. The original petitioner was the holder of a second mortgage, upon which about $11,000 is due. Luther Dana, the holder of a first mortgage for $12,000, Dio Lewis, the lessee of the premises, and Alfred A. Marcus, the owner of the equity, appeared in and became parties to the action.

<p>In an action for breach of an agreement to assign a policy of insurance upon a house sold by the defendant to the plaintiff, by reason of which the policy became void, the measure of damages (the plaintiff having procured no new insurance) is the cost of insurance for the unexpired term of the policy, and not the amount of the injury resulting from the subsequent burning of the house.</p>

Bill in equity, filed February 13, 1884, by one of the trustees under the will of William Appleton, to obtain the instructions of the court as to the construction of the following clause of the will: “ All the residue of my estate, real and personal, whether acquired before or after the execution of this my will, and including herein any property which I have a right to dispose of by will or appointment by virtue of the provisions of the trust indenture, made by my late…

<p>A town voted that a certain way “ is hereby discontinued, and that all bonds and agreements be returned to C. if C. will hold the town harmless from all damages arising from abutters on” the way. Held, that an indemnity to the town was a condition precedent to the discontinuance of the way.</p>

<p>A by-law of a religious society provided as follows: “ Any member who shall either cease to regularly worship with the society, or who shall fail to contribute to the support of its public worship for the term of one year, shall have his or her name dropped from the list of members.” Held, that a member could be deprived of his membership only by a vote of the society, after a hearing.</p> <p>A by-law of a religious society provided that the object for which a special meeting was called must be stated. Another,by-law provided that a new member must be approved by a vote of the society. The warrant which called a special ' meeting of the society, at which several persons were admitted to membership and allowed to vote, contained no article for the admission of new members, but contained the general article, “ To transact any other business that may legally come before said meeting.” Held, that the election of such persons was invalid.</p>

Contract to recover the amount of a tax assessed upon personal property of the plaintiff for the year 1881, and paid under protest. 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: The plaintiff is a corporation established under the laws of Connecticut, with a capital stock of $100,000, divided into shares of $100 each.

Tort for injuries received by the plaintiffs’ schooner, by taking ground while entering the defendants’ dock in Boston. At the trial in the Superior Court, before Staples, J., the jury returned a verdict for the plaintiffs ; and the defendants alleged exceptions, which appear in the opinion.

<p>The defendant in an action brought in the Superior Court by trustee process was defaulted. The case was afterwards left off the docket for non-payment of the clerk’s fees. Subsequently the trustee was discharged as of a previous term, without notice to the plaintiff or his attorney. Held, no judgment having been entered, that it was in the power of the court to bring forward the case, and to vacate the order discharging the trustee.</p> <p>If a savings bank, summoned as trustee in a trustee process, answers that it has funds on deposit in the defendant’s name as trustee for a third person, and, in answering an interrogatory, states that it has been informed and believes that the fund belongs to the third person, the latter is not precluded from appearing and disclaimng all right to the fund ; and, upon a finding that he has no right or interest in the fund, the trustee is properly chargeable.</p> <p>Two actions brought by different plaintiffs against the same defendant, and in which the same person was summoned as trustee, were pending, in court. In the second action no service was made upon the defendant, and he did not appear. The first action was left off the docket for non-payment of the clerk’s fees, and the trustee in that action was subsequently discharged as of a previous term, without notice to the plaintiff. The first action was subsequently restored to the docket, and the order discharging the trustee vacated. Held, that the pendency of the second action afforded no ground for not charging the trustee.</p>

<p>Petition for partition of certain land in Boston, against Annie Rhodes and Benjamin N. Rhodes. Elizabeth J. Rhodes was named in the petition as an adverse claimant of the land, and appeared. The case was submitted to the Superior Court, and, after judgment for Elizabeth J. Rhodes, to this court, on appeal, upon the following agreed facts:</p> <p>On December 17, 1874, Ann D. Rhodes, widow, died, leaving a will, which was duly admitted to probate, and the material parts of which were as follows:</p> <p>“ 1st. I give and bequeath to my son Franklin Rhodes, in trust for my son Charles Rhodes, my house and estate on Kirkland Street in Boston (now numbered sixteen), to be used the income thereof by my son Franklin Rhodes, for the support and benefit of my son Charles during his life. If it should become expedient from any cause that said estate must be sold, the proceeds to be reinvested for the benefit of my son Charles. If at my decease said property should exceed in value one third of my estate, so much must be paid at once, or from time to time, to my sons Edward and Franklin as shall make equal, should my son Charles die without wife or children the above-named property to be divided equally between my two sons or their heirs.</p> <p>“ 2d. To my sons Edward S. and Franklin Rhodes 1 give my house on Porter Street in Boston, now numbered twenty-one, together with sundry notes for money due me by my son Edward S. Rhodes and given in December, 18.72, or early in January, 1873. Two sums of fourteen hundred dollars each, with the interest thereon, and one other sum of fourteen hundred dollars obtained from mortgage of house on Porter Street, January 1, 1874, at eight per cent interest, these several sums and all other moneys if by accumulation or in any way mine in possession of my son Edward at my decease to be accounted for, and allowed, as so much of his portion of my estate. If expedient the house on Porter Street to be sold for equal distribution of my estate, and if at my decease the property given to my sons Edward and Franklin should exceed two thirds the value of that given my son Charles, then it is my will that they pay to their brother from time to time such sum as may make them equal, as it is my most earnest wish that each should share alike.”</p> <p>The only heirs at law of Ann D. Rhodes were her three sons, Edward S. Rhodes, the petitioner, Franklin Rhodes, and Charles Rhodes, the persons named in the will. On March 27, 1876, Franklin Rhodes, under the provision of the will, was duly appointed trustee for the- benefit of Charles Rhodes, and so continued to act until his death, which occurred subsequently to the death of Ann D. Rhodes, and prior to December, 1880. On December 6, 1880, Elizabeth J. Mitchell (now Elizabeth J. Rhodes, widow of Charles Rhodes) was duly appointed to said trust in place of Franklin Rhodes, deceased. On January 6, 1881, said Elizabeth J. was lawfully married to Charles Rhodes. On or about April 14, 1881, Charles Rhodes died testate, leaving no issue, and never having had issue; and, by his last will and testament, duly admitted to probate, he gave and bequeathed to his said wife all the estate of which he died seised and possessed. Elizabeth J. Rhodes was duly appointed the sole executrix of said last-named will, and was duly qualified to execute the same. Charles Rhodes was never in occupancy of any portion of said real estate, but received through his trustees the income and profits thereof. Franklin Rhodes died intestate, and left, as his only heirs at law, a son and a daughter, the respondents.</p>

<p>It is no objection to the maintenance of a petition by a husband and wife to the Probate Court, under the Pub. Sts. c. 148, for the adoption of a child, alleged to be of unknown parentage and a foundling, that the petition does not also allege that the child is not one of the class excepted in § 1.</p> <p>The question of the sufficiency of service of an order of notice issued by the Probate Court, under the Pub. Sts. c. 148, upon a petition for the adoption of a child, is for that court; in deciding it, that court is not confined to the return ; and, on an appeal to this court, will be presumed to have satisfied itself that the return was properly made.</p> <p>Under the Pub. Sts. c. 148, the Probate Court may decree the adoption of a child, whose parents are unknown and are not brought within any of the exceptions of § 3, and who has no guardian, and has not been given up in writing, for the purpose of adoption, to a charitable institution incorporated by law; and the Probate Court, after the notice required by § 4 has been given, may appoint a guardian ad litem for such a child, with power to give or withhold consent to the adoption.</p>

<p>Bill of intebpleadeb, filed May 9, 1883, against the Eliot National Bank, and James N. Smith and Charles H. Northam, co-partners doing business under the firm name of Smith, Northam, and Company, to determine the ownership of a sum of money deposited with the plaintiffs.</p> <p>The bill alleged that, on March 21,1883, the firm of Hatheway and Company, doing business in Boston, in this Commonwealth, placed in the hands of the plaintiffs the sum of $1590 for the benefit of whom it-might concern; that said sum was the amount received by said firm from George Morrison, of St. John, New Brunswick, hereinafter referred to; that said firm, on March 16 and 17, having theretofore shipped to Morrison 500 barrels of meal, by schooner Aurora Borealis, for which the sum of $1590 was to be paid to said firm by Morrison, made two drafts in favor of the Eliot National Bank of Boston, for the sum of $795 each, upon Morrison, chargeable “to 250 bbls., meal, ex. Aurora Borealis, account of Hatheway & Co.; ” that said bank discounted the drafts upon the information that the meal had been sold and shipped, and the belief that Morrison would accept and pay the drafts to the bank; that Morrison, instead of accepting the drafts on the date of presentation, remitted said sum of $1590 to Hatheway and Company; that the same mail which brought said remittance to Hatheway and Company, brought notice of the protest of the drafts for nonacceptance, and of a disaster to the steamship City Point, a vessel owned largely by said firm ; and said firm thereupon suspended payment and has not since resumed; that Hatheway and Company purchased the lot of meal in question of Smith, Northam, and Company, a copartnership doing business at Hartford, Connecticut, immediately before selling the same to Morrison; that the Eliot National Bank and the firm of Smith, Northam, and Company claimed said money in the plaintiffs’ hands, and both threatened to bring suit therefor and to attach the same in the hands of the plaintiffs; and the plaintiffs were willing and desirous to pay said money to the person or persons entitled to receive the same, and offered to pay the same into court.</p> <p>The answer of the Eliot National Bank alleged that the firm of Hatheway and Company, on March 16 and 17, 1883, having theretofore shipped to said Morrison 500 barrels of meal under the circumstances alleged in the bill, procured to be discounted at said bank two drafts, each of which, dated respectively March 16 and 17, 1883, was as follows: “$795.00. At sight, pay to the order of the Eliot National Bank seven hundred and ninety-five dollars, value received, and charge the same to account of 250 bbls. meal ex schooner ‘ Aurora Borealis.’ Hatheway & Co. To Geo. Morrison, Esq., St. John, N. B.; ” that the proceeds derived from the discounting of the same were immediately placed to the credit of the firm of Hatheway and Company, who had an account with said bank as a customer thereof; that, previously to the procuring of the drafts to be discounted, Hatheway and Company had received directions from Morrison not to draw upon him for this consignment of meal; that Hatheway and Company omitted and failed to communicate the fact of said directions at the times that they procured the drafts to be discounted; and that it was a considerable time thereafter before the bank came to a knowledge thereof.</p> <p>Charles G. Dyer, assignee in insolvency of Hatheway and Company, filed a motion that he might be admitted as a defendant in the case, for the reason that the sum of money held by the plaintiffs belonged to him as such assignee, for the benefit of the creditors of the insolvent firm. This motion was allowed ; and Dyer filed an answer alleging, among other things, that said drafts were not attached to any bill of lading; that, on March 21, Hatheway and Company received from Morrison, two checks, one for $990, drawn by the Bank of New Brunswick on said Eliot National Bank, and one for $600, drawn by the Halifax Banking Company on the Suffolk National Bank of Boston, in favor of Hatheway and Company ; that these checks were the moneys deposited with the plaintiffs by Hatheway and Company for the benefit of whom it might concern; and that the checks have, since said depositing, been converted into money by the plaintiffs ; denied that the same mail which brought said checks from Morrison also brought information of the dishonor of said drafts; but stated that he believed upon information that, at the time of the remittance, only the first draft had been presented for acceptance, and that the second draft was not presented until the day after said remittance; and denied that said checks were not placed in the mail until after both of said drafts had been presented for payment or acceptance.</p> <p>It was agreed that the averments in the bill, and in the answers of the Eliot National Bank, and of Charles G. Dyer, assignee in insolvency, should be taken to be true, except as controlled by the following agreed statement of facts:</p> <p>The petition in insolvency of Hatheway and Company was not filed until about three weeks after this bill of interpleader was filed. The two checks received as the remittance from Morrison were immediately deposited in bank upon being received by the stakeholders, and became immediately converted into money. Said remittance was made before the second draft was presented, and after the first draft had been presented, but Morrison had received advices from Hatheway and Company, before he made the remittance to Hatheway and Company, that the latter had drawn upon him for the price of the consignment. Hatheway and Company received the two checks on March 21, and immediately placed them in the hands of the stakeholders. The Eliot National Bank learned the same day that Hatheway and Company had received the remittance, but not until after the same had been placed in the hands of the stakeholders; and, immediately upon obtaining said information, demanded of Hatheway and Company that they should pay over the amount directly to the bank.</p> <p>At the hearing, before Colburn, J., it was ordered that the bill be taken for confessed against the defendants Smith and Northam; and the case was reserved for the consideration of the full court on the bill, answers, and agreed facts; such decree to be entered as law and justice might require.</p>

<p>Contract upon an award of referees, under a written agreement to submit to them the settlement of all matters relating to a copartnership formerly existing between the plaintiff and the defendant. Trial in the Superior Court, before Pitman, J., who ruled that the plaintiff was entitled to recover the amount of the award and interest thereon; directed a verdict for the plaintiff accordingly; and, at the request of the defendant, reported the case for the determination of this court. If the ruling was right, judgment was to be entered on the verdict; otherwise, a new trial to be ordered. The facts appear in the opinion.</p>

<p>If the hull and spars of a vessel are completed at one port, and sufficient rigging is put on her, and a sufficient cargo for the necessary, ballast is taken, to enable her to go to another port, where materials necessary to the rigging and equipment of a vessel, and the first put upon her, are procured, the materials so furnished at the latter port are furnished in the “ construction ” of the vessel, within the Gen. Sts. c. 151, § 12.</p> <p>No lien can be enforced, under the Gen. Sts. c. 151, §§ 12-15, for materials furnished in this Commonwealth, in the construction of a vessel at a port in another State.</p> <p>A lien upon a vessel, under the Gen. Sts. c. 151, § 12, for materials furnished in her construction, is not invalidated by including articles for which no lien attaches, or by an error in the addition of the amounts of the items, in the statement filed in the clerk’s office of the city where the materials are furnished, if the claimant has not “ wilfully and knowingly claimed more than is due.”</p> <p>A statement of a claim of a lien for materials furnished in the construction of a vessel was filed, under the Gen. Sts. c. 151, §§ 12, 13, within four days after the first departure of the vessel from the port where the materials were furnished. During the next two and a half years, the vessel came into that port on several occasions, to the knowledge of the person claiming the lien; but he did not file his petition to enforce the lien until four and a half years after such first departure, and after the vessel had been sold. Held, that the petition was seasonably filed.</p>

Trustee process. The Franklin Paper Company, a corporation established by law in this Commonwealth, summoned as trustee of the principal defendants, answered that, on November 16, 1882, it made a promissory note for $1000, payable in this Commonwealth, four months after date, to the order of the defendants ; and that payment of the note was claimed by Frank L. Hall, assignee of the defendants. The writ was served on the trustee after the note became payable.

<p>A subordinate lodge of an incorporated benevolent association issued to K., upon his becoming a member, a certificate promising that the supreme lodge woulrt pay a certain sum, upon due notice of his death and the surrender of the cer tificate, to such person as he should direct the same to be paid, “ provided he is in good standing when he dies.” K. was suspended by the subordinate lodge and had notice of such suspension, but did not appeal from the decision sus pending him to the supreme lodge, as, under the constitution, he had the righ to do; and such decision remained in force until his death. Held, that the administrator of K.’s estate, who was also the person to whom K. had directed the sum named in the certificate to be paid, could not maintain an action there for against the supreme lodge; and that evidence that he ought not to have been suspended was inadmissible. '</p>

Contract for money paid. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, upon agreed facts, the material parts of which appear in the opinion.

<p>Upon the issue whether a sale of goods for “cash, five per cent off, thirty days,” was conditional or absolute, the plaintiff testified that a sale for cash, by universal custom of his trade, was for payment in thirty days and delivery of the goods. The defendant was allowed to ask his witnesses the question, “ Is there any custom which is general and universal among your trade in selling a bill of goods, cash, five off, thirty, and goods delivered, as to whether that is regarded as an absolute sale 1 ” The answer was that, by the universal custom of the trade, such a sale, if there was a delivery, was treated and regarded as an absolute sale. Held, that the plaintiff had no ground of exception.</p>

<p>Tenants in common of land may be joined as respondents in a petition, under the Pub. Sts. c. 176, to compel them to bring an action to try their titles to the land, although their alleged titles are several.</p> <p>The rights of the petitioner in a petition, under the Pub. Sts. c. 176, to compel the respondents to bring an action to try their alleged titles to a parcel of land, are fixed at the time of filing the petition, and are not affected by a subsequent partition of the land between the respondents, or by a disclaimer by one of the respondents founded on that partition, or by a disseisin by the respondents.</p> <p>At the hearing of a petition, under the Pub. Sts. c. 176, to compel an action to be brought to try an alleged title to a parcel of land, if one of the respondents is an insane person under guardianship, the presiding justice may, in the exercise of his discretion, order a decree against such person, if he deems it “ equitable and just;” but such decree cannot be ordered as matter of law.</p> <p>If one of the respondents in a petition, under the Pub. Sts. c. 176, to compel an action to be brought to try an alleged title to a parcel of land, files a disclaimer founded on a partition of the land between the respondents subsequently to the filing of the petition, he will take costs only from the date of the answer.</p>

Two ACTIONS OF tort, for personal injuries caused by the fall of a staging, upon which the plaintiffs were at work in the employ of the defendant.

<p>If a decree in equity is entered that the plaintiff is entitled to redeem land from a mortgage on payment of a certain sum, and the plaintiff alone appeals on the ground that he ought not to be compelled to pay so large a sum, it is not open to the defendant to contend that the plaintiff is not entitled to redeem at all.</p> <p>A mortgage of land, securing a promissory note, was conditioned for the payment of a certain sum in two months, “ with interest as specified in the note." The rate of interest expressed in the note was three per cent a month for the two months, and five per cent a month for such further time as any part of the principal should remain unpaid. An agent of the mortgagee had the custody of the mortgage and note, and knew their contents, and had full authority to receive payment of the note at any time, and to dispose of it as he saw fit. A creditor of the mortgagor brought an action against him, attached his interest in the land, recovered judgment, levied his execution upon the debtor’s equity of redemption, and became the purchaser thereof at a sale. Before the maturity of the note, and while his action was pending, the creditor informed the mortgagee’s agent that he had attached the land and wished to pay off the mortgage, and asked him what amount was due. The agent, by falsehood and evasive answers, intentionally misled him, so that no payment was made. Subsequently, the creditor obtained a decree entitling him to redeem the land from the mortgage. Reid, that the mortgagee was estopped, by his agent’s conduct, to receive from such creditor interest at a higher rate than six per cent per annum after the maturity of the mortgage debt; and that, as the creditor made no offer to pay any sum to the mortgagee, he must pay the expenses incurred in proceedings to foreclose the mortgage before the service of an injunction restraining them.</p>

<p>The publication in a newspaper of the contents of a petition for the removal of an attorney from the bar, filed in the office of the clerk of this court in vacation, but which has not been presented to the court or entered on the docket, and which includes actionable allegations unless justified, although the publication is a fair and correct report of the petition, is not privileged.</p>

<p>After a mortgage of land was executed, the mortgagor went into bankruptcy, but paid his creditors in full, and, after filing a bill in equity to redeem the land from the mortgage, received his discharge in bankruptcy. His assignees, at the hearing on the bill, stated that they were willing to convey the land to the proper person. Held, that the bill could be maintained.</p> <p>On a bill in equity to redeem a mortgage, a person who became an assignee of the mortgage after maturity of the note which it was given to secure, stands in no better position than his assignor.</p> <p>If a case is heard, before a single justice of this court sitting in equity, on the report of a master alone, which does not fully set forth the facts, the justice may draw inferences of fact; and the full court will not disturb his finding unless it is clearly shown to be erroneous.</p>

<p>The bringing of a bill in equity and the issuing of an injunction, under the power a court of equity has to compel or restrain conveyances of property, or to reach and apply in payment of a debt the property, legal or equitable, of a debtor, do not constitute an attachment of property, within the Pub. Sts. c. 157, § 47, authorizing, in certain cases, the lien created by the attachment to continue where the attachment would otherwise be dissolved by proceedings in insolvency.</p> <p>If a bill in equity is brought against A. and B., and A. becomes insolvent, and his assignee in insolvency is admitted to prosecute the suit, under the Pub. Sts. c. 157, § 47, such assignee is not entitled to a personal decree against B., or to have a conveyance of land held by B. declared void.</p> <p>If a bill in equity is brought against A. and B., and A. becomes insolvent, but his assignee in insolvency does not intervene in the suit, the plaintiff has the right to prosecute the suit against B.</p> <p>If the defendant in an action becomes insolvent, and the court of insolvency passes an order, under the Pub. Sts. c. 157, § 47, that the lien created by an attachment in the action shall continue, such order is not conclusive upon the duty of the court in which the action is pending to admit the assignee to prosecute.</p>

<p>Bill in equity, filed January 26, 1883, to remove a cloud upon the title to a parcel of land in Cambridge. At the hearing, the bill was dismissed, with costs ; and the plaintiff appealed to the full court. The facts appear in the opinion.</p>

<p>A testator, after giving several legacies by his will, directed that the residue of his property should “be equally divided among my brothers and sisters and their heirs.” When the will was made, and at the testator’s death, there were living three brothers, one sister, and children and grandchildren of two deceased sisters. The testator knew of the decease of his two sisters, and of the existence of their issue. Held, that the testator intended that the heirs of his deceased sisters should take, by right of representation, equally with his surviving brothers and sister.</p>

<p>A. conveyed a parcel of land to B. by a quitclaim deed, in which he reserved to himself and wife a life estate therein, and covenanted that the premises were free from all incumbrances suffered by him, except said life estate. After this conveyance, but before the deed was recorded, A. mortgaged the land to a bank to secure the payment of a promissory note. On the same day, a previous mortgage on the land, given by A.’s grantor to the bank, and which A. had agreed in the deed to him to pay, and existing at the time of A.’s conveyance to B., was discharged; each mortgage being for the same amount. A. died, his estate was represented insolvent, and commissioners were appointed under the statute. Held, that the bank could not prove before the commissioners its claim against A.’s estate for the full amount of the note, while it still held the mortgage.</p>

<p>An executor, whose power to dispose of the estate of his testator was not limited by the will, fraudulently transferred a certificate of stock in a corporation, standing in the name of the testator, to a bank, “ as collateral for the note of A.,” who was a son of the testator, but to whom the estate was not indebted. The note, signed by A., gave the bank a power to sell the stock in case of a default, and provided that the proceeds, after paying the debt, should be paid to A. The transfer was taken to the corporation, and, after ascertaining that the executor was duly appointed, and that A. was an heir of the testator, it recorded the transfer, and issued a new certificate to the bank, “ as collateral for the note of A.” The note of A. not being paid, the bank sold the stock by auction, and, on payment of its debt, I ransferred the certificate to A., who assigned it to the auctioneer, who in turn assigned it to the purchaser. The balance of the proceeds was paid to A.; and the corporation, on presentation of the former certificate and the transfers, issued a new certificate to the purchaser. Held, on a bill in equity, by the administrator de bonis non with the will annexed of the estate of the testator, against the corporation, to compel it to issue a new certificate for the benefit of the estate, that these facts did not show any negligence on the defendant’s part in issuing either the certificate to the bank or that to the purchaser at the sale by auction; and that the bill could not be maintained.</p>

<p>Tort for malicious prosecution.</p> <p>At the trial in the Superior Court, before Knowlton, J., the jury were instructed, on the afternoon of June 4, 1883, to seal up whatever verdict was arrived at by them, and then to separate, both of which they did.</p> <p>On the coming in of the jury on the morning of June 5, 1883, the verdict was opened, and was in the following form:</p> <p>“ Superior Court.</p> <p>“ Suffolk, ss. April Term, A. D. 1883. No. 2781.</p> <p>Kenney, Plaintiff. Habich et al., Defendants.</p> <p>The jury find for the plaintiff, and assess damages in the sum of</p> <p>$2,000.00 Two thousand dollars against Habich.</p> <p>$1,000.00 One thousand dollars against Rueter.</p> <p>$1,000.00 One thousand dollars against Sinclair.</p> <p>$1,000.00 One thousand dollars against King.</p> <p>$100.00 One hundred dollars against Bowles.</p> <p>$150.00 "One hundred and fifty dollars against Hitchcock.</p> <p>$5,250.00. Lucius P. Leonard,</p> <p> Foreman of the Jury.” </p> <p>The judge stated to the jury, that the form of their verdict indicated that they misunderstood the instructions of the court as to damages, and that each of the defendants who was found to have participated in the alleged wrong was liable for the entire damages; and inquired of the foreman whether the jury, before making up their verdict, agreed upon the entire damages which the plaintiff had suffered, to which the foreman answered in the affirmative. The judge then asked whether the several sums found against the several defendants in the verdict were fractional parts of that sum found as the entire damages, and whether the aggregate of those several sums was the sum intended by them as compensation for the joint wrong done to the plaintiff. The foreman answered, “-Yes.” The jury were then asked whether they all agreed to the answers of their foreman, and they all replied affirmatively. The judge then instructed the clerk to prepare another verdict against these defendants, by adding together as damages the several sums named in the first verdict.</p> <p>The verdict was then exhibited to each of the jurors, in comparison with the former verdict, assented to by them, signed by the foreman, and affirmed as their verdict, and both papers were retained together upon the files in the case by order of the judge.</p> <p>During all these proceedings, the jury remained in their seats; and the defendants alleged exceptions to these proceedings.</p>

<p>Tort against James W. O’Brien and Rufus W. Sprague. The declaration alleged that the plaintiff was a corporation duly established by the laws of this Commonwealth, and doing business in the city of Boston; that it owned and used in its business certain wharves, and the buildings and machinery thereon; that on or about November 4, 1882, one Thomas Hogan received an injury at or near one of its wharves, in consequence of the negligence of some of the plaintiff’s servants, for which Hogan instituted an action against the plaintiff, in which the defendant O’Brien appeared as his counsel, on December 13,1882, returnable at January term 1883 of the Superior Court; that, immediately upon being notified of the accident, the plaintiff employed the defendant Sprague as a physician to take care of and restore Hogan to health, and to cure such injuries as he had received; that Sprague reported to this plaintiff that Hogan was doing well and would ultimately recover; that the defendants Sprague and O’Brien, then and there combining, confederating, and conspiring for their own lucre, benefit, and gain to injure and defraud the plaintiff, and so to arrange matters that the plaintiff could be compelled to pay a much larger sum to Hogan for said injuries than he was honestly entitled to recover therefor, fraudulently persuaded and induced Hogan to pretend that he was much more severely injured than in truth he was, and to simulate injuries and sufferings which in truth he had not sustained, and to refuse to receive good and suitable nursing and food, which the plaintiff offered freely to supply him with, all of which was done by said conspirators and Hogan in order to prevent his rapid recovery, and to enable him to procure unjust damages, all of which Hogan, acting under the advice of said conspirators, did; that subsequently said case was, by order of court and consent of parties, referred, under a rule of court, to said Sprague and two others, the decree of a majority of whom was to be final; that after, the appointment of said referees, Sprague continued, at the request and charge of the plaintiff, to attend and act as the physician of Hogan up to the time of the hearing hereinafter mentioned, during which time, in pursuance of said conspiracy, said conspirators continued fraudulently to induce and advise Hogan to persist in his simulation of injuries and his refusal of suitable nourishment and nursing, which the plaintiff freely offered him and solicited him to receive; that the referees met and heard said parties at a session held by them in Boston, at which time the only evidence produced was on the part of the plaintiff in the present action, and which tended to show only that Hogan was not seriously injured, and that he would in a short time be as well as ever; that Sprague, in pursuance of said conspiracy, and well knowing that Hogan was not seriously injured, and for the sake of serving his own purposes and those of O’Brien, and confederating with him, and in pursuance of said conspiracy, fraudulently induced and persuaded said referees to unite in an award against the plaintiff of $3600, on the ground that Hogan was permanently injured, which was not true, and was well known by Sprague and O’Brien not to be true, and was much larger than Hogan was entitled to by reason of said carelessness, as said conspirators well knew, the amount of which award was subsequently paid to O’Brien as attorney for Hogan, together with the cost of reference and expenses, and out of which sum of $3600 O’Brien and Sprague retained to themselves $1600; and that a cause of action had accrued to the plaintiff to recover of the defendants the money wrongfully paid by reason of the fraudulent acts of the defendants, and by reason of their confederating and conspiring together to defraud the plaintiff.</p> <p>The defendants severally demurred to the declaration, on the ground that it did not set forth a legal cause of action.</p> <p>The Superior Court sustained the demurrers, and ordered judgment for the defendants; and the plaintiff appealed to this court.</p>

<p>If a trustee under a will, on demanding of a corporation a transfer of shares of stock standing in the name of his testator upon the hooks of the corporation, presents to the corporation certified copies of the will and of his appointment as trustee as evidence of his authority to demand a transfer, the corporation lias no right to require that the copies shall remain in its custody.</p>

<p>The by-laws of a savings bank, incorporated subject to the general laws of this Commonwealth relating to savings banks, provided for the appointment of a board of trustees, (which by statute was required to meet at least once in three months,) and for the appointment of the same person as secretary and treasurer. The by-laws also made it the duty of the secretary to keep a record of all meetings of the board of trustees in a book belonging to the corporation, and provided that “ such record shall be held in proof of the votes and transactions of the corporation.” The treasurer of the bank assigned to A. a mortgage belonging to the bank for its full value, exhibiting at the time to A., who acted in good faith, a copy, certified by himself as secretary, of what purported to be a vote of the trustees authorizing the treasurer to “ discharge, assign, and release all mortgages belonging to the bank.” The trustees had passed a vote authorizing the treasurer to discharge and release mortgages, and the word “assign” had been fraudulently interpolated in the record. The treasurer appropriated the money received from A. to his own use. On a bill in equity brought by A. against the receivers of the bank, it did not appear whether the interpolation was made by the treasurer, nor whether it was made before or after the certificate of the vote was shown to A. Held, that the defendants were estopped to deny the validity of the assignment.</p> <p>If the trustees of a savings bank pass a vote authorizing the treasurer of the bank to assign mortgages held by the bank, such vote is not ultra vires as to a person who, in good faith and for a valuable consideration, takes an assignment of a mortgage from the treasurer.</p> <p>If the treasurer of a savings bank makes an absolute assignment of a mortgage belonging to the bank to a person who pays full value for it, who agrees to re-sell it to the bank if the bank subsequently wishes to buy it, such a transaction is a sale of the mortgage, and not a pledge or an equitable mortgage of it; and the fact that the treasurer afterwards pays interest on the mortgage to the assignee does not show an agreement by the bank to treat the transaction as a loan.</p> <p>An assignment of a mortgage held by an incorporated savings bank purported to be the deed of the bank, and to assign “ the mortgage deed, the real estate thereby conveyed, and the note and claim thereby secured.” It was signed in the name of the bank by A. B., treasurer. The' in testimonium clause read, “In witness whereof, I, A. B., treasurer of said corporation, have hereunto set my hand and seal.” The promissory note which the mortgage was given to secure was indorsed, “ A. B., treasurer.” Held, that, if the assignment was so defectively executed as not to transfer the mortgage and land, the note and claim thereby secured passed, and that a court of equity would correct the assignment, and treat the mortgage as transferred with the debt.</p> <p>If the treasurer of a savings bank assigns a mortgage of land, belonging to the bank, exhibiting at the time to the assignee a copy of a vote of the trustees of the bank, certified by him as secretary, which gives him authority to assign mortgages, and also represents that the mortgage is a first mortgage, although the bank is estopped, as against the assignee, to deny the fact that such a vote was passed, it is not estopped to show that it holds a prior mortgage on the land.</p>

<p>An action on the Gen. Sts. c. 12, § 40, by the collector of taxes of a city, against a mortgagee of land, who has entered thereon and foreclosed his mortgage, after the lien created by § 22 has expired, for the amount of taxes assessed upon the land to the mortgagor in possession, cannot be maintained.</p>

<p>In 1852, the Commonwealth of Massachusetts, a certain corporation, and others, were the owners of a large tract of flats in the city of Boston. In that year, a resolve of the Legislature provided for the appointment of commissioners, by whom the relative rights of the parties interested in the flats were to be settled, and a plan adopted for the filling and improvement of the same, “securing perfect drainage and spacious streets, squares, and ponds, if deemed expedient for public use and ornament,” and all persons owning said flats were to “ fill up and improve them according to said plan, and not otherwise.” In 1854, by an indenture between the parties, the commissioners were to furnish, within two years, a plan of the corporation’s lands, and the corporation agreed to lay out its lands in conformity with such plan, as to the “ location and arrangement of streets, squares, and other public areas.” In 1864, an indenture was executed between the same parties in triplicate, which provided that a new plan signed by the parties should be adopted in lieu of the former plan, and that “ all streets or ways ” should be according to the new plan. With each copy of the indenture was a plan printed from a lithographic stone. These plans represented in a certain locality, owned by the corporation, two streets crossing each other at an acute angle. Near the point of intersection was a large triangular piece of land, not surrounded by lines on the plan. Before the indenture was executed, this triangle was on two of the plans surrounded by lines and colored green, and on the other plan no change was made. The triangle did not appear at all on the plan of 1854. Held, on an information in equity by the Attorney General, to prevent any building being placed on this triangle, that the land in question was not, by the indenture of 1864 and the plan, a part of the streets, or reserved for a public area, or dedicated to the public use. Held, also, that, whatever were the previous contracts or agreements of the parties on this subject, they were merged in the indenture and plan. Held, also, that evidence that, after the indenture was executed, the officers' of the corporation treated the land in question as if it were to be kept open, did not enumerate it in a schedule of its property, and sold lots by plans on which this appeared as an open space, and that the city filled up the land at its own expense, and for many years did not tax it, was insufficient to prove a dedication of it to the public; and that the indenture was not to be construed in the light of such facts.</p>

<p>Under the Pub. Sts. c. 192, § 1, an attachment of mortgaged personal property which is not delivered to the mortgagee, made after delivery of the mortgage but before it is recorded, takes precedence of the mortgage, although the latter is recorded within fifteen days after its date.</p>

Tort for injuries sustained by the plaintiff in consequence of the neglect of the defendant seasonably to deliver a message sent by telegraph. In the Superior Court, the case was sent to an auditor, who found the following facts: On April 27, 1880, the plaintiff, who lived in Haverhill, had a libel of divorce pending in the Supreme Judicial Court, then sitting in Salem, and had arranged with H. P. Moulton, his attorney, to give him notice when the case was to come on.

Habeas Corpus. Hearing, upon an agreed statement of facts, before Devens, J., who reported the case for the consideration of the full court, in substance as follows: The petitioner seeks to be released from imprisonment in the* common jail in the county of Suffolk, where he was committed on January 22, 1883, by virtue of the refusal of the oath for the relief of poor debtors, by James F. Farley, a commissioner of insolvency.

<p>If a fire in a vessel lying at a wharf in a city is extinguished by members of the fire department of the city, acting wholly under its municipal authority, and not under the direction or at the request of the master of the vessel, there is not a general average loss to which the cargo saved is liable to contribute.</p>

<p>Petition for partition of certain lands in Boston, formerly the property of James W. Gerard, the father of the first-named petitioner, and which constituted a part of the real estate described in the residuary clause of the will of said Gerard, and in the third codicil to his will.</p> <p>At the hearing, before Holmes, J., the petitioners contended that the fee, which was given them by the residuary clause of the .will, was not revoked by the third codicil, and that the executors named in the will took, under the third codicil, a mere power of sale, and not a legal estate. The judge ruled that the petition could not be maintained; and, at the request of the petitioners, reported the case for the determination of the full court. If the petition could be maintained, it was to be so ordered; otherwise, the petition to be dismissed. So much of the residuary clause of the will, and of the third codicil, as is essential to the point decided, is stated in the opinion.</p>

<p>An act incorporating a railroad company repealed the charter of an existing rail- " road company, and authorized the new one to take the tracks of the old, and made provision for the payment of compensation therefor. The tracks were taken, and a petition for damages was duly filed. Pending this petition, the three years allowed by the Gen. Sts. c. 68, § 36, for a corporation whose charter is annulled to close its business, expired; and, no receiver having been appointed under § 37, the petition was dismissed. Before the expiration of the time allowed for filing a petition for damages, a stockholder of the old company brought a bill in equity to restrain the new one from doing business. After the dismissal of the petition for damages, but within a year after the bill in equity was decided, a creditor of the old company brought a bill in equity against the new one for the appointment of a receiver to prosecute the claim for damages by reason of the taking of the tracks. Held, that the bill could not be maintained; and that the Gen. Sts. c. 63, § 30, did not apply.</p>

<p>The plaintiff in a suit in equity, under the St. of 1875, c. 235, for the collection of a debt out of property alleged to have been fraudulently conveyed to a third person by the debtor, who has been adjudged insolvent, does not, by filing his bill, acquire a lien on the property, within the meaning of the Pub. Sts. c. 157, § 47; and the assignee in insolvency may, if he chooses, intervene in the suit for the purpose of having it dismissed, but if the assignee, after notice of the suit, does not intervene, the fact that the defendant has been adjudged an insolvent is not a bar to the bill.</p> <p>The defendant in a suit in equity, under the St. of 1875, c. 235, for the collection of a debt, for goods sold and delivered, out of property alleged to have been fraudulently conveyed by him to a third person, the existence of the debt having been denied and a trial by jury demanded in the answer, is entitled to have issues to a jury framed upon the question of such fraudulent conveyance.</p>

<p>The defence to a bill in equity that the plaintiff’s remedy is at law is waived by proceeding, without objection, to a hearing on the merits before a master.'</p> <p>If the defendant in a suit in equity is entitled, as of right, to have issues framed for a jury, he waives such right by not objecting to an order sending the case to a master for a hearing upon the merits.</p> <p>If a suit in equity is sent to a master “ to hear the parties and their evidence, find the facts, and report the same to the court,” the master is not obliged to report the whole of the evidence; but it is his duty, at the request of a party, to report so much of the evidence as is necessary to bring before the court any question of law raised at the hearing; and he may also report the evidence bearing upon any question of law, which, in his discretion, he thinks ought to be referred to the court.</p> <p>A court of equity, after a case has been heard before a master, and his draft report is submitted to the parties, will not ordinarily, in the exercise of its discretion, order the master to file a report of all the evidence taken before him.</p> <p>Upon exceptions to the report of a master, the excepting party is confined to the facts and evidence stated in the report.</p> <p>It is the duty of a master appointed “to hear the parties and their evidence, find the facts, and report the same to the court,” to report his conclusions of fact.</p> <p>This court cannot revise the finding of a master, that the party who has the burden of proof has failed to sustain it, where the evidence is not reported.</p> <p>A treasurer of a corporation, who has sold, for its benefit, a bond issued by it, and who is unable or refuses to disclose the exact amount for which he sold it, is chargeable in equity for at least the full market value of the bond at the time of the sale.</p> <p>The receivers of a corporation are not estopped, in a suit in equity against the former treasurer of the corporation, to recover what is in fact due from him to the corporation, by the acceptance by the directors of the report of an auditing committee on the treasurer’s accounts, where the report is based upon a fictitious entry on the books of the corporation to the credit of the treasurer, which was supposed by the committee to be a proper entry.</p> <p>If the treasurer of a corporation fails to pay over to it money which he has collected, and the corporation is thereby compelled to borrow money, and to pay a rate of interest greater than six per cent, the treasurer is not liable in equity to pay on the sums due from him more than six per cent interest, if the bill does not seek to recover any profits he has made.</p> <p>If the clerk of a bank who made entries in a book of the bank is dead, the book is admissible in evidence, upon proving his handwriting.</p> <p>A treasurer of a corporation is not entitled to compensation for indorsing its promissory notes in order to procure their being discounted, in the absence of a contract on his part with the corporation to pay him therefor.</p> <p>If the treasurer of a corporation buys a quantity of coal on his own account, with no intention of selling it to the corporation, and at a time when it is not his duty, as treasurer, to buy coal for the corporation, and he afterwards sells it to the corporation at a price which is higher than that which he paid, but which is its fair market value at the time, he is not chargeable in equity for the difference in price between what he paid for it and what he sold it at.</p>

Contract, in two counts, on the following agreement in writing, executed by the defendant: “ Boston, April 25, 1881. Due Thomas Tripp two thousand dollars upon the successful working of a metallic packing this day purchased of him.” The first count declared on the agreement as a promissory note. The second count alleged performance of the condition stated in the agreement, and that the defendant owed the plaintiff the amount named therein.

<p>A creditor wrote to his debtor, asking him to send his note for the amount of the creditor’s account. In reply, the debtor wrote that he was unable to send the note requested; that his mother’s house and furniture had been sold at a mortgagee’s sale; that his father had lost all of his property; that he himself was just starting in his profession, and was earning scarcely anything; that his uncle had assisted him in his education, but that he was then thrown on his own resources; and concluded as follows: “ I hope, however, in the course of a few years to be in receipt of enough income to attend to your bill, together with others.” Held, in an action on the debt, that the letter did not take the debt out of the operation of the statute of limitations.</p>

<p>A., the mortgagee in possession of a vessel, who was under a contract to sell his interest in the vessel to B. for a certain sum, made a contract with C., by which, in consideration of the payment by C. to A. of a sum named, and that C. would pay a further sum upon the signing of a bill of lading by B. for cargo on the vessel for an immediate voyage to L., and would also pay a certain other sum in advance on each of three subsequent and successive voyages of the vessel, (all the payments being on account of the amount that B. had agreed to pay A. for his interest in the vessel,) A. agreed to place B. in charge of the vessel “ without assuming any responsibility under charter-parties made by him,” and, the payments to A. being duly made, not to foreclose the mortgage during the pendency of certain charter-parties between B. and C. Under this authority to B. from A., he made to C. the charter-parties referred to. One covered the contemplated voyage to L. The other provided for another voyage from N. to a safe port in the M. sea, or to a direct port between X. and G.; and that the charterer should pay a certain sum for the round voyage, part on the delivery of the outward cargo and the balance on the delivery of the homeward cargo. The following clause was then written in: “ The within-named vessel is under charter to C. to load for a port between G. and X., and this present charter-party is made and concluded upon for three successive voyages with same range of ports and all conditions for each round voyage as the within charter-party, and to take effect upon the termination of each respective voyage.” The following was also written in: “ Charterer to advance the captain, at the beginning of each of the three round voyages and at the time the vessel has commenced loading, the amount” above mentioned “payable to the order of A.” The two payments specified in the contract between A. and C. were duly made before the commencement of the voyage to L. Before the first of the three voyages was begun, B. and C., without A/s knowledge, agreed in writing that the charterer might substitute for that voyage another voyage, the amount of the charter and the other conditions remaining the same. The vessel started on the substituted voyage, and on her return was lost. Neither of the three instalments specified was paid. Held, in an action on the contract, by A. against C., that A. could recover the first instalment only.</p>

<p>A partnership formed in this Commonwealth with transferable shares is legal.</p> <p>A partnership, with a capital stock divided into shares for which certificates were issued, was formed under a declaration of trust, containing the following provision : “ The decease of a member of the association shall not work a dissolution of it, nor shall it entitle his legal representatives to an account, or to take any action in the courts or otherwise, against the association or the trustee, for such; but they shall simply succeed to the right of the deceased to the certificate and the shares it represents, subject to this declaration of trust.” Held, that the estate of a shareholder was liable to contribute to the other partners for the payment of debts incurred after his decease, and before his executor had done any act by which he became a partner in the testator’s place.</p> <p>A partnership was formed under a declaration of trust, by the terms of which no member of it had, as such, any control over the business, except through a board of managers. A debt was incurred by the partnership, which one member paid, after he and the other members were sued by the creditor. Held, that the cause of action which such member had against the other members for contribution did not accrue before payment.</p> <p>A debt to a firm composed of A. and B., by a partnership of which A. and C. are members, is not paid by A. by being charged to profit and loss on the books of the firm, so as to give A. a claim for contribution against C.</p> <p>If one partner pays a debt of the firm, he cannot maintain a bill in equity for contribution against the other partners.</p>

<p>The liability for damages arising from the infringement by a corporation of letters patent is not, before judgment is obtained against the corporation, a “ debt,” within the meaning of the St. of 1870, c. 224, § 38, making the officers of a corporation liable for its debts in certain cases.</p>

<p>A testator by his will gave to trustees a certain sum, in trust to “pay to my daughter the income thereof for her own sole and separate use, taking therefor her own receipt; ” devised the residue of his estate to his wife for her life, and directed that the balance remaining should be equally divided among his children and their heirs by right of representation, “ my daughter’s share to be held in trust as aforesaid; ” that his sons, if of age, should receive their respective parts free from trust; otherwise, in trust until they should severally become of age, “ it being my will that my daughter shall have also the income for life of an equal share of my remaining estate after my wife’s decease; ” and that “ all the property in trust for my daughter may be disposed of by her at her decease by will or otherwise.” Held, that, after the death of the testator’s widow, both the principal and income of the daughter’s interest in the trust fund could be reached by her creditors by a bill in equity, under the Pub. Sts. c. 151, § 2, cl. 11.</p>

<p>Bill in equity, by the executors of the will of Timothy W. Hoxie, to obtain the instructions of the court as to the construction of the will. Hearing before Holmes, J., who reported the case for the determination of the full court. The facts appear in the opinion.</p>

<p>In an action against an accommodation indorser of a promissory note, made to his order by A. for the purpose of being delivered to B. in payment of the amount due B. from A. under a written agreement of dissolution of a partnership between them, the defence to which is that the execution-of the agreement and the delivery of the note to B. were induced by false representations by him, contained in a written statement of the affairs of the firm, evidence of the circumstances attending the dissolution, and of the negotiations, including conversations between A. and B., which resulted in the written agreement, is admissible.</p> <p>At the trial of an action upon a promissory note, given by A. to B. in payment of an amount due under a written agreement of dissolution of a partnership between them, the defence was that the agreement was made and the note delivered upon false representations by B. as to the affairs of the firm. A. testified, on cross-examination by the plaintiff, that he brought a suit against B. and employed counsel to enter the suit at once, but through some neglect it was not entered for a year. He was then asked, for the purpose of showing that the suit was not brought in good faith, whether he had given his counsel directions to press the suit; and whether he had made any efforts to bring the suit to a speedy termination. Held, that it was within the discretion of the judge to reject these questions, to the exercise of which no exception lay.</p>

<p>An action by a common carrier against the consignee of goods, for the amount of freight charges, was submitted to the Superior Court upon an agreed statement of facts, which showed that the consignee ordered the goods of the consignor at a certain price deliverable at L.; that the consignor marked the goods, “ Collect freight charges at other end; ” and that the goods were delivered to the consignee at L. without a demand by the carrier for the amount of such charges, and without an express promise by the consignee to pay them; but did not show whether the consignee accepted the goods, knowing that the carrier looked to him for the payment of the freight. Held, that the case stated was imperfect, in failing to state a vital fact, and should be discharged.</p>

<p>Bill of interpleader, by the administratrix de honis non with the will annexed of the estate of David Brown. The case was heard by Holmes, J., on the bill and answers, and was reserved for the consideration of the full court, as follows :</p> <p>David Brown, on February 21, 1876, executed the following will:</p> <p>“ First. I hereby constitute and appoint my brother Atkins Brown to be my executor of this my will, directing my said executor to pay out of my estate all my just debts and funeral expenses and legacies hereinafter named.</p> <p>“ Second. I give and bequeath to my daughters Euphemia Seavey and Mary E. Brown one hundred dollars each.</p> <p>“ Third. I give to my son George W. Brown the sum of two hundred dollars and my gold watch and chain, to be paid over to him at the discretion of my said executor.</p> <p>“ Fourth. I give to my daughter Etta L. Brown the sum of five hundred dollars, to be held in trust by my said executor for the support and education of my said daughter.</p> <p>“ Fifth. I give and bequeath and devise all the rest and residue of my property to my said executor, in trust for the maintenance and education of my two youngest children, Albert P. and Grace C. Brown.</p> <p>“I hereby authorize my said executor to sell and convey any and all of my real estate, at his discretion, at private or public sale, and hereby request that no sureties be required upon his official bond, either as executor or as trustee.”</p> <p>On the same day the testator duly executed the following instrument:</p> <p>“And it is my will further, in case I receive anything from my interest in the First National Bank of Newton, or formerly First National Bank of Newton, in litigation with the United States, that my three oldest children shall receive one third part of said sum received in addition to the sum before mentioned bequeathed to them and to be divided equally among them, and the balance of said sum received to be divided equally among my three youngest children in addition to the sum before named bequeathed to them.”</p> <p>The instruments were admitted to probate on March 28, 1876, and Atkins Brown, the executor named therein, was duly appointed to that trust on said day. Atkins Brown afterwards died, and on September 11, A. D. 1878, the plaintiff was appointed administratrix de bonis non with the will annexed of the estate of David Brown, and accepted that trust. The plaintiff, as such administratrix, has received from the Newton National Bank the property described in the second instrument, to the amount of more than $3000, and holds two thirds thereof to pay the above legacy given by the second instrument. The three youngest children of the testator each claims to be entitled to receive its portion to its own use, free of all trust; and the trustee under the will claims to be entitled to receive the respective portions of said children upon the trusts set forth in said will.</p>

Bill in equity, by the trustee under the will of David Brown, to obtain the instructions of the court as to the construction of the will, the fifth clause of which was as follows: “ Fifth.

<p>A copartnership was formed between A., B., C., and D. under a verbal agreement, by which A. and B. were to furnish all the capital, the partners were to share equally the profits and losses, and interest was to be credited or charged to the partners respectively on the yearly balances due to or from them. A. and B. advanced all the money used in the business; interest was charged and allowed on the different balances until the dissolution of the copartnership ; there were balances due to A. and B. for money paid in by them, and balances due from C. and D. for money drawn out by them in excess of their share of the profits and of the moneys paid in by A. and B.; annual balances were struck, the last one before the dissolution being the same as at the time of the dissolution; and C. and D. had the books in their keeping, and had full knowledge of their contents and the state of the accounts. Held, on a bill in equity for a settlement of the partnership account, that the parties intended that interest should continue on the balances until they were settled, without regard to the dissolution of the copartnership.</p>

<p>Appeal from a decree of the Probate Court, removing the appellant from the office of administratrix of the estate of Edwin L. Weeks. At the hearing, before W. Allen, J., the following facts appeared :</p> <p>On November 11, 1882, the appellant, in her own right as widow of Edwin L. Weeks, together with her children as heirs at law of said Weeks, filed a bill in equity against Edward Clines, as administrator of Jacob T. Clines, and' certain other persons, heirs at law of Jacob T. Clines, for the redemption of an estate situated on Marshall Street, in Somerville, from an alleged mortgage. This estate was conveyed by Edwin L. Weeks to Jacob T. Clines on April 28, 1877, by a warranty deed in common form, and upon the same day Jacob T. Clines executed and delivered to Weeks a bond for the reconveyance thereof within five years, on payment of a certain sum. The plaintiffs in the equity suit alleged that said deed and bond constituted a mortgage of the estate, and that they had a right of redemption therefrom, which was denied by the defendants. It was alleged in the bill, and for the purposes of this case was to be taken as true, that the plaintiffs in said suit discovered the existence of the bond in September, 1882, and then first discovered the existence of their alleged right of redemption of said estate, and the administratrix of the estate of Weeks then first had knowledge of it.</p> <p>Edwin L. Weeks at his decease was indebted to Jacob T. Clines upon a promissory note for $2000, dated November 9, 1876, and having an indorsement, dated August 8, 1877, of the payment of six months’ interest thereon, which was not included in the sums of money secured by the alleged mortgage. This note is now in the hands of his administrator. Edwin L. Weeks was indebted to the other petitioners in certain sums; and these debts have never been presented to nor paid by the administratrix. The estate of Weeks was settled by the appellant as an insolvent estate by a partial payment of the preferred creditors, under the Gen. Sts. c. 97, § 20.</p> <p>The defendants in the suit in equity contended that the appellant should become a party therein in her capacity as administratrix, in order that said right of redemption, if any such existed, should be exercised for the benefit of the general creditors of said estate, of whom Edward Glines, administrator, claims to be one, as the holder of the note for $2000; and Glines requested her to become a party plaintiff in said suit in her capacity as administratrix," offering to indemnify her for her costs in so doing, but she declined so to do; and thereupon Glines filed this petition for her removal from her office as administratrix; and the other petitioners joined therein at his request, he bearing the expense of prosecuting the same.</p> <p>The appellant was appointed and gave bonds as administratrix on January 1,1878, and within three months thereafter gave notice of her appointment, and within one year thereafter filed an affidavit of such notice in the Probate Court according to law. She has no money or personal assets of the estate of Edwin L. Weeks in her hands, nor is there other property of the estate except said- equity of redemption. The value of the land greatly exceeds the amount of the bond.</p> <p>The only act of maladministration relied upon by the petitioners in support of their petition was the refusal of the appellant to become a party to said suit in equity in her capacity as administratrix.</p> <p>The appellant contended that, as she gave due notice of her appointment as administratrix, and more than two years have elapsed since the date of her giving bond, all claims of creditors against the estate of Edwin L. Weeks are barred; that the lien of said creditors upon the real estate of Weeks has expired; that the Probate Court would have no authority to grant her a license to sell said equity of redemption, or said real estate if redeemed, to pay the claims of said creditors; and that she has no right, and is under no duty as such administratrix, to become a party to said suit. The petitioners contended that said equity of redemption constitutes new assets of the estate of Edwin L. Weeks, which his administratrix would be entitled to redeem or sell, and the proceeds of which would be new assets in her hands, for which she would be liable to the claims of creditors.</p> <p>By consent of parties, the judge reserved for the consideration of the full court the question whether, if such equity of redemption exists, the facts stated show that there are newly discovered assets of the estate of said Edwin L. Weeks which his administratrix has a right to recover and apply to the payment of debts due from him at his decease. If there are such assets, the de< cree of the Probate Court was to be affirmed ; otherwise, it was to be reversed.</p>

Tort, in two counts. The declaration was as follows: “ And the plaintiff says that on or about the ninth day of May, 1882, he bargained with the defendants to buy of them a certain bay mare about seven years old, which then appeared to the plaintiff to be all sound and kind, and the said defendants, by then and there warranting the said mare to be all sound and kind, deceitfully sold the same to the plaintiff for the sum of two hundred and fifteen dollars.

Contract. The declaration alleged that the plaintiff was the owner of a dwelling-house in Hyde Park, partly occupied .by a tenant, and partly by the plaintiff and her family; that the small-pox broke out in the family of the tenant, and two persons were infected with the disease; that the condition of one of the persons was such as not to admit of her removal without danger to her health, but the other could have been removed without such danger; that the board of health of…

Complaint to the Police Court of Holyoke, alleging that the defendant, on September 16,1883, at Holyoke, “ did cruelly overdrive a certain horse, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.” In the Superior Court, before the jury were empanelled, the defendant filed a motion to dismiss the complaint, for the following reasons: “ 1. Because said complaint charges no crime or offence. 2.

Complaint alleging that the defendant, on April 4, 1884, at Wilbraham, kept intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth.

<p>If, in a city which has voted to grant licenses to sell intoxicating liquors, a club, composed of a number of persons, who pay an admission fee upon joining it, and to which all who desire cannot obtain admission, owns a quantity of such liquors, and employs one of its members as a steward, to whom it pays a certain sum for his services and for the use of the room in which the liquors are kept, and who delivers the liquors to the other members upon presentation of checks -representing a certain sum, which are sold by him to them at a certain rate, and the money received for which is used by him in buying liquors in the name and as the property of the club, he cannot be convicted, under the Pub. Sts. c. 100, of keeping intoxicating liquors with intent to sell the same.</p>

<p>At the trial of an indictment for an assault with intent to commit a rape upon a girl, evidence that the defendant, about a month before the assault, invited the girl to walk with him to certain woods, and that, about five weeks after the assault, he followed her in a street at night, is admissible, in the discretion of the presiding judge.</p>

Indictment under the Pub. Sfcs. c. 101, §§ 6, 7, for keeping and maintaining a common nuisance, to wit, a certain tenement in Clinton used for the illegal sale and illegal keeping of intoxicating liquors, on May 1, 1883, and on divers other days and times between that day and September 1, 1883.

<p>A building, in which intoxicating liquors were licensed to be sold, and a building occupied by a public school, were situated within a triangle formed by three streets, M., C., and U., and within four hundred feet of each other. The lot on which the first-named building stood fronted on U. Street, and ran through to M. Street, the latter street having a lower grade than the former, so that there was a cellar basement in the building with doors opening into the lot on the M. Street side, where the building was thirty feet distant from the street. The room in the building where the liquors were sold opened into a common hallway, from which stairs led into the basement. The school-house faced an angle made by the junction of M. Street and C. Street, and had entrances from both, the lot being enclosed by a fence with a gate at the entrance from each street. Held, that it was competent for a. jury to find that both buildings were “ on the same street,” within the meaning of the St. of 1882, c. 220.</p>

Indictment, under the St. of 1882, c. 65, § 1, charging that the defendant, at Edgartown, on June 10, 1884, “ unlawfully did draw a seine in certain of the waters of and in the said town of Edgartown, to wit, in the waters known as and called Cape Poge Pond, the said waters not being then and there any part of Oyster Pond, Great Pond, or Job’s Neck Pond, with the intent and for the purpose of then and there, and by means of said seine, taking and catching bluefish; against…

Complaint under the Pub. Sts. c. 101, §§ 6, 7, for keeping and maintaining a common nuisance, to wit, a certain tenement in New Bedford used for the illegal sale and illegal keeping of intoxicating liquors, on October 1, 1883, and on divers other days and times between that day and April 15, 1884.

<p>A motion to dismiss an appeal from a judgment of an inferior court, on the ground that no bond to the adverse party has been filed, as required by the Pub. Sts. c. 154, § 52, and the St. of 1882, c. 95, § 1, comes too late, after the first term in the Superior Court, although the bond filed contains formal defects.</p>

Contract upon a promissory note for $65, payable to Frank W. Keyes or bearer, and signed by the defendants. The answer alleged that the note was given for an illegal consideration, and that the plaintiff had knowledge thereof when he took it. Trial in the Superior Court, without a jury, before Brigham, C. J., who ruled that the action could not be maintained, and ordered judgment for the defendants; and the plaintiff alleged exceptions. The facts appear in the opinion.

The First case was a writ of entry, dated May 21, 1883, to recover a parcel of land in Adams, containing about 400 acres. Plea, nul disseisin.