Volume 138 — Massachusetts Reports

Tort for personal injuries occasioned to the plaintiff, on July 9, 1881, by an alleged defect in a highway in the defendant town.

<p>Tort for damages alleged to have been caused to a highway in the plaintiff town, by water set back upon the same by a dam built by one Eddy, and maintained by the defendant corporation. Writ dated October 26, 1883. At the trial in the Superior Court, before Pitman, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Trustee process. The Shelburne Falls Savings Bank, summoned as trustee, answered that, at the time of the service upon it, March 26, 1883, there was $350 held by it and credited to the defendant on its books. George H. Willson and James C. Phelps appeared as claimants of the funds in the hands of the trustee, by virtue of an assignment to them by the defendant, dated March 2, 1883, of 61 all my right, title, and interest in and to the real and personal estate of Chipman Lilley, late of Ashfield, county of Franklin, deceased, intending hereby to convey all right and title of or to property personal, real, or mixed, which I have or may have, as heir of the said Chipman Lilley, including also any right, title, or interest I may have or have now to any sum of money in the hands of Calvin Bryant, of Ashfield, aforesaid, derived from the sale by myself and mother of the farm occupied by father in his lifetime.” The defendant was defaulted.</p> <p>Trial in the Superior Court, without a jury, before Barher, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The assignment was duly executed and delivered to the claimants on the day of its date. The defendant is the daughter and sole heir of Chipman Lilley, late of Ashfield, deceased, and upon his death, intestate, on January 31, 1882, inherited his homestead farm, subject to the rights of her mother, his widow. On February 25, 1882, the defendant and her mother united in a sale of the homestead farm for the sum of $2100, of which $1400 was secured by a mortgage and promissory note to the defendant and her mother jointly. This note and mortgage, at the time of the sale, were delivered to Calvin Bryant, of Ash-field, administrator of the estate of Chipman Lilley, and have remained in his possession ever since. The sum of $700 was paid in money at the time of the sale. The day before the payment, Bryant, the defendant, and her mother were together, the deed was placed in Bryant’s hands to be delivered to the purchaser, and it was agreed between Flora and her mother that the $700 should be equally divided between them. The mother then said that she did not know what to do with the money. Bryant proposed that he should deposit it in the Shelburne Falls Savings Bank for them, and both assented to this proposition, the defendant saying nothing. The next day the money was paid to Bryant, neither the defendant nor her mother being present, and, without further conference with either of them, Bryant immediately afterward deposited the money in said bank, $350 in the name of each, and received from the bank the books for the deposits in the name of each of the parties respectively. After the deposit was made, the defendant, who had been married on the night after the. money was paid, and who had been informed of the deposit, called at the bank to get some money, and was refused because she did not have the bank-book. She then called on Bryant to obtain some money to purchase some articles of wearing-apparel. Bryant refused to give her money, but offered to purchase the articles for her.</p> <p>Bryant has retained possession of the bank-books ever since the time of the deposit, in order to prevent the defendant from spending the money too freely, but has not claimed any legal right to the bank-book or to the money deposited. No sum of money, derived from the sale of Chipman Lilley’s homestead by the defendant and her mother, was ever in the hands of Bryant, except as above stated.</p> <p>Bryant had money in his hands, derived from the sale of personal estate of Lilley, and other personal property belonging to said estate at the time of the assignment; and there were no debts due from the estate of Lilley.</p> <p>The judge ruled that the assignment was not fraudulent as to creditors of the defendant, that the sum in the hands of the trustee was not included in the assignmeñt, and that the trustee was chargeable therefor; and found for the plaintiff. The claimants alleged exceptions.</p>

<p>If a woman, between four and five months advanced in pregnancy, by reason of falling upon a defective highway, is delivered of a child, who survives his premature birth only a few minutes, such child is not a “person,” within the meaning of the Pub. Sts. c. 52, § 17, for the loss of whose life an action may be maintained against the town by his administrator.</p>

<p>B. gave his promissory note to A. in exchange for certain shares of stock in a corporation, and received from A. an agreement, by which A. agreed, if B. desired it, to pay the note at maturity and accept the shares of stock as payment. A. lent the note to a firm of which he was a member, and the firm pledged the note with other securities as collateral security for the note of the firm. The pledgee took a good title to the securities. Subsequently, the firm became insolvent, and B. furnished it with sufficient money to pay its note, and received from the pledgee the securities which had been pledged, together with his own note. B. also surrendered to A. the shares of stock mentioned in the agreement between them. Held, that the assignee in insolvency of the firm and of A. could not maintain an action against B., under the Pub. Sts. c. 157, §§ 96, 98, to recover the note given to A., or its value, although B. had reasonable cause to believe that A. and his firm were insolvent, when he received the note from the pledgee.</p> <p>If a case is submitted to the jury under instructions which permit them to find a verdict for a party who has not offered evidence sufficient in law- to sustain a verdict in his favor, the other party is entitled to a new trial.</p>

<p>Bill of interpleader, filed October 22, 1881, by a corporation organized under the laws of- the State of New York, against George Allen and Catherine Fellows, to determine which of the defendants was entitled to the proceeds of a policy of insurance, issued by the plaintiff on July 25, 1855, upon the life of Israel Fellows, in the sum of $2000. The bill alleged the following facts:</p> <p>By the terms of the policy it was issued “ for the sole use of Catherine Fellows,” and the plaintiff promised and agreed “to and with the said assured, her executors, administrators, and assigns, well and truly to pay, or cause to be paid, the said sum insured to the said assured, her executors, administrators, or assigns, for her sole use, within sixty days after due notice and proof of the death of the said Israel Fellows. And, in case of the death of the said Catherine Fellows before the decease of the said I. Fellows, the amount of the said insurance shall be payable after her death to her children, for their use, or to their guardian, if under age, within sixty days after due notice and proof of the death of the said I. Fellows, as aforesaid.” The policy also contained this clause: “ N. B. If assigned, notice to he given to this company.” *</p> <p>On January 1, 1881, Israel Fellows, Catherine Fellows, and their two children, who were then of age, by two instruments in writing under their hands and seals, duly executed and delivered in this Commonwealth, assigned and transferred the policy of insurance to the defendant Allen, together with all their respective claims and demands under the same.*</p> <p>On March 7, 1881, Israel Fellows died, leaving his widow, Catherine Fellows, surviving him. Proof of his death was duly made. His widow made a demand upon the plaintiff for the payment of the policy, and brought an action upon the policy in the Supreme Court in New York.</p> <p>In August, 1881, Allen also brought an action on the policy in this Commonwealth, in the name of Catherine Fellows, for his own benefit.</p> <p>The answer of Allen admitted the allegations of the bill; and averred that Allen bought the policy for a good and valuable consideration.</p> <p>The answer of Mrs. Fellows admitted the allegations of the bill; and averred that the assignment was invalid under the laws of the State of New York, and that Allen had no insurable interest in the life of Israel Fellows.</p> <p>The case was heard by Holmes, J., who reported it for the consideration of the full court, in substance as follows:</p> <p>The plaintiff paid the money into court. The policy was delivered by the plaintiff in this Commonwealth. At that time, arid when the assignment was made, the law of New York was as set forth in the Laws of 1840, a. 80,† and in the cases of Eadie v. Slimmon, 26 N. Y. 1, and Barry v. Equitable Assur. Society, 59 N. Y. 587.</p> <p>“ The amount of premium annually paid upon the policy did not exceed $300. There was some evidence that the defendant Fellows did not expect that her assignment, although absolute in form, was to be used, except as security for a loan of $1000 to her husband; but there was no evidence which satisfied me that there was any restriction upon his power to deliver it as an absolute transfer; and I found that the policy was assigned in Massachusetts to the defendant Allen by the defendant Fellows (both being then residents of Massachusetts), in consideration of $1000 paid to her husband by said Allen, and the discharge of certain notes held by said Allen amounting to $470.79. If the transfer was valid in manner and form as agreed, Allen ceased from that moment to have an insurable interest in the life of said Fellows as a creditor, and he had no other.”</p> <p>The judge ruled that, so far as the present question was concerned, the transfer was governed by the law of Massachusetts, and that, by the law of Massachusetts, it was not void for want of an insurable interest in the transferee; and found for Allen.</p> <p>Such decree was to be entered as justice and equity required.</p>

<p>In an action against a firm of real estate brokers for negligence in selling a parcel of land belonging to the plaintiff, there was evidence that the land was situated in a State in which neither the plaintiff nor the defendants resided or had a place of business ; that the plaintiff employed the defendants to obtain offers for the land; that the defendants employed one O. to obtain an offer; that he reported an offer, which was in fact made in his own behalf, and which was less than the market value of the land, which offer was reported to the plaintiff and accepted by him, and the land conveyed ; that one of the defendants at the time of sending the order to the plaintiff, who did not know the value of the land, advised him that the sale was a good one, and the plaintiff relied to some extent on this advice ; that the defendants did not in fact know the value, except as they were informed by O., who represented the value to be wliat was offered; that they did not communicate their want of knowledge to the plaintiff; and that the plaintiff directed one of the defendants to telegraph to his partner to accept the offer “ if a good sale.” Held, that, if the acceptance by the plaintiff was on the condition that the defendants thought it was a good sale, they were not liable if their opinion was honestly formed and no misrepresentation of fact was made; that if the acceptance was conditional on the sale being a good one, and the defendants were informed that the plaintiff relied upon them to decide upon that, they were bound to exercise reasonable care in determining that fact.</p>

<p>Under the Pub. Sts. c. 127, § 8, providing for the manner in which a will may be revoked, and that “ nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator,” the will of a feme sole is revoked by her subsequent marriage.</p>

<p>The treasurer of a savings bank took certificates of stock belonging to the savings bank, had them transferred to a national bank, and new certificates issued to sucli bank, and, on the pledge of the new certificates, borrowed a sum of money-in the name of the savings bank. The debt not being paid, the national bank sold the shares of stock under a power given by the treasurer of the savings bank in, its name. Held, that, whether the treasurer of the savings bank had authority or not to make the transfers of the stock, the receivers of the savings bank could not maintain an action of contract against the national bank to recover the proceeds of the shares sold by it.</p>

<p>A husband and wife, in expectation of a separation between them, executed, without the intervention of a trustee, a written agreement, which recited that the husband, in consideration of the wife’s agreements, released all claims upon her property; and that the wife, in consideration of the husband’s agreements, and of a sum of money paid by him, released all claims upon his property. On the day the agreement was executed, the husband gave to a third person his five promissory notes, the aggregate amount of which equalled the sum named in the agreement, and which were intended to be for that sum, and were secured by a mortgage of real estate executed by the husband to such third person, in which the wife joined in release of her dower and homestead. Two of the notes were paid during the lifetime of the husband, but no part of the money came to the wife. The husband died intestate, and without issue. Held, that the wife was entitled, under the Pub. Sts. c. 124, § 3, to have real estate of her husband not exceeding §5000 in value assigned to her, out of the land included in the mortgage.</p>

Contract upon a joint and several promissory note for $2500, dated October 20, 1877, payable in six months after date to the plaintiff, and made by Ansel Wright as principal and by the defendants as sureties. Answer, that the plaintiff had discharged the sureties by agreeing with Wright to extend the time of payment of the note.

Contract for the loss of a package containing a part of a set of plans for a house, delivered by the plaintiff to the defendant for transportation from Northampton to Boston. Trial in the Superior Court, without a jury, before Knowlton, J., who allowed a bill of exceptions, in substance as follows : The plaintiff proved the delivery of the plans to the defendant at Northampton, and the loss of the same.

Bill in equity, by the widow of Calvin Bridgman, to establish a trust for her benefit in certain moneys in the hands of the executors of his will. Hearing before 0. Allen, J., who reported, for the consideration of the full court, the following case : Pliny Dwight died in 1852, leaving a will, in which he appointed Calvin Bridgman executor, and constituted him and his. wife, the present plaintiff, residuary legatees of his estate.

<p>A district court, which, in accordance with the provisions of the statute establishing it, holds weekly terms, has no authority, on motion at one of such terms, to vacate a final judgment duly entered in an action at a previous term.</p> <p>If a writ issued by a district court is served by a summons which does not state the hour of the day nor the place where the court is to be holden, and the plaintiff obtains a judgment against the defendant on his default, such judgment, until reversed, is a valid judgment, and is conclusive upon the plaintiff.</p>

<p>In an action against a corporation for the alleged wrongful dismissal of the plaintiff from the office of clerk of the corporation, the issue was whether the record of a vote of the corporation, which stated the election of the plaintiff as clerk, and which was made by the plaintiff, was approved at a subsequent meeting of the corporation without correction. Held, that evidence that the plaintiff was not in fact elected at the former meeting was immaterial. Held, also, that if the plaintiff was present, and recorded the vote of approval, acceptance of the office would be presumed.</p>

<p>Exclusion of evidence at one stage of a trial is no ground of exception' if the evidence is subsequently admitted.</p>

<p>Two actions OF tort for injuries occasioned to the plaintiffs by a defective highway in the defendant town. The cases were tried together in the Superior Court, before Pitman, J., who reported them for the determination of this court, in substance as follows:</p> <p>The highway in question is in the village of Chicopee Falls, so called, running from the Granby Road westerly to Holyoke, and at about a right angle with said road. At the point where the injury happened, the highway is fifty feet wide, and is a common earth road without pavements or sidewalks. At the time of the injury, there was a marked travelled path in the road, made by use and the passage of teams, and also a plainly marked path worn by foot-passengers. The footpath was on the extreme southerly line of the highway. On the south side of the highway as located, and nine and a half feet therefrom, is the top of a bank, being the north bank of the Chicopee River, which is thirty or forty feet high from the river, and level with the road. There is no rail or guard of any kind upon the bank. From the worn track of teams to the edge of the bank the distance is thirty-four feet. The accident occurred about half-past six o’clock in the evening of November 30, 1883; it was cold and dark. Opposite the point where the highway joins the Granby road there is a street lamp, which was unlighted at the time of 'the injury. The plaintiff Carpenter, with his two children, aged respectively five and nine years, together with one Mitchell Carpenter, his cousin, a man of about twenty-five years, started to drive from Chicopee Falls over said highway ^to their home in South Hadley Falls, using a horse, wagon, and harness belonging to the plaintiff Barnes. At a point on the highway, about seventy-five feet from the Granby road and from the unlighted lamp, the hat of one of the children blew off and out of the carriage; the horse was stopped, and Mitchell Carpenter got out and ran back to get the hat, when the horse began to back, and in an instant, notwithstanding the efforts of both men, went down the bank, with all the people above mentioned. The horse was killed, the carriage and harness broken, and the plaintiff Carpenter injured. At the time the horse began to back, the carriage was not in the marked carriage path, but was upon the southerly side of the highway, nine and a half feet from the edge of the bank, and in the path made by foot-passengers. The plaintiff Carpenter, who was driving the horse, did not know that the carriage was near the bank until the horse began to back, not being able in the darkness to see the travelled track or the edge of the bank.</p> <p>The plaintiffs contended that the want of a guard or railing upon the bank was a defect. The defendant contended that it was not bound, to maintain a railing or guard thereon; and the judge so ruled, and directed verdicts for the defendant.</p> <p>If the ruling was correct, judgments were to be entered on the verdicts; otherwise, the cases to stand for trial.</p>

<p>In an action for breaking and entering the plaintiff’s close, and placing thereon a quantity of earth, the benefits to the plaintiff’s land arising from placing the earth upon it may be considered in estimating the amount of damages, although the answer contains a general denial only.</p>

<p>Under the Pub. Sts. c. 164, § 8, and c. 171, § 16, a plaintiS who has obtained judgment against an absent defendant on a default, and who has not given the bond mentioned in c. 164, § 8, is not entitled to an execution after the expiration of a year from the rendering of the judgment.</p>

<p>Tort for personal injuries occasioned to the plaintiff by reason of a defect in the flooring of a bridge in Huntington, which was a county way. Trial in the Superior Court, before Pit-man, J., who reported the case for the determination of this court, in substance as follows:</p> <p>At the trial, the evidence disclosed that the bridge was .a covered bridge, two hundred and eighteen feet in length, with no windows, and the width of the travelled part between the stringers was fourteen and a half feet; that the injury occurred on the evening of November 8, 1881; that it was dark and rainy, and there was only one light on the bridge, a common kerosene lantern suspended eighty-five feet from the east end of the bridge, and twelve feet above the floor; that there was no separate walk for foot-passengers on said bridge; that the defect consisted of a hole in the planking of the upper side of the bridge, and was nine by eleven inches in size, and was caused by one of said planks being too short; that the planking of the floor ran crosswise of the bridge ; and that the plaintiff, crossing the bridge on foot, stepped in said hole and was hurt. It also appeared that on the lower side of said bridge there were three holes in the floor-planking similar in character to the one before mentioned which caused the injury; these holes were not so large as the one in question, but the dimensions thereof were not testified to.</p> <p>The notice relied on, signed by the plaintiff, was as follows, and was seasonably and properly delivered to Lewis Warner, the treasurer of said county: “ Hampshire, ss. Huntington, Nov. 8, 1881. To Lewis Warner, Treasurer County of Hampshire: Dear Sir,—I hereby give you notice that I have this day, at or about six o’clock P. M., received bodily injuries upon the bridge in said Huntington, known as and called Norwich Bridge, and situated at or near the house of the late Horace Taylor in said Huntington. Said injuries were caused by a defect in the planking of the said bridge, one of the plank being insufficient in length, which insufficiency caused a hole in the said bridge into which I fell and was bruised in body and limb.”</p> <p>Upon this evidence, the defendant contended that the notice was insufficient, because it was directed to said county treasurer personally, and because it did not sufficiently describe the place or the cause of the injury. The judge was of opinion that the objection to the direction of the notice was not fatal to the maintenance of the action, but was of opinion that the notice was defective in not sufficiently indicating the place of the injury; and, on this ground, directed a verdict for the defendant, which was rendered.</p> <p>If the ruling and direction were correct, judgment was to be entered on the verdict; otherwise, the verdict to be set aside and a new trial granted, unless the court should be of opinion that the direction of the notice was a fatal defect, in which case the parties agreed that the verdict should stand.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by reason of a defect in a highway in the defendant city.</p> <p>At the trial in the Superior Court, before Aldrich, J., the plaintiff offered in evidence the following notice, signed by her and dated February 1, 1883, service of which was admitted; “ To Michael J. Griffin, city clerk of the city of Holyoke: You are hereby notified that on, Wednesday, the seventeenth day of January, A. D. 1883, between nine and ten o’clock in the forenoon, I received an injury by falling on the sidewalk on the southerly side of Dwight Street, in said Holyoke, and in front of the coal office of William B. Whiting and Company. The cause of said injury was the dangerous condition of said sidewalk, made so by the accumulation of frozen ice and snow on said sidewalk, making the same rough, uneven, and dangerous, and that I claim damages from said city of Holyoke in the sum of four thousand dollars.”</p> <p>The defendant objected to the sufficiency of the notice, on the ground that it was not a notice to the city of Holyoke, within the requirements of the statute, but a notice to Michael J. Griffin individually.</p> <p>The judge sustained the objection; ruled that the action could not be maintained; and directed a verdict for the defendant. The plaintiff alleged exceptions.</p>

Two actions OE contract. The cases were tried together in the Superior Court, before JPitman, J.; and the jury returned a verdict for the plaintiff in each case. On motion of the defendants for a new trial, the judge ruled that they were not entitled, as matter of law, to have the verdicts set aside, and, in the exercise of his discretion, declined to grant the motions ; and, at the request of the defendants, reported the cases for the determination of this court.

<p>Contract for breach of an agreement in a lease of certain premises in West Springfield. Trial in the Superior Court, without a jury, before Pitman, J., who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

Contract on an account annexed, for goods sold and delivered.

<p>A supplementary award of arbitrators, rendered without the knowledge of one of the parties to the submission, and in his absence, after the expiration of the time within which the original award was to be made and “reported,” which award, after it had been so made and reported, was to be conclusive, is invalid.</p> <p>An agreement was made in pais by A. and B. to submit to arbitration “all claims, demands, and controversies” which were the subject matter of an action for slander brought by A. against B., which was then pending in court, and which had been twice tried; “ also all questions as to costs, expenses of said suit, and damages.” B. gave a bond to perform and keep the award made by the arbitrators. The award, after finding that the charges which had been made by B. against A. were unsustained, expressed regret that B. is “ to be holden for the pecuniary responsibilities growing out of the case,” provided, first,' that “ all expenses incident to the failure of the hearings before the arbitrators” on a day named “ must fall upon the plaintiff; ” and proceeded as follows: “ Second, owing to the statements made by counsel for the plaintiff, we dismiss the case without assessment of damages. Third, all costs, past and present, incurred in the trial of this case, shall be met by the defendant according to the established usage of our civil courts.” A.’s legal costs in said action, taxed as if he had prevailed therein, amounted, at the date of the hearing before the arbitrators, to a certain sum, and the costs of his witnesses before the arbitrators amounted to a certain other sum. Held, in an action on the award, that A. was entitled to recover of B. the former sum, but not the latter.</p>

<p>An action of tort, for diverting the waters of a natural stream in this Commonwealth, and preventing the same from coming to the plaintiff’s mill in an adjoining State, may be maintained in this Commonwealth.</p> <p>In an action for diverting the waters of a natural stream, and preventing the same from coming to the plaintiff’s mill, the fact that a certain percentage of the water was returned to the stream may be considered in estimating the amount of damages.</p>

<p>In an action for breach of warranty and for false representations in the sale of a steam-engine, the declaration alleged a warranty and a false representation that the engine was capable of yielding a certain horse power. It appeared in evidence that the defendant advertised the engine as of a particular make and of a certain horse power, and the plaintiff bought it after having it examined by an expert; and that manufacturers’ ratings were not uniform, and were always below the horse power at which engines could be reasonably run. Held, that the plaintiff was not entitled to ask an expert as to what horse power was meant when an engine was advertised as of a certain horse power; and was not entitled to a ruling that it was a question for the jury whether the defendant did not by his advertisement hold out that the engine was of a certain power by the manufacturer’s rating. Held, also, that the plaintiff had no ground of exception to a ruling that the engine must be capable of furnishing the horse power mentioned, without being strained or injured as a machine, and to a ruling that the jury must be satisfied that the representations made by the defendant were influential in inducing the plaintiff to make the purchase. .</p>

<p>A claim against the estate in insolvency of the collector of taxes of a town, for taxes collected and unaccounted for by him, is one entitled to priority in the order for a dividend, as a “ debt due to " the town, under the Pub. Sts. c. 157, § 104, cl. 1.</p> <p>If the language of a section of the Public Statutes is unambiguous, the court will not, in determining its meaning, consider the language of the statutes of which it is a revision.</p>

Contract for the support of the wife of George W. Gates in the state lunatic hospital at Worcester, as a pauper, from January 1, to June 30, 1882. Trial in the Superior Court, without a jury, before Blodgett, J., who reported the case .for the determination of this court, in substance as follows : The parties agreed that the defendant was liable if George W. Gates’s settlement was in Barre during the time the support was furnished.

<p>If A., the trustee of a fund, misappropriates and mingles it with his own property, and with it pays off mortgages on his own real estate, and buys with it, in whole or in part, other real estate, and, becoming insolvent, conveys all his property to B., who knows that the trust fund has been so misapplied, upon the consideration that B. shall pay A.’s debts, and the whole of 'it is not expended in the payment of such debts, a bill in equity to have B. declared a trustee of the original fund cannot be maintained, if the bill does not specify any property which it identifies with the trust fund.</p>

<p>A decree of the Probate Court, under the Pub. Sts. c. 147, § 33, that a wife is living separate and apart from her husband for justifiable cause, is not competent evidence, in an action against the husband by a third person for the board of his wife and child, that the wife was living apart from her husband for justifiable cause, although the same cause which was the basis of the decree continued during all the time such board was furnished.</p>

<p>S., an insane woman, having no property, had been supported for several years by her brother and her sister C., who owned and carried on a small farm as tenants in common, keeping a common purse, and maintaining S. as one of the family. The brother, without the knowledge of his sister C., stated to the overseers of the poor of the town that he was unable and unwilling to support S. longer, and made application for aid in supporting her. Thereupon the overseers arranged with the brother to pay him a certain sum a month on account of her support, she to live and be supported in the family as formerly. This was done without the knowledge of C.; and C. would have supported S. without aid from the town, if she had known that application for aid was to be made. Held, in an action by the town furnishing the relief against the town where S. had her settlement, that the presiding judge, who tried the case without a jury, was justified in finding that, at the time the aid was furnished, S. was not “in need of immediate relief,” within the meaning of the Pub. Sts. c. 84, § 14.</p>

<p>A bank discounted a draft of a firm, consisting of A., B., and C.; and, as a condition of making the discount, required security to be given for the whole debt of the firm to it, including previous advances as well as the draft. A. and B. accordingly transferred to the bank promissory notes of the firm owned by them respectively, given for advances made by them to the firm, and payable on demand. The firm and the individual members of it became insolvent. The draft had been paid before the insolvency proceedings were begun, but some of the previous advances had not been. Held, that the bank could prove the notes against the estate of the firm in insolvency, after having already proved for the whole amount of the unpaid advances.</p>

<p>A person who has procured the arrest and imprisonment of another on a lawful warrant is not liable to an action for false imprisonment, although his object in making the complaint upon which the warrant was issued was to enforce the payment of a debt.</p>

Scire FACIAS against an attorney at law, as indorser of a writ.

<p>A testator left two instruments of different dates, each purporting to he his last will, and each containing a clause expressly revoking all wills theretofore made. The two instruments were alike, except that the later one contained a clause exempting the executor from giving sureties on his probate bond. Neither instrument mentioned the widow of the testator. The later instrument was offered for probate, and general notice to all persons interested was published by order of court, and the instrument was admitted to probate by the Probate Court. An appeal was taken to this court by the heirs at law; the executor declined to defend against the appeal, as did the devisees, upon notice being given to them. Thereupon this court passed a decree, reciting the failure of the executor and the devisees to appear and defend, and ordering that the will was not proven and that the appeal be sustained, and reversing the decree of the Probate Court. The prior will was then offered for probate, and the widow offered the later instrument in evidence as a revocatory instrument only. Held,. that it was inadmissible.</p>

<p>The St. of 1876, c. 236, authorizing the Eastern Railroad Company to mortgage its property to trustees to secure certificates of indebtedness to be issued to its creditors, payable thirty years from date, and providing for a scheme by which the net earnings of the corporation should be applied to the creation of a sinking-fund for the payment of such certificates, does not prevent the execution of a lease by the railroad company of its property to another railroad company, under the St. of 1880, c. 205, whereby the net earnings of the Eastern Railroad Company are not separately ascertainable, and a different provision is made for a sinking-fund, unless it appears that the rights of the holders of certificates of indebtedness, secured by the mortgage executed in pursuance of the St. of 1876, are injuriously affected.</p> <p>Section 13 of the St. of 1876, c. 236, defined the operating expenses of a certain railroad to include “ necessary expenditures for construction, insurance, taxes, renewals and repairs needful to maintain its road and equipment in good condition.” Held, that the last ten words quoted related to and qualified only the three words immediately preceding, and did not qualify the words “ necessary expenditures for construction.”</p> <p>Under § 13 of the St. of 1876, c. 236, the Eastern Railroad Company has merely power to sell property not needed for the operation of its railroad, and to apply the proceeds to a sinking-fund, but is not bound to make sales of it; and it is no objection to a lease of its property to another railroad company, under the St. of 1880, c. 205, that the lease includes such property, and thereby prevents the proceeds of sales being applied to the sinking-fund.</p> <p>The St. of 1876, c. 236, authorized the Eastern Railroad Company to mortgage its property to trustees, to secure certificates of indebtedness, to be issued to its creditors, payable in thirty years, and provided a scheme by which the holders of certificates were to choose two thirds, and the stockholders one third, of the directors, until the debt should he reduced to a certain sum, when the power of the holders of such certificates to choose directors should cease. Until the debt should be reduced to the sum stated, all the net earnings were to be applied to the creation of a sinking-fund, and, when so reduced, a certain sum annually was to be so applied. The St. of 1880, c. 205, authorized the Eastern Railroad Company to lease its property to another railroad company. The St. of 1882, c. 177, authorized the Eastern Railroad Company to increase its capital stock by issuing preferred stock to a certain amount, in exchange for certificates of indebtedness, and provided that such certificates, when received, should be can-celled, and that the holders of such preferred stock should receive dividends out of the net earnings not exceeding a certain amount, semiannually, in such sums as the directors might determine; and that nothing contained in the act should affect the rights of the holders of certificates under the St. of 1876, or authorize payments from the earnings of the corporation, except subject to the claims and charges created by the St. of 1876, and the mortgage. The Eastern Railroad Company, after this, proposed to execute a lease under the St. of 1880, for fifty-five years, by which the holders of preferred stock were to receive semiannually an amount by way of dividend equal to the interest on the debt extinguished, as a fixed charge entitled to priority under the lease. Held, on a bill in equity to restrain the execution of the lease, that the holders of preferred shares of stock were to be treated as stockholders, and not as creditors ; that the provision in the lease affected injuriously the rights of holders of certificates of indebtedness; and that an injunction must issue.</p>

<p>On a bill in equity, by the owner of a lot of land on Newbury Street in Boston, against the owner of a lot of land on Commonwealth Avenue, to restrain the defendant from using a building on his land as a private stable, it appeared that both lots, which adjoined each other in the rear, together with a large tract of land in the vicinity, were formerly owned by the Commonwealth, which prepared a plan showing contemplated improvements and a general form of deed to be given to purchasers, containing among other restrictions one providing that any building erected on the premises “ shall not in any event be used as a stable,” and a provision reserving to the Commonwealth the right to enter and abate any building erected to a use contrary to the stipulations in the deed; that subsequently, in a number of deeds of lots sold by the Commonwealth in a particular locality, the words “ except a private stable ” were added, the nearest of these lots to the defendant’s lot being about nine hundred feet distant; that the Commonwealth sold both the lots of the parties to this suit, by auction, in different years, and that at the respective auctions a catalogue was exhibited containing the form of deed with the restriction as to stables, with a note stating that the Commonwealth would not enforce the restrictions so as to prevent the erection and use of a private stable by purchasers as appurtenances to their residences, if so used as not to be offensive to the occupants of the surrounding buildings; that the deeds given at these sales to the grantors of the parties to this suit contained the restrictions as to stables, and made no reference to the note in the catalogue, and there was-no evidence that the grantors bought relying on this note; and there was evidence that the plaintiff, when he bought his lot, had no knowledge of tins note, and that it was not a matter of record. Held, on these facts, that the plaintiff had failed to show any right to restrain the defendant from using, in a proper manner, as a stable, the building on his lot.</p>

<p>In an action against the members of a partnership upon a promissory note, and on an account annexed for goods sold and delivered, if one of the issues is whether the plaintiff had notice of the dissolution of the partnership, a notice of such dissolution published in a newspaper is competent, in connection with other evidence tending to show that the plaintiff saw and read the notice.</p> <p>In an action against the members of a partnership upon a promissory note, and on an account annexed for goods sold and delivered, one of the issues was whether the plaintiff had notice of the dissolution of the partnership. He testified that he had no knowledge of such dissolution until after the bringing of the action. One of the partners, who alone defended the action, was allowed to put in evidence certain bills or statements of account for goods sold and delivered to him personally by the plaintiff at various times after the cause of action had accrued. Held, that the plaintiff had no ground of exception.</p>

Writ of entry. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the tenant; and the demandants moved that the verdict be set aside and a new trial ordered, for the following reasons: “ That by accident and mistake they omitted to put in evidence a quitclaim deed from Thomas W. Sumner, husband of Elizabeth Sumner, their ancestor, to John Hubbart, dated November 17,1818, and recorded with Suffolk registry of deeds, lib. 262, fol. 285;…

Charges of fraud, filed by a judgment creditor, under the Pub. Sts. o. 162, against his debtor, upon the latter’s application to take the oath for the relief of poor debtors. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict of guilty; and the debtor alleged exceptions, which appear in the opinion.

<p>The school committee of a town, having been required by a vote of the town to appoint a superintendent of schools, may, after having elected such superintendent by ballot, reconsider the vote at the same meeting, and before it has been communicated to the person appointed, and, at an adjourned meeting, elect another person by a yea and nay vote.</p>

Contract. Writ dated September 9,1882. The declaration was as follows : “ And the plaintiff says that the defendant corporation made a. policy of insurance upon the life of Alanson K. Josselyn, numbered 28,884, and bearing date November 8, 1867, for the sum of five thousand dollars, the original of which policy the plaintiff craves leave to refer to and make part of this his declaration, and to bring the same into court, whereby and wherein [for] the consideration of a…

<p>Indictment, in five counts, for manslaughter.</p> <p>The first count alleged that Franklin Pierce, at West Boylston, in the county of Worcester, “on the seventh day of January, in the year eighteen hundred and eighty-three, and on divers other days and times between that day and the ninth day of January, in said year eighteen hundred and eighty-three, in and upon one Mary A. Bemis of said West Boylston, in the county aforesaid, wilfully and feloniously, did make divers assaults, and that the said Franklin Pierce did then, and at the several times aforesaid, there wilfully, feloniously, ignorantly, rashly, injuriously, and improperly, put, pour, and place, and cause and procure to be put, poured, and placed, on and upon the body, arms, legs, and feet of her, the said Mary A. Bemis, certain large quantities, to wit, two gallons of kerosene oil, and that the said Franklin Pierce, by the means and in the manner aforesaid, did then, and at the several times aforesaid, there feloniously cause her, the said Mary A. Bemis, to be and become mortally sick, weak, shocked, diseased, and disordered in her body aforesaid, of which said mortal sickness, weakness, shock, disease, and disorder of her body, occasioned and brought on by the means and in the manner aforesaid, from the said seventh day of January, in the year aforesaid, until the fourteenth day of said January, in the same year, at West Boylston aforesaid, in the county aforesaid, she, the said Mary A. Bemis, did languish and languishing did live, on which said fourteenth day of January, in the year aforesaid, at West Boylston aforesaid, in the county aforesaid, the said Mary A. Bemis, of the said mortal sickness, weakness, shock, disease, and disorder, occasioned and brought on as aforesaid, died. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Franklin Pierce her the said Mary A. Bemis, in manner and form aforesaid, feloniously did kill and slay, against the peace of the said Commonwealth.”</p> <p>The second count was as follows : “ And the jurors aforesaid, on their oath aforesaid, do further present, that said Franklin Pierce, at said West Boylston, in the county aforesaid, on the seventh day of January, in the year eighteen hundred and eighty-three, and on divers other days and times between that day and the ninth day of January, in the year aforesaid, in and upon one Mary A. Bemis, of said West Boylston, in the county aforesaid, wilfully and feloniously, did make divers assaults, and that the said Franklin Pierce did then, and at the several times aforesaid, there wilfully, feloniously, ignorantly, rashly, injuriously, and improperly put, pour, and place, and cause and procure to be put, poured, and placed, in, upon, and through certain underclothing, to wit, certain drawers, undershirt, and stockings, certain large quantities, to wit, two gallons, of kerosene oil, and did then, and at the several times aforesaid, there and thereby, wet and saturate, and cause and procure to be wet and saturated, said underclothing, to wit, said drawers, undershirt, and stockings, with the said large quantities of kerosene oil, and did then, and at the several times aforesaid, there wilfully, feloniously, ignorantly, rashly, injuriously, and improperly, put and place, and cause and procure to be put and placed, on and upon the body, arms, legs, and feet, of her^the said Mary A. Bemis, said underclothing, to wit, said drawers, undershirt, and stockings, so wet and saturated with kerosene oil as aforesaid, and that the said Franklin Pierce did then, and at the several times aforesaid, there wilfully, feloniously, ignorantly, rashly, injuriously, and improperly, cause and procure said underclothing, to wit, said drawers, undershirt, and stockings, so wet and saturated with kerosene oil as aforesaid, to remain on and upon the body, legs, arms, and feet of her, the said Mary A. Bemis, for divers long spaces of time, and that the said Franklin Pierce, by the means and in the manner aforesaid, did then and at the several times aforesaid, there feloniously cause her, the said Mary A. Bemis, to be and become mortally sick, weak, shocked, diseased, and disordered in her body aforesaid, of which said mortal sickness, weakness, shock, disease, and disorder of her body, occasioned and brought on by the means and in the manner aforesaid, from the said seventh day of January, in the year aforesaid, until the fourteenth day of said January, in the same year, at West Boylston aforesaid, in the county aforesaid, she, the said Mary A. Bemis, did languish and languishing did live, on which said fourteenth day of January, in the year aforesaid, at West Boylston aforesaid, in the county aforesaid, the said Mary A. Bemis, of the said mortal sickness, weakness, shock, disease, and disorder, occasioned and brought on as aforesaid, died. And so the jurors aforesaid, on their oath aforesaid, do say that the said Franklin Pierce her, the said Mary A. Bemis, in manner and form aforesaid, feloniously did kill and slay, against the peace of said Commonwealth.”</p> <p>The remaining counts differed but slightly from the preceding, and need not be set forth.</p> <p>In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment for the following reasons: “1. The indictment, in the first count thereof, does not aver that the kerosene oil, which is therein alleged to have been put, poured, and placed on and upon the body, arms, legs, and feet of the said Mary A. Bemis, was deleterious, dangerous, or injurious in its nature, or that it was likely to produce the results in said counts alleged to have followed; and said count does not allege that the defendant knew or had reason to know that said kerosene oil was deleterious, dangerous, or injurious in its nature, or that he knew, or had reason to know, that it was likely to produce the results which are in said count alleged to have followed. 2. The indictment, in the second, third, fourth, and fifth counts thereof, does not allege that the kerosene oil, which is therein alleged to have been put, poured, and placed on said underclothing, was deleterious, dangerous, or injurious in its nature, or was likely to produce any dangerous or deleterious results, or that the defendant knew, or had reason to know, that it was deleterious, dangerous, or injurious in its nature, or likely to produce deleterious, dangerous, or injurious results. And said counts do not contain any allegations that the putting and placing said underclothing, wet and saturated with kerosene oil, on and upon the body, arms, legs, and feet of the said Mary A. Bemis, was of deleterious, dangerous, or injurious tendency, or likely to produce the results therein alleged to have followed; nor do said counts contain any allegation that the defendant knew, or had reason to know, the putting and placing said underclothing, wet and saturated as aforesaid with kerosene oil, on and upon the body, arms, legs, and feet of the said Mary A. Bemis, was of deleterious, dangerous, or injurious tendency, or likely to produce the results aforesaid.”</p> <p>Pitman, J., overruled the motion. The defendant was then tried, and found guilty; and a bill of exceptions, in substance as follows, was allowed:</p> <p>The evidence for the government tended tó show that -the defendant publicly practised as a physician ; that he was called to attend Mary A. Bemis on December 29, 1882, and continued to attend her until January 7, 1883; that on that day, she being very sick and confined to her bed, he prescribed that kerosene oil should be applied to her as follows: that a flannel shirt, flannel drawers, and stockings should be saturated with it, and placed on her, and kept wet by renewing the wet flannels, &c. every three hours; that this was done, with her consent, by her husband and attendants, but not by the defendant personally; that after the defendant had gone, in about two hours, owing to the pain and distress of the patient, and upon her demand, the saturated flannels were removed, and the defendant was sent for.</p> <p>The husband testified as follows: “ On his arrival, I told the defendant how my wife had suffered and what we had done; she said it was as if she was in the fire; he replied that it was doing just what he wanted, like a poultice on a boil, drawing it out; that it was her only salvation. I told him that she would not bear it, and asked him if he would try to persuade her; he said he was too tender-hearted, that it was my wife instead of his; I then talked with her and told her that the doctor said it would not hurt so much the next time; — finally, she said if he would stay and see the effect she would try it, and I so reported to him, and the flannels were saturated and replaced. The doctor remained until the patient fell asleep. She did not appear to suffer so much as before.”</p> <p>The defendant prescribed that the flannels should not be taken off, but kept wet with kerosene oil by pouring it upon them from a can, and this was done as before by her nurse and attendants, and not by the doctor personally. The flannels, saturated as aforesaid, were kept upon the patient until January 9,1883, when they were removed by the defendant’s direction.</p> <p>The evidence tended to show that the effect of the kerosene was to blister and burn a large part of the surface of the body, removing the scarf skin from two thirds the surface, as estimated by the witnesses, and taking off the true skin over one third the surface of the body, and causing suppurating sores.</p> <p>The defendant continued to attend her until January 14, when he was discharged, and other physicians were called, who testified that she was then past recovery. She died on January 16, 1883, and evidence was introduced tending to show that the cause of death was the burning and blistering produced by the application of kerosene oil as aforesaid.</p> <p>The defendant introduced evidence tending to show that he had, prior to that time, made application of kerosene oil to patients for various complaints, with beneficial results, and with slight and temporary affection of the skin.</p> <p>After the close of the defendant’s evidence, the government was allowed, in the exercise of the discretion of the court, against the defendant’s objection, to introduce a witness, who testified that the defendant had, prior to the time referred to in the indictment, applied to her kerosene oil, and that the effect was to blister and burn her flesh on her neck and' breast to the bone, and that the doctor’s attention was called to this at the time.</p> <p>The defendant asked the judge to rule as follows: 1. This indictment does not sufficiently charge the crime of manslaughter, because it neither alleges that the kerosene oil alleged to have been placed on the deceased was of dangerous and noxious tendency, nor that the defendant knew, or had reason to know, that it was of dangerous or noxious tendency. 2. There is no evidence that the defendant made any assault on the deceased, or assisted in or counselled any assault upon her, and therefore - the allegations of the indictment are not proven. 3. There are no sufficient allegations in the indictment to raise the question what measure of knowledge and skill, or what measure of care, one who takes upon himself to prescribe for a sick person is bound to possess and bestow upon his patient, to avoid conviction of felony, if death results from his malpractice. 4. There are no allegations in the indictment to raise the question what degree of knowledge and skill, or what degree of care, one pretending to be learned in medicine is bound to possess, and bestow on his patient, to avoid conviction of felony, if death results from his malpractice. 5. The defendant cannot be com victed unless it is proven, beyond all reasonable doubt, that death resulted from the treatment he prescribed, and that he had so much knowledge or probable information of the fatal tendency of the prescription, that it may be reasonably presumed by the jury to be the effect of obstinate, wilful rashness, and not of an honest intent and expectation to cure. 6. If the defendant made the prescription with an honest purpose and intent to cure the deceased, he is not guilty of this offence, however gross -his ignorance of the quality and tendency of the remedy prescribed, or of the nature of the disease, or of both. 7. There is no evidence in this case that the defendant, either from his own experience or from the information of others, had any knowledge of the fatal effects of kerosene oil when prescribed in the manner he prescribed it. 8. There being no allegations in this indictment that the defendant pretended to any peculiar knowledge or skill in the treatment of the sick, he cannot be convicted unless the prescription he made was one which any person of ordinary knowledge and information would have known to be of probably fatal tendency. 9. In considering whether the defendant was guilty of such gross negligence as to make him criminally liable, he is not, under this indictment, to be judged by the standard of knowledge to be applied to one claiming to be a physician possessing peculiar knowledge on the subject of medicine, but only by the standard applicable to unlearned men. 10. He cannot be convicted unless his conduct in making the prescription was such as would amount to gross negligence in any person of ordinary sense and capacity. 11. The defendant cannot be convicted under this indictment, if the death resulted from any degree of ignorance on his part, if he was acting with the purpose to cure or benefit the patient.</p> <p>The judge declined to give any of the rulings requested; and instructed the jury on these points, in substance, as follows:</p> <p>Injurious acts resulting from gross carelessness or foolhardy presumption, without intent to injure, may constitute an assault. If persons who are engaged in operating steam-engines are guilty of gross carelessness or foolhardy presumption, and injuries result, they are criminally liable. So, with apothecaries, if a person without knowledge and skill deals with deadly drugs, he may be guilty of gross carelessness amounting to presumption, and be criminally liable. Whenever men are called upon to act with dangerous agencies, the law holds them to some degree of criminal responsibility. If they are grossly careless, or reckless and presumptuous, they are guilty. The same general principle applies to medical treatment. The government must show, not merely the absence of ordinary care, but gross carelessness amounting to recklessness. A man is not to be convicted of manslaughter merely because of his ignorance. His ignorance is only important as bearing upon the question whether his conduct in the care and treatment of the patient was marked by foolhardy presumption or gross and reckless carelessness. The defendant in this case is to be tried by no other or higher standard of skill or learning than that which he necessarily assumed in treating her; that is, that he was able to do so, without gross recklessness or foolhardy presumption in undertaking it. It is not necessary to show an evil intent ;■ if, by gross and reckless negligence, he caused the death, he is guilty of culpable homicide. The question is whether the kerosene (if it was the cause of the death), either in its original application, renewal, or continuance, 'was applied as the result of foolhardy presumption or gross negligence on the part of the defendant.</p>

<p>A complaint on the Pub. Sts. c. 101, § 9, alleging that, at a time and place named, the defendant did “ knowingly permit a certain tenement there situate, which was then and there under the control of' said ” defendant, “ to be unlawfully used for the illegal sale and keeping of intoxicating liquors therein,” is insufficient. . »</p>

<p>Indictment in two counts. The first count alleged that the defendant, at Fall River, on April 7, 1884, in the night-time of said day, a certain building, to wit, the pigeon-house of Antoine Benard there situate, did break and enter, with intent to commit the crime of larcency therein, and, being so entered, five pigeons, each of the value of two dollars, of the goods and chattels of said Antoine Benard, then and there in the building aforesaid being found, feloniously did take, steal, and carry away, in the building aforesaid.</p> <p>The second count alleged a similar offence, on April, 15,1884, as to fifteen pigeons, the property of Samuel Watson.</p> <p>Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The evidence for the government tended to prove the following facts. The pigeons described in the first count of the indictment were the property of Antoine Benard, and were, at noon on April 7, 1884, confined in a pigeon-house in Benard’s garden, and in his care and custody. This was the last time he saw them until they were recovered by the police. On the morning of April 8, he went to the pigeon-house, and found a board raised from the roof of the pigeon-house, and the pigeons gone. The board had been nailed on as a part of the roof, and the nails were pulled out. On April 29 the pigeons were found in the possession of James Tuesdale, who bought and received them from the defendant on April 20. The defendant told the officer arresting him, that the pigeons flew into his coop on April 24 or 25.</p> <p>The pigeons described in the second count of the indictment were the property of Samuel Watson, and were, on the evening of April 14, confined in a pigeon-house, which, was locked, in the yard of Watson, and in his care and custody. On the morn- ■ ing of April 15, he went to the pigeon-house, and it was secured and in the same condition as he had left it the night before, but the pigeons were gone. On April 29 the pigeons were found in the possession of John Lasselle, who testified that he bought and received them from the defendant about two weeks before, but was not quite sure of the date. The defendant told the arresting officer that he caught the pigeons on April 24. There was found in the possession of the defendant a bunch of keys containing a large number of keys of various patterns, one of which fitted the lock in the door of the pigeon-house; and the defendant explained their possession by telling the officer that he received them from John Murphy, who, when asked by the officer if he gave the keys to the defendant, said that he did.</p> <p>The defendant asked the judge to rule that there was no evidence to be submitted to the jury; that the possession of the pigeons by the defendant was not evidence that they were stolen, or stolen by him; and that the possession by the defendant was not sufficiently recent to justify the application of the rule as to the recent possession of stolen property.</p> <p>The judge declined so to rule, but instructed the jury as to the effect of the recent possession by the defendant of the property, if stolen, said possession not being satisfactorily accounted for, as prima facie evidence of guilt, in a manner not excepted to, except as it was inconsistent with the said prayers of the defendant.</p> <p>On the first count, the jury returned a verdict of guilty of larceny; and, on the second count, of guilty. The defendant alleged exceptions.</p>

Indictment, alleging that the defendant, on February 6, 1884, at Peabody, attempted to set fire to a building.

Indictment on the Pub. Sts. c. 208, § 36, alleging that the defendants, on March 3, 1884, at Lawrence, “did feloniously and knowingly have in their possession certain tools and implements, that is to say, one sectional jimmy, one small jimmy, two pairs of handcuffs, twenty steel twist drills, one spatula, one push screw, twenty-five drills, divers and sundry steel wedges, one extension bit, one bit-stock, one bellows, seven tin spouts, one piece of rubber hose, sundry pieces…

Complaint to the Police Court of Marlborough, for keeping and maintaining a common nuisance, to wit, a certain tenement in Marlborough used for the illegal sale and illegal keeping of intoxicating liquors, on December 1, 1883, and on divers other days and times between that day and February 20, 1884.

Complaint to the Third District Court of Eastern Middlesex, for keeping and maintaining a common nuisance, to wit, a certain tenement in Cambridge, used for the illegal sale and illegal keeping of intoxicating liquors, on January 1, 1884, and on divers other days and times between that day and April 9,1884.

Complaint to the District Court of East Norfolk, for keeping and maintaining a common nuisance, to wit, a certain tenement in Holbrook used for the illegal sale and illegal keeping of intoxicating liquors, on July 1, 1883, and on divers other days and times between that day and April 26, 1884.

<p>Replevin of three cows, ten tons of hay, and a wagon, attached by the defendant, a deputy sheriff, on a writ against the plaintiff’s husband. After the former decision, reported 135 Mass. 580, the case was tried in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The debt for which the property was attached was contracted by the plaintiff’s husband in 1876. The plaintiff was the owner of a farm in Granby, and the articles attached were upon the farm, and were used in carrying it on.</p> <p>The plaintiff offered evidence tending to show that, on August 19, 1879, she signed a certificate stating that she proposed to do business on her separate account, a copy of which was annexed to the bill of exceptions; that this certificate was filed in the town clerk’s office in said Granby, on August 21, 1879, and the same was recorded by said town clerk, on said 21st day of August, in the book for the records of mortgages of personal property, who certified the fact of said record on said certificate; that said certificate remained on file in said town clerk’s office, where it was seen by a deputy sheriff, who examined the same on the day of ; that at some later time, the date of which could not be determined, the town clerk gave to the plaintiff’s husband some papers which had been left with said clerk, and which were taken to his house, and it was afterwards found that the certificate was with said papers, the husband not knowing that the certificate was among them at the time they were given to him.</p> <p>There was evidence tending to show that the cows attached were not owned by the plaintiff, until some time in August, 1881, and that the hay attached was a part of the crop of the farm of the year 1881, and that the attachment was not made until December 19, 1881.</p> <p>The plaintiff contended that, under the St. of 1862, c. 198, as amended by the St. of 1881, e. 64, the plaintiff had complied with the law so as to protect said property from attachment for her husband’s debts. But the judge declined so to rule, and ruled that the property was liable to attachment for her husband’s debts, and directed a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>If the owner of land, who holds it subject to two mortgages made by his predecessors in title, conveys it, reserving an easement therein, to the first mortgagee, by a warranty deed, in which the grantee assumes and agrees to pay both mortgages and to hold the grantor harmless therefrom, the first mortgage is extinguished ; a foreclosure of that mortgage, by a sale under a power contained therein, is invalid; and the second mortgagee may maintain a writ of entry against the first mortgagee to foreclose the second mortgage.</p>

<p>In an action on a recognizance to prosecute an appeal, an allegation that the defendant did not appear, but made default, sufficiently alleges a breach.</p> <p>In an action on a recognizance to prosecute an appeal, the declaration alleged the entering into of the recognizance ; that the recognizance was “now on file and of record ” in the appellate court; and that the defendant, while the matter was before that court, did not appear, but made default. Held, that an objection that the declaration did not show that the recognizance was on file in the appellate court at the time of the default, could be taken advantage of only on demurrer.</p> <p>A declaration on a recognizance to prosecute an appeal which alleges that the recognizance is “now on file and of record” in the appellate court, sufficiently alleges that it was duly returned and entered there.</p> <p>A recognizance given to the Commonwealth, to prosecute an appeal, by a person held under a complaint in a criminal case, showed that it was taken upon an appeal from the judgment of a district court, and that this was the cause of its taking; the court before which he was bound to appear and answer; and the authority of the court taking it. Held, that this was sufficient.</p>

<p>Bill in equity, filed November 7,1884, for specific performance of the following agreement, dated May 2, 1884, and signed by the plaintiff and defendant:</p> <p>“ Charles W. Huntington agrees to sell to Arthur T. Lyman, and said Lyman agrees to buy of said Huntington, the house and lot now numbered 74 Mt. Vernon Street in Boston, for the sum of seventeen thousand seven hnndred and fifty dollars. The premises are to be conveyed free from any incumbrance, and the title is to be good and indefeasible. The deed is to be delivered and the consideration paid on or before June 1 next.” The bill alleged readiness on the part of the plaintiff, at all times since the signing of the agreement, to perform the same, and a failure on the part of the defendant to perform his part of the agreement.</p> <p>The answer denied that the plaintiff had a title in fee to the estate which he could convey ; and alleged that he could convey a title only for the life of one Mary Frazier Curtis; and that the plaintiff’s title was derived as follows:</p> <p>Daniel Sargent died, seised in fee of the estate, in 1842. By his will, which was duly admitted to probate, the estate was devised in fee to his daughter, Maria Osborne Curtis, and her husband, Thomas B. Curtis. Maria Osborne Curtis deceased before her father, leaving her husband, Thomas B. Curtis, surviving, and as her only heirs two children, named Daniel Sargent Curtis and Mary Frazier Curtis. By deed dated April 9, 1852, Thomas B. Curtis and Daniel Sargent Curtis united in a deed of said estate to the said Mary Frazier Curtis. The consideration named in said deed was one dollar ” and “ other good considerations.” By the terms of said deed, Thomas and Daniel did “ give, grant, sell, and convey to the said Mary Frazier and her heirs and assigns ” the said premises, properly described therein, “ to have and to hold the premises to the said Mary Frazier, to her sole and separate use, free from the control or. interference of any husband she may have, and to the use of heir [sí'c] heirs and assigns forever.” The deed contained no covenant whatever. Mary Frazier Curtis, by deed dated October 26, 1854, conveyed the said estate to Daniel S. Curtis, covenanting that the granted premises were free from all incumbrances made or suffered by her, and warranting the same against the claims and demands of all persons claiming by, through, or under her, but against none other. The plaintiff derives his title to the said premises by mesne conveyance from Daniel S. Curtis.</p> <p>The said Mary Frazier Curtis is still living, and has never been married. Her father, the said Thomas B. Curtis, has deceased, but left children, by a second wife, who are now living.</p> <p>The case was heard on the bill and answer, by Fields J., who reserved it for the consideration of the full court.</p>

<p>H. died seised of an undivided half of a parcel of land, and devised all his real estate to A., B., and C. The other half of the land was owned by E., who died after H., intestate, leaving A., B., and C., and several others, his heirs at law. After E.’s death, all his heirs, including A., B., and C., joined in a warranty deed to N., in which they described themselves as next of kin of E., of “ the following described tracts or parcels of land,” describing eight tracts by metes and bounds, the description of the eighth tract beginning as follows: “ 8th tract adjoining the last tract and being an undivided half thereof; ” and describing the whole tract by hounds. The eighth tract was the same that had been owned by H. and E., and an undivided half of which had been devised by H. to A., B., and C. They subsequently gave a deed of an undivided half of it to M., who brought an action against them for breach of the covenant of seisin in the deed. Held, that an undivided half only of the eighth tract passed by the deed to N.; and that the action could not be maintained.</p>

<p>Contract, by a deputy sheriff, upon an instrument in writing, signed by the defendants, which recited the attachment by the plaintiff of certain personal property “by virtue of a writ” in favor of the William Rogers Manufacturing Company against the Rogers and Spurr Manufacturing Company; that the attached property was estimated and valued at $10,000 ; and that the writ was returnable to the Supreme Judicial Court to be holden at Greenfield on the second Tuesday of April next; and proceeded as follows : “ Now in consideration of the premises, and of said H. G. Nims allowing the above property, so by him attached, to remain in the charge and possession of the said Rogers and Spurr Manufacturing Company, we hereby jointly and severally promise and agree, that said property is the lawful property of the said Rogers and Spurr Manufacturing Company, and is of the aforesaid value, and that we will, on demand, deliver the said property to the said H. G. Nims, in like good order and condition as the same is now in, and of its present value, or in case of our neglecting or refusing to deliver the property as aforesaid we will pay on demand to the said H. G. Nims, or his lawful representatives, the amount of debt and costs which shall be recovered in the said suit, together with all lawful fees upon such execution or executions as may be placed in the hands of said H. G. Nims, or his legal representatives.”</p> <p>The case was submitted to the Superior Court, and, after •judgment for the plaintiff, to this court, on appeal, on an agreed statement of facts, the material parts of which were as follows:</p> <p>The plaintiff made the attachment mentioned in the receipt on March 25, 1881, by virtue of a special precept issuing from the Supreme Judicial Court, under the St. of 1876, e. 167, after the filing of the bill in a suit in equity between the parties mentioned in the receipt. The precept was returnable “ on the second Tuesday of April then next,” which was April 12, 1881. On March 26, 1881, the defendants delivered the receipt to the plaintiff, and he thereupon, and in consideration thereof, allowed the property attached by him to remain in the possession of the Rogers and Spurr Manufacturing Company, and it was after-wards consumed and disposed of by the company in the usual course of its business.</p> <p>On April 13, 1881, the suit in equity was removed into the Circuit Court of the United States for the District of Massachusetts. After tbis_ removal, the special precept, with a return of the officer showing his doings thereon, was handed to the clerk of the Supreme Judicial Court, by the attorney of the plaintiff in that suit.</p> <p>A final decree was afterwards entered in the Circuit Court, in favor of the plaintiff in that suit, for the sum of |1 nominal damages, and $21-39.18, costs. The first clause of the decree, after the title of the case and the words “ October term, 1881,” was as follows: “ This cause came on to be heard at the said October term, 1881, of said court, upon the pleadings and proofs, and was argued by counsel for the respective parties, and upon consideration thereof, to wit, April 12, 1882, the form of the decree being assented to, it was ordered, adjudged, and decreed as follows.” It further appeared from the records of the Circuit Court, that on July 3, 1882, Judge Lowell ordered that the record be corrected to conform to the fact, by mating the final decree of date of May 12, 1882, instead of April 12, 1882. The Circuit Court has two terms each year, oné on May 15, and the other on October 15.</p> <p>On June 8, 1882, an execution issued out of said Circuit Court, for $1 debt or damage, and $2139.18, costs of suit. The execution recited, among other things, that the plaintiff in said suit in equity, by the consideration of the judges of said Circuit Court, “ begun and held at Boston for and within our District of Massachusetts, aforesaid, on the fifteenth day of October, A. D. 1881, to wit, on the twelfth day of April, 1882, recovered judgment in a suit in equity against the Rogers and Spurr Manufacturing Co.” This execution was placed on J une 8, 1882, in the hands of a deputy of the marshal of the District of Massachusetts, and said deputy thereupon demanded of the plaintiff the said property attached by him, and the plaintiff informed the deputy that he had not the property but held the receipt therefor. On June 8 and 9, 1882, said deputy marshal, with the plaintiff’s assent, and in the plaintiff’s presence, made demand upon each of the defendants to deliver up said property to him or to the plaintiff, but the defendants severally refused so to do; and the deputy marshal, on the same days, with the assent of and in the presence of the plaintiff, made a further demand upon each of the defendants to pay the amount of the debt and costs recovered in said suit in equity, and the defendants severally refused to pay the same.</p> <p>The execution issuing out of the Circuit Court was never placed in the hands of the plaintiff, who was neither the marshal nor a deputy of the marshal of the District of Massachusetts.</p> <p>If upon the above facts, so far as the same were competent and admissible, the plaintiff was entitled to recover, judgment was to be entered for the sum of $2140.18, with interest from June 8, 1882, and costs of suit; otherwise, for the defendants with costs.</p>

<p>The authority of tellers, appointed to aid in checking the names of voters and in assorting and counting the votes cast at a town meeting, in accordance with the St. of 1883, c. 229, does not cease with the resignation of the moderator who appointed them, before they have reported the result of the votes.</p> <p>The record of a town meeting showed that a moderator was chosen with the use of the check list; that a vote was then passed that the check list be used in the election of town officers and upon the question of granting licenses, and no other, without a vote of at least one half the meeting; that the moderator resigned; and that another person was elected moderator, and acted as such. Held, that, whether the record showed that this person was elected by ballot and by the use of the check list or not, it sufficiently showed that he was a moderator defacto.</p> <p>At a town meeting, after the votes for town officers had been cast, but before the result was announced, the moderator and clerk resigned their offices. The selectmen, who were not present at the meeting, appointed, in writing, C. town clerk pro tempore. C. appeared and was duly sworn, and made a record of his appointment and qualification, and of the subsequent doings of the meeting, which included the election of a moderator, the announcement of the vote for town officers, the declaration of the persons elected, the vote to adjourn the meeting, and the resignation of C. as clerk pro tempore. Held, on an information by the Attorney General in the nature of a quo warranta against the persons elected, that C. was a town clerk de facto at the meeting, although the selectmen had no authority, under the Pub. Sts. c. 27, §§ 80, 97, 98, to appoint a clerk at that time, and notwithstanding one voter protested against the validity of the election; that his record was admissible in evidence; and that the officers elected were entitled to their offices.</p>

<p>The St. of 1791, c. 32, incorporated a navigation company; authorized it to build such dams, locks, and canals as were necessary for its purposes ; and provided a special remedy for all persons injured in their property by the works of the corporation, by an application to a certain court. The St. of 1880, c. 148, legalized the existing dams, locks, and canals of the corporation; authorized it to construct other dams, locks, and canals for the purpose of creating a waterpower to use or to lease for manufacturing purposes; provided that, for those purposes, the corporation should have all the powers and privileges, and be subject to all the duties, liabilities, and restrictions, set forth in the general laws relating to manufacturing and other corporations; relieved the corporation from the obligation to support its dams, locks, and canals for the purposes of navigation; and discontinued its canal as a navigable highway. Held, that the remedy of a person injured by the raising of its dam by the corporation, after the passage of the later statute, was by a complaint under the mill act, Pub. Sts. c. 190.</p>

<p>Writ of entry, dated May 21, 1888, to recover a parcel of land in Belcher town. Plea, nul disseisin. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict for the demandant; and the tenant alleged exceptions, which appear in the opinion.</p>

<p>Tort for breaking and entering the plaintiff’s close in Hadley, and cutting off a portion of a barn standing partly thereon and partly on the adjoining land of the defendant. Answer: 1. A general denial. 2. That the barn was on land conveyed by the plaintiff and one Joseph H. Adams to the defendant, as the former homestead of Joseph Adams, by deed dated April 1, 1874. 3. That, if the barn was not on land included in said deed, it passed as appurtenant to the homestead. Trial in the Superior Court, without a jury, before Knowlton, J., who allowed a bill of exceptions, in substance as follows :</p> <p>The land described in the plaintiff’s declaration was a narrow strip, two rods in width, running back from a highway in a northerly direction, its western line being twenty-eight rods and some links, and its eastern line being a little over twenty-seven rods. The lot was known as the Tower lot.</p> <p>The deed from the plaintiff and Joseph H. Adams to the defendant, referred to in the answer, was a warranty deed; it conveyed by metes and bounds a parcel of land, described as “ containing sixteen acres of land, more or less,” and as “ being the former homestead of Joseph Adams.” The deed contained this clause: “ The same is conveyed, however, subject to the provisions in the will of the late Joseph Adams for'the support of his widow, Rebecca E. Adams, so far as relates to her use and occupancy of the house and garden, but no further.”</p> <p>There was no dispute that this deed conveyed to the defendant land east of the Tower lot, and also land north of it, and north of a lot lying west of the Tower lot, and known as the Amanda Smith lot. A copy of a portion of a plan used at the trial is printed in the margin.*</p> <p>The main question in the case was whether the deed to the defendant included or excluded the Tower lot. The deed described the premises as bounded by a line beginning at the southeast corner of the premises, and thence running by metes and bounds to the northwesterly corner of the Amanda Smith lot, and thence “ east and south about eighty-six rods on the said Amanda Smith lot and Samuel Tower lot, so called, to the highway first mentioned, thence east about twenty rods on said highway to the first mentioned corner.” It appeared from the plan used at the trial that the line described as running east and south, if it excluded the Tower lot was eighty-six rods and two links in length, and if it included the Tower lot it was eighty-seven rods and fourteen links. It further appeared from said plan, that if the line described as running “ east about twenty rods ” ran from the east side of the Tower lot it was sixteen rods and fifteen feet long; if from the west side it was eighteen rods and fifteen feet long.</p> <p>It appeared in evidence, that, at the date of the deed to the defendant, no monument stood on,the land at the end of any of the lines given in the deed, and there was no evidence where any monument had stood.</p> <p>The plaintiff put in evidence certain deeds from which the following appeared: In 1841, Joseph Adams bought of Alpheus Osborne a tract of land described as containing sixteen acres, more or less, and as bounding on certain roads, and lands of other persons, but giving no distances. By his will, dated February 13, 1863, and admitted to probate in 1864, he devised to his son Benjamin “ the dwelling-house and other buildings where we now live, together with about sixteen acres of land, being the same with the improvements that I purchased of Alpheus Osborne,” subject to the use and occupancy of a part devised to the testator’s wife, and on condition that Benjamin should provide her with a good and comfortable support and maintenance during widowhood. The residue of the testator’s real and personal estate was devised to his sons, Benjamin and Levi.</p> <p>In January, 1872, Benjamin, in part consideration that the grantees would maintain and support the widow of Joseph Adams, according to the provisions of the will of Joseph, conveyed to Joseph H. Adams and Charles W. Adams “ that certain parcel of land, containing sixteen acres more or less, conveyed to me by the last will and testament of the late Joseph Adams, deceased, .... with one half of the house in which I now live, and one fourth of all other buildings on the above-described parcel of land.” The description in this deed was similar to that in the deed to the defendant. The last two lines were as follows: “ Thence east and south on the Amanda < Smith lot and Samuel Tower lot, belonging to said Benjamin and Levi, to the highway leading past my dwelling-house; thence east about twenty rods to the first-mentioned corner.”</p> <p>In May, 1853, Samuel Tower conveyed the Tower lot to Benjamin, Joseph, and Levi Adams; and in November’, 1858, the Amanda Smith lot was conveyed to the same persons. In August, 1872, Benjamin and Levi Adams conveyed the Smith and Tower lots to the plaintiff, reserving to the grantors “ the buildings thereon consisting of barn and sheds.” These buildings, in 1874, became the property of Joseph H. Adams and the plaintiff, and, in 1880, Joseph H. sold them to the plaintiff.</p> <p>The barn in question was the only one, except a tobacco barn, near the dwelling-house, or used in connection with it or with the Joseph Adams homestead. It was thirty-six feet square, and stood east of the Tower lot on the same lot with the house in May, 1853, when Samuel Tower conveyed the Tower lot to Joseph, Benjamin, and Levi Adams, who were then doing business as copartners, under the firm name of Joseph Adams & Sons, and were carrying on the farm, including the land sold to the defendant. The plaintiff put in evidence that this firm, in June, 1853, added somewhat to the old barn after moving it in part on to the Tower lot, then just purchased, but no part of it was west of the Tower lot; that it remained in the changed position when cut in two by the defendant in the spring of 1883. It appeared that said Joseph and Benjamin occupied the house together for many years till 1864 (when Joseph died), and used the barn in question, with their house, as a part of the homestead of Joseph Adams; that said barn was also used by Joseph, Benjamin, and Levi in connection with all the land shown on the plan after the Amanda Smith lot was conveyed, in 1858, and with other land they owned in the vicinity; that thereafter all the land shown on the plan was used together for a common purpose, that of tilling or mowing.</p> <p>There was evidence that, when the Tower lot was conveyed, in 1853, there was a fence on the easterly side of it, which fence was taken down immediately after such conveyance; that the barn which previously stood on the Adams homestead lot was moved on to the Tower lot.</p> <p>Shortly after the defendant went into possession of his land, the plaintiff told him that his title did not cover the whole barn. The plaintiff went with a surveyor, taking the deeds of the Amanda Smith and the Tower lots, and ran out a line as the line between the Tower lot and the homestead lot, which line the surveyor testified was the line the defendant used in cutting the barn, and that he did not cut west of it. It appeared that the plaintiff and the surveyor drove and left some stakes on this line so run by them. There was evidence that the defendant told the plaintiff he was going to cut off the easterly part of the barn up to the said staked line, and that the plaintiff said the defendant had a right to take away the defendant’s part of the barn, but that one of the stakes on the said line had been moved; that the defendant ascertained by said surveyor thereafter, who went upon the premises and measured and sighted to ascertain the truth, that none of the stakes had been moved, and cut up to said line, but not west of it, and removed the part of the barn east of said line. The plaintiff contended that he told the defendant whatever the law would allow him to do he could not object to. It was admitted that the cutting was done in a workmanlike manner. The barn floor ran through the barn from north to south, and was eleven feet wide, having a bay for hay on the easterly side of it, and stalls, with a scaffolding for hay over them, on the westerly side of the floor. The entrance doors were on the northerly and southerly sides. Soon after the defendant went into possession in 1879, the plaintiff took possession of the barn floor except a strip through on the easterly side of it one foot wide, and put up timbers on said floor ten feet in width through the barn to hang tobacco on, and left the defendant to use only said strip of floor one foot wide, and the part of the barn east of it, which the plaintiff claimed was up to his line of ownership, and was all the defendant was entitled to under his deed.</p> <p>The plaintiff contended that the line in dispute should run according to the easterly line of the Tower lot. It appeared that the defendant cut west of that line two feet four inches at one end and one foot eight inches at the other. The defendant contended that the line should run according to the westerly line of the Tower lot, and asked the judge so to rule. The judge declined so to rule.</p> <p>The defendant offered oral evidence to show that the intention of the parties was that the Tower lot should pass to the defendant by this deed, which evidence was excluded.</p> <p>The defendant asked the judge to rule that the barn passed to the defendant as parcel of the Joseph Adams homestead, and as appurtenant to said homestead; that the plaintiff had no right or servitude of support for the part of the barn which was on the plaintiff’s land; that the plaintiff was estopped to claim the servitude of support. The judge refused to give any of these rulings; found that the easterly line of the Tower lot was the line between the parties; and found for the plaintiff, and assessed damages for cutting west of said line; and for the loss of support to the plaintiff, and for loss of shelter to the plaintiff’s part of the barn. The defendant alleged exceptions.</p>

<p>Bill in equity, filed March 8,1884, against A. L. Willis-ton, the Mill River Button Company, a corporation established by law in this Commonwealth, and H. W. Knight. Hearing in the Superior Court, before Knowlton, J., who reported the case for the determination of this court, in substance as follows:</p> <p>On or about August 24, 1882, the defendant Knight, who was a resident of New York city, being then the owner of seventy-five shares of the capital stock of the defendant corporation, delivered in that city to the plaintiff, who was also a resident there, two certificates of said stock, one for fifty and another for twenty-five shares, and, in the presence of an attesting witness, placed his signature upon the back of each, under a blank printed thereon, designed to be used in transferring said stock and to be filled up as an assignment and a power of attorney to make the transfer. This delivery was made for the purpose of transferring said stock to the plaintiff as collateral security for a promissory note given the same day for borrowed money. It was understood that the plaintiff might at any time fill up the blanks and obtain new certificates if he desired. The certificates contained the following: “ Transferable only on the books of the company, in person or by power of attorney, on surrender of this certificate.”</p> <p>A by-law of the corporation prescribed the form of the certificates, and required that they should contain the provision regarding transfers which appears therein.</p> <p>The defendant corporation was a manufacturing corporation, governed by the provisions of the Pub. Sts. e. 106.</p> <p>On April 10, 1883, the defendant Williston caused said stock to be attached upon a writ against the defendant Knight, which was never entered; and on April 27 he caused it to be again attached upon a similar writ, which was entered. The defendant in that suit was defaulted, and the case stands continued for judgment.</p> <p>On February 14,1883, the plaintiff sent to the president of the defendant corporation a letter notifying him that he held the certificates, and requesting that the stock be transferred to him on the books of the corporation. This letter was soon after pinned to the stub, from which one of said certificates was taken, in the stock-book of the defendant corporation, and was shown to the officer at the time of the first attachment. After the first, and before the second of said attachments, the clerk of said corporation wrote upon each of the stubs from which said certificates were cut these words: “ Memo. Held by W. A. Newell. See letter.” The letter has remained pinned to the stub in said book ever since. The corporation had no book in which it recorded transfers of stocks, but was accustomed to keep memoranda of attachments and the like upon the stubs from which certificates had been taken. At the time of the first attachment, the defendant Williston had no actual knowledge or notice of the pledging of this stock, although he had good reason to suspect that the defendant Knight had raised money upon it. On April 12, 1883, the officer who made said attachment wrote to the attorney who acted for Williston in making the writs and ordering the attachments, informing him of the notice, sent by the plaintiff to the corporation, of the assignment of the stock to the plaintiff.</p> <p>On April 20 or 21, 1883, the plaintiff went to the office of said corporation in Leeds, in the town of Northampton, but found none of its officers there. He had some conversation with a clerk whom he found there, but what it was did not appear. After-wards, on the same day, he met one Warner, the treasurer of said corporation, at the depot in Northampton, and told him that he had been to Leeds to have the stock transferred, and to receive new certificates in exchange for them, and that they had refused on account of the attachment. Warner said there had been an attachment, and they could not issue new certificates in place of the old ones. Nothing else was done by the plaintiff or by the corporation towards perfecting the plaintiff’s title until about March 3, 1884, when the plaintiff’s attorney filled the blanks over the signatures of Knight upon said certificates and sent a letter to the defendant corporation enclosing the certificates, and demanding that the transfers be recorded and new certificates issued. The corporation refused the request, on account of the attachment. The plaintiff also gave the defendant Williston, more than ten days before bringing this suit, a just and true account of the amount due him for which said stock was pledged, and demanded payment of said amount, which was refused.</p> <p>Until about February 1, 1883, the plaintiff supposed he had good and valid transfers of said stock without filling the blanks, and without taking new certificates or having the assignments recorded.</p> <p>Upon these facts, the judge ruled that the bill should be dismissed, with costs. If the ruling was warranted in law and equity, a decree was to be entered in accordance with it; otherwise, such other decree as equity might require.</p>

<p>An owner of stock in a manufacturing corporation, and holder of a certificate thereof in his own name, delivered the certificate, with a printed assignment in blank, signed by him, indorsed upon it, to A. for the purpose of transferring the stock to him as collateral security for a debt. While A. so held the certificate, and before the assignment had been filled out, and before notice of the assignment had been given to the corporation, the stock was attached by B., who had no notice of the assignment, as the property of. the assignor. The certificate contained on its face the words, “ Transferable only on the books of the company, in person or by power of attorney, on surrender of this certificate.” Held, on a bill in equity, that, under the St. of 1870, c. 224, § 26, B. was entitled to hold the stock as against A.</p>

<p>Contract for breach of an instrument in writing, dated July 7, 1880, signed by the parties, and purporting to be “by and, between Elijah E. Dickinson and his son, Louis H. Dickinson, and Seymour D. Talmage,” and containing the following agreements:</p> <p>“ That the said Elijah E. Dickinson, with the assent of his said son, Louis H. Dickinson, in consideration of the covenants and undertakings of the said Talmage, agrees that his said son, now a minor of eighteen years of age, shall work for the said Talmage on his farm, or on such other employment as he shall have occasion for him to do, from the date hereof until the time the said Louis shall arrive at the age of twenty-one years, which will be on the first day of October, in the year 1882.</p> <p>“ And the said Seymour D. Talmage agrees to pay the said Dickinson the sum of thirteen dollars per month for the first year, and fourteen dollars per month for the remainder of the term, in full compensation for the services of the said Louis H., and in consideration of which the said Elijah E. Dickinson binds himself in the sum of three hundred dollars to hold free and harmless the said Seymour D. Talmage from all obligations entered into by signing an indenture of even date herewith binding the said Louis H. Dickinson under the provision of Oliver Smith’s will.</p> <p>“ And it is further agreed by the said parties, that this contract may be dissolved if either party shall become dissatisfied at any time by agreement of parties. And, in the event of a dissolution of this contract, it is agreed the compensation shall be at the rate of sixteen dollars per month for the summer season, and ten dollars per month for the winter season, for the first year, and at the same rate the remainder of the term. And it is further agreed that all compensation shall be paid to the said Louis H. Dickinson.”</p> <p>Answer: 1. A general denial. 2. Failure to perform the agreement declared on by the plaintiff and his son, and a dissolution of the contract by consent. 3. Payment of all sums due under the contract.</p> <p>Trial in the Superior Court, without a jury, before Rockwell, J., who allowed a bill of exceptions in substance as follows :</p> <p>At the time of the execution of the agreement declared on, the plaintiff, his son, and the defendant executed another instrument in writing, being the one therein referred to, dated July 7, 1880, and containing the following provisions :</p> <p>“ That the said Dickinson, in consideration of the covenants and undertakings of the said Talmage, hereafter mentioned, with the consent of his son, Louis H., a minor of the age of eighteen years, signified by his signing this instrument, doth hereby place, bind, and indent the said minor to the said Talmage, to learn the art, trade, and business of a farmer, and him, after the manner of an apprentice, to serve from the day of date hereof, until the first day of October which will be in the year 1882, when the said minor will arrive at the age of twenty-one years, and the said Dickinson, for himself and his executors and administrators, doth covenant hereby with the said Talmage, that, for and during the term aforesaid, the said minor shall well and faithfully serve him, and give and devote to him his whole time and labor; that he shall not indulge in the use of ardent spirits, profane language, or in gaming or other unlawful sports; that he shall not wilfully injure or destroy the property of his said master, but shall conduct himself in a sober, temperate, honest, and industrious manner.</p> <p>“And the said Talmage, for himself and his executors and administrators, doth hereby covenant with the said Dickinson that he will faithfully instruct the said Louis H. in the art and business aforesaid, so far as he may show himself capable of learning the same; that he will, during the term aforesaid, constantly supply the said minor with good, suitable, and sufficient food, clothing, and lodging, and all other things necessary in sickness and in health; that he will grant him during the term aforesaid the privilege of attending school a sufficient time for him to learn to read and write and cipher, and whatever else is requisite for what is usually called 6 a good common school education ; ’ and that he will, as far as in him lies, train him up in habits of frugality, industry, temperance, and virtue; — and that he will also pay to the said minor, on his coming of age, the sum of</p> <p>“ And the said Dickinson and the said Talmage do further mutually covenant and engage, each with the other, that the said apprentice may have and enjoy all the rights and privileges, and that he shall perform all the duties and observe all the regulations provided in the last will and testament of the late Oliver Smith, Esq., in relation to 6 Indigent Boys ’ selected as beneficiaries in pursuance thereof; * and further bind themselves each to the other, in the penal sum of two hundred dollars, for the faithful performance by each to the other of all the obligations above assumed by them respectively; and that each shall hold the other harmless from any loss or damage by reason of any failure on his part to comply with the terms of this indenture.</p> <p>“ And the said apprentice, Louis H. Dickinson, does hereby signify his assent to the terms of this indenture, and promises faithfully to keep and perform all things above provided to be kept or performed by him.”</p> <p>It appeared in evidence that the plaintiff had agreed with his son, at the time the son was fourteen years of age, that the latter should after that time receive and be entitled to all wages due him for his labor performed by him after that time, which agreement had not been rescinded.</p> <p>There was also evidence tending to'show that the defendant paid to the plaintiff’s son, for his labor after July 7, 1880, to January 8, 1882, at which time the son ceased to labor for the defendant, the sum of $224, as the amount agreed to be due him at that time for such labor ; that the son had an opportunity to go to work for one Shaw in Belchertown for the sum of $12 per month from January 3, 1882, to the first day of April following, and for the sum of $17 per month from said first day of April to the first day of October, 1882; that the son did work for Shaw a part of January, 1882, and the months following to the first day of said October, for which Shaw paid him the sum of $132; that the son could have entered the employ of Shaw on January 3, 1882, and could have earned wages amounting to $10.80 during said January, while he only earned the sum of $5 during said month by labor for Shaw; but that the son declined to make any agreement or enter into any contract for labor until he should first go home and confer with his father. There was no evidence tending to show, and it was not contended, that the service performed for Shaw was any less desirable than the service he had agreed to perform for the defendant.</p> <p>There was also evidence tending to show that the plaintiff paid the railroad fare of his son from Belchertown to Amherst when he left the defendant’s employ, and from Amherst back to Belchertown when he returned to work for Shaw; that the son was at his father’s house from Monday until the following Friday; that the plaintiff spent seven days’ time in looking for another place for his son as an apprentice under Oliver Smith’s will, and in executing papers relating thereto, with Shaw, for which the plaintiff claimed damages at the rate of $4 per day. There was no other evidence of any special damage.</p> <p>The defendant contended, and asked the judge to rule, that the defendant had not by the agreement sued on agreed to employ the son for any length of time; and that, inasmuch as by the terms of the agreement all compensation under it was to be paid to the son, and as, under the agreement between the plaintiff and his son, the son was to have his own wages, the plaintiff could not recover in this action.</p> <p>The judge found as a fact, that the defendant, on January 3, 1882, discharged the son without justifiable cause, and ruled, as matter of law, that after this breach the plaintiff had a right to recover such actual damages as he could prove to have been caused by the breach; that, if the plaintiff’s son was able to receive and did receive wages from another employer for a part of the time after this illegal discharge by the defendant, that must be taken into consideration in diminution of damages; that there was no rule of law which could be laid down to the jury (in a trial by jury) requiring them to find no damages in every case where the plaintiff has actually received as much pay as he would have received if the contract had not been broken by the defendant, but if in fact the plaintiff had been put to trouble, delay, and expense in procuring new employment, the jury might find damages, if on the whole the plaintiff proved he had been injured by the breach of contract by the defendant; and the judge found as a fact, satisfactorily proved upon the whole evidence, that the plaintiff had suffered a pecuniary loss by reason of said breach.</p> <p>The defendant also asked the judge to rule that, inasmuch as the son had been paid by the defendant and Shaw a larger sum than that called for by the agreement declared on, namely, the sum of $13 per month for the first year, and $14 per month for the remainder of the term, there was no damage recoverable under said agreement in this action ; that the rule of damage applicable to the case, if the plaintiff could recover, was that the plaintiff had a right to recover the stipulated wages for the full time, less the amount paid to the son under said agreement, and less the further amount which the son did earn, or might during the period have reasonably earned; that the plaintiff could not recover in this action, as damages, anything for time and expenses on the part of the plaintiff in endeavoring to procure employment for his son as an apprentice under Oliver Smith’s will, because the son had failed to perform his part of said agreement, by reason of his indulging in the use of ardent spirits and profane language while in the employ of the defendant.</p> <p>Upon the last point, the defendant was allowed, against the plaintiff’s objection, to introduce the contract made on the same day as that declared on, and evidence tending to show that the son had in two instances, during the period of his service with the defendant, drunk ardent spirits to some excess, but both these occasions were while absent in a neighboring town, and when not at work; and had once used profane and vulgar language to a servant girl while engaged in an altercation with her, out of the presence or hearing of the defendant or his wife, both being some time before the time of his discharge.</p> <p>The judge ruled that, even assuming that this agreement applied to this case, there was no evidence of such an indulgence in the use of ardent spirits or profane language as would take away the right of the plaintiff to recover upon the contract declared on; declined to rule as requested; and assessed damages for the plaintiff in the sum of $25.</p> <p>The defendant alleged exceptions.</p>

<p>While the St. of 1878, c. 282, providing for “ additional pay to poor and indigent soldiers,” was in force, it did not prevent the wife and minor children of such a soldier from receiving relief as paupers, even if it had such effect as to him.</p> <p>A notice, given by one town to another, stated that “ A. B. and family (wife and two children), whose legal settlement is in your town, but now residing in this town, being in needy circumstances,” had applied for relief, which was furnished. A. B. had four children, but only two were living with him. Where the other two were did not appear. Held, that the notice sufficiently indicated the two children who were living with their parents.</p> <p>A military settlement, gained by a person in a town in this Commonwealth, under the St. of 1878, c. 190, § 1, cl. 10, may be replaced by a new military settlement gained by him in another town, under the same statute, although both settlements were acquired before the passage of the statute.</p> <p>After the passage of the St. of 1863, c. 254, § 8, which provides that a resident of one town enlisting in any other shall be counted in the quota of the town in which he is a resident until the quota of that town is filled, A., who resided in the town of G., enlisted as part of the quota of the town of S. Held, in an action by the town of G. against the town of S. for aid furnished A. as a pauper, after the passage of the St. of 1878, c. 100, § 1, cl. 10, that the defendant was not entitled to a ruling that A. was counted on the quota of G.</p>

<p>C. and his mother were the sole distributees of the estate of his father, and there were no creditors. The mother was one of the administrators of the estate. Among the assets of the estate was a promissory note, which the intestate had held for eight years before his decease, against responsible persons, who were always prompt in the payment of interest, and who would have paid the principal upon demand, until their ability to do so was subsequently impaired. Upon the death of his mother, of whose estate C. was the sole distributee, and of which there were no creditors, C. took the note into his possession as his own property, together with all the other securities and notes, those included in the inventory of his father’s estate and those in which his mother had invested moneys of the estate received by her, and collected them all, except this note, to an amount exceeding his distributive share in his father’s estate. He received interest on the note for two years; and, five years after his mother’s death, and while one of the administrators of his father’s estate was living, he procured a suit to be brought upon the note by the administrator of his mother’s estate, and received all that could be collected upon it, and it then became worthless. He continued to hold the note until the appointment of an administrator de bonis non of his father’s estate, who brought an action against the administrator of a surety on the bond given to the Probate Court by the administrators of the estate of C.’s father, to obtain the amount which had not been collected on the note. Held, that the plaintiff was estopped, by the conduct of C., to deny that the note had been accounted for and distributed; and that no execution should issue.</p>

<p>The St. of 1882, c. 192, gave a town the right to take certain waters, or so much thereof as might be necessary, and the water rights connected therewith, and lands; and provided that the town should, within ninety days after the taking of any lands or water rights, file in the registry of deeds a description thereof sufficiently accurate for identification, with a statement of the purpose for which the same was taken. A subsequent section of the act provided that a person injured in property under the act might have the same assessed by an application in writing within one year after the taking of such land or water right, but not thereafter; and that no assessment for damage should be made for the taking of any water right until the water was actually withdrawn or diverted by the town under the authority of the act. Held, that an application for injury to a water right, filed more than a year after the right had been taken, but within a year after the description was filed in the registry of deeds, was filed too late.</p> <p>A town authorized by a special statute to take water and water rights, and required to file a description thereof, filed a paper containing a recital that “ whereas ” the town has erected a dam across a certain brook, and has taken and appropriated the water from said brook and water rights connected therewith above said dam, followed by the sentence, “ The water so taken as aforesaid is for the purpose of supplying the town with pure water.” Held, that the description was sufficient, and that it applied to water rights below the dam as well as to those above.</p> <p>A town authorized by a special statute to take water and water rights, and required to file a description thereof within ninety days, built a dam across a stream in 1882, and filed a paper about six months afterwards reciting the taking, and that the town “ within ninety days after said taking hereby files ” a description thereof. By the terms of the statute, a person injured by a taking under the statute was required to file an application for damages within a year after the taking. A petition was filed on the last day of the year after the filing of the description. Held, that, if the town was estopped by the declarations in the description, it could still refer the taking to the earliest point of time consistent with the instrument; and that the petition was filed too late.</p>

<p>In an action against a city for personal injuries occasioned t.o the plaintiff by falling upon an accumulation of frozen snow and ice on a sidewalk, it is within the discretion of the presiding judge to reject evidence of the icy condition of the sidewalk at the same place a week before the accident, if offered to prove the condition at the time of the accident, or to prove notice to the city of such condition, if the plaintiff’s testimony shows that on the day before the accident snow fell to the depth of several inches, followed by rain and by a thaw.</p>

<p>The wife of H. died without issue, seised in fee of a parcel of land of less value than §5000, which had been conveyed to her by W., and H. became entitled to it in fee. W., knowing that II. had an estate in fee, represented to him that his estate was for life only, as he had been informed, and made an offer for the land, which H. refused. Subsequently, H., influenced by the said representation, accepted another offer made by W., and conveyed the land, for much less than its value, to W.’.s wife, who paid no part of the consideration. Held, that H. was entitled to maintain a bill in equity against W. and his wife, for a reconveyance of the land, upon repayment of the consideration, without having made a tender of the consideration. Held, also, that evidence was inadmissible that the wife of H. owed W. $100 as part of the consideration of the deed of W. to her.</p>

<p>The condition of a mortgage of a farm having been broken, the mortgagee covenanted with the mortgagor, for the term of three years, not to demand payment of the mortgage note, not to begin proceedings to foreclose the mortgage, and not to eject the mortgagor from the farm; and the mortgagor covenanted that he would, during the three years, use and expend upon the farm the hay and fodder produced upon it for the use of the farm in the usual course of husbandry. Before the expiration of the three years, the mortgagee assigned the mortgage to a third person, who foreclosed the mortgage. Held, in an action by the mortgagor against .the mortgagee, that there was a breach of the defendant’s covenants. Held, also, that evidence, offered in defence, that, while the plaintiff was in possession of the farm, there was not as much hay and fodder raised on the farm as it was capable of producing in the usual course of husbandry, or as was usual on like farms in the neighborhood, was rightly excluded. Held, also, that the plaintiff could properly testify what the farm was worth to him with his stock upon it from the date of the assignment to the end of the three years’ term, it appearing that the farm was used as a milk farm, and that the plaintiff sold a certain number of cans of milk each day.</p>

<p>Prior to the St. of 1871, c. 343, providing for the establishment of a union passenger station in the city of Worcester for all the railroad corporations whose roads lead into and from the city, and for making corresponding changes in their several tracks and locations, the tracks of the Providence and Worcester Railroad Company ran from the junction station in Worcester, upon a location parallel to and adjoining that of the Boston and Albany Railroad Company, to a point near the new station, and those of the Norwich and Worcester Railroad Company crossed the tracks of the Boston and Albany Railroad Company at grade, and ran to a station in the heart of the city, but did not cross the tracks of the Providence and Worcester Railroad Company. The statute authorized the Providence and Worcester Railroad Company to extend its railroad to the new station, and authorized the Norwich and Worcester Railroad Company to extend its railroad from the junction station to the new station; and authorized both corporations for such purposes to take such portions of the location mf the Boston and Albany Railroad Company as the parties might agree, or, in case of disagreement, as the board of railroad commissioners might determine. A subsequent section provided that “ said corporations severally or jointly may purchase or take such lands as are necessary for any and all the purposes aforesaid, or for additional tracks.” It further provided that the former road of the Norwich and Worcester Railroad Company should be discontinued beyond the junction, and that the junction might be passed by express trains without stopping. From the junction station, the tracks of the Norwich and Worcester Railroad Company could be extended to the union station in three ways: 1st, by going between the other two railroads, and taking a portion of the location of each not occupied by the tracks of either, thus obviating a crossing at grade; 2d, by crossing the tracks of the Boston and Albany Railroad Company at grade, and running through a populous part of the city; 3d, by twice crossing the tracks of the Providence and Worcester Railroad Company. Another section of the act directed the construction by the three railroad corporations above mentioned, and by another railroad corporation, of one or more railroad tracks for freight purposes in a certain direction, of which provision the Norwich and Worcester Railroad Company could not conveniently, if it could possibly, avail itself, unless it ran between the tracks of the other two railroads. Held, that the statute, by necessary implication, gave to the Norwich and Worcester Railroad Company the right to take a portion of the location of the Providence and Worcester Railroad Company, and to extend its road from the junction to the union passenger station in the first of the three methods above stated.</p> <p>Under the St. of 1871, c. 343, providing for the establishment of a union passenger station in the city of Worcester, for the use of the several railroad corporations entering the city, authorizing them to extend their tracks to the station, and giving the board of railroad commissioners power to order such changes in the location and arrangement of tracks in the vicinity of the station as the safety and convenience of the public might require, the board has the power, in authorizing one railroad corporation to take a portion of the location of another railroad corporation, to do so on condition that the latter shall have the right to use a track of the former, subject to reasonable regulations to be established by the board.</p>

<p>Under the St. of 1870, c. 325, § 3, a town, within the limits therein prescribed, may subscribe for the stock of a railroad corporation to be organized under the St. of 1872, c. 53, and become an associate in its formation.</p> <p>While the Sts. of 1870, c. 325, and of 1872, c. 53, were in force, a warrant for a town meeting contained the following articles: “ To see if the town will vote to subscribe for and hold shares in the capital stock of” a certain railroad corporation, to be formed under the St. of 1872, c. 53, for the purpose of building a railroad from that town to another; “to see if the town will vote to become an associate for the formation of” the railroad; and “to see what action the town will take in regard to raising money to aid in building” the railroad. At the meeting held in pursuance of this warrant, the town voted to subscribe for the stock of the railroad corporation to a certain amount, and to become an associate for the formation of the corporation; and, in order to pay this subscription, voted to authorize its treasurer to borrow a sum not exceeding that subscribed, “in amounts as may be required by the directors,” and to give therefor the notes or bonds of the town payable to a certain amount in each year. Bonds were issued in pursuance of this vote, and taxes were levied in each year to meet the bonds falling due. Held, in an action to recover back such taxes paid under protest, that the warrant was sufficient; and that the votes of the town thereunder were valid.</p>

<p>Petition for writ of mandamus, filed May 9,1882, to compel the respondents to entertain a petition, filed November 18, 1881, for an assessment of damages for the taking by the city of Worcester of alleged water rights of the petitioner in Mill Brook. Hearing before Fevens, J., who reported for the consideration of the full court the following case:</p> <p>Mill Brook, a natural stream, with its tributaries, originally flowed through the petitioner’s premises, which lie between Green Street and Cambridge Street, in Worcester. Quinsigamond Avenue lies between Green Street and the petitioner’s premises. Under the authority of the St. of 1867, e. 106, the city, at different times, took and converted various tributaries and sections of Mill Brook for sewerage purposes. On June 28, 1869, it passed an order laying out the section of said brook between Green Street and Cambridge Street as a sewer; and, under said order, the water flowing in the brook north of Green Street was turned in that year into a new channel, and diverted from the petitioner’s estate.</p> <p>Piedmont Brook, a tributary, originally emptied into Mill Brook between Green Street and Cambridge Street and north of Quinsigamond Avenue and of the petitioner’s premises. More than two years prior to March 7, 1881, it had been taken by the city for sewerage purposes, but its waters so taken continued to_ be discharged through sewers laid by the city into the old natural channel of Mill Brook near their point of natural discharge, and, until March 7, 1881, continued to flow along said channel into and through the petitioner’s premises, and supplied the petitioner with drainage and water facilities in its manufacturing processes. On said March 7, the waters so flowing in said channel were turned into a sewer, then completed, in Quinsigamond Avenue, and were diverted from the petitioner’s premises. This sewer was built under an order of the city.</p> <p>No notice of the laying out of any of said sewers was served upon the petitioner, although the orders laying them out directed the city clerk to serve notice upon all persons and corporations interested. The officers of the petitioner testified that they had no knowledge of the location of said sewers, or any diversion of their stream, prior to said March 7.</p> <p>If the petition to the county commissioners was filed in season, it was to stand for hearing; otherwise, to be dismissed.</p>

<p>In an action against the town of U. for supplies furnished to W., a pauper, who was alleged to have a settlement therein, under the Pub. Sts. c. 83, § 1, cl. 11, the record of naval enlistments prepared by a commission appointed under the U. S. St. of July 4, 1864, § 8, and the report of the Adjutant General of Massachusetts relating to the matter, were put in evidence. Upon this list appeared in print the name of W., the date and term of his enlistment, and the place of rendezvous, which was the name of a place in another State; and opposite his name was written the name of the defendant town. A clerk in the office of the Adjutant General testified that this meant that W. was apportioned to that town; and that "rendezvous” meant the place where the naval recruit enlisted. A rule established by the above-named commission, for the assignment to the quota, provided that only those were to be credited “ who had joined the service at some rendezvous in this State.” The record of enlistments above mentioned was prepared from the rolls of a receiving-ship for naval recruits at a port in this State. Held, that this evidence would justify a finding that W. was duly assigned as part of the quota of U.</p> <p>In an action against a town for supplies furnished to a pauper, who was alleged to have a settlement therein, under the Pub. Sts. c. 83, § 1, cl. 11, by reason of service in the navy of the United States as part of the quota of that town, the names of the pauper and of a naval recruit, the dates of joining the service, of the arrival at the receiving-ship, and of the departure therefrom on duty, as they appeared on the records, and as testified to by the pauper, corresponded. Held, that this would justify a finding that the pauper and the recruit were the same person.</p> <p>In an action against a town for supplies furnished to a pauper, who was alleged to have a settlement therein, under the Pub. Sts. c. 83, § 1, cl. 11, by reason of service in the navy of the United States as part of the quota of that town, the enlistment papers and muster roll, or authenticated copies of them, were not produced. • Held, that testimony of the pauper that he was enlisted, the facts that his name was found on the rolls of a ship of war, that he was transferred from there on duty, that he performed various services described by him, and that his discharge showed that he had served for more than a year, would justify a finding that he was duly enlisted and mustered into the naval service of the United States.</p> <p>A discharge from the naval service of the United States is properly held to have been an honorable one, it not appearing to be otherwise.</p> <p>A settlement may be acquired, under the Pub. Sts. c. 83, § 1, cl. 11, by reason of service in the navy of the United States as part of the quota of a town in this Commonwealth, although the person performing such service was, at the time of his enlistment, a resident of another town, notwithstanding the provision of the U. S. St. of July 4, 1864, § 8, that naval recruits are to be credited to the quota of the town “in which they respectively reside.”</p>

Petition to the Superior Court for a jury to assess the damages sustained by the respondent by the taking of the water and water sources of Salisbury Brook and its tributaries by the petitioner, under the St. of 1878, c. 124: in the nature of an appeal from an assessment of such damages by the county commissioners, upon the petition of the present respondent.

<p>At the hearing of a libel for divorce, it appeared that the libellee, the wife, committed adultery with one W. in April, 1877, she having then spent a night with him in his room. There was evidence tending to show that, between April, 1877, and March, 1883, there were rumors as to the infidelity of the libellee which came to the libellant’s knowledge; that they were renewed in March, 1883, and he then employed a detective to investigate the facts; that, from the information he received, he, on April 16,1883, filed a libel for divorce, charging the libellee with adultery with W.; that this libel was entered in court, but the summons was not served, as he was advised by counsel that he had not sufficient evidence to prove the adultery; that he thereupon sought and found the woman who kept the house where W. had his room, and she, by means of a photograph of the libellee, identified her as the woman who had spent the night with W. After he had obtained this information, the libellant continued to cohabit with the libellee until April 29, 1883, when the landlady of the house where W. had his room was brought into the presence of the libellee, and identified her, as she had previously done by photograph. The libellant then ceased to cohabit with the libellee, and subsequently brought the present libel. It appeared that no facts were brought to the libellant’s knowledge on said April 29 in addition to what he already knew, except the positive personal identification of the libellee by W.’s landlady. Held, that it could not be said, as matter of law, that the presiding justice was not justified in finding condonation on the part of the libellant.</p>

Writ of entry, dated in October, 1883, to recover a parcel of land in Brockton. Plea, mil disseisin. Trial in the Superior Court, before Barker, J., who reported the case for the determination of this court, in substance as follows: Charles Packard died in June, 1851, seised and possessed of the demanded premises.

Petition to the Probate Court, by the trustee under the will of Pardon Copeland, to obtain the instructions of the court as to the construction of the will. Hearing, on appeal, before W. Allen, J., who dismissed the petition; and, at the petitioner’s request, reported the case for the consideration of the full court. The facts appear in the opinion.

<p>Contract for expenses incurred in the support of George M. Fryes, a pauper, whose settlement was alleged to be in the defendant town. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>In an action for personal injuries occasioned to the plaintiff’s intestate by the fall of a mill, there was evidence that the intestate was last seen alive in the mill ten or fifteen minutes before the accident; that, three quarters of an hour after the accident, his dead body was found about twenty feet below where he had been last seen, with no mark of injury upon it, surrounded by loose grain, and with five or six feet of grain over his head. There was also expert evidence that he died from suffocation, and that a person situated as he was would retain consciousness from three to five minutes. Held, that the jury would be warranted in finding that the death was not instantaneous.</p> <p>In an action by an administratrix for personal injuries occasioned to her husband, who was killed by the falling of a part of the defendant’s mill, which contained a large quantity of grain, there was evidence tending to show that the supports of the mill were defective and insufficient, and that this caused the fall. The mill was divided into several large bins for the storage of grain; and the defendant’s evidence tended to show that he was not much about the mill, but that the intestate had the charge of it, directing and controlling the manner in which tile grain should from time to time be received into the mill and distributed in the different bins. The defendant asked the judge to instrudt the jury, that, “if the jury find that the plaintiff’s intestate had the sole charge and control of the placing and storing of grain in the defendant’s mill and of the quantity to be taken into the same, and had the same knowledge, means of knowledge, and opportunity to examine the supports of the mill which the defendant had, and at the time of the accident he so loaded the mill as to quantity or distribution of the grain as to cause the accident, then he was not in the exercise of due care, and this action cannot be maintained.” The judge refused to give this instruction; and, upon the subject embraced in it, instructed the jury that “ the plaintiff must show further that her husband was at the time in the exercise of due and ordinary care, such as a prudent person may be expected to use under the same circumstances. If he was in the exercise of due and ordinary care, so far as that point is concerned, she is entitled to recover. If his own negligence or want of care contributed to the injury, then she cannot recover.” Held, that the defendant had good ground of exception.</p>

Contract to recover the sum of $175 paid by the plaintiff, a minor. Writ dated January 9, 1883. The case was submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, on agreed facts, in substance as follows: The plaintiff was born on July 8, 1862.

Contract upon a written agreement for the erection of a barn, with a count for work done and materials found. Trial in the Superior Court, without a jury, before Knowlton, J., who ruled that the action could not be maintained, and found for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Tort, for personal injuries occasioned to Thomas Booth, the plaintiff’s intestate, by stepping into a well on premises of which the defendant was the owner in fee, but which were let by him as hereinafter appears. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions in substance as follows :</p> <p>The premises are situated on the westerly side of School Street, in Taunton, and there were four buildings thereon, occupied by different tenants as residences, two on the line of the street and two in the rear. Between the two houses on School Street was a space eleven feet and three inches wide at the street end, and continuing of that width for a space of thirty feet and four and three fourths inches, when between the L of the front southerly building and the front northerly building it became seventeen feet and seven and a quarter inches wide, and continued of that width until the open back yard was reached. This space between the houses was the only entrance from the street for persons having occasion to go to the rear buildings and to the northerly front building. The positions of the houses on the land are shown on a plan used at the trial, a copy of which is printed in the margin.*</p> <p>The only obstructions in this space were two flights of steps attached to the northerly front building, and a well. One flight of steps was near the street, and the other about eight feet from the westerly end. The steps were about twenty-three inches high and extended into the space about two feet and ten inches. The centre of the well was about four and a half feet southerly from the southwesterly rear corner of the northerly front house. The stone work of the well was eight inches above the ground and on top of this was a curbing of joists and planks seven inches thick, making the total height above the ground fifteen inches. On the planking there was a board one inch thick which covered the well, except a space two feet in length and a foot and a half wide, which was open and uncovered, and had been open for about two years before the accident. The open space between the southeasterly corner of the planking and the northwesterly corner of the L of the southerly house was a little over eleven feet.</p> <p>The plaintiff put in evidence a lease of the whole premises from the defendant to Lewis E. Field, dated October 25,1869, for the term of twenty-five years from November 1, 1869, with a privilege of a lease for seventy-four years longer. It was in the usual form, with a right of assignment, and a right in the lessor or his assigns to terminate it after thirty days’ notice in writing of the lessee’s failure to pay the rent and taxes as stipulated, and with the privilege to the lessee of removing the buildings then on the premises; but, at the termination of the lease, the lessee was to leave a building or buildings thereon of the value of $1000.</p> <p>The plaintiff also put in evidence a lease from Field to Thomas O. Falvey, dated July 1,1870, for the term of twenty years from date; a mortgage by Field of his interest in the premises to John D. G. Williams to secure the payment of $1000, dated August 29, 1874; an assignment by Falvey of all his interest in the premises to A. IÍ. Williams and several other persons, dated June 1,1873; a release by Field to said A. K. Williams and others, dated June 10, 1876, of all their liabilities to him under their lease; a quitclaim deed from Field to John D. G. Williams, containing an acknowledgment of the foreclosure of the mortgage, dated November 28, 1876; and a quitclaim deed from John D. G. Williams to the defendant, dated March 28, 1877, and also an assignment of the mortgage from him to the defendant. These instruments were duly recorded in the registry of deeds at or within a few days of their respective dates.</p> <p>The plaintiff called the defendant as a witness, who testified as follows : “ I knew the premises; I have let them since 1877. Mr. Falvey acted as my agent to collect the rents; then I got the rents. Then I had Calvin Ellis to collect the rents; I cannot say whether Ellis collected the rents. At the time of the accident I had half a dozen tenants there at least. All the buildings except the two front southerly ones were put on by Field, the lessee, or parties holding under his lease. The two buildings in the rear and the unfinished northerly building were put there by them. They were already occupied by tenants as residences when I got possession. The rear northwesterly tenement Mrs. King occupied, and I think paid $3 per month. After J. D. Gr. Williams gave up in 1877, I collected the rents. I cannot say whether Mrs. King was there at that time. There were one or two other tenements in this building occupied by tenants. Some of the tenants have been in the premises for a good many years. The space between the two front houses was the passageway to go to the houses in the rear; and, so far as I knew, the tenants used it. I used it myself in going upon the premises, and I gave no one of them any exclusive right there. In letting, there was nothing said about the well at all. There was no other well on the pr'emises. I can’t tell whether there was any curbing or pump there in 1877. I knew most of the assignees of the lease from Falvey to A. K. Williams and others. Nothing has occurred between us. I have talked with them about the lease, but could get no satisfaction. I have kept an account of the rents I have received. I don’t remember how the well was in 1877. No fault has been found about the curbing. The tenants have asked me to put in a pump. A pump has been put in since this suit commenced. I have had Joseph F. Etter to do some carpentering. He never said anything to me about the well being dangerous. He did not say to me, 1 Somebody will get drowned there,’ nor I reply, 6 Let them drown.’ I have no recollection of any such remarks. The well is about twelve feet deep, and I helped my father to dig it about forty years ago. There was a good well curb around the well, of the usual height, about three feet, when I leased the premises to Field.”</p> <p>Lewis E. Field testified that he released A. K. Williams and others from all their obligations to him under their lease, for $600; and that since then said A. K. Williams and others had had nothing to do with the premises, to his knowledge.</p> <p>The deposition of Thomas Booth, the plaintiff’s intestate, was then read, the material portions of which are as follows : “ I was a constable, and on the police force of Taunton, on November 19, 1881. At ten o’clock that night, by orders from the police station, I went to the premises on School Street said to be Job M. Godfrey’s place. I had never been inside the premises before that I remembered; I may have been at the entrance. I did not know there was a well there, and I did not see one when going in or coming out until I stepped one leg in. I went there to stop a disturbance of the peace I was told was taking place there. I found Edward King there drunk. He threatened to knock his sister’s head off, and was making considerable noise, so that we heard him before we got there. I arrested him. I took him by his left arm. He made no resistance. I came out, his left arm in my right, till I reached this obstacle as I call it. I did not know what it was. When I got to the place, the well, I went to step over, as I thought, when I got my right foot on the curbing it raised me up so to step further with my left, I stepped my left foot in the well. I dropped down till my left side struck the top of the well. It knocked the wind out of me, and I hollaed as well as I could. One of the officers came and assisted me up out of the well. It was three or four minutes before I could go on. I then got King on my arm and he came along quite easy, and I went to the station with him. King walked pretty well for a man who was drunk ”</p> <p>Captain Hopkins and three police officers, Littlejohn, Doherty, and Thomas, testified to the following facts: Annie King, daughter of Mrs. King, who had a tenement in the rear northwesterly building, came to the police station, and said that her brother was drunk in the house, and had beaten her and his mother, and was otherwise creating a disturbance, and her mother wanted him arrested. Captain Hopkins sent the plaintiff’s intestate and officer Doherty together to go there and take other officers with them from their beat as they went on their way. The place was some three or four hundred yards from the station, and on another street. It was about ten o’clock in the evening, and a very dark and rainy night, with no moon. They took no lantern. There was no light from any windows on the premises or otherwise, and none on the street opposite thereto. Booth and Doherty found officers Thomas and Little-john on their way, and took them with them. They went through the passageway from the street into Mrs. King’s tenement and found King, who was a young man, drunk, swearing, and making loud noises. Mrs. King requested them to take him away. He refused to go with any one but Booth. Booth took him by the left arm, and went out of the house with him, Doherty leading the way a few feet ahead of him, and officers Thomas and Littlejohn following a few feet behind Booth. They passed on towards the passageway. When Doherty had got past the well, they heard Booth exclaim, “ Oh ! ” and.they found that he had stepped with his left foot into the opening of the well, and lay with his left side on the board covering. They extricated him, and then proceeded, with their prisoner still in Booth’s charge, to the station, from which Booth was carried home suffering great pain from his injuries. Officers Littlejohn, Doherty, and Thomas testified that they had before then been on the premises frequently, and knew the condition of the well.</p> <p>A. B. Hodges, city marshal, testified that he went there the next morning, and found that the top board on the northerly side was loose; that he had noticed the well many times, and it had been in the same condition for at least one year before.</p> <p>Carrie Babbitt testified that she lived on the opposite side of the street, and that the well had been in that condition for at least two years before the accident; that the tenants lowered a bucket or a pail by a rope and drew up the water.</p> <p>Joseph F. Etter testified that he worked on these premises in the summer of 1881, fixing some leaks in the buildings, and did a little shingling ; that he noticed the well; that he asked the defendant if he wanted him to make a new curb on the well, and he answered, “ No; ” that the witness said, “ Somebody may get drowned,” and he answered, “ Let them drown.”</p> <p>The defendant, in addition to what has before been stated, testified that his residence was, and had been for many years, including the time of the accident, at Lakeville, in Plymouth county, about eight miles from the premises; that he had visited the premises about once a month since 1877; that he did not visit them until then, from the time of giving the lease ; that up to the time of the accident he had done nothing to the well, and had. given no directions in regard to it; that it was for the use of all the tenants.</p> <p>It appeared by the evidence, that, at the time of giving the lease, there were no other buildings on the premises except the two front southerly buildings described; and the open lot in their rear and that on the north side were used as an open back yard and garden.</p> <p>The defendant requested the judge to rule that, upon the whole evidence, with all the inferences that might be drawn from it, the plaintiff was not entitled to recover; and that a verdict should be returned for the defendant. The judge refused so to rule.</p> <p>The defendant also requested the judge to instruct the jury, among other things, that, as matter of law, the legal title as lessees remained in the assignees of Thomas O. Falvey, and, by the terms of that lease, the defendant had no legal right to occupy or control the premises or collect the rents; that it could be done only by their consent; that the rights of these assignees were paramount to his, so far as letting, occupying, and controlling the premises are concerned; and that merely letting the premises and collecting the rents imposed no liability on him, so far as defective passageways are concerned. Upon the above points, the judge said to the jury, “I understand that these propositions are all true, as matter of law; but if you find that, at the time this accident occurred, the defendant had the actual management or control, that is, was the party actually using the premises, and managing and controlling them, as a landlord, he would still be liable as such landlord for defective passageways.”</p> <p>The jury were also instructed, that, in order to recover, the plaintiff must establish from the evidence these five propositions, and the principles of law applicable to them were stated in a manner not excepted to:</p> <p>1. That at the time of the accident the defendant was the party managing and controlling on his own account (by letting them to tenants or otherwise) the premises of which the passageway was a part.</p> <p>2. That in such management he did not let to any tenant, or to all the tenants jointly, the well and the adjacent land, but retained the possession and control of it, giving each tenant no greater right than the privilege of using it in common with the others.</p> <p>8. That he negligently suffered it to be.in a condition unsafe and improper for those who, by his invitation, express or implied, used the passageway for access to the houses in the rear.</p> <p>4. That at the time of the accident the plaintiff’s intestate was by such invitation so using the passageway.</p> <p>5. That he was in the exercise of due care.</p> <p>The defendant then requested that the following instructions be given to the jury : “ If the rear building or tenement, where the arrest was made, was placed there by a party holding under said lease, and before then there was nothing but an empty back yard with no building thereon westerly of and beyond the well, then the invitation to or creation of the right to the public, if any, to enter westerly and beyond the well, was the act of the lessees, and there was no obligation on the defendant to provide the passageways thereto, or -to provide against defects in such passageways. Upon the evidence as to the use of these premises and their situation, a smooth and convenient passageway, unobstructed, eleven feet wide, extending southerly from the well to the northerly line of the southerly building, was, as matter of law, good and sufficient, and the defendant would not be liable to a person who was injured by falling into an excavation outside thereof. Considering the circumstances of time, place, and the darkness, the testimony of the plaintiff’s intestate shows that he was not in the exercise of due care. It did not appear that he was there for a lawful purpose. The arrest was unlawful, and he was not lawfully there. Neither the owner nor occupants of the premises were bound to keep the well covered, as against a person entering and leaving for the purposes testified to.” The judge refused to give these instructions.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>In an action by A. against B. for an assault, there was evidence that it was committed by B. on his own land, in self-defence, he being attacked by A. and C. Held, that B. was properly allowed to show that he had told C. that day not to come upon the land; and also to show that, shortly before the assault, C. (who was a witness at the trial in A.’s behalf) said to another person, “You wait a few minutes, and you will see some fun.”</p> <p>In an action for an assault, committed upon premises into the possession of which the defendant, after a suit with the plaintiff, had been put under an execution, evidence is incompetent that the officer who served the execution told the plaintiff, two days after such service, that he might have until the evening of the day of the assault to remove his property from the premises, the defendant having forbidden him to enter thereon.</p>

<p>Under the Pul). Sts. c. 152, § 9, if the ad damnum in a writ is laid at a sum exceeding $100, the Superior Court has original jurisdiction of the action, and has no authority on its own motion, or on motion of the defendant, to compel the plaintiff to amend his writ by reducing the ad damnum, so as to oust the court of its jurisdiction, although the amount demanded in the declaration is less than $100.</p>

Contract, by the assignees in insolvency of Caroline E. Luce, for money had and received. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court, on appeal, on agreed facts, in substance as follows: In 1882, Caroline E. Luce gave to the defendant three promissory notes, one of which was secured by a mortgage of land, containing a power of sale, and the others were unsecured.

<p>Mandamus does not lie to compel the marshal of a city to station a police officer at a certain place, in accordance with an order passed by the board of aldermen.</p>

Two actions OE tort. The declaration in each case alleged that, on December 27, 1883, the defendant caused to be published in a newspaper called the Fall River Daily Herald, published by the defendant, a false and malicious libel concerning the plaintiff, as follows: “Was his a ‘graveyard’ case?

Contract, for the benefit of M. B. Slocum, for the breach of a bond executed by the defendant Riley as principal, and by the other defendants as sureties, and conditioned for the faithful performance by Riley of his duties, as a constable of the city of Fall River, in the service of all civil processes committed to him; the breach alleged being the suffering one Maynard, who had been arrested by Riley upon a writ in favor of the plaintiff, to escape from custody.

<p>B. bargained with A. for a car-load of goods of a certain quality. A. sent the goods, by a railroad company, consigned to himself, and sent to B. a bill for the goods, and an order on the carrier to deliver to B. on payment of freight. B. paid the freight, and, finding that the goods were not of the quality ordered, refused to receive them. The carrier notified B. that, if he did not take the goods, it would store them. The goods were not taken away, and the carrier stored them with a warehouseman, but did not notify either A. or B. of this fact, which came to the knowledge of B. ten days after the storage began. Eive months afterwards, B. made an arrangement with A. and bought the goods. The carrier delivered a portion of them without claiming a lien, and refused to deliver the remainder unless his charges were paid. B. then replevied the remainder from the warehouseman. Held, that the warehouseman had a lien on the goods replevied for his storage charges on all the goods; and that the action of replevin could not be maintained.</p>

<p>The first case was a petition for a writ of certiorari to quash the proceedings of the Second District Court of Bristol, in revoking, under the Pub. Sts. c. 100, § 7, a license for the sale of intoxicating liquors, granted to the petitioner by the mayor and aldermen of the city of Fall River.</p> <p>The second case was a petition for a writ of mandamus to the judge of said district court, to allow an appeal to the Superior Court from his order revoking the license granted to the petitioner, as set forth in the first case.</p> <p>The two cases were heard by Colburn, J., who dismissed each petition; and the petitioner appealed to the full court.</p>

<p>In an action against the maker of a promissory note, payable to bearer, brought in a police court, the defendant filed in that court an answer, as follows: “ The defendant denies that the note declared on by the plaintiff was ever signed by her, and denies that the signature to said note was ever made by her, or at her request or with her knowledge, and requests that the plaintiff may be compelled and obliged to prove the said signature to said note was made by her at the trial of said cause.” In the Superior Court, on appeal, the defendant filed an answer containing a general denial only; and an additional answer, repeating such general denial, denying that the plaintiff was the bearer of the note, and further averring that, if any evidence should be offered tending to show that she signed said note, she would show that the. note was obtained from her by false and fraudulent representations. Held, that the special denial of the genuineness of the signature to the note, and the demand for its proof, were in the form required by the Pub. Sts. c. 167, § 21; that the defendant was not required to file such special denial and demand anew in'the Superior Court; and that it was necessary for the plaintiff to prove the genuineness of the signature to the note.</p>

<p>In an action against an officer for the conversion of certain fish traps, with a count for deceit, the defendant’s bill of exceptions stated that the defendant, by virtue of a writ against the present plaintiffs, attached certain personal property of theirs on a certain wharf, but did not attach the traps in question; that, at this time, the plaintiffs had spread upon a field, at some distance from the wharf, the traps in question, for the purpose of drying them ; that the defendant told the plaintiffs that all their personal property was attached, and the plaintiffs requested the defendant to store the traps, as they were perishable; that the defendant told the plaintiffs that if they meddled with the traps it would be at their peril; and that the traps were not taken care of, and were destroyed by tile action of the weather. The bill of exceptions further set forth that one of the plaintiffs lived near the field where the traps were, and saw them a number of times; and that a son of the other plaintiff, who was in his employ, saw the traps nearly every day, and talked with his father about them; and that none of them saw the defendant or any one as keeper of the traps on the field, or in possession of them. Held, that, if the officer told the plaintiffs that he had attached the traps, with the intention that they should believe and act upon such statement, this was a representation of fact; and that, if they, in the exercise of reasonable care, believed the statement, and, because of that belief, refrained from taking care of the traps, so that they perished, the action could be maintained.</p>

<p>In an action upon a poor debtor’s recognizance, it appeared, from the agreed facts upon which the case was submitted, that an adjournment of the debtor’s examination was to ten o’clock of a certain day, at his request, “ with agreement that the debtor should in the mean while pay three dollars; ” that, on the day appointed, the hearing was resumed at eleven o’clock; that the three dollars were not paid; and that the debtor was discharged. Held, that the agreed facts showed that the debtor was present before the hour elapsed; and that the payment of the three dollars by the debtor was not a condition of his right to be heard at the adjourned hearing, even if the magistrate had the right to impose such a condition.</p>

<p>Whether a piano is an article necessary for the personal use of a wife, within the St. of 1879, c. 133, so as to be the subject of a valid gift to her from her husband, is a question of fact for the jury, having regard to the circumstances in life of the parties; and the mere fact that the husband, at the time of the gift, kept a saloon and a lodging-house for fishermen does not show, as matter of law, that it is not such an article.</p>

<p>A. bought a lot in a public cemetery owned by a city. In front of the lot, and shown on a plan referred to in. his deed of the same, there was an avenue and a triangular space enclosed by lines. After A.’s purchase, the city built a wall and a terrace in this space, and closed the avenue. A. then brought a bill in equity for an injunction to restrain the city from building the wall and terrace, and to compel it to restore the premises to their condition at the time of the purchase. The case was referred to a master, who found that the acts complained of were alterations made in good faith for the general improvement of the cemetery, and not impairing the value of A.’s lot, or his means of access to it; that the pecuniary loss to A. was nothing, and the injury or damage, if any,-was wholly one of sentiment and temper; and that A. had lain by and taken no other action than to protest, while the city had expended in the work in question a large sum of money to the benefit of the cemetery; and that the cost of removing the wall and terrace would largely exceed the value of the plaintiff’s interest in the premises. Held, that the bill could not be maintained.</p>

<p>Contract in two counts. The first count was for rent from August 17, 1878, to May 17, 1882, under the covenants of a written lease under seal; the second count was for use and occupation of the demised premises. In the Superior Court, the defendant demurred to both counts. Blodgett, J., sustained the demurrer as to the first count, and overruled it as to the second count; and the plaintiff excepted. The trial proceeded upon the second count; a verdict was ordered for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

Contract in two counts. The first count was upon a nonnegotiable promissory note for $217.50, given to the plaintiff by the defendant; the second count was for a like amount, upon an account annexed, for goods sold and delivered by the plaintiff to the defendant before the making of the note. 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>Contract, against John Williams as principal, and Dennis McCarthy as surety, upon a bond dated December 12, 1882, payable to the plaintiff, and conditioned that Williams should appear at the term of the Superior Court next to be holden at Salem, in the county of Essex, on the first Monday of December, 1882, and answer to a complaint made by the plaintiff on her examination on oath before the Police Court of, Lawrence, charging him with being the father of a bastard child of which she was pregnant, and that he should abide the order of the Superior Court thereon. Writ dated October 20, 1883.</p> <p>The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, upon agreed facts, in substance as follows: ¡</p> <p>The defendant Williams was arrested on the complaint, and brought before the Police Court of Lawrence, on November 17, 1882, and pleaded not guilty. The case was continued until November 20, when Williams waived trial, was adjudged guilty by said court, and was ordered to give bond, with sureties, in the sum of $400, to appear and answer to the complaint at the next term of the Superior .Court, to be holden at Salem, within and for said county of Essex, on the first Monday of December, 1882, and abide the order of the court thereon. In default of giving such'bond, Williams was committed to jail.</p> <p>On December 12, 1882, a date subsequent to said first Monday of December, the defendants executed the bond in suit, and on that day Williams was released from custody.</p> <p>The complaint was transmitted to the Superior Court, but was not entered on the first Monday of December, 1882. On December 23, 1882, the plaintiff was delivered of a child.</p> <p>At March term, 1883, of the Superior Court, the complaint was, by leave of court, upon motion, entered as of the December . term, 1882. This motion was opposed by the counsel of the defendant Williams.</p> <p>At June term, 1883, Williams was defaulted, and on Septem26, 1883, he was adjudged, after trial, to be the father of the plaintiff’s bastard child, and to stand charged with its maintenance, as appears by the decree on file, with which decree he has failed to comply.</p> <p>If, upon these facts, the plaintiff was entitled to recover, judgment was to be entered for the penal sum of the bond; otherwise, for the defendants.</p>

<p>If a surety upon the probate bond of the administratrix of an estate, 'who is removed from her trust for failure to account for assets received by her, is himself appointed administrator de bonis non of the estate, his liability upon her bond constitutes a debt from him to the estate, which, upon his becoming administrator, is assets in his hands with which he is chargeable, although the amount has not been fixed by any account rendered, or by judgment, and he has not in fact charged himself with it; and the sureties on his bond are liable accordingly.</p>

<p>Bill in equity to vacate and set aside a warrant issued by the judge of insolvency for Essex county, upon the petition of the defendant Kelley. Hearing before JDevens, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

<p>In an action upon a policy of insurance against loss by fire on a junk-dealer’s stock of “rags” and “old metals,” evidence is admissible to show that, by a usage of the trade, the terms quoted have acquired a broader signification than belongs to those words as commonly used.</p> <p>Knowledge by an insurer of a usage in a certain trade, extending the meaning of terms used in a policy of insurance upon articles designated by those terms, may be inferred from the universality and long existence of the usage.</p>

<p>If a tenant in tail of land, entitled to possession, conveys it by deed to a person in actual possession thereof, the grantor is " actually seised " of the land, within the Rev. Sts. c. 59, § 3, and his deed is sufficient to bar the entail.</p> <p>A tenant in tail seised of an undivided half of a parcel of land is seised of land, within the Rev. Sts. c. 59, § 3.</p> <p>A deed of quitclaim by a tenant in tail, of all his “ right, title, interest, and estate ” in a parcel of land, is sufficient in form to bar the entail, under the Rev. Sts. c. 59, § 3.</p>

Contract, against Oliver Fiske and John Eliot, on a judgment recovered by the plaintiffs, on June 24, 1880, in the Superior Court. Writ dated November 2, 1881. Answer : 1. That the original debt had been paid before judgment; that the judgment had been obtained by default and without notice to the defendant, so that the defendant was entitled, in the discretion of the court, to show the payment in defence. 2.

Contract upon a bond executed by the defendant Loring as principal, and by the other defendant as surety, and conditioned that Loring, who had been appointed ticket seller of the plaintiff corporation in Boston, should “ faithfully perform all the duties of the said office or place which are or may be imposed upon him under this or any future appointment,” and promptly account for and pay over all sums of money received by him for the corporation.

Scire eacias against the sureties on a bail bond. Writ dated July 21, 1883.

<p>The foreman of a gang of men employed by a railroad corporation in repairing its track ordered them to quit work at fifteen minutes before the usual hour, and take a train, which was to carry them to a certain station without payment of fare, according to a monthly custom, to receive their wages. One of the men, while running along the track in order to get on the train, was struck and injured by a hand-car operated by another gang of men in the employ of the corporation. Held, that he was in the service of the corporation at the time he was injured, and was a fellow servant with those whose act caused the injury.</p>

Tort for personal injuries alleged to have been received by the plaintiff while in the defendants’ employ, through the alleged negligence of the defendants, in failing to furnish safe and proper means and appliances for doing the work.

<p>Contract to recover the value of an iron lathe and a steam-engine sold together by the plaintiff to the defendants, in 1872, for 12,000. Trial in the Superior Court, without a jury, before Pitman, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The sale and delivery were admitted, and it was further admitted that the lathe was a good one, and had been used by the defendants without complaint until this time.</p> <p>The defendants contended that they were not liable for the engine, or, if liable to pay anything therefor, they claimed a reduction upon the sale price, (which was nine tenths of the value of the lathe and engine together,) on account of defects and unfitness in the engine for the purpose for which it was furnished to them; on the ground, first, of a failure to fulfil an alleged express warranty or representation in the nature of a warranty; and, second, the failure and breach of an implied warranty.</p> <p>The defendants also contended that they informed the plaintiff of the purpose for which they wished to use the engine, and that the plaintiff represented that the engine would run the* defendants’ paper-making machinery successfully.</p> <p>The plaintiff denied that he represented that the engine would run the defendants’ paper-making’ machinery successfully, and alleged that he only agreed that the engine should run well and regulate well.</p> <p>It appeared in evidence that the defendants were paper manufacturers, having their mill for the manufacture of paper ah Ashland, New Hampshire, which they had run with water power previously to the purchase of the engine in question; that tho plaintiff was a machinist, and, among other things, made and sold steam-engines; that, before the negotiations between the parties for said engine, the defendants had not used a steam-engine, had no practical knowledge of the different kinds of steam-engines, or of the fitness of any particular kind of steam-engine to run properly their paper-making machinery or any other, and knew only that some kind of steam-engine operated successfully in running paper-making machinery. The defendants further testified, that they called upon the plaintiff, and stated to him in substance that they wanted an engine to run their paper-making machinery, and told him that they knew nothing about steam-engines, and must rely on him, and wanted one that would run their paper-making machinery successfully and economically. It further appeared that the plaintiff showed the defendants the engine, which was not then completed and in running order, as the fly-wheel was not then made, and some other parts were not finished in condition to run, and also showed the defendants another engine, said to be like the one purchased, in working order; but the defendants testified that they did not know whether it worked properly or not, and that, upon the defendants’ suggestion that a smaller engine might answer their purpose, the plaintiff said in substance that it was a variable cut-off engine, was suitable to run paper-making machinery, would do the work required as well and economically as a smaller engine, and as well as any engine would do it; that they had never seen or known of an engine as a variable cutoff engine before this; and that, upon these representations, they agreed to take the engine and lathe, at the price named, when it was completed, ready for use, and set up. The engine was finished as soon as it could be after the completion of the contract for it, which was seven or eight weeks thereafter, and s¿t up at the defendants’ place of business. The fly-wheel, in its construction and size, was one of the most important elements in the successful operation of the variable cut-off engine.</p> <p>The testimony as to the bargain and the running of the engine, and as to notice by the defendants to the plaintiff to take the same away, was conflicting. The plaintiff testified, among other things, that, at the time of the sale, he made and signed a memorandum of the contract, (a copy of which was produced at the trial and admitted in evidence, and is printed in the margin,*) and read it to one of the defendants, and that it was assented to by him, though not signed; that he did not agree to give any guaranty that the engine would run any particular machine; that the defendants did not 'ask him to guarantee that the engine would do their work; that he only agreed that the engine should regulate well and work economically; that he did not know what the defendants knew about engines; that he did not understand that the defendants relied on him; that, at a subsequent interview, after some controversy had arisen between the parties, one of the defendants said, “ I guess we did n’t talk definitely about regularity of speed;” and that the plaintiff replied, “ You know very well that I never made a bargain that the engine should run this or that machine.”</p> <p>The defendants requested the judge to rule as follows:</p> <p>“ Where a manufacturer or a dealer contracts to supply‘an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an implied term or warranty that it shall be reasonably fit for the purpose to which it is to be applied.” *</p> <p>The judge found as follows: 1. The sale and delivery of the articles charged is proved, and now admitted. 2. There was no rescission of the contract. 3. The plaintiff did not agree that the engine should do the defendants’ work. There was no material addition to the memorandum proved in relation to any contract or matter as to the sale. 4. The engine was to be in good order and without defect, and to be such as would regulate well. 5. It was not a defective machine in itself. The judge ruled that the burden of proof of this last claim was on the defendants; and, as to the warranty implied by law, ruled that the facts in the present case brought it under the following rule: “ Where a known, described, and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known, described, and defined thing is actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer; ” * and in view of the testimony in this case, that the buyers had no right to trust to the judgment or skill of the vendor that this particular engine should do satisfactorily the work of the defendants’ particular paper machines. They had a right only to trust to the judgment and skill of the plaintiff to furnish them a merchantable and proper engine of the kind.</p> <p>' The judge found and ordered judgment for the plaintiff for the full amount claimed; and the defendants alleged exceptions.</p>

<p>Evidence of a usage to require a written application for marine insurance is incompetent for the purpose of meeting evidence on the part of the plaintiff tending to prove an oral contract of insurance.</p> <p>An open policy of marine insurance contained the clause, “ no risk to be binding until accepted by the company and indorsed herein.” Held, that this did not preclude the insurer from afterwards orally accepting a new risk, subject to the other provisions of the policy, with an agreement to put it in writing thereafter by indorsing it upon the policy.</p> <p>The by-laws of a marine insurance company provided that the president should receive applications for insurance, fix the rates of premium, and sign all policies',- that, in the absence of the president, policies should he signed by two directors; and that the secretary should countersign all policies. In an action against the company on an alleged oral contract to indorse a risk upon an open policy of insurance, made by the secretary in the absence of the president, there was evidence that the president had signed policies in blank and had left the secretary to make the contract; that the secretary had made such indorsements in the absence of the president; that the secretary had never been forbidden to do so; that the president did not think the business of the company stopped when he was away; that the directors did not pretend to have much to do with the business; and that no instance was remembered where the president had revoked a policy issued or risk taken by the secretary in iiis absence. Held, thqt the jury might infer from this evidence that the secretary had the requisite authority to make a binding oral agreement to enter an indorsement upon the policy.</p> <p>In an action on an alleged oral agreement to indorse a risk upon an open policy of marine insurance, the plaintiff testified that he said to the secretary of the insurance company, that he had seen a clerk of the company a few days before and told him to enter up a certain sum on a certain cargo, and had said that he would bring in the open policy and have it entered up when the invoice arrived, and that the secretary said, “ All right.” Held, that the jury would be warranted in finding from this evidence a waiver of a condition in the policy that no risk was to be binding until indorsed on the policy.</p> <p>An oral contract of insurance on cargo was alleged to be made, by the terms of which the insured was to bring in to the insurer the invoice of the cargo on its arrival,, and. have the risk indorsed on an open policy of insurance. The invoice arrived on September 9, and was not taken to the insurer. On September 12, when the loss of the vessel carrying the cargo was reported, the insured demanded that the indorsement be made on the policy. The insurer refused, on the ground that he had made no such contract. Held, that it was for the jury to determine whether the delay was a reasonable one. Held, also, that the ground of refusal would render a subsequent presentation of the invoice unnecessary.</p>

Petition for a writ of certiorari, to quash the proceedings of the respondents in refusing to abate a tax assessed upon the petitioner. Hearing before Devens, J., who allowed a bill of exceptions, in substance as follows: The petitioner filed a list of his estate with the board of assessors of the city of Boston on June 6, 1883, in accordance with the provisions of the Pub.

<p>A testator, by the third article of his will, devised a parcel of land to his wife for life, and on her decease devised the same to his children then living. He also - provided that, if his wife desired the land to be sold, he authorized his executors and trustees to sell the same, pay the proceeds to his trustees, to be invested by them, the income thereof to be paid to his wife for life, and the principal to be disposed of in accordance with the provisions regulating the distribution of the trust fund as provided in the next article of his will. By the fourth article, he bequeathed to trustees a sum of money, in trust to pay the net income to his wife for life, and on her death to distribute the principal among his children then living. The fifth article directed that all “moneys" bequeathed to each of his daughters should be managed by the trustees in separate trusts, and the income only paid to each daughter during her life, and on her death “ the principal sum ” should be “ distributed ” in a way specified. A subsequent article directed that all “ moneys ” directed to be given to his sons A. and T. should be managed by his trustees in separate trusts, they to receive only the income for life. By the ninth article, the residue of the testator’s property, real, personal, and mixed, was devised to trustees, in trust to pay over the income to the children equally, and on a certain day, if the fund was then large enough to give each child a certain sum,-to distribute the principal among the children. The eleventh article authorized the trustees to sell “ any and all of my said trust property and estate, both real and personal,” preserving to the wife the rights given by the third article of the will. The only land owned by the testator was that mentioned in the third article of the will, and this was not sold during the lifetime of the testator’s widow. Seld, that the trust estate did not include this land, and that the gift to the children in fee contained in the third article of the will was not controlled by the subsequent articles.</p>

Tort for personal injuries. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows: There was evidence tending to show that the plaintiff was a married woman, living with her husband; and that, besides doing ordinary housework, she took in sewing, the proceeds of which she applied to the support of the family of her husband.

Tort for personal injuries sustained by the plaintiff, while in the employ of the defendant, by the falling of a heavy weight upon his head, which was occasioned by the breaking of an iron hook upon which the weight was hung.

Contract upon the covenant in a lease by the defendant to the plaintiff of certain rooms on Winter Street in Boston, to be used as a photograph studio, for the full term of ten years from November 1, 1877, that “ the lessor doth hereby agree to keep heated the aforesaid rooms from October 1 until May 1 every year during the term of this lease.” The lease also con.tained the covenant that the lessee “ or others having his estate in the premises will not assign this lease ....…

<p>A judgment of the Probate .Court, made after May 1, confirming the report of commissioners filed before that date, assigning a parcel of land to a widovy for life, in lien of dower, does not relate back to the date of the assignment, so as to make her liable to the remainderman for taxes assessed on May 1, and paid by him.</p> <p>The obligation of a person to pay a tax depends upon his title on May 1; and the fact that the tax is not actually assessed until after that day is immaterial.</p>

<p>In an action for deceit, the declaration alleged that the defendant was a director of a certain national bank ; that he falsely and fraudulently represented as of his own knowledge that the bank was sound; that the plaintiff was thereby induced to buy stock and make deposits in the bank; that the bank was not sound; and that the defendant, when he made the representations, knew them to be untrue. The defendant was allowed to put in evidence of his relations to the bank, and tending directly to show that he did not know"that the bank was unsound. Held, that the plaintiff had no ground of exception.</p> <p>In an action against a director of a national bank for deceit, in falsely representing as of his own knowledge that the bank was sound, and thereby inducing the plaintiff to buy stock and make deposits therein, when in fact the bank was not sound, and the defendant knew of its unsoundness when he made the representations, the plaintiff asked the judge to instruct the jury, “that, if they found the defendant’s representation as to the soundness of the bank was made as a statement of existing fact, and as of his own knowledge, and if such representation was in fact untrue, it was not necessary for the plaintiff to prove that the defendant made the representation with intent to deceive, but that it was sufficient for him to show that the defendant made the representation with the intent to induce the plaintiff to rely and act upon it, and that the plaintiff did so act and rely.” The judge instructed the jury, in substance, that the plaintiff could recover, if he proved that the defendant represented as an exists ing fact that the bank was sound, that the plaintiff was thereby induced to act, that in fact the bank was not sound, and that the defendant then knew that it was not sound, or that, the fact of the soundness of the bank being a fact within his means of knowledge, he stated that the bank was sound, having no knowledge of that fact; and that, if these facts were established, the defendant would be liable, although he believed and had reasonable cause to believe his representations to be true. Held, that the plaintiff had no ground of exception.</p>

Contract for breach of the covenant against incumbrances, contained in a deed of land from the defendants to Edgar A. Hallett. The breach relied on was the taxes assessed, May 1, 1881, on the premises conveyed. Answer, a general denial, and that Hallett agreed to pay these taxes.

<p>Contbact for money had and received, with a count in tort for false and fraudulent representations. After a verdict for the plaintiff, the defendant filed a plea puis darrein continuance, setting up his discharge in bankruptcy. After the former decision, 135 Mass. 125, the plaintiff filed a replication to this plea, alleging that the debt of the defendant, “ as alleged in said declaration,” was created by the fraud of the defendant, and is not barred by the discharge in bankruptcy; and, upon the issue of fact so raised, claimed a trial by jury. The defendant demurred to the replication, on the following ground : “ Said replication alleges that the debt of the defendant, as alleged in the declaration in said' cause, was created by the fraud of defendant, and is not a debt barred or discharged by defendant’s discharge, whereas said debt, as alleged in said declaration, doth not appear to have been created by the fraud of the defendant.”</p> <p>The Superior Court overruled the demurrer; and the defendant appealed to this court. The defendant then moved in the Superior Court that the verdict be set aside, for the purpose of trying the issues raised upon the plea of discharge in bankruptcy. This motion was overruled; and the defendant appealed to this court. The following question was submitted to the jury: “ Was the debt of the defendant, as determined by the verdict in this case, created by fraud of the defendant?” to which the jury answered, “ Yes; ” and, upon the issue raised by the plea •and replication, the jury found for the plaintiff.</p>

Tort for the conversion of a bar and sideboard. Writ dated January 24, 1883. The answer denied that the bar and sideboard were the property of the plaintiffs; alleged that one Harlin was the owner thereof, who had given a mortgage thereon to the defendant to secure a promissory note; and that, said note becoming due and unpaid, the defendant foreclosed said mortgage, and took and sold the bar and sideboard in conformity therewith; and concluded with a general denial.

<p>Contract against Daniel S. Pratt and George F. Moore, upon a promissory note for $1671.08, dated August 11, 1881, payable in two months after date to the order of the plaintiffs, signed by Pratt, and indorsed by Moore. Trial in the Superior Court, before Barker, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiffs are partners doing business in the city of New York. There was evidence that the note was signed by the defendant Pratt, and indorsed before delivery by the defendant Moore. A telegram from Moore to the plaintiffs, dated and received on the day the note matured, was put in evidence, and was as follows: “Pratt has not arrived here yet. In the West. Expected next Tuesday. I ask recall of note due, and hold over till I see him.” There was also evidence that, in November, after the maturity of the note, Thomas Corner, Jr., one of the plaintiffs, came to Boston and had an interview with Moore, in which Moore promised to pay the note with interest, two thirds by new notes, and one third, or $560.28, by a check, and Corner agreed that, if the check was sent, he would take the new notes for the balance. Subsequently, Moore sent three notes of $373.52 each, but did not send the $560.28 check or cash. In response, the plaintiffs wrote the following letter to Moore, dated November 22, 1881: “ We are to-day in receipt of an envelope from you with three notes for $373.52 each, but no check. We are very much surprised at this, after what you promised the writer a few days ago. If you will recall, your positive promise was made to send a check .for $560.28 on the 18th, and the notes as above for the balance. You have not done so. We certainly did not agree to accept these notes, except in connection with the money. We shall expect to receive the check not later than the 26th. Please attend to it.” The plaintiffs retained Moore’s notes to the time of trial; but after the arguments were closed, and before the jury were charged, tendered them to Moore’s counsel, who declined to receive them.</p> <p>There was no evidence of demand and notice, or of waiver of demand and notice, nor of payment or non-payment, except as stated above.</p> <p>The defendant Moore requested the judge to rule that, as Moore was an indorser, there was no evidence to go to the jury that there was any notice to him, or any evidence of a waiver of demand and notice on his part.</p> <p>The judge refused so to rule; and instructed the jury on this point, that they might consider the telegram from Moore to the plaintiffs, and his subsequent negotiations for a settlement, on the question whether or not he had waived demand and notice.</p> <p>The defendants also requested the judge to instruct the jury, that, if the plaintiffs entered into an agreement with Moore to receive Moore’s notes for two thirds of the amount of the old note, and the balance in cash, and, in pursuance of that agreement, such notes were received and retained by the plaintiffs, the plaintiffs, could not recover in this action, although the balance of cash was not forwarded. The judge instructed the jury on this point as follows : “ If the plaintiffs made an agreement with Moore to accept cash and notes in payment, and they received only the notes, they were not bound to receive the notes alone without the cash in part payment of the original note. There were two courses open to them: they could apply the notes in reduction of their claim, or they could decline to accept them. In the absence of evidence that they did accept the notes and apply them in part payment, you are not to infer that they did so. I construe the plaintiffs’ letter to Moore in this way : they did not accept the notes and apply them to the payment of the old note, as claimed by the defendants, but they merely postponed the time within which the cash was to be paid. And you have seen that the notes given by Moore have been tendered back in your presence. If you find an agreement to give cash and new notes in payment, and that the new notes were sent and the cash was not sent, and the plaintiffs sent the letter of November 22, and if you find no other facts, I instruct you that there is no evidence in the case from which you can find that the plaintiffs did accept Moore’s notes and apply them to the payment of the old note. But if, upon all the evidence in the case, you should find that the plaintiffs did so accept and apply Moore’s notes, then there was a part payment of that amount only, and not of the whole amount.”</p> <p>The jury returned a verdict for the plaintiffs; and the defendants alleged exceptions.</p>

<p>If a wife leaves her husband without justifiable cause, taking their minor child with her, and the husband is able and willing to support the child, and so informs the wife and a third person, with whom she places the child, the fact that the father makes no attempt to obtain the custody of the child does not of itself authorize the wife to pledge his credit for necessaries furnished to the child by such third person at the request of the wife.</p>

Tort for injuries to the plaintiff’s horse, carriage, and harness, caused by a defect in Washington Street, in the defendant city. Trial in the Superior Court, without a jury, before Pitman,, J., who allowed a bill of exceptions, in substance as follows : Washington Street was a county road, legally established long prior to the incorporation of the Boston and Lowell Railroad Corporation.

<p>F., the owner of a parcel of land on A. Street in a city, a private way which had been used by those abutting on it for many years, with others, petitioned the city to lay out the street as a public way; and he, with other abutters, executed an agreement with the city, under seal, by which they stipulated that they would not claim any damages on account of the laying out of the street. The city duly laid out the street as a public way, according to a plan which established a grade about three feet lower than the old grade of the street. Afterwards F. executed and delivered to P. a deed of the premises containing the usual covenant against incumbrances, and bounding the premises “ westerly on A. Street.” Subsequently the street was constructed and graded according to the plan. Held, in an action by P. against F., that neither the grading and construction of the street, nor the agreement by F. with the city to release it from all claim for damages, was a breach of the covenant against incumbrances in the deed.</p>

<p>Contract for the breach of a written agreement, executed on February 3, 1882, by the terms of which the defendant agreed to sell, and the plaintiff agreed to buy, certain real estate in Somerville, “ the same to be conveyed by a good and sufficient deed of the said Nathan J. Davis, as executor of the estate of Cyrus B. Rowe, conveying a good and clear title to the same, free from all incumbrances; and for such deed and conveyance” the plaintiff was to pay a certain sum “in four months from the date hereof.”</p> <p>Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows :</p> <p>It was admitted that the defendant, at the time of the execution of said agreement, was the executor of the will of Cyrus B. Rowe, deceased; that at that time the premises described in said agreement belonged to the estate of said Rowe; that the defendant, as executor, on October 3, 1882, obtained a license from the Probate Court to sell said real estate by public auction for the payment of the debts of the testator; and that the defendant, as executor, under the license, sold the real estate by public auction to one Shedd, on October 21, 1882.</p> <p>The plaintiff testified, that the defendant told him, when the contract was executed, that he could give him a good title to the premises; that the plaintiff took possession of the premises under the contract, and made repairs and additions amounting to $407; that during the month of May, 1882, the plaintiff made arrangements with one Richards for a loan of the sum of money necessary to enable him perform his part of the contract ; that Richards agreed to lend the necessary amount, provided the defendant could give the plaintiff a good title to the premises; that thereupon, in said May, the plaintiff told the defendant that he could get the necessary amount of money from Richards, if the defendant could give the plaintiff a good title; that, on October 7, 1882, after the defendant, as executor, had obtained said license to sell the premises, the plaintiff, accompanied by Richards and another person, went to the defendant and told him that he had come to take up his obligation, if he could have the deed; and that the defendant answered that he 'had sold the property to another party.</p> <p>On cross-examination, the plaintiff testified, as to said interview, “ I told the defendant that Richards would let me have the money if I could get a good title. None of us had the money with us as I know of.”</p> <p>The plaintiff admitted that no formal tender was ever made by him.</p> <p>The defendant asked the judge to rule that the plaintiff could not maintain this action, because a legal tender was not made within said term of four months.</p> <p>The plaintiff contended that, as, by the terms of the contract, payment by him was to be made for delivery of a good and sufficient deed, the fact that such delivery by the defendant was not possible excused a tender by the plaintiff; that the power to give such deed and the actual offer thereof were conditions precedent to the necessity of tender by the plaintiff; that inasmuch as the defendant at no time had a good title, and could not give the plaintiff a good title, the plaintiff, as matter of law, was not required to make a formal tender of said sum; and that the plaintiff had performed his part of the contract by expressing his readiness to fulfil the terms thereof in the manner above stated.</p> <p>The judge ruled that, to maintain this action under the contract, the plaintiff must have made legal tender within said four months; and that the plaintiff was not excused therefrom because the defendant was not in a position, at any time during said period, to fulfil his part of the contract; and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>In an action against a city for personal injuries occasioned by stepping into a hole in a street crossing, caused by an accumulation of snow and ice, the defendant introduced evidence tending to show that, on certain days previously to the accident, there had been two very heavy snow-storms; and also introduced evidence • tending to show the length of the streets it had to clear, and their condition after the storms, the amount of labor it had to do on its streets, the amount it did, and the expenses incurred, and the time and labor involved. The plaintiff then offered in evidence an ordinance of the city, providing that the tenant, occupant, or abutting owner of land should, within twenty-four hours after a fall of snow, clear the sidewalks in front of his premises, under a certain penalty. This evidence was excluded. Held, that the plaintiff had no ground of exception.</p>

Contract, against James A. Parr and Jonathan Ladd, as copartners, doing business under the firm name of the Parr Manufacturing Company, on a promissory note signed in the firm name. Ladd alone defended. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows: Parr was not present at the trial. The plaintiff contended that Ladd was a member of the defendant company, and had held himself out as such.

<p>Contract for money lent by the plaintiff to Jeremiah Sullivan, the defendant’s intestate, on September 9, 1878, and November 17,1879. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows;</p> <p>Sullivan was seriously ill for several months prior to the time of the alleged first loan, but at that time had so far recovered that he went from Boston to Marlborough, a distance of thirty-eight miles, and remained a short time, but was, from the time of his illness, unable to engage in his usual business, that of section hand on a railroad, and did not thereafter, to the time of his death in August, 1882, engage in any business.</p> <p>The wife of a distant relative, but not an heir of Sullivan, testified that Sullivan resided at her house in Charlestown from some time in the year 1877 to the time of his death; that she was intimately acquainted with him; that after the trip to Marlborough he never went away from her house to remain over night; that she saw him several times daily; that he was usually around the house; that, on account of some trouble with his fingers, he was unable to write, and she did his writing, and wrote letters for him to the plaintiff, but nothing was said in the letters about any money transactions between them; and that she did not know at any time of any such money being received by Sullivan from the plaintiff. It appeared from the cross-examination of the plaintiff that he understood that Sullivan, at the time of the alleged loans, was worth property to the amount of about $4000.</p> <p>The plaintiff produced no note, memorandum, or account of any kind showing said loans; but testified that he made a charge of the loans in a book, which was then in the possession of his counsel.</p> <p>To show that it was improbable that the alleged loans were made, the defendant offered to prove that, at the dates of the alleged loans, Sullivan had in two savings banks over. $4000; and that, from the time of his illness, he drew from said banks sufficient money to pay all his expenses. But the judge excluded this evidence. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Contract, with a count in tort, to recover for the loss by fire of a building in Sharon, and certain personal property therein. Trial in the Superior Court, before Gardner, J., who reported the case for the determination of this court,- in substance as follows : The plaintiff was the owner of a large wooden building in Sharon, four stories in height, which was fitted for the manufacture of shoes.

Petition in equity, filed January 28, 1884, for the termination of a trust.

<p>In an action for personal injuries occasioned to a third person by the fall of a shed, owned by the defendant and used by A. with the consent of the defendant, A. testified that the defendant said he could not let the shed to him, but he might keep his things there if he would look after the premises till he heard from him again, and that he was to pay no rent and receive no compensation. The defendant testified that he told A. he could use the premises and take care of them, but need pay no rent, and make what repairs were necessary. Another witness testified that the defendant told A. that he could use the shed, he keeping it in shape for his occupancy such as he wanted. Held, that, whether A. was a tenant of the shed and bound to keep it in repair, so as to exonerate the defendant from liability for its fall, was a question for the jury.</p>

<p>An indictment, alleging the larceny from the person of “ divers promissory notes,” (intending to charge the larceny of bank-bills,) and of “ divers coins of the United States current as money in said Commonwealth,” with proper averments of value, ownership, and possession, is sufficient.</p>

<p>A motion to quash an indictment, “ because the same is uncertain, indefinite, and insufficient,” does not assign “ specifically the objections relied on,” within the Pub. Sts. c. 214, § 25.</p> <p>An indictment, alleging the larceny of “ divers promissory notes,” of a certain value, of the property of a person named, sufficiently charges the larceny of bank-bills.</p> <p>Under an indictment against two persons jointly for larceny, one only may be convicted.</p> <p>An indictment for the larceny of “ divers promissory notes ” is sustained by proof of stealing bank-bills.</p> <p>A. asked B. to bet money as to whether A. or C. would win in shaking dice on a counter. B. produced his money, placing part of it on the counter and keeping the other part in his hand, and bet that A. would be the winner. The dice were not shaken, but A. immediately seized the money, both that on the counter and that in B.’s hand, and ran away with it. Held, that A. was guilty of larceny, and not of fraudulently obtaining property by a game, under the Pub. Sts. c. 203, § 65.</p>

Complaint to the Municipal Court of Boston, under the Pub. Sts. c. 207, § 13, charging the defendant with keeping a house of ill-fame in Boston. In the Superior Court, before the jury were empanelled, the defendant, moved to quash the complaint, on the ground that the court had no jurisdiction, because the court to which the complaint was made had none. The judge overruled the motion; and the defendant thereupon pleaded guilty, and appealed to this court.

Complaint to the Third District Court of Eastern Middle-sex, in two counts, alleging that the defendant, on March 16 and 23, 1884, respectively, the same being the Lord’s day, at Cambridge, unlawfully sold intoxicating liquors to a person unknown, not having any license, appointment, or authority to make such sale.

Indictment for keeping and maintaining a common nuisance, to wit, a certain tenement in Cambridge, used for the illegal sale and illegal keeping of intoxicating liquors, on January 1, 1884, and on divers other days and times between that day and June 5, 1884.

<p>At the trial of a complaint for an unlawful sale of intoxicating liquors, evidence of other sales, made by the defendant on the same occasion as that charged in the complaint, is admissible.</p> <p>At the trial of a complaint against an innholder’s clerk, for an unlawful sale of intoxicating liquors, the judge instructed the jury, “ that, if the defendant was not in the room with the proprietor, and the door was locked between him and the proprietor, and the defendant took orders for intoxicating liquors and delivered the liquor to the party ordering it, and took pay therefor, it was a sale by the defendant.” Held, that the defendant had no ground of exception.</p>

<p>Complaint to the Third District Court of Eastern Middle-sex, for keeping and maintaining a common nuisance, to wit, a certain tenement in Cambridge, used for the illegal sale and illegal keeping of intoxicating liquors, on January 1, 1884, and on divers other days and times between that day and May 8, 1884. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The government introduced evidence tending to show that the defendant, on April 26, 1884, in his saloon in Cambridge, where he had a license of the first class to sell intoxicating liquors, sold to each of two minors a glass of lager beer, which was then and there drunk by him; and that, at the same place, on the same day and about the same time, a person in his employ, in his presence, sold a glass of whiskey to an intoxicated person, who then and there drank the same. The defendant, and two persons, who appeared to be the only persons in his employ on said day, testified, denying the fact of each of said sales; and the defendant further introduced evidence tending to show that he had a license as a common victualler at his said saloon.</p> <p>The defendant asked the judge to instruct the jury as follows: “ 1. If the defendant had a license to keep and sell intoxicating liquors during the entire period covered by the complaint, in the tenement mentioned, the verdict must be not guilty. 2. It is not enough to prove that the defendant had on one or two occasions sold intoxicating liquors illegally in a tenement in which he was licensed to sell, but it must be proved that the defendant kept and maintained the tenement, and used it for the illegal keeping or illegal sale of intoxicating liquors, to warrant a verdict of guilty. 3. If the defendant had a license to sell intoxicating liquors in the tenement mentioned in the complaint, he cannot be convicted of keeping a tenement used for the illegal keeping of intoxicating liquors during the time covered by the license. 4. If the defendant had a license to sell intoxicating liquors in the tenement mentioned in the complaint, he cannot be found guilty under this complaint for not complying with the terms of said license.”</p> <p>The judge declined to give these instructions; but instructed the jury that, if the premises mentioned in the complaint were in the defendant’s possession and control, and were used by him for any period of the time covered by the complaint for the illegal sale or illegal keeping of intoxicating liquors, or if he used the premises, having control of them, for the illegal keeping for sale of intoxicating liquors, and made only a single sale, or if he used the premises for the purpose of violating the conditions of his license, he was guilty; that it was not enough that a man intended to commit an offence, he must commit it; and that, if he kept liquors which he intended to sell contrary to law, though he did not sell, he was guilty.</p> <p>The jury returned a verdict of guilty; and the defendant-alleged exceptions.</p>

Complaint to the Third District Court of Eastern Middlesex, for keeping and maintaining a common nuisance, to wit, a certain tenement in Cambridge, used for the illegal sale and illegal keeping of intoxicating liquors, on January 1,1884, and on divers other days and times between that day and May 8, 1884.

<p>Indictment alleging that the defendant, on November 22, 1883, at Quincy, kept intoxicating liquors with intent to sell the same unlawfully in this Commonwealth. At the trial in the Superior Court, before Mason, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>At the trial of a complaint, charging F. with bringing into the town of S. certain intoxicating liquors, he “ having reasonable cause to believe that said liquors were intended to be sold in violation of law in said S.,” the evidence showed that some one carried on the express business between S. and B. under the name of “F.’s Express,” having an office in S. The government contended that F. was the proprietor, and, for the purpose of showing this, asked a witness what he had seen F. “ doing with reference to this place.” Held, that the question was competent.</p> <p>At tlie trial of a complaint for bringing into the town of S. certain intoxicating liquors, the defendant having reasonable cause to believe that the liquors were intended to be sold in S. in violation of law, it appeared that a constable of S. went to the defendant’s express office with a search-warrant; and that he found there a large quantity of intoxicating liquors in jugs and bottles. A barrel con taining the bottles and several of the jugs had a tag attached with the initials of a name and “ S.” on it in writing, and, in print, “ from ” a certain dealer in liquors in a city between which and S. the defendant’s express business was carried on. Another case of liquors was marked with the name of a person and “ S.” Other jugs and packages had no marks. Some of the jugs containing liquors were in locked boxes, and, when the officer asked the defendant for the keys, he replied that “he did not know anything about any keys." There was also evidence that the defendant had been seen at different times carrying jugs from the railroad depot to his express office. Held, that it could not be said, as matter of law, that the jury were not justified in finding the defendant guilty.</p>

<p>A complaint, alleging that F. kept certain intoxicating liquors in his express office in S., “which said liquors were brought into said town of S. by said 'P. in violation of the provisions of ” the Pub. Sts. c. 100, § 17, is uncertain and insufficient.</p>

Writ oe error, to reverse a judgment rendered for the Commonwealth, at January term, 1884, of the Superior Court for the county of Suffolk, for the transaction of criminal business, upon an indictment in five counts.

Complaint to the Second District Court of Eastern Middle-sex, for keeping and maintaining a common nuisance, to wit, a tenement in Watertown, used for the illegal sale and illegal keeping of intoxicating liquors, on June 20, 1884, and on divers other days and times between that day and July 19, 1884.

<p>At the trial of an indictment for keeping a common nuisance, to wit, a tenement used for the illegal sale and illegal keeping of intoxicating liquors, having no license'to keep such liquors for sale, if it appears that the defendant had such x license, and also a license as an innholder, it is competent to show that the defendant made sales of liquors on the Lord’s day, which were in violation of the conditions of his license unless made to guests who had resorted to the inn for food or lodging; and that he maintained curtains and' screens which interfered with a view of the interior of the premises.</p> <p>At the trial of an indictment for keeping a tenement used for the illegal sale and illegal keeping of intoxicating liquors, if the defendant has two licenses to sell such liquors, it is within the discretion of the presiding judge as to how far the government shall be required to specify what violations of the defendant’s licenses are to be relied upon before producing testimony.</p> <p>At the trial of an indictment for keeping a tenement used for the illegal sale and illegal keeping of intoxicating liquors, if the defendant, who is an innholder, has a license to sell such liquors, the questions to witnesses as to the kind of inn kept by the defendant, and the dress and appearance of those who were drinking on the occasion alleged, are admissible in the discretion of the presiding judge.</p> <p>At the trial of an indictment for keeping a tenement used for the illegal sale and illegal keeping of intoxicating liquors, if the defendant has a license to sell such liquors, and also a license as an innholder, he is not entitled to a ruling that, if he sold intoxicating liquors in good faith to one as a guest, he was not responsible.</p>

Tout. The declaration contained two counts, as follows : “ 1st count. And the plaintiS says the defendant has converted to his own use one pair of oxen (stags) and one sorrel horse, the property of the plaintiS. “ 2d count.

<p>A. and B. each held promissory notes signed by C. and indorsed by D. for C.'s accommodation. In pursuance of an arrangement agreed to by all the parties, C. executed to D. mortgages of real estate, conditioned to save D. harmless from all loss by reason of his signing or indorsing any notes for or on account of C. C. went into insolvency, and D., although not in insolvency, became in fact insolvent before the proceedings in insolvency were begun by C. A. offered the notes held by him for proof at the first meeting of the creditors of C., and they were allowed in full, against the objection of unsecured creditors; and A. voted on the proof and controlled the election of the assignee. B. did not offer his notes for proof, but petitioned the Court of Insolvency to have the property conveyed by the mortgages sold, and the proceeds of the sale applied to the payment of his notes; and that he might be admitted as a creditor for the balance of his debt. All parties consented that the petition might be granted. The mortgaged premises were sold pursuant to a decree of the court, and the proceeds of the sale were ordered to be applied in part payment of B.’s notes, and he was admitted to prove for the balance 'of his debt. A. thereupon filed a bill in equity under the Pub. Sts. c. 157, § 15, praying that the decree of the Court of Insolvency might be set aside, and that part of the proceeds of said sale might be ordered to be paid to A.; or, if he was not entitled to such part, that it might be paid over to the assignee for the benefit of the creditors generally. Held, that the decree of the Court of Insolvency should be so modified that A. and B. should share in said proceeds proportionately to the amount of the notes held by each; and that each should prove against the general assets for the residue of the notes.</p>

<p>Under the Pub. Sts. c. 13, §§ 8-19, the shares in a national bank, of stockholders who reside in a regularly organized fire district in the town in which the bank is located, cannot be subjected to a tax assessed for fire-district purposes.</p>

Bill in equity to compel the delivery to the plaintiff, for cancellation, of two instruments in writing executed by her, on the ground that they constituted an agreement between the plaintiff and the defendant, which was void for champerty and maintenance, and could not be upheld in equity.

<p>Tort for personal injuries occasioned to the plaintiff by falling upon ice accumulated on an uncovered piazza and steps belonging to the defendant. Trial in the Superior Court, before Pitman, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The defendant admitted that he was the owner of a certain block of five tenements in Holyoke, two stories in height, all occupied, and one of which was, at the time of the accident, January 13, 1883, and had been for about three years previously, occupied by the plaintiff, with her husband and family, as tenants at will of the defendant, paying rent monthly therefor; that there was a common uncovered stoop or back piazza, extending past the rear of said block, and annexed thereto, to Center Street, and back entrances connected with said piazza from each tenement. Two wooden steps at the end of the piazza led down to Center Street. The block was situated on the corner of Ely Street and Center Street, and a front passageway, down steps which were protected by a portico, connected each tenement with Ely Street. A rail was placed on the outer edge of the back piazza, extending as far as the stairs, and from thence to the street a picket fence extended. Three spouts conducted the water from the eaves at the back of the building, passing down to the sewer from the centre and at each end of the block, the conductor near Center Street being attached to the brick wall of the building and passing under the piazza close to the building. The defendant admitted that the back piazza and passageway to Center Street were for the use of all the tenants in common who might occupy said block.</p> <p>The plaintiff introduced evidence tending to prove that, on the morning of January 13, 1883, while passing across the back piazza to Center Street for yeast, she slipped and fell upon a ridge of ice which had accumulated near the spout, and was thrown or slipped down the stairs, where ice had also accumulated. The plaintiff testified that she knew ice had accumulated near the conductor, and that it had been there for several days previously to the accident; that the ice was caused by the water from the conductor, which ran out on to the platform, because of a broken place in the pipe, which was in plain view from the piazza; that at that time the ridge of ice was on the piazza and also on the steps, but the steps were not all covered with ice; that during the night it had snowed, and covered the ice; that, when she heard the bell of the yeast-man, she took a cup and a broom and started out of the back door for Center Street; that, while she was going along on the piazza, she struck this ridge of ice and fell; that, as she was going along, she was pushing the snow in front of her with one hand upon her broom and the other holding her cup; that, as she was going along, she looked towards the yeast-man; that she “ had not presence of mind to be thinking about ice,” but “ was thinking about yeast.”</p> <p>The plaintiff also introduced evidence tending to show that it was only in cold weather that any annoyance was caused, and that the water causing the ridge of ice came from a broken conductor, which the plaintiff testified was broken off two or two and a half feet above the piazza floor; that no piece was gone, but it was shoved to one side; that the break was in plain sight; that the defendant often passed by it; and that it had existed nearly a year. The plaintiff’s husband testified that the break was caused by the bursting of the conductor, and that a crack in the pipe extended in the direction of the pipe; that an accumulation of ice in the conductor caused the water to flow out when a thaw came, and run out on to the piazza, and was there freezing and thawing according to the changes in the weather. The plaintiff and her witnesses all testified that they had not made any complaint to the defendant, or any of his agents, in reference to any ice on the piazza, or in regard to any defect in the conductors. The plaintiff also introduced evidence that, at different times before the accident, ice had accumulated from the foot of the conductor in a ridge partly across the piazza, caused by the water flowing from said defect.</p> <p>The plaintiff testified that she paid the rent herself, sometimes to the defendant at his store, which was about ten minutes’ walk from the block, and that sometimes he had collected it at the tenement; that one of the defendant’s clerks lived in the block and used this.piazza; that he acted as agent of the defendant in making some.repairs in the different tenements, and collected the rent sometimes. All the other witnesses, except the plaintiff and her husband, testified that they had not noticed any defect in the conductor until the time of the accident.</p> <p>It was not disputed that the defendant left the city on January 10, 1883, and did not return until after the accident. He testified that he had no knowledge of any break in the pipe before the accident, and until his return; that he had no recollection of seeing ice on the stoop, but was unable to swear that he had not; and that he took charge of his block and looked out for it himself. It was admitted that no person had complained to the defendant about the alleged defect in the conductor, or had called his attention to the ice on the piazza.</p> <p>The case was submitted to the jury, under full instructions; and a verdict was returned for the plaintiff. If, upon the foregoing evidence, the action could be maintained, judgment was to be entered on the verdict; otherwise, a new trial to be ordered.</p>

<p>An officer attached all the goods in a store occupied by A., on a writ against him; and A. delivered the key of the store to the officer, who closed and locked it. A few days after the store was closed, A. and B. broke and entered it in the night-time, and were found there by the officer; and they refused to leave when requested by the officer, and resisted his attempt to expel them, claiming a right to remain there. The officer thereupon procured their arrest, and made a complaint against them for breaking and entering his store with intent to steal. A., who was the owner of the goods attached and the lessee of the store, and lived in a tenement over it, was known to the officer. B. was not known to the officer, but offered to him a writing as evidence of his right to be in the store. Held, in an action by A. and B. against the attaching officer for malicious prosecution, that the evidence would warrant a finding that the prosecution was without probable cause, and malicious.</p>

<p>If a wife releases dower in her husband’s land, at his request, in consideration of an oral agreement by him to convey to her other land, and he neglects to do so, and becomes insolvent, she cannot maintain a bill in equity against his assignees in insolvency to compel such conveyance, although he was solvent at the time he made the agreement, and the land which he agreed to convey was no more than a fair equivalent for the value of the dower released by her. Nor can the bill be maintained to compel the assignees to make reimbursement to her, for .the value of the dower, out of her husband’s estate.</p>

<p>An estate of homestead, under the St. of 1855, c. 238, does not exist in land held in common and undivided.</p> <p>While the St. of 1855, c. 238, was in force, a parcel of land was purchased by a firm with a view to its occupancy by one member as his home. Immediately after-the purchase, the amount was charged to this member on the books of the firm, and he took possession of it and occupied it. After the repeal of the St. of 1855, the other partner released his interest to the one in possession. Held, that no estate of homestead was acquired under the statute.</p>

Contract, against the archbishop of the diocese of Boston, for work done and materials found by the plaintiff in the erection of a Roman Catholic Church in East Cambridge, under a contract with one O’Brien, who was the parish priest. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

Action on the Gen. Sts. e. 137, by Daniel M. Chamberlain and Eliza C. Goodell, to recover a parcel of land in Southbridge. Writ dated November 19,1881.

<p>In an action by A., an accommodation indorser of promissory notes, against B. and C., as copartners under the name of B. & Co., to whose order the notes were payable, and by whom they were first indorsed, B. was defaulted; and the only question tried was whether C. was liable as a partner with him. A. testified that B., who procured A.’s indorsements on the notes, brought the notes to him with the indorsement of B. & Co. upon them; and that he had conversations with B. at such times; and offered to prove these conversations. This was excluded. A. then offered to show that B. told him in such conversations that C. was his partner in the firm of B. & Co.; but did not otherwise state the purpose for which he offered the evidence, nor what he expected to prove. Held, that the evidence was properly excluded.</p> <p>Upon the question whether a promissory note was indorsed for the benefit of a certain person, evidence that he received the proceeds of the note is competent.</p> <p>In an action by the second indorser of promissory notes against the members of a firm, to whose order the notes were payable, and by whom they were first indorsed, it appeared that the defendants had been members of the firm, but had retired before the notes in suit were made; and that no notice of the dissolution of the firm was given. The plaintiff testified that he knew the members of the firm when the defendants belonged to it. The evidence left it in doubt whether the plaintiff began to indorse for the firm before or after the dissolution. There was conflicting evidence whether the plaintiff had actual notice of the dissolution, and there were many circumstances in evidence bearing upon the question of notice to him. In his charge, the judge gave instructions in regard to notice, which were satisfactory to the plaintiff, applicable to persons who had dealt with the firm before dissolution, or had known the names of the partners. After the charge had been given, the plaintiff asked for certain instructions as to the notice necessary in the case of a person who had known of the firm before the dissolution, and who composed it, but had had no dealings with it. The judge declined to add to the instructions before given. Held, that the plaintiff had no ground of exception.</p>

<p>While cl. 6 of the Rev. Sts. c. 61, § 1, was in force, a person died intestate, and seised of land, leaving a widow and six children, of whom three, A., B., and C., died during their minority, and without having been married. Held, that, on the death of B. and C., the widow was entitled to share equally with the surviving children in all that part of the estate of B. and C. which they did not derive directly from their father.</p>

<p>If a petition for a writ of certiorari to be issued to a city council is reserved by a single justice of this court for the consideration of the full court, upon the petition and answer, and the report of certain evidence, the allegations of the answer in matters of fact are to be taken as true except so far as they are controlled by the evidence reported.</p> <p>The city ordinance of Worcester, c. 9, § 3, requiring the commissioner of highways to make a full and accurate estimate of the expense of proposed work, and of damages to abutters or others, and to make plans and report them with his estimates to the city council, is merely directory; and his failure to do so is no ground for quashing an assessment laid upon an owner of a lot of land for constructing a sidewalk in front of his land.</p> <p>An assessment upon the owner of a lot of land, for building a sidewalk in front of such lot, is not necessarily unjust and disproportionate because the amount by the linear foot is greater than the amount assessed at the same rate upon an adjoining lot.</p> <p>The city council of Worcester, having accepted the St. of 1869, c. 390, passed an ordinance, providing that, when any sidewalk should be established, the commissioner of highways should grade the same, set the curbstones, pave the gutters, and construct the sidewalk, and the city council should assess upon the owners of the several estates abutting thereon “ their just and proportionate part of the expense of paving said walk;” and that the expense of constructing any sidewalk should be assessed upon the abutters, but no part of the expense of grading the street, setting the curbstones, or paving the gutters should be so assessed, but should be paid for by the city. Held, that the expense of grading a sidewalk so as to conform to the already established grade of the street could not be included in the assessment. Held, also, that the words “gutters and curbstones ” in the ordinance referred to the gutters and curbstones lying between the sidewalk and the part of the street devoted to carriage travel.</p>

<p>Tort for personal injuries occasioned to the plaintiff by a defect in a highway in the defendant city. Trial in the Superior Court, before Gardner, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It appeared in evidence, that the plaintiff, at the time of the injury complained of, February 23, 1882, was riding in a northerly direction on Main Street in the defendant city, and, in turning therefrom into a place or way called French’s Court, leading westerly from Main Street, (which court, place, or way had existed for a period of forty-five or fifty years, and had been known to the plaintiff and frequently used by him for twenty or more years in visiting his brother, who lived on the corner of said place or way and Main Street,) his sleigh came in contact with an alleged defect in Main Street, caused by the cutting of a water-course through the snow and ice in the gutter by the side of the street, and he was thrown out and received the alleged injury.</p> <p>There was a.n increase of water on Main Street, caused by a private way some distance from the place of the accident, which had within two years previously to the accident been opened into Main Street.</p> <p>There was evidence that, at the place where the injury was received, Main Street, between the limits of location, was fifty-six feet wide; that the sidewalk on the westerly side thereof was fourteen and two tenths feet wide, and was covered with concrete; that the distance from the line of the curbstone of said sidewalk to the westerly side of the horse-car track on Main Street was twelve and four tenths feet; and that no part of Main Street was paved, except a space about three feet by the side of the street. The plaintiff contended that the space between the curbstones of the sidewalk upon the easterly and westerly sides of • Main Street was wholly wrought for public travel close up to the curbstones. The defendant contended that the space by the curbstones was hollowed out and paved as a gutter or water channel to carry off the water, and had not been wrought for public travel. Upon these separate claims the evidence was conflicting.</p> <p>There was also evidence tending to prove that the place of the defect was in the paved gutter or water channel of Main Street, which gutter or water channel was about three feet wide, and was easterly of and contiguous to the curbstone of the walk on the westerly side of Main Street; and that the curbing of the sidewalk was discontinued across the entrance to said court, place, or way.</p> <p>The plaintiff offered further evidence tending to show that said court was a public way by prescription; and also evidence, which was uncontroverted, that, prior to the accident, no sign or warning had been put up by the town or city to warn the public that said court was not a public way, but that subsequently to the accident the mayor of the defendant city caused to be put up a sign which read, “ Not a public way.”</p> <p>It further appeared, that no one claimed to have a right to close up said court, although one French, the owner of the land over which the right of way existed, testified that the title to the court was in himself.</p> <p>The judge, among other things, instructed the jury as follows: “ If the alleged defect rendered Main Street unsafe, and thereby caused the injury complained of, the defendant city would be liable. If the plaintiff sustained injury by crossing Main Street, for the purpose of entering upon a private way, and his injury was occasioned by a defect within the limits of Main Street, but without the road or street appropriated and used for public travel, the plaintiff cannot recover, provided the defect furnished no ground of complaint against the city in reference to the public travel on Main Street. If the jury find that the alleged defect was within the limits of Main Street, as located, and within that portion of said street used for travel to and from a private way leading to French’s house, but not within that part of Main Street worked for and used and open to travel, they must find for the defendant.”</p> <p>The jury, after having been sent out, returned into court for instructions, and asked whether the fact that no sign or warning had been put up in French’s Court by the defendant had anything to do with the liability of the city; to which the judge replied, “ No, it has nothing to do with the case, as it is not contended that the injury to the plaintiff occurred within the court or place; ” to which the plaintiff excepted.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Tort. The declaration was as follows: “ And the plaintiff says that the defendant, in the year 1861, was the duly qualified administrator of the estate of Joseph Pierce, deceased; that he falsely and fraudulently represented to the plaintiff that, as said administrator, he was lawfully authorized, licensed, and empowered by the Probate Court of said county to sell the real estate of said deceased; that by the defendant’s said false representation, and fraudulent concealment…

<p>Under the provision in a policy of insurance against loss by fire, in the form prescribed by the Pub. Sts. c. 119, § 139, that, if any difference of opinion shall arise as to the amount of the loss, it is mutually agreed that the loss shall be referred to arbitrators to be chosen, whose decision shall be final, such agreement to refer the loss to arbitration is not a condition precedent to the right of the assured to bring an action upon the policy.</p> <p>In an action upon a policy of insurance against loss by fire on a building used as a manufactory, two witnesses, who were manufacturers and familiar with the plaintiff’s factory before the fire, were allowed to testify, in behalf of the plaintiff, to the value of the property burned. Held, that the defendant had no ground of exception.</p>

Writ of entry, dated February 15, 1883, to recover a parcel of land in Attleborough. Plea, mil disseisin.

<p>A. deposited a sum of money in a savings bank in the name of B., in whose name the pass-book, which A. kept in his possession, was issued, and the following condition was annexed: “ Interest to be paid on order of A. Principal to be drawn by B. after decease of A.” A. never had any communication with B. in regard to the matter, and B. did not know of the deposit until after the death of A. The by-laws of the bank provided that money deposited should only be drawn out by the depositor or some person by him legally authorized, and that no payment should be made to any person without the production of the pass-book; and that any depositor might designate, at the time of making the deposit, the period for which he desired the same should remain, and the person for whose benefit it was made, and should be bound by such condition annexed to his deposit. Held, in an action by the executor of A.’s will against the bank for the amount of the deposit, in which action B. intervened as a claimant of the fund, under the Pub. Sts. c. 116, § 31, that there was not a perfected gift of the fund to B.; and that the executor was entitled to it.</p>

<p>A. and.B. owned a building erected on land of C. A. took, in bis own name, a written lease of the land from C. The lease expired, the occupation continued, the rent was increased, and A. continued to pay the rent as he had done previously, by giving his promissory notes therefor. A., becoming unable to pay his debts in full, compromised with C. by paying a certain sum on the dollar, and received a discharge. A. then sought, in an action against B., to recover B.’s share of the full amount of the rent due at the time of the compromise. Held, that B. was liable only for his share of the reduced sum paid by A. to C.</p> <p>If a case is submitted to the Superior Court or to this court on agreed facts, inferences of fact cannot be drawn by the court, unless, as matter of law, they are necessary inferences.</p>

<p>Replevin of certain personal property mortgaged to the plaintiff, and attached by the defendant, a deputy sheriff, while in the possession of the mortgagor. After the former decision, reported 134 Mass. 347, judgment was entered by consent for the plaintiff in the Superior Court; and the case was thereupon heard on the question of damages only, before Staples, J., without a jury. The judge assessed damages for the plaintiff in the sum of $359.50, for which judgment was entered; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Petition for a writ of certiorari to quash proceedings of the respondent, in laying out an extension of Pleasant Street in New Bedford. Hearing before Colburn, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

L. Gifford and Company. Trial in the Superior Court, without a jury, before Brigham,, C. J., who allowed a bill of exceptions, in substance as follows: The insolvent firm was composed of W. L. Gifford and Willard F. Woodward. The claim in question, which was for a sum of money lent in 1882 to Woodward by the appellant, who was his wife, from her own earnings, and used in the partnership business, had been allowed against the private estate of Woodward.

<p>If an oral agreement is entered into during a conversation between A. and C., which is identical in terms with a written contract previously executed by A. and B., the predecessor of C. in business, and the written contract is vague or obscure in its meaning, it is competent to show, from statements made by the parties to each other, what both parties understood it to mean, and also to show what it had been actually interpreted to mean by the original parties in their dealings under it, for the purpose of proving what the parties meant in making the oral contract, even if the evidence would have been incompetent had the new contract been in writing.</p> <p>No exception lies to the admission of immaterial evidence on the cross-examination of a witness.</p> <p>No exception lies to the admission of incompetent evidence, if the fact which it tends to prove is conceded.</p> <p>In an action upon an agreement, by the terms of which the plaintiff agreed to give his undivided influence in favor of the machinery manufactured by the defendant, who agreed to pay the plaintiff a commission on all sales made and machinery furnished to parties in a certain city, it appeared that the plaintiff was a director in two mill corporations in that city, to which machinery had been sold by the defendant; that on the sales of this machinery to one of these mills he had received commissions, and on the sales to the other he claimed commissions in this action; and that he did not disclose to his associates that he was receiving commissions on these sales of machinery by the defendant. The judge instructed the jury, that they had “a right to consider the commercial morality of such conduct as affecting the plaintiff's veracity or truthfulness as a witness.” Held, that the plaintiff had no ground of exception.</p>

Tort, for personal injuries occasioned to the plaintiff by a defect in a concrete crossing in the defendant city.

<p>The St. of 1884, c-320, providing for the appointment of commissioners to make rules for the selection of persons to fill offices in the government of the Commonwealth and of the several cities thereof, which are required to be filled by-appointment, and for the selection of persons to he employed as laborers or otherwise in the service of the Commonwealth, and of the several cities thereof, and to supervise the administration of such rules, is constitutional; and the Legislature may provide a penalty for the violation of such rules; and may give them a general or limited application.</p>